Employment Insurance Board of Appeal Regulations: SOR/2025-74

Canada Gazette, Part II, Volume 159, Number 7

Registration
SOR/2025-74 March 6, 2025

DEPARTMENT OF EMPLOYMENT AND SOCIAL DEVELOPMENT ACT
EMPLOYMENT INSURANCE ACT

P.C. 2025-277 March 5, 2025

The Canada Employment Insurance Commission makes the annexed Employment Insurance Board of Appeal Regulations under section 68.2^{footnote a} of the Department of Employment and Social Development Act ^{footnote b} and paragraph 114(2)(b)^{footnote c} of the Employment Insurance Act ^{footnote d}.

Ottawa, February 21, 2025

Her Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development, under section 68.2^{footnote a} of the Department of Employment and Social Development Act ^{footnote b} and paragraph 114(2)(b)^{footnote c} of the Employment Insurance Act ^{footnote d}, approves the annexed Employment Insurance Board of Appeal Regulations made by the Canada Employment Insurance Commission.

Employment Insurance Board of Appeal Regulations

Interpretation

Definitions

1 The following definitions apply in these Regulations.

Act: means the Department of Employment and Social Development Act. (Loi)
appellant: means any person who is the subject of a reconsideration decision of the Commission, or the employer of the claimant who is the subject of such a decision, who appeals that decision under section 113 of the Employment Insurance Act. (appelant)
claimant: has the same meaning as in subsection 2(1) of the Employment Insurance Act. (prestataire)
employer: has the same meaning as in subsection 2(1) of the Employment Insurance Act. (employeur)
party: means an appellant, the Commission or any person added to the appeal under section 16. (partie)
reconsideration decision: means a decision made by the Commission under section 112 of the Employment Insurance Act, including a decision in relation to further time to make a reconsideration request. (décision de révision)

General principle

2 These Regulations must be interpreted and applied in a manner that ensures that the appeal process is as simple and efficient as the principles of natural justice allow.

General Provisions

Application

3 These Regulations apply to appeals made under section 113 of the Employment Insurance Act.

Matters not covered by Regulations

4 The procedure applicable to any matter that arises in the context of an appeal that is not covered by these Regulations must be determined by the Board of Appeal by analogy to these Regulations, to the extent that the principles of natural justice allow.

Participation of parties in appeal process

5 Parties are required to comply with the Board of Appeal’s directions, to respect its deadlines and to communicate with it as required.

Communications

6 (1) Unless otherwise specified in these Regulations, communications between the Board of Appeal and parties, other than the filing of documents, can be done by mail, courier, telephone or electronic means.

Contact information on file

(2) The Board of Appeal must use the contact information in the appeal record when it contacts or sends documents to a party.

Changes to contact information

(3) Parties must notify the Board of Appeal of any changes to their contact information as soon as feasible.

Failure to contact party

(4) To the extent that the principles of natural justice allow, the Board of Appeal may continue the appeal process without providing further notice to a party if it fails to contact them using the contact information provided.

Language of appeal

7 An appellant must choose to have the appeal heard in English or French, and any other party may participate in the appeal in the official language of their choice.

Interpretation services

8 (1) The Board of Appeal must provide, to the extent possible, interpretation services for a hearing if requested by a party.

Request

(2) A party who makes such a request must do so in writing as soon as feasible.

External interpretation services

(3) A party may be accompanied, at their own expense, by their own interpreter.

Accommodation measures

9 A party who has made a request for accommodation must, to the extent possible, be accommodated by the Board of Appeal so that they may fully participate in the appeal.

Reimbursement and compensation

10 For the purposes of section 43.15 of the Act, any party other than the Commission may be reimbursed for their expenses or receive an allowance under that section if

(a) the party must travel in excess of 100 km from the postal address in the appeal record to reach the hearing location; and
(b) a request is made by the party in writing and is approved by the Executive Head of the Board of Appeal before the hearing date.

Members of the Board of Appeal

Members assigned to regions

11 For the purposes of subsection 43.04(5) of the Act, the regions to which members of the Board of Appeal are to be assigned are those that are listed in column 2 of the schedule to these Regulations.

Quorum

12 (1) The quorum of a panel referred to in subsection 43.05(1) of the Act is two members, one of whom is the presiding member.

Absence of member

(2) A hearing may take place in the absence of a member of the panel who becomes unable to act if the quorum is maintained and if consent is provided by the appellant and any person added to the appeal under section 16.

Casting vote

(3) The presiding member has a casting vote in a decision made in the circumstances described in subsection (2).

Appeal to the Board of Appeal

Notice of appeal

13 (1) To appeal a reconsideration decision, an appellant may file a notice of appeal with the Board of Appeal

(a) in person, at a Service Canada office;
(b) by mail or courier, using the postal address set out on the Board of Appeal’s website; or
(c) electronically, using the electronic filing procedure set out on the Board of Appeal’s website.

Claimant

(2) A notice of appeal filed by a claimant must include

(a) their full name, postal address and, if applicable, telephone number and email address; and
(b) their social insurance number or the identifying number indicated on the reconsideration decision being appealed.

Employer

(3) A notice of appeal filed by an employer must include

(a) the full name, postal address and, if applicable, telephone number and email address of the contact person for their business;
(b) the business name;
(c) the business number assigned to them by the Canada Revenue Agency; and
(d) the identifying number indicated on the reconsideration decision being appealed.

Presumed date of filing notice of appeal

(4) A notice of appeal is presumed to be filed

(a) if filed in person, on the date indicated by the date received stamp applied to the document by Service Canada;
(b) if filed by ordinary mail, on the date indicated by the date received stamp applied to the document by the Board of Appeal;
(c) if filed by registered mail or courier, on the date recorded on the delivery confirmation receipt; or
(d) if filed electronically, on the date and at the time indicated by the Board of Appeal’s electronic system.

Confirming receipt of the notice of appeal

(5) The Board of Appeal must notify the appellant as soon as feasible after it receives their notice of appeal.

Notifying the Commission

14 The Board of Appeal must notify the Commission as soon as feasible after receiving a notice of appeal.

Documents to be filed by Commission

15 Within seven business days after the day on which the Commission is notified of the notice of appeal, or within any additional time granted by the Board of Appeal, the Commission must file the following with the Board of Appeal:

(a) a copy of the request for reconsideration made under section 112 of the Employment Insurance Act;
(b) a copy of the reconsideration decision being appealed;
(c) a document that sets out its arguments, if any; and
(d) all other relevant documents in its possession.

Added parties

16 (1) When a notice of appeal is received by the Board of Appeal, it must add the following persons to the appeal and notify them:

(a) any claimant who has a direct interest in the reconsideration decision, if the appellant is an employer; and
(b) any employer, if they were notified by the Commission of the reconsideration decision being appealed.

Other parties

(2) The Board of Appeal may, on its own initiative or on request, add any other employer to an appeal.

Late appeal

17 (1) An appellant who files a notice of appeal after the period prescribed in subsection 43.11(1) of the Act must provide reasons for the late notice.

Additional information

(2) The regional coordinator of the Board of Appeal may ask the appellant to provide any additional information about their notice of appeal.

Added parties

(3) If a notice of appeal filed under subsection (1) is accepted, the Board of Appeal

(a) must add the persons referred to in subsection 16(1) to the appeal;
(b) may add an employer referred to in subsection 16(2) to the appeal; and
(c) must notify any person who is added to the appeal.

Joining appeals

18 The Board of Appeal may join two or more appeals together if

(a) the appeals raise a common question; and
(b) joining the appeals is not unfair to the parties.

Single notice of appeal

19 (1) A single notice of appeal may be filed on behalf of a group of appellants if the appeal involves a common question that the Commission has dealt with in a reconsideration decision that has been made with respect to each of the appellants.

Content

(2) The notice of appeal must

(a) indicate a single reconsideration decision to be the subject of the appeal, the outcome of which will be binding on all parties;
(b) indicate the representative of the group of appellants; and
(c) be accompanied by a document that contains
- (i) each appellant’s full name, social insurance number and identification number of their reconsideration decision, and
- (ii) each appellant’s signed consent to be part of the group.

