Rules of Procedure and processes for the Social Security Tribunal Stakeholder consultations – Overview of key takeaways

We’re creating our own rules of procedure for the appeal process at the SST. The Rules will replace our current Regulations, which are available online. The Regulations are the rules we follow now.

ESDC is also working on Regulations that will apply to the appeal process. They focus on 3 key areas:

• constitutional issues
• choice of type of hearing
• private hearings

We want our Rules to:

• provide a revised appeal process that’s in line with legislative changes and that’s client‑centric, simple, quick, and fair
• be designed from the user perspective
• be a simple set of rules that allow a self-represented claimant to navigate our appeal process with no trouble
• clearly set out (in plain language) what claimants can expect at the SST and what’s expected of them
• help people access justice at the SST

Our goal is to create a set of Rules through a user-centred design. We want to make our administrative justice service work best for the people who use it. So, we shared our ideas for the Rules and asked you for your input.

Plain language

What we proposed during the consultations

We want to write our Rules in clear language so that users can easily:

• find what they need
• understand what they find
• use the information they find

What you told us

• You strongly support plain-language rules that are both general and flexible
• Survey results:
• 76% of respondents agree that rules written in plain language would be extremely or very useful for them as representatives, stakeholders, and appellants
• 89% of respondents agree that claimants would have an easier time understanding a text that’s in plain language than one that isn’t
• 85% of respondents think it would be useful to have rules that claimants can easily navigate to see what step they are at in the appeal process

What we plan to do

• We plan to write the Rules in plain language
• We plan to keep the Rules as simple as possible so we can be flexible in our processes
• We plan to write the Rules in a way that makes it easier for parties to understand the step their appeal is at and the next steps in the appeal process

Flexible and proportional rules (simple appeal steps need simple rules)

What we proposed during the consultations

We want our Rules to be:

• useful (we want rules only where we need them)
• client-centric, simple, and uncluttered
• flexible so they make appeals as simple, quick, and fair as possible

What you told us

• Generally, you support simple rules
• Survey results:  On a scale of 0% to 100% specific, respondents to our survey think our rules should be 28% specific; that is, rules should be general rather than specific.

What we plan to do

• We’ll propose general rules that are simple and flexible
• If the Rules don’t cover something that might be helpful to parties, we’ll provide that information some other way

Roles and responsibilities for all participants in an appeal

What we proposed during the consultations

• We want to be clear about what participants can expect from the SST and what the SST expects of them

What you told us

• Generally, you agree with what we proposed
• Survey results:
  • 65% of respondents think a roles and responsibilities section would be useful
  • 23% of respondents think it would be somewhat useful

What we plan to do

• We plan to include a section in the Rules about roles and responsibilities

Language of the appeal

What we proposed during the consultations

• We already have some practices about the language of the appeal and requesting interpreters, but we think we can do more
• We want our Rules to explain that:
  • appeals at the SST are in English or French
  • claimants choose the language of their appeal (English or French), not ESDC or the CEIC
  • if participants request it, we’ll provide an interpreter at a hearing or conference (at no cost to the participants)
  • parties must file documents in English or French
  • if a document is in another language, the party has to provide an English or French translation
  • all the documents ESDC or the CEIC files have to be in the claimant’s chosen language for the appeal, or they must provide a translation in that language
  • any translation has to come with a document that says the translation is accurate and that includes the translator’s name and contact information

What you told us

• Requiring claimants to provide translations for documents in languages other than English or French could create a cost barrier for them
• ESDC has concerns about third-party translations
• Survey results:
  • 72% of respondents think it would be very useful to have a rule that claimants may choose whether they want the appeal to be in English or French
  • 20% of respondents think it would be somewhat useful

What we plan to do

• We plan to move forward with what we proposed, but instead of having ESDC or the CEIC provide a translation any time they file a document that isn’t in a party’s chosen language for the appeal, they’ll have to do it only if:
  • the party asks for it, and
  • they didn't get the document directly from that party

