Budget Implementation Act, 2023, No. 1 (S.C. 2023, c. 26)

Board of Appeal and Social Security Tribunal

Board of Appeal

Establishment and Administration

Marginal note:Establishment of Board of Appeal

43.01 The Employment Insurance Board of Appeal is established.

Marginal note:Appointment — Executive Head

• 43.02 (1) The Executive Head of the Board of Appeal is to be appointed by the Governor in Council, on the recommendation of the Minister after consultation by the Minister with the Commission, to hold office during pleasure on a full-time basis for a renewable term of not more than five years.

• Marginal note:Appointment — regional coordinators

  (2) On the recommendation of the Minister after consultation by the Minister with the Commission, the Governor in Council may appoint not more than six regional coordinators to hold office during pleasure on a full-time or part-time basis for a renewable term of not more than five years that will ensure, to the extent possible, the end in any one year of the terms of office of not more than one half of the regional coordinators.

• Marginal note:Diversity

  (3) Recommendations under subsection (2) are to be made having regard to the importance of having regional coordinators who are representative of the diversity of Canadian society.

Marginal note:Composition

• 43.03 (1) The Board of Appeal consists of the Executive Head, the regional coordinators and the following members:

  • (a) members to be appointed by the Governor in Council, on the recommendation of the Minister after consultation by the Minister with the Commission, to hold office during pleasure on a part-time basis for a renewable term of not more than five years;

  • (b) members to be appointed by the Commission to hold office during pleasure on a part-time basis for a renewable term of not more than five years, each of whom must be an employer, within the meaning of subsection 2(1) of the Employment Insurance Act, or, at the time of the appointment, a representative of such employers; and

  • (c) members to be appointed by the Commission to hold office during pleasure on a part-time basis for a renewable term of not more than five years, each of whom must be an insured person, within the meaning of subsection 2(1) of the Employment Insurance Act, or, at the time of the appointment, a representative of such insured persons.

• Marginal note:Terms of members

  (2) Members are to be appointed for terms that will ensure, to the extent possible, the end in any one year of the terms of office of not more than one half of the members appointed under each of paragraphs (1)(a) to (c).

• Marginal note:Equal number

  (3) To the extent possible, an equal number of members is to be appointed under each of paragraphs (1)(a) to (c).

• Marginal note:Regional representation and diversity

  (4) Recommendations under paragraph (1)(a) and appointments under paragraphs (1)(b) and (c) are to be made having regard to the importance of regional representation in the membership of the Board of Appeal as well as the importance of having members who are representative of the diversity of Canadian society.

• Marginal note:Completion of ongoing matters

  (5) A person who ceases to be a member for any reason other than removal may, at the request of the Executive Head, within 12 weeks after ceasing to be a member, carry out and complete any duties and functions that they would otherwise have had in connection with any matter that came before the Board of Appeal while they were still a member and in respect of which there was any proceeding in which they participated as a member. For that purpose, the person is deemed to be a member.

Marginal note:Executive Head

• 43.04 (1) The Executive Head has supervision over and direction of the day-to-day work of the Board of Appeal. In particular, the Executive Head is responsible for the management of the regional coordinators and the members of the Board of Appeal, including providing them with training and guidance with respect to their duties and functions and evaluating their performance.

• Marginal note:Report on overall performance

  (2) The Executive Head is to report regularly to the Commission on the overall performance of the Board of Appeal.

• Marginal note:Regional coordinators

  (3) Regional coordinators assist the Executive Head and perform any duties and functions that the Executive Head may assign.

• Marginal note:Delegation — regional coordinators

  (4) The Executive Head may delegate to any regional coordinator any of the Executive Head’s powers, duties or functions, except the power to delegate under this subsection, the duty to report under subsection (2), the duty to select members under subsection 43.05(1) and the duty to select a regional coordinator under subsection 43.05(2).

• Marginal note:Members assigned to region

  (5) The Executive Head is to assign each member of the Board of Appeal to a particular region to hear appeals in that region, taking into account the member’s ordinary place of residence. However, a member may be selected to hear appeals in other regions for operational reasons.

• Marginal note:Absence — Executive Head

  (6) In the event of the absence or incapacity of the Executive Head or a vacancy in that office, the Chairperson of the Commission may authorize a person to act as Executive Head, on any terms and conditions that the Chairperson may specify, but no person so authorized has authority to act for a term of more than 90 days without the Governor in Council’s approval given on the recommendation of the Minister after consultation by the Minister with the Commission.

Marginal note:Board of Appeal hearings — three-member panels

• 43.05 (1) An appeal to the Board of Appeal is to be heard before a panel of three members selected by the Executive Head. One member, who is to be the presiding member of the panel, is to be selected from among the members referred to in paragraph 43.03(1)(a), one member is to be selected from among the members referred to in paragraph 43.03(1)(b) and one member is to be selected from among the members referred to in paragraph 43.03(1)(c).

• Marginal note:Determination of regional coordinator

  (2) The Executive Head is to select a regional coordinator to

  • (a) determine if an extension of time to bring an appeal to the Board of Appeal should be granted;

  • (b) determine if an appeal before the Board of Appeal has been abandoned; or

  • (c) hear an application to reopen an appeal that has been determined to be abandoned.

• Marginal note:Delegation — employees of Department

  (3) The Executive Head may delegate to any employees of the Department, referred to in section 43.08, the duty to select members under subsection (1) and the duty to select a regional coordinator under subsection (2).

Marginal note:Remuneration

• 43.06 (1) The Executive Head, the regional coordinators and the members of the Board of Appeal are to be paid the remuneration fixed by the Governor in Council.

• Marginal note:Expenses — Executive Head

  (2) The Executive Head is entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred by the Executive Head while absent from the Executive Head’s ordinary place of work in the course of performing the Executive Head’s duties and functions.

• Marginal note:Expenses — full-time regional coordinators

  (3) Each full-time regional coordinator is entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred by them while absent from their ordinary place of work in the course of performing their duties and functions as a regional coordinator.

• Marginal note:Expenses — part-time regional coordinators and members

  (4) Each part-time regional coordinator and each member of the Board of Appeal is entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred by them while absent from their ordinary place of residence in the course of performing their duties and functions as a regional coordinator or a member of the Board of Appeal, as the case may be.

Marginal note:Public Service Superannuation Act

• 43.07 (1) The Executive Head and the full-time regional coordinators are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

• Marginal note:Other benefits

  (2) The Executive Head, the regional coordinators and the members of the Board of Appeal are deemed to be employees for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of regulations made under section 9 of the Aeronautics Act.

Marginal note:Employees, services and facilities

43.08 The Minister is responsible for providing the Board of Appeal with the employees of the Department, the support services and the facilities that are needed by the Board of Appeal to exercise its powers and perform its duties and functions.

Marginal note:Immunity

43.09 No civil proceedings lie against the Executive Head, any regional coordinator or any member of the Board of Appeal for anything done or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Board of Appeal.

Marginal note:Competence and compellability

43.1 The Executive Head, the regional coordinators and the members of the Board of Appeal are not competent or compellable to appear as a witness in any civil proceedings in respect of any matter coming to their knowledge in the course of the exercise of a power or in the performance of a duty or function of the Board of Appeal.

Social Security Tribunal

Establishment and Administration

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.