Written arguments

20 Any party who wishes to file written arguments with the Board of Appeal must do so before the scheduled hearing date.

Late filing of evidence

21 The Board of Appeal must not consider any evidence filed after the hearing unless

(a) it requests that the evidence be filed; or
(b) a party requests it at the hearing and the Board of Appeal accepts that request and sets a date for the filing of the evidence.

Information from Commission

22 At any time before the Board of Appeal gives a decision on the appeal, the panel may seek additional information relevant to the appeal from the Commission.

Documents

How to file documents

23 (1) A party who files any document with the Board of Appeal that is required to be filed under the Act, other than a notice of appeal, or any document in support of their position must do so

(a) by mail or courier, using the postal address set out on the Board of Appeal’s website; or
(b) electronically, using the electronic filing procedure set out on the Board of Appeal’s website.

Presumed date of filing

(2) Any document filed with the Board of Appeal under subsection (1) is presumed to be filed

(a) if filed by ordinary mail, on the date indicated by the date received stamp applied to the document by the Board of Appeal;
(b) if filed by registered mail or courier, on the date recorded on the delivery confirmation receipt; and
(c) if filed electronically, on the date and at the time indicated by the Board of Appeal’s electronic system.

Filing and sending documents

24 (1) The Board of Appeal must add any document filed with it by a party to the appeal record and send a copy of it to the other parties to the appeal as soon as feasible unless it is a duplicate of a document previously filed and sent.

Presumed date of reception of documents

(2) A party is presumed to have received any document sent by the Board of Appeal under subsection (1) if the document is

(a) sent by ordinary mail, on the 10th day after the day on which it is mailed;
(b) sent by registered mail or courier, on the date recorded on the delivery confirmation receipt; or
(c) sent electronically, on the business day following the day on which the document was sent.

Electronic documents

25 (1) Any electronic document filed with or produced by the Board of Appeal is considered to be the original version of the document.

Making, providing and certifying copies

(2) The Board of Appeal may, with regard to any document that is filed with it, do any of the following:

(a) make an electronic copy that becomes the original document;
(b) provide an electronic copy;
(c) certify an electronic copy as a true copy.

Documents not in English or French

26 (1) A party who files a document with the Board of Appeal that is not in English or French must

(a) have the document translated into English or French; and
(b) file the translated document with the original document.

Information to be filed with the translation

(2) The following information must be filed with the translated document:

(a) the translator’s full name, postal address and, if applicable, their telephone number and email address; and
(b) a statement from the translator that the translation is accurate.

Request for translation of documents

27 (1) If the Commission files a document with the Board of Appeal that is not in a party’s chosen language for the appeal and that did not originate from that party, that party may request the Board of Appeal to provide them with a translation of the document in that language.

Commission to file translated documents

(2) After a request is made under subsection (1), the Commission must have the document translated and file the translated document with the Board of Appeal.

Hearing

Notice of hearing

28 The Board of Appeal must send a notice of hearing to all the parties

(a) if a notice of appeal is filed within the period prescribed in subsection 43.11(1) of the Act, as soon as feasible after receiving the documents referred to in section 15; and
(b) if a notice of appeal is filed after that period and if the Board of Appeal decides to hear the appeal, as soon as feasible after making that decision.

Region of appellant for hearing

29 (1) For the purposes of subsection 43.16(1) of the Act, an appeal is to be heard in the most suitable region listed in column 2 of the schedule to these Regulations, based on the appellant’s postal address in the appeal record.

Other region for hearing

(2) However, the Executive Head of the Board of Appeal may authorize that an appeal be heard in a region other than the region referred to in subsection (1) in any of the following circumstances:

(a) the appeal would not be heard in a timely manner if heard in the region referred to in subsection (1);
(b) hearing the appeal in a different region would facilitate travel of the parties;
(c) there is no panel available to hear the appeal in the region referred to in subsection (1);
(d) the appeal deals with a common question that involves appellants who are located, based on their postal addresses in the appeal record, in different regions;
(e) the appellant requests it;
(f) circumstances other than those included in paragraphs (a) to (e) require the appeal to be heard in a different region to ensure the operational efficiency of the Board of Appeal.

Format of hearing

30 (1) For the purposes of subsection 43.16(2) of the Act, an appeal is to be heard as follows:

(a) if the appellant requests that the hearing be held in person,
- (i) the appellant is to be heard in person by the panel,
- (ii) the other parties may
  - (A) attend in person, at their own expense,
  - (B) participate by videoconference or teleconference, or
  - (C) elect not to attend; and
(b) if the appellant requests that the hearing be held by videoconference or teleconference, does not wish to attend or be present at the hearing or fails to select a preferred hearing format and cannot be reached in this respect, the parties may
- (i) participate by videoconference or teleconference, or
- (ii) elect not to attend.

Special circumstances

(2) Despite subsection (1), if the Board of Appeal determines that an in-person hearing would raise security or health concerns that cannot be prevented or mitigated or would be impractical for operational reasons, the Executive Head of the Board of Appeal may change the format of the hearing and the parties may

(a) participate by videoconference or by teleconference; or
(b) elect not to attend.

Absence of party

(3) The Board of Appeal may decide to hold a hearing in the absence of a party who was duly notified of the date, time and format of the hearing and who, without prior notice, fails to appear.

No hearing

(4) If the Commission and the appellant are the only parties to the appeal and the Commission concedes the appeal, the Board of Appeal may give a decision based on the appeal record without holding a hearing.

Private hearing

31 For the purposes of subsection 43.16(3) of the Act, the Board of Appeal may, on its own initiative or on request, hold all or part of a hearing in private if it determines that there are no alternative measures that can prevent or mitigate any of the following serious risks that could result from a public hearing:

(a) a serious risk that the disclosure of personal information, such as medical information, would cause undue hardship to a person that outweighs the societal interest that the hearing and appeal record be public;
(b) a serious risk to the life, liberty or security of a person;
(c) a serious risk to the fairness of the proceeding that outweighs the societal interest that the hearing and appeal record be public; or
(d) a serious risk to public security.

Exclusion of persons from a hearing

32 (1) The presiding member may exclude any person from a hearing during which oral evidence concerning a circumstance of sexual or other harassment will be given.

Recording made available

(2) Any party who chooses to participate in the hearing and who is excluded under subsection (1) must be provided with a copy of the audio recording of oral evidence given at the hearing and an opportunity to respond to the evidence.

Postponing hearing

33 (1) A party may, as soon as feasible before the scheduled hearing date, request that the Board of Appeal postpone the hearing.

New hearing date

(2) The Board of Appeal may grant a request made under subsection (1) and set a new hearing date without asking the other parties to present arguments, unless the principles of natural justice require it.

Subsequent request

(3) If the Board of Appeal grants a party’s first request under subsection (1), it may not grant a further request by the same party unless it is

(a) filed at least five business days before the new hearing date; and
(b) justified by exceptional circumstances.

Suspension of appeal

34 (1) The Board of Appeal may suspend an appeal if

(a) one or more proceedings are ongoing before the Board of Appeal or another tribunal that raise issues that are similar to those under appeal or that may have a direct impact on the appeal; or
(b) it is required by the principles of natural justice.

Lifting suspension

(2) The Board of Appeal must lift the suspension if the reasons for the suspension set out in subsection (1) no longer exist.

Abandonment of appeal

35 (1) If the Board of Appeal determines that an appeal has been abandoned under subsection 43.19(1) of the Act, it must inform the parties and end all proceedings.

Application to reopen appeal following abandonment

(2) An appellant who files an application to reopen an appeal under subsection 43.19(2) of the Act must include

(a) their full name, postal address and, if applicable, telephone number and email address;
(b) their social insurance number or the identifying number indicated on the reconsideration decision being appealed or, if the appellant is an employer, the business number assigned to them by the Canada Revenue Agency; and
(c) the reasons for their failure to communicate with the Board of Appeal.

Withdrawing appeal

36 (1) An appellant may withdraw their appeal by notifying the Board of Appeal

(a) in writing, anytime before the hearing; or
(b) orally, anytime during the hearing.

