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Representative's Bulletin

This newsletter is targeted primarily at appellants' representatives who regularly appear before Review Tribunals. It will keep you informed of recent developments at the OCRT. It will also spell out our expectations of appellants and their representatives in the process leading up to the hearing date. As a result, you will be able to better serve the interests of your clients.

An ongoing dialogue with appellants' representatives is critical to ensure that we can provide high quality service and make the hearing experience as valuable as possible for all participants. A regular series of discussion sessions across Canada also forms part of the efforts undertaken recently to assist in meeting this goal. I hope that as many of you as possible will be in attendance.

Philippe Rabot,
Commissioner

Appeals Management Process - Phase 2 to Begin November 1, 2009

NANCY LEPITRE, TRIBUNAL OPERATIONS AND COMMUNICATIONS

On January 1, 2009 the Appeals Management Process (AMP), which will provide for earlier and more frequent contact with appellants and/or their representatives, was launched. Phase 1 of the implementation included all disability appeals received after January 1, 2009 for hearings in British Columbia, Nova Scotia, Prince Edward Island, and in the Ontario hearing locations of North York, Etobicoke, and Ottawa. Effective November 1, all disability appeals for hearings in all remaining locations in Canada except those in Mid and Northern Ontario will fall under the AMP umbrella. Mid and Northern Ontario locations will come 'on stream' for disability appeals received after January 1, 2010.

Implementation of the AMP process has required significant changes in processes, procedures, and staff training. As with any major initiative, we have learned as we have progressed. Indeed, that is why a phased implementation approach was used; to evaluate and make corrections as necessary. While it is too early to conclude that AMP is having any impact, we have seen some encouraging signs. We will continue to monitor results.

Supporting AMP

There is much that you can do to have you and your client benefit from AMP.

• You will receive a hearing file containing the information which HRSDC relied on when making its decision about 5-6 months before the hearing date. Review the file early and identify any additional information you will require. Do not send us information that is already contained in the hearing file.
• With your hearing file, we will notify you of the month in which we plan to schedule the hearing. Call us right away if his date will not be convenient.
• About four months before the projected early month, we will call you to confirm a time and place for the hearing. We will consider confirmation of this date as your statement of readiness to proceed at the agreed upon time.
• Please remember that we cannot accept tabbed and bound documents. If you do not feel that you will be able to obtain the information in time, we may not agree to schedule the hearing.

Continuous Improvement

As we proceed with the implementation AMP, we will be looking for feedback from all parties and stakeholders. Let us know what is working and what needs to be modified. We look forward to your comments and suggestions as well as any questions you may have.

Contact Nancy LePitre, Director Tribunal Operations and Communications at 1-800-363-0076 or at nancy.lepitre@ocrt-bctr.gc.ca.

Witnesses at Review Tribunal Hearings

Witnesses can provide important evidence to a Review Tribunal when it considers the merits of an appeal. It is not unusual for spouses or adult children to testify in the case of a Canada Pension Plan disability or survivor appeal. If you plan to bring witnesses to the hearing, please consider the following factors.

Notifying the OCRT

It is important that you notify the Client Service Officer as soon as possible of the number and type of witnesses you intend to bring to the hearing. This will allow you to discuss the time you will need for your hearing and if we need to arrange for a witness to provide evidence by phone, for example. The Client Service Office will also review the situation with you if you intend to bring multiple witnesses to provide similar testimony.

Exclusion of Witnesses

Subsection 12(2) of the Review Tribunal Rules of Procedure allows for witnesses, other than a party, to be excluded from the hearing at the discretion of the Chair. The primary purpose of excluding witnesses is to ensure that their testimony is not influenced by that of other witnesses. It is a measure designed to assist the Review Tribunal in assessing the credibility of witnesses.

Review Tribunal Chairs vary in their practices regarding the exclusion of witnesses. At times, the Minister's Representative may request the exclusion of a witness. The Chair may not necessarily acquiesce to such a request. However, the Tribunal is required to provide valid reasons if it turns down a party's request for exclusion of witnesses (see Wiebe v .Her Majesty the Queen, Federal Court of Appeal, File No. A-1024-90, unreported). It also must be consistent in its approach: either all witnesses are to be excluded or none of them will be.

Claiming Administrative Error or Erroneous Advice by the Department of Human Resources and Skills Development Canada

Appellants to a Review Tribunal may argue that their denial of a benefit was the result of an administrative error committed by the Department of Human Resources and Skills Development Canada (HRSDC) or of incorrect information provided by the Department. A Review Tribunal does not have jurisdiction under either the Canada Pension Plan or the Old Age Security Act to determine if there has been an administrative error or erroneous advice by HRSDC (or any other Department) in any dealings with the appellant. (Pincombe v The Attorney General of Canada (1995) F.C.A. (A-65-94).

Administrative error or erroneous advice by HRSDC falls under section 66(4) of the Canada Pension Plan or section 32 of the Old Age Security Act. There is no provision in the Canada Pension Plan or the Old Age Security Act to deal with administrative error or erroneous advice by the Office of the Commissioner of Review Tribunals or by Panel Members.

A request to investigate possible erroneous advice or administrative error may be directed to HRSDC. If dissatisfied with the outcome of the investigation, the law allows for an application to the Federal Court for a remedy.

OCRT Information Sessions Continue

On November 27, 2008, the OCRT held its first regional information session for representatives and legal counsel for CPP Disability appellants to a Review Tribunal in Toronto. Since that time we have held sessions in Vancouver (March 2009), Ottawa (September 2009), Halifax (October 2009) and in London (November 2009). In each session, participants learned about the Review Tribunal process including new OCRT initiatives, legal issues, and practical considerations when appearing before a Review Tribunal. In that regard, the sessions with past and current Review Tribunal Chairs continued to be the highlight of the day.

Additional sessions are planned. If you are interested in attending the Toronto session on January 19, 2010 or the session in Vancouver on March 31, 2010 or want additional information please contact Nancy LePitre, Director, Tribunal Operations and Communications at 1-800-363-0076 or at nancy.lepitre@ocrt-bctr.gc.ca.

Change in Policy on Authorization

Effective May 9, 2009, the OCRT implemented a new policy on authorization for representatives. A signed OCRT Authorization to Disclose form will no longer be required in the following circumstances:

• We receive a statement from a lawyer written on the firm's letterhead and signed by the lawyer or on his/her behalf which indicates that the lawyer will be representing the appellant/added party for the purposes of a Canada Pension Plan (CPP) or Old Age Security (OAS) appeal;
• We receive a statement similar to the one above from a paralegal associated with a law firm;
• We receive a signed authorization from an appellant/added party with wording to the effect that representation is for CPP or Old Age Security OAS appeal.

Authorizations received by fax and a signed OCRT Authorization Form will continue to accepted.

Contact Us

By telephone:

• 1-800-363-0076 - free of charge in Canada and USA
• outside of Canada and USA, call collect 1-613-946-0320) 7:30 a.m. to 6 p.m. Eastern Time

By TTY:

• 1-866-203-7625 - free of charge in Canada and USA
• Outside of Canada and USA, call collect 1-613-954-5178 - 7:30 a.m. to 6 p.m. Eastern Time

When you call us, please have the Appeal Number Number ready.

By fax:

• 1-866-263-7918 - free of charge in Canada and USA

By e-mail:

• info@ocrt-bctr.gc.ca

Website: www.reviewtribunals.gc.ca