Member Code of Conduct
1.0 Mission of The Employment and Assistance Appeal Tribunal
The mission of the Employment and Assistance Appeal Tribunal (the Tribunal) is to provide an independent and impartial appeal process that is community based and delivers timely and fair decisions reviewing specified determinations of the Ministry of Social Development and Social Innovation regarding income and disability assistance and, for the child care subsidy program, with specified decisions of the Ministry of Children and Family Development.
In carrying out its mission, the Tribunal is guided by the following values:
Through adherence to these principles, the Tribunal achieves its goals of independence in decision making, excellence in service, and efficiency in administration.
1.1 PURPOSE OF THE CODE OF CONDUCT
The purpose of this Code of Conduct (“Code”) is to:
- establish rules of conduct that govern the professional and ethical responsibilities of Tribunal members;
- identify the criteria against which members’ performance will be assessed for purposes of identifying training needs and making recommendations respecting re-appointment; and
- promote public confidence in the integrity and competency of the Tribunal, and the independence and credibility of the Tribunal and its members.
The Code is based on the fundamental principle of a fair hearing and recognizes the requirement of independence in adjudicative decision making.
The Code covers the role and responsibilities of Tribunal members to the Tribunal, to the public trust, and to the parties when hearing appeals. Specifically, the Code deals with:
- the role and authority of Tribunal members;
- the responsibilities of members to the Tribunal;
- preparation and timeliness;
- conduct during hearings;
- decision making;
- decision writing; and
- duties of panel chairs and panel members.
The Code may be amended to reflect the
continuing development of the Tribunal.
2.0 Roles and Authority of Tribunal Membership
The Chair of the Tribunal, appointed by the Lieutenant Governor in Council, acts as the chief executive officer of the Tribunal and is responsible for its overall management and the appointment of panels to hear appeals. The Chair reports to the Minister annually on the performance of the Tribunal and consults with the Minister respecting appointment of members and vice chair(s). Members are appointed by the Minister for a set term. Members exercise the authorities of membership only while serving on a panel in the course of an appeal. Members are expected to act honestly and in good faith and to comply with this Code and with the Tribunal Practices and Procedures. Members must never speak about any matter related to the Tribunal or its work in a public setting or to the media.
3.0 RESPONSIBILITIES TO THE TRIBUNAL
The Tribunal operates through its members, and the Tribunal Chair needs the assistance of all members to ensure the public trust is upheld. Employment and Assistance Appeal Tribunal Members have a continuing responsibility in relation to the following:
CONFIDENTIALITY – Members must not divulge confidential information obtained as a result of their appointment unless legally required to do so.
DUTY TO DISCLOSE – Members are to disclose to the Tribunal Chair any matter that could have or be perceived to have a negative or harmful effect on the public perception of the Tribunal. This includes an actual or potential conflict of interest with respect to the performance of his or her duties and obligations as a member of the Tribunal. This also includes any issue that may be perceived to affect his or her integrity or public accountability, such as being involved in any issue or controversy that has gone or is likely to go to litigation or public review.
KNOWLEDGE – Members are expected to acquaint themselves with the orientation and training materials provided prior to being appointed to a panel to hear an appeal and to maintain current knowledge of the Tribunal’s jurisdiction and mandate, its governing legislation, and its policies and procedures. Members are to update their copy of the legislation to ensure it is current.
JUDGEMENT – Members are expected to exercise good judgment regarding appropriate conduct at all times, including on matters or in situations not specifically mentioned in this Code.
– Members are expected to attend and participate in orientation and training opportunities and in periodic meetings arranged by the Tribunal.
PERFORMANCE – Members agree to participate in learning and development programs aimed at improving individual competence in relation to the duties performed for the Tribunal.
4.0 PREPARATION FOR AND ATTENDANCE AT HEARINGS
PREPARATION – Members must be fully prepared for hearings. Members must review and become familiar with the material and evidence provided in the appeal package prior to the hearing. This is an unconditional requirement. If a member is unable to properly prepare for a hearing for any reason, s/he should notify the Tribunal Chair and withdraw from the panel well in advance of the hearing.
TIMELINESS AND ATTENDANCE – Members must be present and ready to proceed prior to the scheduled time of the hearing, remain in attendance throughout the proceeding and be available during the decision-making and decision writing processes. Ideally, members will arrive 10 – 15 minutes before the scheduled hearing start time.
4.1 Conduct during the Hearing
It is essential that the work of the Tribunal and its appeal hearings be conducted in a manner which ensures that the appeal process is fair to the parties, and complies with the legal requirements set out in the applicable legislation. The following principles are intended to ensure impartiality and fairness. This is essential to retain the trust and respect of the parties to the appeal and the public in the Tribunal.
THE RIGHT TO BE HEARD – This administrative principle is the governing foundation of the Tribunal’s work. All parties must be given a full and fair opportunity to present their case, ask questions of witnesses and the other party, and present relevant evidence to an impartial panel which will decide the appeal on the bases of the legislation and the evidence.
MAINTAIN APPROPRIATE PROFESSIONAL DISTANCE – Members must maintain an appropriate professional distance from parties, their advocates or representatives, and witnesses by avoiding casual, social or private conversations or spending time with parties before, during or after the hearing, and by avoiding any other behaviour that may give an impression that a personal or social relationship exists that could give rise to a reasonable apprehension of bias.
COMMUNICATIONS – Members must not communicate directly or indirectly with any party, advocate or representative or witness in respect of a proceeding, except in the presence of all parties and their advocates or representatives.