Consideration of withdrawal

(2) When the Board of Appeal gives a decision under subsection 43.13(1) of the Act, it must take into account a notice of withdrawal filed under paragraph (1)(b).

Decision

Decision made

37 (1) The Board of Appeal must give a decision under subsection 43.13(1) of the Act on the day that the hearing concludes.

Majority decision

(2) For a decision to be made, a majority of the panel members who heard the appeal must agree and this majority can be obtained by any combination of the panel members.

Dissenting opinion

(3) The decision must include any dissenting opinion and the reasons for it.

Signing of decision

(4) The decision must contain the written or electronic signature of each panel member who heard the appeal.

Extension of time to give decision

(5) For the purposes of section 43.14 of the Act, the Executive Head of the Board of Appeal may extend the time limit set out in subsection (1) for the following special reasons:

(a) to respect the principles of natural justice;
(b) to consider evidence filed under section 21; or
(c) to allow the proceeding to occur as simply and efficiently as the circumstances and the principles of natural justice allow.

Consequential Amendments to the Employment Insurance Regulations

38 Section 80 of the Employment Insurance Regulations ^{footnote 1} is replaced by the following:

80 Benefits are not payable in accordance with a decision of the Employment Insurance Section of the Social Security Tribunal or the Employment Insurance Board of Appeal established under section 43.01 of the Department of Employment and Social Development Act if, within 21 days after the day on which a decision is given, the Commission appeals to the Appeal Division of the Social Security Tribunal on the ground that the Employment Insurance Section or the Board of Appeal, as the case may be, has erred in law.

39 Section 80 of the Regulations is replaced by the following:

80 Benefits are not payable in accordance with a decision of the Employment Insurance Board of Appeal established under section 43.01 of the Department of Employment and Social Development Act if, within 21 days after the day on which a decision is given, the Commission appeals to the Appeal Division of the Social Security Tribunal on the ground that the Board of Appeal has erred in law.

40 (1) The portion of subsection 82(1) of the Regulations before paragraph (a) is replaced by the following:

82 (1) If either a decision of the General Division of the Social Security Tribunal that declares a provision of the Act or these Regulations to be ultra vires or a decision of the Employment Insurance Board of Appeal established under section 43.01 of the Department of Employment and Social Development Act that declares a provision of these Regulations to be ultra vires is appealed by the Commission to the Appeal Division of the Social Security Tribunal, benefits are not payable in respect of the claim for benefits that is the object of the decision — nor in respect of any other claim for benefits made after that decision, if benefits would not be payable except for that decision — until

(2) Paragraph 82(1)(b) of the French version of the Regulations is replaced by the following:

b) une décision définitive n’a pas été rendue à l’égard de la demande de contrôle judiciaire, présentée par la Commission en vertu de la Loi sur les Cours fédérales, à l’égard de la décision définitive rendue dans l’appel par la division d’appel, si celle-ci déclare invalide la disposition de la Loi ou du présent règlement.

41 (1) The portion of subsection 82(1) of the Regulations before paragraph (a) is replaced by the following:

82 (1) If a decision of the Employment Insurance Board of Appeal established under section 43.01 of the Department of Employment and Social Development Act that declares a provision of these Regulations to be ultra vires is appealed by the Commission to the Appeal Division of the Social Security Tribunal, benefits are not payable in respect of the claim for benefits that is the object of the decision — nor in respect of any other claim for benefits made after that decision, if benefits would not be payable except for that decision — until

(2) Paragraph 82(1)(b) of the Regulations is replaced by the following:

(b) the final determination of any application made by the Commission under the Federal Courts Act for judicial review of the final determination of the appeal by the Appeal Division, if the final determination of the appeal declares the provision of these Regulations to be ultra vires.

Coming into Force

S.C. 2023, c. 26

42 (1) Subject to subsection (2), these Regulations come into force on the day on which section 634 of the Budget Implementation Act, 2023, No. 1 comes into force, but if these Regulations are registered after that day, they come into force on the day on which they are registered.

S.C. 2023, c. 26

(2) Sections 39 and 41 come into force on the day on which section 635 of the Budget Implementation Act, 2023, No. 1 comes into force.

SCHEDULE

(Section 11 and subsection 29(1))

Board of Appeal Regions
Item	Column 1 Province	Column 2 Regions
1	Ontario	(a) Barrie (b) Hamilton (c) Kitchener (d) Oshawa (e) Ottawa (f) Sudbury (g) Thunder Bay (h) Toronto (i) Windsor
2	Quebec	(a) Chicoutimi (b) Gaspé (c) Montréal (d) Québec (e) Rouyn-Noranda (f) Sherbrooke (g) Trois-Rivières
3	Nova Scotia	(a) Halifax (b) New Glasgow (c) Sydney (d) Yarmouth
4	New Brunswick	(a) Bathurst (b) Fredericton (c) Moncton (d) Saint John
5	Manitoba	(a) Brandon (b) Winnipeg
6	British Columbia	(a) Kamloops (b) Kelowna (c) Prince George (d) Vancouver (e) Victoria
7	Prince Edward Island	Charlottetown
8	Saskatchewan	(a) Regina (b) Saskatoon
9	Alberta	(a) Calgary (b) Edmonton (c) Lethbridge
10	Newfoundland and Labrador	(a) Corner Brook (b) St. John’s

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The Government of Canada has committed to the implementation of reforms to the recourse process for Employment Insurance benefits. To respond to the needs of Canadians, legislative amendments to the Department of Employment and Social Development Act (DESDA) have established the Employment Insurance Board of Appeal (Board of Appeal). The Employment Insurance Board of Appeal Regulations (the Regulations) set out the rules and procedures to be followed for first level Employment Insurance appeals by involved parties (an appellant, the Canada Employment Insurance Commission [the Commission] as well as a claimant or an employer) who have a direct interest in a reconsideration decision being appealed.

Description: The Regulations set out the processes and procedures for Board of Appeal issues such as filing an appeal, Board of Appeal regions, hearing format, quorum, issuing of decisions, hearings held in private and considerations for hearings that involve allegations of harassment. The Regulations provide consistency and transparency to the administrative functions of the Board of Appeal and protect all parties’ rights and obligations for first level Employment Insurance appeals.

Rationale: Under section 68.2 of DESDA, the Commission may make regulations with regard to the Board of Appeal with the approval of the Governor in Council.

Regulatory costs are estimated over 10 years, beginning in fiscal year 2025–2026. The estimated costs of this proposal are $330,136 over the 2025 to 2034 period. These costs are expected to be offset by qualitative gains.

Issues

The existing recourse or appeal process for first level Employment Insurance (EI) appeals is not responsive to the needs of Canadians. The Department of Employment and Social Development Act (DESDA) was amended to allow for the creation of the Employment Insurance Board of Appeal (Board of Appeal), representing the interests of workers, employers, and the Government of Canada. The Employment Insurance Board of Appeal Regulations (the Regulations) are needed to provide the processes and procedures that parties must follow, which will in turn allow them to navigate first level Employment Insurance (EI) appeals more easily.

Background

The Social Security Tribunal (the Tribunal) began operations in April 2013, replacing four previously separate administrative tribunals.^{footnote 2} The objective of the Tribunal was to streamline and simplify the appeal process for the Old Age Security (OAS), Canada Pension Plan (CPP), and EI programs, generating efficiencies and cost savings. While some savings have been realized since 2013, two subsequent reports prepared for parliamentarians in 2016 raised concerns regarding the changes to the appeals system and the impact this model had on the clients it served. Both reports pointed to opportunities for improvements.^{footnote 3}

In response, a comprehensive third-party review of the Tribunal was commissioned, entitled Review of the Social Security Tribunal of Canada for Employment and Social Development Canada (the Review),^{footnote 4} which provided options on how to improve the appeal processes and ensure they meet the needs of Canadians. Published in January 2018, the Review included extensive public consultations (surveys, submissions, focus groups) with various stakeholders, including EI appellants, and members of the previous tribunals and current Tribunal, among others. It highlighted concerns over lack of transparency in the appeal process and a system that was too legalistic, making it difficult for users to understand and navigate, especially during times of financial vulnerability or while experiencing serious health issues.

