Budget Implementation Act, 2023, No. 1 (S.C. 2023, c. 26)
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Assented to 2023-06-22
PART 4Various Measures (continued)
DIVISION 38Employment Insurance Board of Appeal (continued)
2005, c. 34; 2013, c. 40, s. 205Department of Employment and Social Development Act (continued)
634 The Act is amended by adding the following after section 43.1:
Appeal to Board of Appeal
Marginal note:Appeal — time limit
43.11 (1) An appeal of a decision made under section 112 of the Employment Insurance Act must be brought to the Board of Appeal in the prescribed form and manner and within 30 days after the day on which the decision is communicated to the appellant.
Marginal note:Extension
(2) The Board of Appeal may allow further time within which an appeal is to be brought, but in no case may an appeal be brought more than one year after the day on which the decision is communicated to the appellant.
Marginal note:Decision in writing
(3) The Board of Appeal must give a decision made under subsection (2) in writing and a copy of the decision must be sent to the appellant, the Commission and any other party.
Marginal note:Constitutional questions
43.12 The Board of Appeal may not consider any question of constitutional law.
Marginal note:Decision
43.13 (1) The Board of Appeal may dismiss the appeal or confirm, rescind or vary a decision of the Commission in whole or in part or give the decision that the Commission should have given.
Marginal note:Decision in writing with reasons
(2) The Board of Appeal must give a decision made under subsection (1) in writing, with reasons, and send copies of the decision and reasons to the appellant, the Commission and any other party.
Marginal note:Time limits
43.14 The Executive Head may, in any particular case for special reasons, extend the time within which the Board of Appeal is required by regulation to make a decision under subsection 43.13(1).
Marginal note:Expenses and allowances
43.15 Any party who is required to attend a hearing may, if the Executive Head considers it warranted in any particular case for any reasons provided for in the regulations, be reimbursed for their travel or living expenses up to the amounts determined by the Treasury Board, or be paid any allowance, including compensation for lost remuneration, in accordance with the rates fixed by the Treasury Board.
Marginal note:Appeal — region
43.16 (1) An appeal is to be heard in the appellant’s region, except in the circumstances provided for in the regulations.
Marginal note:Appeal — persons present
(2) An appeal is to be heard in the presence of the parties or their counsel or agents, except in the circumstances provided for in the regulations.
Marginal note:Hearings in private
(3) All or part of a Board of Appeal hearing may be held in private in the circumstances provided for in the regulations.
Marginal note:Representation of party
43.17 A party may, at their own expense, be represented by a representative of their choice.
Marginal note:Powers of Board of Appeal
43.18 (1) Subject to section 43.12, the Board of Appeal may decide any question of law or fact that is necessary for the disposition of any application made or appeal brought under this Act.
Marginal note:Employment Insurance Act
(2) If a question specified in section 90 of the Employment Insurance Act arises in the consideration of an application or in an appeal, it must be determined by an authorized officer of the Canada Revenue Agency, as provided by that section.
Marginal note:Abandonment of appeals
43.19 (1) The Board of Appeal may determine that an appeal before it has been abandoned if it has failed to contact the appellant despite reasonable efforts having been made to do so or if the appellant fails to communicate with it on being requested to do so.
Marginal note:Reopening abandoned appeals
(2) The Board of Appeal, on application, may reopen an appeal it has determined to be abandoned if it is satisfied that
(a) in making the determination, it failed to observe a principle of natural justice; or
(b) the appellant’s failure to communicate with it was due to circumstances beyond the appellant’s control and the application was made within 30 days after the day on which those circumstances were resolved.
Marginal note:Decision in writing
(3) The Board of Appeal must give a decision made under subsection (1) or (2) in writing and a copy of the decision must be sent to the appellant, the Commission and any other party.
635 Subsection 44(2) of the Act is repealed.
636 Subsection 45(2) of the Act is replaced by the following:
Marginal note:Chairperson and Vice-chairpersons
(2) The Governor in Council designates one of the full-time members to hold office as the Chairperson and two full-time members to hold office as Vice-chairpersons, one of whom is responsible for the Appeal Division and one of whom is responsible for the General Division.
637 Subsections 46(2) and (3) of the Act are replaced by the following:
Marginal note:Members
(2) Each member exercises any powers and performs any duties and functions that the Vice-chairperson who is responsible for the Division for which they hear matters may assign.
Marginal note:Assignment
(3) The Chairperson may assign members to hear matters in the Appeal Division or the General Division.
638 Section 47 of the Act is repealed.
639 Subsection 51(2) of the Act is replaced by the following:
Marginal note:Absence — other
(2) If subsection (1) does not apply owing to the absence or incapacity of the Vice-chairperson of the Appeal Division, or if the office of Vice-chairperson of the Appeal Division is vacant, the Minister may authorize the Vice-chairperson of the General Division to act as Chairperson and that Vice-chairperson may exercise all the powers and perform all the duties and functions of the Chairperson.