IMPARTIALITY – The appeal process must be fair and reasonable in accordance with the rules of natural justice. Members must be impartial and exercise independence of thought. Members must not be influenced by improper considerations. Evidence of bias, or even a reasonable apprehension of bias, by a panel member will void the hearing and the resulting decision.
KEEPING AN OPEN MIND – Members must not prejudge the appeal until all the evidence has been presented and arguments by the parties have been made. Only then can members properly deliberate on the merits of the appeal.
RESPECT – Members demeanour, behaviour, and language should reflect respect and courtesy to all parties at hearings. Members must listen patiently and carefully to the evidence and submissions of the parties, witnesses and advocates. Sensitivity to disabilities and to the culture of the parties, their witnesses and representatives is essential.
ATTENTIVE LISTENING – Members must carefully attend to the information presented and the arguments made by the parties as they explain their respective positions on the appeal. The parties should be given the opportunity to present their positions without interruption. If an oral submission is not clear, the panel may ask questions to clarify the party’s position.
QUESTIONING – It is important that aggressive or repetitive questioning be avoided. Members must ensure their questions are asked in a reasonable manner and are focused on understanding the position of the party and the facts of the case. Such questioning may disclose that the party’s evidence is inconsistent, conflicts with other information or is not credible. After one party finishes presenting their position, the other party may ask questions of that party or their witness. Then, the members may ask questions of the party or witness. The panel chair must be vigilant to exert control over this questioning to prevent repetitive or non-relevant questions, intimidation or other coercive behaviour while at the same time permitting relevant questions which are clarifying.
PROCEDURES – Members are to conduct the hearing in accordance with the Employment and Assistance Act and Regulation, the Policies and Procedures established by the Tribunal and guidelines. The panel chair must recess the hearing if a short break is required by any member or participant.
The panel may only admit and consider information and records that were before the minister when the decision was made and oral or written evidence in support of the information and records that were before the minister when the decision being appealed was made. (Employment and Assistance Act, s. 22). Written submissions and documents provided at the hearing are to be recorded on either the Submission at Hearing – Appellant form or Submission at Hearing – Ministry form (indicating whether the submission was argument or evidence and, if evidence whether it was admitted. The nature of the evidence tendered and whether and why it was admitted by the panel is also noted in the decision.
In the course of deliberating and decision-making, members must:
- Be guided by the requirements of the law;
- Avoid arriving at any final judgment, conclusion or decision on an issue until all panel members have had an opportunity to provide input;
- Deliberate as a panel with each member of the panel participating fully in the discussions, including the determination of:
- the facts of the case,
- the ministry’s reasons for denial, and
- how the facts apply to the law.
- Demonstrate the same respect and courtesy to fellow members during deliberations as shown to the parties during the hearing, listening patiently and carefully to their views and arguments;
- Take personal responsibility to come to a decision according to his or her conscience and the applicable law. A member may not delegate this obligation or allow their decision to be dictated by another. Provision is made for majority decisions because consensus is not always possible.
4.4 Decision Writing
All members of a panel must participate in the drafting of the written decision (which may include a dissenting opinion) to the extent of agreeing in point form on the findings of fact, the applicable law, and the reasoning supporting the decision. The final draft of the decision may be written by the panel chair without the other members present.
- Members must have the opportunity to review and comment on the final draft decision prior to the panel chair forwarding it to the Tribunal. This can be done in person, by telephone, or by fax or email.
- Where email is used, only Part E – Summary of Facts and Part F – Reasons for Panel Decision will be exchanged and care must be taken that they contain no identifying information.
- Members must sign the decision form at the hearing or at a later time or provide authorization to the panel chair to sign on a member’s behalf. In all cases the members must review and agree to the draft decision before it is sent to the Tribunal;
- The written decision must follow the format set out in s. 87 of the Employment and Assistance Regulation;
- All appeal records and documents, both hardcopy and electronic, must be kept in a confidential and secure manner. All hardcopy material (including the appeal record, draft decisions, members’ notes and any material provided by the parties at the hearing) must be returned to the Tribunal with the appeal records, and all electronic material must be deleted;
- Appeal records and other documents must be returned to the Tribunal within 5 business days of the panel making its determination.
4.5 OBLIGATIONS OF PANEL CHAIRS
The panel chair is to ensure s/he and other members of a panel adhere to the Code and take any necessary steps to ensure compliance, including:
- Following the “Conduct of Hearing” guidelines set out in the Panel Member Reference Manual, section 3.2.5, “Introduction by Panel Chair;”
- Recessing the hearing to consult with the other panel members on procedural or legal issues as required. All discussion of procedural or substantive issues must take place in private without the parties present;
- Ensuring that the requirements above, 4.1 to 4.4, are met;
- Identifying or clarifying any procedural issues, including admissibility of evidence, consideration of former Tribunal or court decisions, adjournment requests, and objections raised by a party;
- Dealing with aggressive or rude behaviour and safety concerns;
- Ensuring the proper procedure is followed if a conflict of interest or a matter of bias is identified that may disqualify a member from participating in a hearing;
- Deciding any question of practice or procedure that arises during a hearing and is not provided for in the regulations or in the Tribunal Practices and Procedures (Employment and Assistance Act, s. 22(6);
- Ensuring all members conduct themselves respectfully and in keeping with the provisions of this Code and bringing breaches by a member to the attention of that member and the Tribunal Chair;
- Maintaining order at a hearing and attempting to complete hearings within the time allocated;
- Facilitating the discussion between panel members regarding the disposition of the case.
- Informing the Appeal Coordinator about adjournments or other issues arising during a hearing.
- Ensuring that decisions are completed and submitted in a timely and complete manner.