The Review found that, for users, the processes were complex, impersonal, and intimidating, which discouraged claimants from moving beyond the reconsideration stage of the process. The public consultations conducted as part of the Review revealed dissatisfaction and frustration with service standards, timelines, the accountability of the Tribunal and the accessibility of various processes.

In August 2019, the Department of Employment and Social Development (ESD) announced a series of reforms to make the recourse process more responsive to the needs of Canadians. This included the creation of the Board of Appeal to replace the EI Section of the Tribunal — General Division (the Tribunal’s General Division), to hear and decide all first level (or initial) EI appeals. The creation of the Board of Appeal is intended to make the recourse process quicker, easier, and more responsive to user needs.

Legislative amendments to DESDA to allow for the creation of the Board of Appeal were introduced in Budget 2022; however, they were later removed to allow for further consultations with stakeholders. Legislative amendments were then reintroduced as part of the Budget Implementation Act, 2023, No. 1 (BIA 2023) on March 28, 2023. The legislative changes, which were developed based on feedback from stakeholders, including labour and employer groups, include a return to a tripartite (three-person) appeal system, like the former EI appeal system for first level appeals, which better supported client service in comparison to the current single decision-maker model of the Tribunal.

On June 22, 2023, the BIA 2023 received royal assent. The provisions in the BIA 2023 provide authority in DESDA for the creation of the Board of Appeal and include authority for the Commission to make regulations regarding the Board of Appeal, subject to approval by the Governor in Council. An order in council is required to bring into force the changes to DESDA. The legislative amendments establish a 30-day time limit to file an appeal, require decisions of the Board of Appeal to be made in writing, and allow appeals to be considered abandoned where the Board of Appeal has not been able to contact the appellant, or the appellant has failed to respond to the Board when asked to do so. The amendments also include the authority for the Board of Appeal to reopen abandoned appeals in certain conditions.

The Commission is an organization representing three groups: employers, labour, and the Government of Canada. It plays a leadership role in overseeing the EI program. Due to its representation of three groups, the Commission is commonly referred to as a tripartite organization. It is legislated to annually monitor and assess the EI program and oversees the EI Monitoring and Assessment Report (MAR), which is tabled in Parliament annually.

The Regulations apply to the governance, administration and functioning of the Board of Appeal and will provide direction on its practices and procedures, including for appellants, added parties, their representatives, decision-makers (known as members) as well as Board of Appeal staff. This will ensure appeals before the Board of Appeal are handled in a consistent manner that respects the principles of fairness and natural justice.

Objective

The objective of the Regulations is to enable the operations and support the launch of the Board of Appeal so that the recourse process for EI appeals is easier to navigate and more responsive to the needs of appellants and all other added parties.

Description

The Regulations include the following provisions:

Definitions

Appellant: a claimant or employer of a claimant, who appeals a Canada Employment Insurance Commission (Commission) reconsideration decision.
Claimant: a person who has applied for benefits under the Employment Insurance Act.
Employer: a person who is or was the employer of a claimant.
Party: an appellant, the Commission or any claimant or an employer who has a direct interest in a reconsideration decision being appealed.
Reconsideration decision: a decision by the Commission following the review of an initial decision in respect of a claim for EI benefits under the Employment Insurance Act, or the Commission’s refusal to reconsider a decision because the request was late.

General principles

The Regulations include a requirement that they be interpreted and applied in a way that makes the appeal process as simple and efficient as the principles of natural justice allow. Natural justice refers to a person’s right to be heard and have a fair hearing.

General provisions

Application

The Regulations will apply to appeals made under section 113 of the Employment Insurance Act, which offers the right to appeal a reconsideration decision made with respect to a claim for EI benefits.

Where there are procedural issues related to appeals that are not set out in the Regulations, the Board of Appeal must determine the procedure in a way that is consistent with the Regulations, keeping in mind the party’s right to be heard and to have a fair hearing. The Regulations also require parties to comply with the Board of Appeal’s directions, to respect deadlines and to communicate with the Board of Appeal as required.

Interpretation services and accommodation requests

Under the Regulations, an appellant may choose either English or French for their appeal, and any other party may participate in the official language of their choice.

Where a party requests interpretation services, these services will need to be requested in writing as soon as is feasible, and the Board of Appeal will need to provide interpretation to the extent possible. The Regulations will also permit a party to be accompanied by their own interpreter if preferred; this will, however, be at their own expense.

Where a party has made a request for accommodation, the Board of Appeal must as much as possible accommodate them so that they are fully able to participate in the appeal process.

Reimbursement and compensation

The Regulations provide that any party who is required to attend a hearing in person may be reimbursed for their expenses or receive an allowance if (a) the party must travel in excess of 100 km from the postal address listed in the appeal file to reach the hearing location; and (b) a request for reimbursement is made in writing and is approved before the hearing date.

Board of Appeal regions

The Regulations identify the various regions that the Board of Appeal will serve. Each region has more than one location where appeals may be heard in-person utilizing current Service Canada centres throughout the country. The regions are listed in Column 2 of the schedule to these Regulations.

The regions listed in Column 2 will each designate a central city for a geographical area which, for the purposes of the Board of Appeal, will serve several localities in that same region. The main localities served by each of the 39 regions will be provided on the Board of Appeal website. Board of Appeal members will be assigned to one of these 39 regions.

Quorum

An appeal to the Board of Appeal is normally heard before a panel of three members who will make a decision on the appeal. For hearings heard by three panel members, the majority of the members must agree for a decision to be made. The Regulations allow hearings to take place even if a member of the Board of Appeal panel cannot attend due to unforeseen circumstances, as long as there are two members, one of whom is the presiding member (quorum), and the appellant, employer and any other added parties provide consent. This provision will provide flexibility to prevent delays in rare instances that a member may not be available. For hearings heard by a two-member quorum, the presiding member has a deciding vote in rendering a decision.

Communication

In general, communications between the Board of Appeal and the parties could be done by mail, courier, telephone or electronic means. The Board of Appeal will use the contact information in the appeal file when it contacts or sends documents to parties or their representative. Parties will be required to notify the Board of Appeal as soon as possible of any changes to their contact information.

The Regulations will allow the Board of Appeal to continue an appeal process without providing further notice to an appellant or their representative if it is unable to reach them using the contact information provided, keeping in mind an appellant’s right to be heard and to have a fair hearing.

Appeal to the Board of Appeal

The Regulations set out the requirements to file a notice of appeal with the Board of Appeal. Appeals may be filed:

in person, at a Service Canada office;
by mail or by courier, using the postal address provided on the Board of Appeal website;
electronically, using the electronic filing procedure available on the Board of Appeal’s website.

A claimant will need to provide the following information on the notice of appeal:

their full name, postal address and, if applicable, their phone number and email address; and
ideally, both their social insurance number and the identifying number listed on the reconsideration decision being appealed, although they could file with just one of the two.

Employers appealing to the Board of Appeal must provide the following information:

the full name, postal address and, if applicable, phone number and email address of the contact person;
the business name;
the business number assigned to them by the Canada Revenue Agency; and
the identifying number indicated on the reconsideration decision being appealed.
A notice of appeal is presumed to be filed:
in person, on the date received stamp applied to the document by Service Canada;
by mail, on the filing date indicated by the date received stamp applied to the document by the Board of Appeal;
by registered mail or by courier, on the date recorded on the delivery confirmation receipt;
electronically, on the date and time indicated by the Board of Appeal’s electronic system designated for that purpose.

The Regulations require the Board of Appeal to notify the appellant and the Commission when it receives the appellant’s notice of appeal.

Documents filed by the Commission

The Regulations require the Commission to file with the Board of Appeal the following documents within seven business days of receiving the notice of appeal: a copy of the request for reconsideration, a copy of the reconsideration decision, any documents that set out the Commission’s arguments as well as all other relevant documents in its possession. The Board of Appeal can also grant the Commission additional time to file the documents.