Clear criteria for requesting to file an appeal late

What we proposed during the consultations

• We want to clarify in a rule the criteria the SST will consider when deciding whether to give an extension of time to appeal
• We proposed the following 2 approaches:
  • Approach 1: When deciding whether an extension is in the interest of justice, a member must consider any relevant factors, including whether:
    • there’s a reasonable explanation for the delay
    • there was a continuing intention to appeal
    • the appeal has some merit
  • Approach 2: When deciding whether an extension is in the interest of justice, a member must consider the following:
    • whether there’s a reasonable explanation for the delay
    • whether there was a continuing intention to appeal
• At the Appeal Division, a member can extend the time to appeal without asking the other parties for submissions
• We’re considering doing the same at the General Division, since:
  • this would be in line with making processes simple, quick, and proportional
  • this reflects the reality that the other party rarely provides submissions or takes a position against extending the time to appeal when asked

What you told us

• Stakeholders—including representatives—prefer Approach 2 because it’s less strict and more client-centric
• ESDC prefers Approach 1 because it means hearing only cases with merit
• Generally, stakeholders—including representatives—and ESDC support deciding extensions of time without asking the other parties for submissions

What we plan to do

• We will explain the test in the Rules, but we chose an even simpler approach. We plan to simplify the Rules to say that the only factor to consider is whether there is a reasonable explanation for the delay
• We plan to proceed with an approach where we won’t have to ask the other parties for submissions

Clear criteria for filing documents late

What we proposed during the consultations

• We want to clarify in a rule the criteria the SST will consider when a party wants to rely on documentary evidence they filed late
• This rule would promote fairness by helping make sure that parties file documentary evidence on time and know what’s expected when they file late
• We’re considering the following approach:
  • When deciding whether to accept late documentary evidence, a member will consider any relevant factors, including the following:
    • whether the document is relevant
    • whether the document contains any new evidence
    • whether the party could have filed the document earlier
    • whether accepting the document would cause any prejudice (harm) or delay

What you told us

• There are concerns about the SST having to decide whether to allow a party to file late evidence when a party is waiting for documents, such as medical reports
• We should give the other party enough time to respond
• We should clarify how we’ll decide these matters

What we plan to do

• We plan to move forward with what we proposed
• We plan for the Rules to include factors for the member to consider when deciding whether to allow a party to file evidence late

Clear criteria for added parties

What we proposed during the consultations

• This comes up most often in Employment Insurance: We tell employers what to do if they want to be added as a party to an appeal
• Our current Regulations:
  • say you have to show that you have a “direct interest” in the appeal to be added as a party
  • don’t define “direct interest”
• The Federal Court of Appeal says that a party has a direct interest (under its rules) if “its legal rights are affected, legal obligations are imposed upon it, or it is prejudicially affected in some direct way”
• We wanted to know whether:
  • there are situations at the SST that would require a different approach
  • we should consider anything else

What you told us

• The Rules should clearly:
  • set out when we’ll automatically add a party (claimant or employer)
  • indicate that the party can choose whether to participate at the hearing
• We should continue with our current approach for notifying employers in specific circumstances of their option to request to participate
• The Commission would like us to automatically add employers as parties, in misconduct, voluntary leaving and labour dispute cases
• We should keep the wording that a person can ask to be added as a party
  • This would protect individuals who might have a direct interest and haven’t been added as a party

What we plan to do

• We plan to have the Rules set out that the SST may add a person as a party to the proceeding, if they have a direct interest in the decision
• We plan to have the Rules set out that a person can request to be added
  • We plan to continue to notify employers in misconduct, voluntary leaving, and labour dispute cases about appeals, so that they can request to be added
• We plan to simplify the information we need from individuals who ask to be added
• We plan to add the claimant as a party automatically where an employer is appealing a decision about the claimant’s entitlement to benefits
• We don’t plan to have the Rules provide for the automatic addition of the employer to appeals at the General Division – Employment Insurance  
• Added parties for Canada Pension Plan and Old Age Security cases are addressed by the legislative amendments

Streamlining how we handle adjournment requests

What we proposed during the consultations

• We’re considering making our current practice part of our Rules:
  • A one‑time process that allows a party to get their hearing rescheduled if they can’t attend (regardless of the reason) as long as
    • the party asks on time
    • all parties are available for a hearing within 10 days of the original hearing date
  • After this, if a party needs us to change their hearing date, they must file a request and show that they need a new date for the hearing to be fair

