Practice Direction
Using testimony from General Division hearings in Income Security appeals
at the Appeal Division
This Practice Direction explains how testimony from a hearing at the General Division, Income Security Section, can be used as evidence at the Appeal Division.
1. General information
1.1 This Practice Direction applies to appeals at the Appeal Division about Canada Pension Plan or Old Age Security benefits, after the Appeal Division has given permission to appeal.
1.2 The Appeal Division hears an income security appeal as a new proceeding. (This is sometimes called a de novo hearing.) The Appeal Division may consider earlier testimony from the General Division hearing in certain situations.
1.3 Testimony from the General Division hearing isn’t part of the evidence at the Appeal Division unless a member accepts it.
1.4 An Appeal Division member may accept earlier testimony from the General Division hearing as evidence based on factors like necessity and relevance:
- “Necessity” means whether accepting the earlier testimony is the only way to get the evidence about the facts of the case or to decide a question of credibility.
- “Relevance” means whether there’s a connection between the earlier testimony and an issue in the appeal.
2. Asking the Appeal Division to consider testimony from the General Division hearing
2.1 A party asking the Appeal Division to consider earlier testimony from a General Division hearing has to submit a written request before the first filing deadline.
2.2 The request has to include the following:
a. the name of the witness who testified at the General Division hearing
b. why the member should consider the witness’s testimony (for example, the witness is no longer available)
c. why accepting this evidence is necessary and how this evidence is relevant to the appeal
d. either:
- a confirmation that the person making the request will provide a transcript of the testimony and an estimate of how long this will take
or - a request to put aside the requirement for a transcript because of the cost or for another convincing reason
2.3 A “transcript” is a written version of the testimony which accurately reflects the audio recording.
2.4 The member will give the other parties in the appeal the chance to respond to the request.
2.5 The member will tell the parties in writing whether they have accepted the request.
2.6 If the member agrees to consider testimony from the General Division hearing, the party who made the request will have to provide a transcript of the witness’s testimony (not a transcript of the whole hearing). The Appeal Division will give the party a copy of the hearing recording if they don’t already have it. The party will have to provide the transcript by the deadline the member sets.
2.7 If the member decides that the party doesn’t have to provide a transcript, the member may instead:
- accept the recording of the testimony from the General Division hearing into evidence
or - arrange for the Tribunal to provide a transcript at no cost to the party
3. Asking the Appeal Division to consider testimony from the General Division hearing to show an inconsistent statement
3.1 Section 2 doesn’t apply to a party who wants to use prior testimony to show that a witness said something different at the General Division hearing. In that case, the party will have to do the following:
- make the request while the witness is testifying as part of the Appeal Division hearing, and
- identify the specific inconsistent statement(s). In other words, point out what the witness said at the General Division that is different from what they said at the Appeal Division.
3.2 If the party provides a timestamp for the inconsistent statement and can play the recording for the witness during the hearing, the member may consider that portion of the General Division hearing as evidence. The member may consider a longer part of the General Division hearing as evidence if it’s needed to give context about the witness’s evidence.
3.3 If the audio recording can’t be played, the member may require the party to provide a transcript of the witness’s General Division testimony at or after the Appeal Division hearing.
3.4 The member will give the witness the chance to respond to the claim that they made an inconsistent statement.
4. Witness attendance at the hearing
4.1 If the member has agreed to consider a witness’s earlier testimony from the General Division hearing, the witness still has to attend the Appeal Division hearing. This will allow the member and any other party to ask the witness questions.
4.2 The member can make an exception if the witness can’t attend the hearing, even after considering different dates and formats.
5. Legislative authority
5.1 Under section 8(5) of the Social Security Tribunal Rules of Procedure opens a new window (Rules), the Tribunal may decide the procedure for anything not covered in the Rules or the Social Security Tribunal Regulations, 2022 opens a new window.