Added parties

The Regulations provide that when a notice of appeal is received, the Board of Appeal must notify the following persons and add them as parties to the appeal:

any claimant who has a direct interest in the decision, if the appeal is filed by the employer; and
where the appeal is filed by the claimant, the employer, if they were notified by the Commission of the reconsideration decision being appealed.

The Board of Appeal may, on its own initiative or on request, add an employer as a party to an appeal.

Late appeal

Under the Regulations, appellants who file a notice of appeal after the 30-day deadline period set in DESDA will have to give reasons for the late appeal and the regional coordinator may ask the appellant to provide additional information about their notice of appeal.

When a late appeal is accepted, the Board of Appeal must add as a party, and notify, any claimant with a direct interest and the employer if they were notified of the reconsideration decision under appeal. The Board of Appeal could also add an employer on their own initiative.

Joining appeals

The Regulations allow the Board of Appeal to join two or more appeals together if they raise a common question and joining the appeals is not unfair to the parties.

Single notice of appeal

A single notice of appeal may be filed on behalf of multiple appellants, where the appeal involves a common question that the Commission has dealt with in reconsideration decisions made for each of the appellants. Also, a notice of appeal for multiple appellants will need to identify the single appeal that will be heard, the outcome of which will be binding on all parties and provide a group representative. The notice of appeal will also need to be accompanied by a document that contains each appellant’s relevant information such as their name, their social insurance number and their reconsideration identification number, as well as each appellant’s signed consent to be part of the group.

Written arguments and additional information

The Regulations provide guidance for parties wishing to file written arguments with respect to an appeal. These documents will need to be filed prior to the scheduled hearing date. In addition, a panel will not be able to consider any evidence filed after the hearing date unless it was requested by the panel, or a party had made a request at the hearing that was approved by the panel with an agreed date for filing the material.

The Regulations also allow the Board of Appeal panel to seek additional information from the Commission related to issues under appeal before making a decision.

Documents filed with the Board of Appeal

Under the Regulations, any documents other than a notice of appeal must be filed by a party by mail or courier using the postal address set out on the Board of Appeal website or electronically using the electronic filing procedure set out for this purpose on the Board of Appeal website.

In addition, the Regulations provide that any document filed with the Board of Appeal is presumed to be filed:

by mail, on the date indicated by the date received stamp placed on the document by the Board of Appeal;
by registered mail or by courier, on the date recorded on the delivery confirmation receipt;
electronically, on the date and time indicated by the Board of Appeal’s electronic system designated for that purpose.

Any documents filed with the Board of Appeal will be added to the appeal record and a copy shared with the other parties as soon as feasible, provided they are not a duplicate of a document previously filed and already shared by the Board of Appeal.

The Regulations address matters in which a document sent by the Board of Appeal is presumed to have been received. Documents sent to a party or their representative are presumed to be received:

by mail, 10 days after the day on which it is mailed;
by registered mail or by courier, the date recorded on the delivery confirmation receipt;
electronically, the next business day.

Electronic documents

The Regulations provide that any electronic document filed with the Board of Appeal, or produced by it, will be considered to be the original version.

Further, the Regulations provide that the Board of Appeal may make an electronic copy of a document filed for an appeal, which will then become the original document, or provide an electronic copy and certify it as a true copy.

Translation of documents

A party who chooses to file a document that is not in English or in French must provide a translated version of the document in either English or French and file the translation along with the document. Any translated document will need to include the following:

the translator’s full name and contact information; and
a statement that the translation is accurate.

Moreover, the Regulations provide that if the Commission files a document that is not in a party’s chosen language (French or English) and it did not originate from that party, that party may ask the Board of Appeal to provide them with the document translated into that language. The Commission would then be responsible to translate the document and file a copy of the translated version with the Board of Appeal.

Hearing

A notice of hearing must be sent to all parties. When a notice of appeal is filed within the 30-day deadline, the notice of hearing should be sent as soon as feasible once the Commission’s documents are received, When the notice of appeal is filed after the 30-day period and the Board of Appeal decides to hear the appeal, the notice of hearing should be sent as soon as feasible after that decision is made.

Region of the appellant for hearing

An appeal is to be heard in the appellant’s region, which, under the Regulations, will be the region specified in Column 2 of the schedule based on the postal address in the appellant’s appeal file.

The Executive Head may authorize the Board of Appeal to hear an appeal in another region due to the following circumstances:

the appeal would not be heard in a timely manner if heard in the appellant’s region;
an in-person hearing is selected by the appellant and hearing the appeal in a different region would facilitate travel of the parties;
there is no panel available in the appellant’s region to hear the appeal;
the appeal deals with a common question that involves appellants who are located, based on their postal addresses in the appeal record, in different regions;
if requested by the appellant; or
any circumstances that would ensure the operational efficiency of the Board of Appeal that are not included in the above.

Format of hearing

Where an appellant requests the appeal be heard in person, the appellant will be heard in person by a Board of Appeal panel. Any other parties may choose to attend in person at their own expense, by videoconference or teleconference, or elect not to attend.

The Regulations provide that when an appellant requests to attend the hearing by videoconference or teleconference, the parties may also participate by videoconference or teleconference or elect not to attend.

In situations where an appellant does not wish to attend the hearing or fails to select a hearing format and cannot be reached, the parties may participate by videoconference or teleconference or elect not to attend.

In situations where an in-person hearing would raise security or health concerns that cannot be prevented or mitigated or would be impractical for operational reasons, the Executive Head may change the format of the hearing. The parties may then participate by videoconference or teleconference or elect not to attend.

The Regulations provide guidance for circumstances in which a party is absent. Where a party is absent and they were duly notified of the date, time and format of hearing and did not provide prior notice of their absence, the panel may decide to proceed with the hearing in the absence of that party.

No hearing

In situations where the Commission and the appellant are the only parties to an appeal and the Commission concedes the appeal, the Board of Appeal may issue a decision on the record without holding a hearing.

Private hearing or restricted access

The Regulations address situations in which the Board of Appeal may, upon request or of its own initiative, hold a hearing in private to prevent the following risks of a public hearing:

that sharing personal information, like medical details, could cause significant harm to someone;
it poses a risk to someone’s life, freedom or security;
it poses a serious risk to the fairness of the hearing that outweighs the public’s interest in knowing about it; or
it poses a serious risk to public security.

The Regulations provide a panel’s presiding member with authority to exclude any person from a hearing when oral evidence concerning a circumstance of sexual or other harassment is given. In these situations, a copy of the audio of the oral evidence will be provided to the excluded party to be given an opportunity to respond to the evidence.

Postponing a hearing

A party may, as soon as possible before the hearing date, request the Board of Appeal to postpone the hearing. The Board of Appeal may grant this request and set a new hearing date without allowing the other parties to present arguments unless the principles of natural justice would require it. If the Board of Appeal grants a party’s first request for a postponement, it cannot grant another request by the same party unless it is filed with the Board of Appeal at least five business days before the new hearing date and is justified by exceptional circumstances.

Suspension of appeal

The Board of Appeal may suspend an appeal if there are other ongoing proceedings before the Board of Appeal or another tribunal that are dealing with similar issues or for which a decision may have a direct impact on the appeal or if it is required by the principles of natural justice. Accordingly, the Board of Appeal will lift the suspension once the above-noted conditions are resolved.

Abandonment of appeal

The Regulations require the Board of Appeal to inform the parties and end all proceedings where it has determined that an appeal has been abandoned under the provisions of DESDA.

The Regulations set out the elements that an appellant must provide to request the reopening of an abandoned appeal. An appellant’s request must include:

their full name, postal address and, if applicable, their phone number and email address;
their social insurance number, or the identifying number located on the reconsideration decision, or, if the appellant is an employer, the business number assigned to them by the Canada Revenue Agency; and
the reasons for their failure to communicate with the Board of Appeal.

Withdrawing an appeal

An appellant may withdraw their appeal by notifying the Board of Appeal in writing any time before the hearing or orally any time during the hearing. When the Board of Appeal makes its decision, it must also consider the notice of withdrawal.

