SST Chair Paul Aterman says changes reflect desire to make appeal system more accessible
New rules of procedure at the federal Social Security Tribunal reflect a desire to make administrative tribunals more accessible and straightforward to those who use the system, says the body’s chair Paul Aterman.
“The broader context is about the kind of appeal system do we want to offer Canadians,” says Aterman. “I think the default for a very long time, certainly most of my career, is a system where things are designed around the needs of the people who work inside the system, as opposed to the people who use the system. And that’s a big problem.”
In December, the SST adopted new procedural rules designed to reflect users’ needs so as many people as possible can understand them. The goal is to help people access justice, says Aterman, by making the appeal process “simple, quick and fair.”
The changes are important, Aterman says, because most people who come to the SST don’t have a legal background or legal support, don’t deal with the issues involved daily, and are often stressed when confronted with a tribunal system they find hard to navigate.
The SST was established in April 2013 by the government of then-Prime Minister Stephen Harper, consolidating review and appeal processes for Employment Insurance, the Canada Pension Plan, the old age security benefit and the Guaranteed Income Supplement.
These social security programs were developed in another era, Aterman says, “so the rules, language and procedures used reflect a time when the relationship between citizens and the state was along the lines of ‘Here are your benefits, you take what we give you. And if you don’t like it, lump it.’ But the relationship between citizens in the state is different in the 21st century.”
Aterman says the new rules of procedure will help those making appeals understand the process and participate in their appeal, whether or not they have a professional representative, and know what to expect from the SST and what the tribunal expects them.
The result, Aterman notes, “is that we focused on how to make the appeal process less formal and adversarial and have rules written in plain language.”
Where appropriate, some practices that usually are features of an adversarial process have changed to enhance access to justice.
One example of this is “active adjudication.” Over the past three years, SST members have been receiving training on how to guide appellants through the hearing process. Under this system, tribunal members can:
- decide what issues need to be addressed
- determine what procedures are appropriate in the circumstances
- help parties, representatives and witnesses understand the appeal process and the rules
- provide information about the laws that apply to the appeal
- provide information about the evidence
- decide the order for parties to present evidence or arguments at an oral hearing
- ask parties, representatives and witnesses questions
Aterman emphasizes that the change is “not about becoming advocates for those appealing to the tribunal, or abandoning a position of impartiality in assessing a case.” However, “we have to be able to explain to people how to make an appeal so that they can put their best case forward, and we can make a better decision as a result of it.”
He adds that the dispute is “not between the SST and the appellant” but between the recipient of benefits and the government body that administers the relevant social security program. “Our job is to make sure that both parties can participate meaningfully. We want to preserve our impartiality and neutrality. But we want to ensure that people can be heard.”
The SST has also enshrined “accommodation” as one of its primary goals, Aterman says, with a commitment to meeting the mandates of the Charter of Rights and Freedoms, the Canadian Human Rights Act and the Accessible Canada Act.
Another section of the new rules sets out what a witness does and how witnesses, including professional witnesses, participate in a proceeding.
It can be difficult for people who aren’t lawyers to understand the whole process of qualifying expert witnesses, Aterman says, noting the SST has rarely prevented a witness from providing opinion evidence. The SST assesses what weight to give to that evidence, which is why it makes sense not to qualify a professional witness as an expert to admit their evidence.
The rules now let SST members decide about specific procedures without asking the other parties for arguments to simplify and speed up the appeal process.
For example, SST members can decide on the following without asking for arguments:
- whether to give more time to appeal
- whether to add a person as a party
- whether to grant permission to appeal a General Division decision
The new rules also simplify the test granting extensions for late appeals. Before, an appellant had to argue on four factors from a common law test. An SST member would consider those factors and then decide whether it was in the interest of justice to give more time.
The new rules say that the SST members can give more time if the appellant has a reasonable explanation for being late. It’s easier for an unrepresented party to offer their explanation than to construct a legal argument dealing with each of the four factors, Aterman says.
There are also new rules for rescheduling hearings, regardless of the reason. They set out a one-time process for a party to have their hearing rescheduled automatically if:
- they are asking for the first time
- they ask at least five business days before the hearing
- they are available for a hearing within two weeks of the original hearing date
If a party wants to reschedule a hearing but doesn’t meet those conditions, they must file a request explaining why it needs to be rescheduled. The SST may reschedule the hearing only if it’s necessary for a fair hearing. The SST decides whether to reschedule without asking the other parties for arguments unless fairness requires the SST to ask.
Another critical change is having the rules drafted using the principles of “plain language.” Aterman says legislative texts often use complex word order, lengthy sentences, embedded clauses and hard-to-understand marginal notes, which can hinder comprehension.
“To our knowledge,” Aterman says, “this is the first time a Canadian federal administrative tribunal has drafted rules of procedure using plain language principles.”
The rules also ensure that the rules’ language and format “mirror the real world” – a principle called “iconicity.” They describe events in the order people would likely experience in their appeal, and related content is grouped by theme. The idea is for appellants to find related and relevant information easily, Aterman says. The syntax is kept simple, with short sentences and one idea per sentence.
As for accessible design, the rules presentation and grouping improve readability. Features include:
- descriptive headings and marginal notes to guide readers
- an “overview of these Rules” section in the introduction explains how the rules are divided into various parts
- a summary at the beginning of each part
- lists or separate rules (subsections) to avoid expressing complex rules in large paragraphs