What you told us

• Generally, you agree with what we proposed
• You’d like more time for administrative change of date requests (informal rescheduling requests)
• We should give parties more than 10 days to ask us to reschedule a hearing
• You support a flexible rule, especially about the number of requests a party can make
• Survey results:
  • 80% of respondents think it’s important that the Rules explain that a party can ask us to reschedule a hearing
  • 72% of respondents think it’s important that the Rules allow a one-time, immediate change of date if a party can’t attend

What we plan to do

• We plan to reschedule a hearing automatically if the party:
  • is asking for the first time
  • asks at least 5 business days before the hearing
  • is available for a hearing within 2 weeks of the original hearing date
• For all other requests, we plan to reschedule the hearing only if it’s necessary for a fair hearing
• We plan to ask the other parties for submissions only if it’s necessary to fairly decide whether to grant the request

Streamlining how to withdraw an appeal

What we proposed during the consultations

• We’re considering the following approach:
  • you can withdraw your appeal any time before your hearing, but once it has started, you need our permission to withdraw
  • you can withdraw your appeal orally or in writing

What you told us

• Some of you asked why a member would deny permission to withdraw
• ESDC supports the current approach under our Regulations
  • Appellants should withdraw their appeals in writing so we have their requests on record

What we plan to do

• We plan to have the Rules reflect our current process on the timing for withdrawing an appeal but we also plan to allow appellants to withdraw their appeals orally

Clear criteria for witnesses

What we proposed during the consultations

• Our current Regulations don’t say anything about parties being allowed to bring witnesses to a hearing
• We want a rule about witnesses to help parties better prepare for their hearing
• This way:
  • parties can start to think about witnesses early in the process
  • a party won’t be surprised if another party brings a witness
• We’re also thinking of setting out a few requirements for bringing witnesses to a hearing (General Division – Income Security and Appeal Division – Income Security only):
  • Before the hearing, parties would need to tell us the following for each witness:
    • the witness’s name
    • their relationship to the witness
    • the language the witness will use at the hearing (English or French)
    • whether the witness will need an interpreter or other accommodation (special arrangement)
  • If the witness is appearing as a professional (for example, as a doctor testifying about the claimant’s medical condition) or for the Minister, parties would also need to give us the following:
    • the name of the witness’s employer and the witness’s title or profession
    • a list of the documents in the record that the witness will testify about or a summary of what they’ll testify about if there are no documents in the record to support what they’ll testify about

What you told us

• Generally, you agree with what we proposed
• You support keeping the process as informal as possible
• We could do what they did at the Pension Appeals Board, the previous tribunal for Canada Pension Plan (CPP) appeals:
  • ESDC had to provide the résumés of any medical experts they introduced
  • Appellants had to indicate whether they agreed to the professional qualifications/expert status

What we plan to do

• We plan to move forward with what we proposed
• We don’t plan for the Rules to require the formal qualification of expert witnesses, like in the courts

Using conferences to help claimants move forward with their appeal

What we proposed during the consultations

• We want to simplify how we explain and use conferences
• Conferences are a valuable tool that our members can use more often and/or earlier in the process to:
  • help address issues early
  • help claimants move forward with their appeal
• Our Rules will explain that:
  • a member can invite parties to a conference to talk about anything that affects the appeal
  • settlement conferences will be confidential
• Our current practice is that the member who leads the settlement conference needs the parties’ consent to hear the appeal
• Our proposed approach is the following:
  • By default, the member who leads the settlement conference will hear the appeal unless the parties object

What you told us

• You support using conferences
• There are concerns about the same member both leading the settlement conference and hearing the appeal by default
• ESDC says that we should limit pre-hearing and settlement conferences to complex cases

What we plan to do

• We plan to proceed with the proposed approach to simplify how we explain conferences
• We plan to maintain the current practice that the member who leads the settlement conference won’t hear the appeal unless all parties agree
• We plan for settlement conferences to stay confidential

General Division

What we proposed during the consultations

• We proposed 2 possible options for how the process could work:

Approach 1 (up to 2 years) – Staggered filing (appellant first)