Decisions

Under the Regulations, the Board of Appeal must make a decision on the day that the hearing concludes. However, the Executive Head may extend the time limit to make a decision for the following special reasons:

to respect the principles of natural justice;
to consider additional evidence provided after the hearing; or
any other reason that would allow the proceedings to happen in a straightforward and efficient way, while still being fair and just.

For a decision to be made, a majority of the panel members who heard the appeal must agree. Where a panel member disagrees with the majority, the Regulations require that the panel’s decision must include the dissenting opinion and the reasons for it. The Board of Appeal decision must contain the written or electronic signature of each panel member who heard the appeal.

Regulatory development

Consultation

Consultations prior to prepublication

The third-party Review^{footnote 5} took into consideration the full scope of the Tribunal’s mandate, structure, functions, performance, and relationships. Input was directly sought through interviews and workshops from those who interacted with the previous tribunals (previous Employment Insurance Board of Referees, Employment Insurance Umpire, CPP and OAS Review Tribunals, and Pension Appeals Board) and the Tribunal. Workshops with more than 30 government officials from ESD, the Tribunal, and the Administrative Tribunals Support of Service Canada (ATSSC) were also held to understand the appeals processes and the structures, policies, and legislation that supports their work.

Online consultations were promoted on 14 government websites, and over 17 680 emails were sent to target audiences. Between June 28, 2017, and August 8, 2017, four separate surveys were conducted with appellants, representatives, current and former tribunal members^{footnote 6} and employees who provide services to the Tribunal, with more than 900 completed responses received. In addition, over 30 written submissions were received from labour and community organizations, legal clinics and law firms, appellants and representatives, former and current Tribunal members, and the Commissioners for Workers and Employers. Six focus groups were held across Canada that included over 60 community and labour stakeholders, members of the previous tribunals and some appellants.

Overall, public consultations revealed dissatisfaction and frustration with service standards, timelines, the accountability of the Tribunal, and the accessibility of various processes, including decision-making and a legalistic tribunal that was difficult for the lay person to navigate.

Other comments by stakeholders included the perception of a shift in the balance of power from the previous three-member tribunal system of the former Board of Referees model, which was seen as a “trial by peers,” to a single decision-maker model of the Tribunal, who could often be in a location distant from that of the appellant and their associated work/life context. The elimination of tripartism in EI appeals was seen as not putting the client first, and therefore created a perception of reduced access and fairness.

The third-party review provided seven recommendations for the Minister’s consideration and a range of options. In particular, the Review recommended a suite of changes to shift the Tribunal to a client-centric model that is seen as fair and transparent and minimizes complexity to better serve clients needs.

Stakeholder consultations preceding Board of Appeal legislation — August to September 2022

Between August 19, 2022, and September 9, 2022, the Government consulted with the Commissioner for Employers and the Commissioner for Workers, union representatives, legal representatives, community representatives, employer representatives and the general public, including former EI appellants (workers and employers) on topics pertaining to the design and proposed legislative changes related to the Board of Appeal, with the objective of examining how the EI program could improve the appeals process. The results of the roundtable discussions and an online survey played a key role in the draft legislation that was presented to Parliament in December 2022, the legislative amendments included in Budget 2023 that received royal assent on June 22, 2023, and these Regulations.

Two virtual roundtable consultations took place with the Commissioners and external stakeholders, with approximately 25 of 40 invited stakeholder groups participating. Written submissions regarding five main themes, namely regional representation, choice of hearing format, full-time/part-time status of members, the reporting structure of the Board of Appeal, and the appointment authority of the Executive Head, were also received.

In addition to the roundtable consultations, an online survey was launched during the same period, which allowed Canadians to share their views and preferences on the design of a new EI appeals process. The survey was open to former appellants and their representatives as well as the general public. Over 10 000 former EI appellants were invited to participate by mail. A total of 400 respondents completed the survey. Of the 400 respondents, 386 were individuals, and 14 were representatives of an organization.^{footnote 7}

The roundtable consultations highlighted a need for diverse regional representation for Board of Appeal members to allow for understanding of the regional employment reality, language and expressions. A desire to return to the Board of Referees model for member appointments and a need for additional hearing locations were also noted. There was strong endorsement for having full-time regional coordinators to support the Executive Head, as well as a preference for part-time Board of Appeal members to serve on tripartite panels.

With respect to the format of hearings, roundtable feedback provided varied results, in that stakeholders noted that in-person hearings should be the default. However, survey respondents favoured the appellants having a certain flexibility to choose their hearing format, including in-person, by videoconference or by teleconference. Key takeaways regarding the reporting relationship between the Board of Appeal and the Commission included the following:

the Executive Head should report on the overall performance of the Board of Appeal to the Commission;
ESD should provide for the operation of the Board of Appeal with respect to its administration and reporting;
the Board of Appeal should directly report to the Commission and the Board of Appeal functions should remain independent; and
the Commissioners should lead the appointment process of members representing employers and employees as they are engaged with labour, employers, and social justice partners.

The results of the online survey provided similar feedback indicating a preference for Board of Appeal members to have local ties to the region they serve. The majority of clients who completed the survey indicated that they attended their appeal hearing through virtual means (teleconference or videoconference) and that they were satisfied with their ability to present their arguments during the hearing. Specifically, 65% of survey respondents agreed that a virtual form of hearing offered the same opportunity to present their arguments as that of an in-person hearing, and 70% of respondents indicated they would accept a different form of hearing than their preferred choice if it meant having the hearing at an earlier date. Several respondents noted that a return to a three-person panel to hear an appeal was important.

Prepublication in the Canada Gazette, Part I

The Regulations were prepublished in the Canada Gazette, Part I, on December 14, 2024, followed by a 30-day comment period. The website of the Social Security Tribunal posted a link to the prepublished Regulations.

Comments were received from five stakeholders during the comment period, four of whom represented the views of organizations (Income Security Advocacy Centre, the Ontario Community Legal Clinics’ EI Working Group, Parkdale Community Legal Services and le Mouvement autonome et solidaire des sans-emploi) and one who was anonymous. The comments broadly indicated support for the Regulations and while no changes were made to the Regulations, the following paragraphs provide a summary of stakeholder feedback and its consideration.

Procedural Questions

One stakeholder suggested that where the Commission is required under section 15 of the Regulations to file documents (in particular, documents that set out the Commission’s arguments) with the Board of Appeal, the documents should be made available to the other parties in the interests of transparency and fairness. This is already addressed in section 24 of the Regulations, which sets out the requirements for the Board of Appeal related to filing and sending documents and provides that the Board of Appeal must send a copy of any document filed with it by a party, with the other parties to the appeal.

Another stakeholder suggested that where a Board of Appeal panel seeks additional information from the Commission, that the parties should receive a copy of the information and the opportunity to respond to it. Under section 24 of the Regulations, the Board of Appeal is obligated to add any document filed with it by a party to the appeal record and send a copy to the other parties. Thus, any additional information that the Board of Appeal requests from and that is submitted by the Commission would be included in the appeal record and shared with the other parties. While there is nothing explicit in the Regulations that requires the Board of Appeal to allow parties to respond to any additional information, there is also nothing that prevents it from allowing parties to respond. Parties in receipt of any additional information from the Commission under section 22 of the proposed BOA Regulations would have the right to review and respond to that information prior to the BOA issuing a decision. In light of the above, no changes were made to the Regulations in response to these comments.

One stakeholder commented that, in respect of appeals that are filed late, the Board of Appeal should provide guidance on the reasons for a late appeal that it would find acceptable. The Regulations deliberately do not specify acceptable reasons as the appellant’s circumstances are to be assessed on a case-by-case basis. Examples of circumstances where an appellant would have an acceptable reason for being late will be provided to members during their training and posted on the Board of Appeal website.

A stakeholder commented that appellants should have the option of having their hearing in writing. Although the regulations do not explicitly state that appellants have the option of a hearing in writing, the Regulations provide that any party can file written arguments with the Board of Appeal before the scheduled hearing date (section 20) and provide that appellants can elect not to attend their hearing (paragraph 30(1)(b)). This approach allows appellants to make their arguments in writing, while still allowing other parties the option to participate in a different format. Therefore, no changes were made to the Regulations in response to the comment.