640 The heading “Organization of Tribunal” before section 52 of the Act is repealed.
641 Subsection 52(1) of the Act is replaced by the following:
Marginal note:Appeal — time limit
52 (1) An appeal of a decision must be brought to the General Division in the prescribed form and manner and within 90 days after the day on which the decision is communicated to the appellant.
642 Section 54 of the Act is replaced by the following:
Marginal note:Decision
54 (1) The General Division may dismiss the appeal or confirm, rescind or vary a decision of the Minister in whole or in part or give the decision that the Minister should have given.
Marginal note:Reasons
(2) The General Division may give a decision orally or in writing and must give reasons. Copies of the decision and reasons, written or, in the case of an oral decision and reasons, reduced to writing, must be sent to the appellant, the Minister and any other party.
643 The heading before section 55 of the Act is replaced by the following:
Appeal to Tribunal — Appeal Division
Decisions of Board of Appeal
644 The Act is amended by adding the following before section 55:
Marginal note:Appeal
54.1 Any decision of the Board of Appeal may be appealed to the Appeal Division by any person who is the subject of the decision and any other prescribed person.
Marginal note:Appeal — time limit
54.2 (1) The appeal must be brought to the Appeal Division in the prescribed form and manner and within 30 days after the day on which the decision and reasons are communicated in writing to the appellant.
Marginal note:Extension
(2) The Appeal Division may allow further time within which an appeal is to be brought, but in no case may an appeal be brought more than one year after the day on which the decision and reasons are communicated in writing to the appellant.
Marginal note:Grounds of appeal
54.3 The only grounds of appeal of a decision made by the Board of Appeal are that
(a) the Board of Appeal failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the Board of Appeal erred in law in making its decision, whether or not the error appears on the face of the record;
(c) the Board of Appeal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; or
(d) a question of constitutional law remains to be determined.
Marginal note:New evidence — constitutional questions
54.4 If an appeal to the Appeal Division of a decision of the Board of Appeal is in respect of a question of constitutional law, the Appeal Division may hear new evidence in relation to the question.
Marginal note:Decision
54.5 (1) The Appeal Division may dismiss the appeal, give the decision that the Board of Appeal should have given, refer the matter back to the Board of Appeal for reconsideration in accordance with any directions that the Appeal Division considers appropriate or confirm, rescind or vary the decision of the Board of Appeal in whole or in part. The Appeal Division may make a decision on a question of constitutional law.
Marginal note:Reasons
(2) The Appeal Division must give its decision in writing, with reasons, and send copies of the decision and reasons to the appellant and any other party.
Decisions of General Division
645 Sections 56 and 57 of the Act are replaced by the following:
Marginal note:Leave
56 An appeal to the Appeal Division of a decision made by the Income Security Section may only be brought if leave to appeal is granted.
Marginal note:Appeal — Employment Insurance Section
57 (1) An appeal of a decision made by the Employment Insurance Section must be brought to the Appeal Division in the prescribed form and manner and within 30 days after the day on which the decision and reasons are communicated in writing to the appellant.
Marginal note:Appeal — Income Security Section
(1.1) An application for leave to appeal a decision made by the Income Security Section must be made to the Appeal Division in the prescribed form and manner and within 90 days after the day on which the decision and reasons are communicated in writing to the appellant.
Marginal note:Extension
(2) The Appeal Division may allow further time within which an appeal is to be brought or an application for leave to appeal is to be made, but in no case may an appeal be brought or an application be made more than one year after the day on which the decision and reasons are communicated in writing to the appellant.
646 Sections 56 and 57 of the Act are replaced by the following:
Marginal note:Leave
56 An appeal to the Appeal Division of a decision made by the General Division may only be brought if leave to appeal is granted.
Marginal note:Appeal — General Division
57 (1) An application for leave to appeal a decision made by the General Division must be made to the Appeal Division in the prescribed form and manner and within 90 days after the day on which the decision and reasons are communicated in writing to the appellant.
Marginal note:Extension
(2) The Appeal Division may allow further time within which an application for leave to appeal is to be made, but in no case may an application be made more than one year after the day on which the decision and reasons are communicated in writing to the appellant.
647 (1) Subsection 58(1) of the Act is repealed.
(2) Subsection 58(2) of the Act is repealed.
648 Section 58.1 of the Act is replaced by the following:
Marginal note:Leave to appeal — General Division
58.1 Leave to appeal a decision made by the General Division is to be granted if the application for leave to appeal
(a) raises an arguable case that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) raises an arguable case that the General Division erred in law, in fact or in mixed law and fact, in making its decision; or
(c) sets out evidence that was not presented to the General Division.
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