1. Appellant filing	2. Minister filing	3. Scheduling and reply period	4. Hearing and decision
Appellant (and added party, if applicable) has up to 20 months to prepare Once appellant (and added party, if applicable) has filed all documents, or at 20 months, Minister can prepare	Minister has up to 3 months to prepare Once Minister has filed all documents, or after 3 months, appeal continues to scheduling and reply period	Availability call scheduled Notice of Hearing sent, and parties advised of reply period Appellant (and added party, if applicable) has 1 month to reply (unless waived) Hearing scheduled for 2 weeks after reply period	Hearing held Decision given

Approach 2 (up to 2 years) – Simultaneous filing

1. Filing	2. Scheduling and reply period	3. Hearing and decision
Parties have up to 23 months to prepare and file Once last party has filed all documents, or at 23 months, appeal continues to scheduling and reply period	Availability call scheduled Notice of Hearing sent, and parties advised of reply period Parties have 1 month to reply Hearing scheduled for 2 weeks after reply period	Hearing held Decision given

In both options:

• We’ll continue to assign navigators right away for parties who don’t have a professional representative
• Our members will hold conferences more often to keep cases moving forward and address issues as soon as they come up
  • Some specific examples of how we’ll use conferences in our new process:
    • If parties aren’t ready for a hearing after one year, we’ll hold a conference to talk about the status of the appeal (i.e., where the appeal is at and next steps in the appeal process)
    • We may hold a conference if standard timelines aren’t fair or efficient. Based on the conference, the member could decide to deviate from the regular process and timelines

What you told us

• You support using navigators and conferences
• Only a few of you prefer a specific approach, and preferences are split
• For Approach 1, ESDC says that the time given shouldn’t be an issue unless the appellant is ready early in the process
• Some of you support a 30-day reply period, while others support a longer period (for example, 90 days)
• You support allowing appellants to waive the reply period if they don’t need it
• Some representatives have concerns about the amount of notice we proposed for scheduling hearings
  • More specifically, two weeks might be challenging because of availability
  • There appeared to be a misunderstanding about the amount of notice we intend to provide when scheduling the hearing, we've clarified this below in “What we plan to do”
• Survey results: 68% of respondents think it’s important to give a reply period in Income Security appeals

What we plan to do

• We plan to move forward with Approach 1 (staggered filing), for the following reasons:
  • It’s the most client-centric
    • It gives appellants time to build their case and file their documents
    • It gives appellants control over when their appeal moves to the next step
  • It gives us flexibility to adjust timelines where appropriate
• We plan to continue with our navigator service to support parties
• We plan to use conferences to help resolve issues and keep appeals moving forward
• We plan to move forward with the proposed time frame for ESDC : appellant’s filing period plus 3 months
• We plan to give the appellant (and added party) a 30-day reply period
• We plan to address requests for more time on a case-by-case basis
• We plan for appellants who don’t need a reply period to be able to waive it
• We’d like to clarify that we plan to schedule the hearing approximately 6 weeks after the filing period
  • We plan to make an availability call, and then schedule the hearing for 6 weeks later (a one-month reply period plus 2 weeks)

Appeal Division

What we proposed during the consultations

Legislative changes related to what we proposed

• Appellants still need leave to appeal, but the criteria will be broader:
• arguable case of breach of natural justice or jurisdiction
• errors of law, fact, or mixed law and fact
• there’s evidence that wasn’t before the General Division
• With these broader criteria, we anticipate being able to give leave to appeal decisions quickly
• Because of the legislative changes, written reasons for leave to appeal will be required if leave is refused or if parties ask for them when leave is granted
• Parties have 10 days to ask for written reasons
• When we grant leave to appeal, we’ll hear the appeal as a new proceeding, meaning the parties will be able to file new evidence (including witness testimony)
• The Appeal Division will no longer have the power to refer appeals back to the General Division

General

• If leave is granted, we’ll either set out the deadlines for filing or schedule a conference
• The new process will include a case managed stream and a regular stream
• We’ll continue to assign navigators for parties who don’t have a professional representative
• To keep cases moving forward and address issues as soon as they come up, our members will hold conferences:
• routinely in the case managed stream
• as necessary in the regular stream