Stakeholders had concerns about the members potentially being rushed to make decisions. It is important to note that under subsection 37(5) of the Regulations, the time limit for decisions may be extended under broad circumstances. Members and the Executive Head will be encouraged to seek and grant extensions, respectively, whenever it is necessary to maintain the quality of decisions. One stakeholder raised, in particular, the case where evidence or written arguments are filed as late as the day before a hearing. Paragraph 37(5)(b) explicitly provides for an extension of time where evidence is filed late, and members will be trained to seek extensions under these, and any other circumstances, where the qualify and completeness of their decision would otherwise suffer.

There was a comment made that suggested the Employment Insurance Act could be amended to make reconsiderations optional rather than mandatory, to shorten delays in the appeal process. Under the Employment Insurance Act, a claimant must request that the Commission reconsider a decision before the claimant can appeal the decision to the Board of Appeal. The suggested change would require a legislative amendment and is beyond the scope of these Regulations.

Accessibility Questions

Another stakeholder commented in respect of the wording of section 9 of the Regulations, which states that a request for accommodation made to the Board of Appeal must be accommodated “to the extent possible.” The stakeholder suggested that the wording could be amended to reflect wording in the Canadian Human Rights Act (CHRA) – that accommodations must be made “to the point of undue hardship” for the Board of Appeal. The use of the wording “to the extent possible” does not preclude any specific accommodations that an individual may request or that the Board of Appeal can provide. The Regulations permit the Board of Appeal to deal with any request for accommodation, even where the request is not further to a ground protected under the CHRA. For example, a claimant who requests that a hearing start later or who is delayed in arriving to the hearing centre may be accommodated (whereas this is not a ground under the CHRA). The fact that the Board of Appeal creates a standard for “non-CHRA” requests is not unreasonable. Furthermore, where an accommodation request is raised further to a protected ground under the CHRA, the CHRA continues to apply as it is quasi-Constitutional legislation and the Board of Appeal will take this into account when making its decision, in consultation with their legal services whenever necessary. While “to the extent possible” is not the same standard as under the CHRA, the CHRA standard does not need to be part of the proposed BOA Regulations as it applies in any case. To be clear, the Regulations do not stop the application of the CHRA. Where a claimant is not satisfied with an accommodation provided, they can also file a complaint to the Canadian Human Rights Commission. In light of the above, no changes were made to the Regulations.

Stakeholders expressed concerns about the number of regions for hearings set out in the Regulations and indicated that consideration should be given to increasing the number of regions to make in-person hearings more accessible and broaden the regional representation of Board of Appeal panels. It is important to note that the regions set out in the Regulations cover the areas surrounding particular cities, including neighbouring communities, and that there may be multiple hearing locations spread out within these areas. The intention is to use existing Service Canada locations for hearings and those locations are widely distributed throughout the country, with many in every region. In fact, it is expected that the total number of Board of Appeal hearing locations will exceed the number of hearing locations used by the former Board of Referees. There are plans for 97 communities to host in-person hearings, up from 83 under the Board of Referees. The list of locations for in-person hearings will be published on the Board of Appeal website and will be available in advance of the date when the Board Appeal begins to receive appeals.

It is also important to note that where appellants are required to attend a hearing and incur expenses to travel to a hearing location, section 10 of the Regulations provides that a party may be reimbursed for their expenses if the location is more than 100 km from their address and they make the request in writing to the Executive Head and it is approved before the hearing date. Considering the foregoing, no additions were made to the 39 regions currently specified in the Regulations.

A stakeholder also had concerns that the Board of Appeal may not have enough members, in particular members representing workers, and that there would be fewer Board of Appeal members than under the Board of Referees. The number of members is not specified in the Regulations; however, the number is intended to reflect the expected volume of appeals at the Board of Appeal, which will be considerably less than the volume received by the Board of Referees (4,000 annual estimated appeals at the Board of Appeal versus 25,000 at the Board of Referees). The expected reduction in appeals is due to the success of the reconsideration process that was introduced when the Board of Referees was replaced by the Tribunal’s General Division.

A stakeholder commented that there should be hearing locations accessible for parties with disabilities. The Board of Appeal intends to use existing Service Canada locations for hearings, which are normally equipped to accommodate most persons with disabilities. If an appellant has additional accommodation requests, the Board of Appeal will accommodate the appellant to the extent possible.

Comments on BOA Guidance and Training

A stakeholder commented that the Board of Appeal should publish additional guidance on requesting a private hearing. The Board of Appeal is intending to provide guidance, written in plain language, on how to bring an appeal to the Board of Appeal and navigate the process. This guidance will include instructions on how to request accommodation measures, such as requesting a private hearing, as well as for vulnerable appellants and persons with disabilities. The option to request accommodation measures, including a private hearing, will be accessible through a form on the Board of Appeal website. Clients will be able to submit the form directly online or by mail. The form with the accompanying guidance will be published on the Board of Appeal website and will be available in advance of the date when the Board Appeal begins to receive appeals.

A stakeholder stressed the importance of writing decisions in plain language. The Board of Appeal is conscious of the importance of plain language decisions, and this element will be included in the training for all members.

Stakeholders suggested that members should be trained in respect of vulnerable appellants and those with disabilities. While specific training on the social context of marginalized and vulnerable appellants has not been developed for the initial training of Board of Appeal members, this will be considered for future continued training. In their initial training, members will, however, be educated on the richness of diversity and inclusion, on dealing with difficult and distressed client behaviours, on duty to accommodate responsibilities, as well as on the Accessibility and Accommodation policy. This training will be provided to members before they are assigned to a Board of Appeal panel, and on an ongoing basis.

A stakeholder suggested that there should be a public database of Board of Appeal decisions. The Board of Appeal recognizes the value of past decisions in assisting current appellants with their appeals and the Board intends to make a selection of key decisions publicly available to assist future appellants in preparing for their appeal.

Ongoing stakeholder consultations

Informal consultations such as client satisfaction surveys are planned to follow the launch of the Board of Appeal. Furthermore, the Board of Appeal will report to the Commission on matters such as performance. This will allow the Board of Appeal to be well placed to address stakeholder concerns, as the Commissioner for Employers and the Commissioner for Workers, who are part of the Commission, are responsible for representing the views and positions of organizations and individuals affected by the EI program.

Indigenous engagement, consultation and modern treaty obligations

As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted on the initiative. The assessment did not identify any modern treaty implications or obligations.

Instrument choice

No alternative policy instruments are available since the legislative amendments to DESDA require that the processes and operations of the Board of Appeal be established by regulation.

Regulatory analysis

Benefits and costs

It is estimated that the Regulations will impose an incremental cost estimated at $330,136 over the 2025 to 2034 period.

Baseline and regulatory scenario

The baseline and regulatory scenarios analysis compares various provisions of the Regulations to those in existing statutes, regulations, policies, and practices to identify incremental costs or benefits. The analysis shows that these Regulations’ incremental costs or benefits are negligible.

Baseline

The amendments to DESDA made under BIA 2023 provide the necessary framework to establish the EI Board of Appeal. Specifically, the legislation provides for such elements as the tripartite nature of the Board of Appeal, composition of panels, regional representation and diversity among others.

If, in the absence of the Regulations, the Board of Appeal was to commence operations and begin hearing EI appeals, then it would be expected to operate in a manner generally consistent with the current regulations and rules that guide the Tribunal, which is the baseline for this proposal.

Regulatory scenario

The Regulations were drafted to include similar provisions to that of the current regulations that guide the operations of the Tribunal, drawing upon its best practices. Therefore, the proposed provisions are comparable to the Social Security Tribunal Regulations, 2022 and the Social Security Tribunal Rules of Procedure and have been determined to not impose incremental costs except for the provision that allows an appeal to be heard in a different region from that of the appellant.

Benefits and costs

It is estimated that the Regulations will impose a cost of $330,136 over the 2025–2034 period.

Cost of appeals heard outside the region of the appellant

The Regulations provide for situations where an appeal may be heard in a different region from that of the appellant for operational efficiency or for any other circumstances assessed and approved by the Executive Head. Estimated costs could be incurred to cover possible travel expenses for situations where one or more members may need to travel to hear an appeal in person.

Overall, the Department of ESD estimates that the Board of Appeal will receive approximately 4 000 appeals per year (the Tribunal’s General Division received 3 968 appeals in 2022–2023). It is estimated that 1 200 of these appeals will be in-person hearings.

An estimated 10% of these 1 200 in-person hearings (approximately 120) are estimated to involve circumstances where an appeal is heard in a different region for operational efficiencies or circumstances assessed and approved by the Executive Head of the Board of Appeal.

This incremental cost was estimated using current National Joint Council Rates and Analysis (April 2024) for both one-day and two-day travel costs that include mileage, hotel, meal allowance and incidentals calculated with the total number of in-person hearings for a three-member panel.

Estimated travel expenses are expected to cost the Board of Appeal $391.70 on average per hearing for a three-member panel, recognizing that 10% would involve an estimated two days of travel and 90% would include an estimated one day of travel. The annual cost is estimated to be $47,004.

The total monetized cost of implementing the Regulations is estimated at $330,136 over the 2025 to 2034 period. The cost has been discounted at 7% and is expressed in 2024 prices with 2025 as the present value base year.

Benefits

The benefits of the Regulations have been addressed qualitatively. In general, the Regulations will benefit all parties to first level EI appeals by providing transparent processes and procedures to guide the operations of the Board of Appeal on which the parties can rely. Additional benefits of the Regulations are listed below:

The Regulations set out the 39 Board of Appeal regions in a schedule to the Regulations. These regions benefit appellants as an appellant’s hearing would be before Board of Appeal panel members who are from the appellant’s region and possess an understanding of the economic factors that affect the region.
The Regulations address situations in which a member of the Board of Appeal is unable to attend a hearing due to unforeseen circumstances; the Regulations provide for a quorum of two, in specified situations, so that a matter can proceed as initially scheduled. This will benefit parties by reducing the number of postponed hearings.
The Regulations provide the option of various formats of hearings (in person, by videoconference or by teleconference). This will benefit parties by providing flexibility on the mode of hearing.
The Regulations provide that the Board of Appeal is required to render a decision on the day the hearing is held unless the Executive Head grants an exception permitted under specified circumstances. This will benefit parties by generally providing for prompt decisions on appeals.

Small business lens

Analysis under the small business lens concluded that the Regulations will not impact Canadian small businesses.

One for one rule

The one-for-one rule does not apply, as there are no anticipated impacts on business.

Regulatory cooperation and alignment

This proposal is not related to a work plan or commitment under a formal regulatory cooperation arrangement or forum.

Provinces and territories have not been engaged, since the Regulations will perform similar functions to that of the Social Security Tribunal Rules of Procedure that currently guide all levels of the Tribunal operations. The determination of eligibility for EI benefits and the adjudication of EI appeals under the Employment Insurance Act remains unchanged. A similar structure does not exist at a provincial or territorial level since EI is a federal program.

Effects on the environment

In accordance with the Cabinet Directive on the Strategic Environmental and Economic Assessment, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

The EI program does not record and report on data by gender and ethnicity regarding individuals who choose to appeal a claim for EI benefits.

Information regarding EI appellants was gathered from annual reports published by the Tribunal, which revealed that most EI appeals are established by individuals. According to the annual report of the Tribunal (2023–2024), 99% of the appeals filed with the Tribunal’s General Division came from claimants themselves, with 1% from employers.^{footnote 8}

The Tribunal published key demographics related to EI appeals in August 2021. The Tribunal reviewed 480 of the 4 472 files for the period of one year from July 1, 2020, to June 30, 2021. That information revealed that 44% of appellants identified with the he/him pronouns, 53% identified with the she/her pronouns and the remaining 3% was unknown. This roughly indicates that the Regulations will evenly affect both women and men.

Further, the information on the key demographics provided that 62% of the appeals were related to regular benefits, 14% involved sickness benefits, 14% were related to maternity benefits and other benefits were appealed 10% of the time. This roughly corroborates the Tribunal’s data regarding pronouns, due to men being a larger proportion of regular benefit claimants and women being a larger proportion of claimants of other benefit types.

Most appeals were heard in English, which represented 74% of the appeals, with 26% of the files appealed in French and 5% of the EI appeal files requiring the use of an interpreter. The Regulations provide that all parties to an appeal may participate in their official language of choice, which is expected to benefit the majority of parties. The small proportion of parties that do not speak an official language will benefit from the interpreter provisions of the Regulations.

Rationale

Under DESDA, the Commission may make regulations about the Board of Appeal with the approval of the Governor in Council. The Regulations set out the necessary details to support its implementation and operation.

Implementation, compliance and enforcement, and service standards

Implementation

The amendments to DESDA which established the Board of Appeal and provided for the administration of the Board of Appeal, such as the composition of hearing panels, regional representation, diversity and appointment of the Executive Head and regional co-ordinators, are already in force.

The additional amendments will be brought into force via an Order in Council and the intention is to have the Regulations in effect on the same date so that the Board of Appeal will become operational and begin accepting appeals at that time. For a period both the Board of Appeal and the General Division of the Social Security Tribunal will run in parallel to allow the General Division of the Social Security Tribunal, time to conclude in-progress EI appeals. A final Order in Council will be required to conclude the operations of the EI Section of the Tribunal’s General Division, approximately one year following the commencement of operations at the Board of Appeal.

Compliance and enforcement

While the Regulations are silent on compliance and enforcement measures, the EI program regularly reports on EI recourse to the Parliament and Canadians through the annual tabling of the EI Monitoring and Assessment Report (MAR), which includes information regarding service delivery, the client experience, application intake, claims processing, accuracy review, appeals, and recourse.

Service standards

The expected outcome is a client-centric and simpler recourse system to hear and decide first level EI appeals. Performance indicators and targets for service standards specific to the EI Board of Appeal have been developed, to monitor timely processing of appeals and issuance of decisions, as well as overall client satisfaction. Performance indicators are intended to be posted on the Board of Appeal’s website on an annual basis as soon as possible after the end of each fiscal year. Client surveys will be used as a primary methodology to gather information and measure whether desired outcomes are achieved. Administrative data from appeals will be collected to measure results in relation to expected standards.

The intent will be to use the EI MAR to strengthen the reporting on outcomes of the entire recourse process, including the Board of Appeal. The intent will be to leverage information and data from the EI MAR to support an overall comprehensive understanding of the performance and results of the recourse process.

Contact

Robert Lalonde
Director
Individual Payments and Services on Demand
Integrated Services Strategy and Operations
Service Canada
Email: esdc.boa_regulations_comments-boa_regulations_comments.edsc@hrsdc-rhdcc.gc.ca

Footnotes

Footnote a

S.C. 2023, c. 26, s. 654

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Footnote b

S.C. 2005, c. 34; S.C. 2013, c. 40, s. 205

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Footnote c

S.C. 2012, c. 19, s. 247

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Footnote d

S.C. 1996, c. 23

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Footnote 1

SOR/96-332

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Footnote 2

Employment Insurance Board of Referees, Employment Insurance Umpire, Canada Pension Plan and Old Age Security Review Tribunals and Pension Appeals Board.

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Footnote 3

Exploring the Impact of Recent Changes to Employment Insurance and Ways to Improve Access to the Program, June 2016 report, and the Service Quality Review (SQR) by the Department of Employment and Social Development in 2016.

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Footnote 4

See the Review of the Social Security Tribunal of Canada.

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Footnote 5

Supra, footnote 3.

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Footnote 6

Former tribunal members included former members of the Board of Referees, former and current Social Security Tribunal members, former members of the Office of the Commissioner of the Review Tribunals and the Pension Appeals Board.

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Footnote 7

Employment Insurance Board of Appeal Public Consultation – What We Heard

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Footnote 8

Social Security Tribunal Annual Report 2023–2024, Annual report for the 2023 to 2024 fiscal year: Empowering people to participate fully

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