Case managed stream

• In situations where parties need more time to prepare or don’t need more time to file documents (situations where the regular stream isn’t suitable), the member will:
  • hold an initial case management conference
  • decide on the process and timelines based on that conference and any later ones
• We may also use this stream for appeals we divert to the Alternative Dispute Resolution program

Regular stream

• For the regular stream, we proposed two approaches:

Approach 1 – Filing, scheduling, reply

1. Filing period	2. Scheduling	3. Reply period	4. Hearing and decision
Parties have a fixed number of days to file evidence and identify witnesses Simultaneous	Notice of Hearing sent Hearing scheduled for 6 weeks later	Parties have 30 days to reply Simultaneous	Hearing held Decision given

Approach 2 – Scheduling, filing, reply

1. Scheduling	2. Filing period	3. Reply period	4. Hearing and decision
Notice of Hearing sent Hearing scheduled into future (4 months)	Parties file evidence and identify witnesses Simultaneous Ends 40 days before hearing	Parties have 25 days to reply Simultaneous Ends 15 days before hearing	Hearing held Decision given

What you told us

General

• You support using navigators and conferences
• Generally, you say there’s no need for any differences in processes for CPP and Old Age Security (OAS) appeals
• You want to know more about how the General Division recording will be used at the Appeal Division

Case management and conferences

• Generally, you support using a case managed stream, especially to:
  • move appeals forward faster, where possible
  • give more time for more complex cases
• When we want to hold a conference to talk about appeal timelines, ESDC would like:
  • between a week and 30 days notice for OAS appeals and 6 to 8 weeks’ notice for CPP disability appeals because they are more complex.
• When we want to hold a conference to talk about possibly resolving the appeal, ESDC would like:
  • 3 to 4 weeks’ notice for OAS appeals
  • 6 to 8 weeks’ notice for CPP disability appeals because they are more complex

Timeline and approach for the regular stream

• You seem to prefer Approach 1
  • Among your reasons, you say that it:
    • is more client-centric
    • is less likely to need rescheduling
    • gives representatives more time, before we schedule the hearing, to prepare, review the record, and assess the time they need based on what the file contains
• Generally, you think that 6 months is a realistic goal (for example, for OAS and CPP non-disability appeals)
• For CPP disability appeals, ESDC says that 8 to 10 months may be more appropriate because these files are complex and need time to be developed (for example, for medical evidence)
• Generally, you’d like us to be flexible with this timeline given that:
  • some appeals are more difficult than others
  • all appeals have important consequences for appellants
• For the initial filing period:
  • you say that 45, 75, and even 90 days wouldn’t be enough and that you’d like to see a longer default time
  • you’d like us to build flexibility into the timelines to give enough time for more complex cases
  • you say that faster appeals aren’t always client-centric
• For the reply period:
  • you suggested 30 and 60 days, saying 60 days would allow the parties to do enough legal research if necessary
  • Survey results: 68% of respondents think it’s important to give a reply period in Income Security appeals

Hearings and scheduling

• You support:
  • calling to check availability before scheduling the hearing
  • allowing room for flexibility in terms of case management
• Some representatives have concerns about the amount of notice we proposed for scheduling hearings
  • They’d like more time (for example, 8 to 12 weeks)

What we plan to do

General

• We plan to continue with our navigator service to support parties
• We plan to use the same processes for OAS and CPP appeals
• We’ll consider your questions about the General Division hearing recording

Case management and conferences

• We plan to move forward with creating a case managed stream
• Members will exercise their discretion when scheduling conferences. Simple matters may be scheduled more quickly, while additional time may be provided for complex matters

Timeline and approach for the regular stream

• We plan to move forward with Approach 1 (filing, scheduling, reply)
• We plan to go with:
  • a 75-day filing period
  • a 30-day reply period
• We plan for the Rules to give us the flexibility to allow more time, as appropriate

Hearings and scheduling

• We plan to move forward with checking parties’ availability before sending the Notice of Hearing
• We plan to move forward with the proposed approach for scheduling (approximately 6 weeks’ notice)
  • This is consistent with the six weeks provided at General Division – Income Security
  • We plan for the Rules to give us flexibility around scheduling when needed