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The social organization of case processing by administrative tribunals Lioy, Michele L. 1978

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THE SOCIAL ORGANIZATION OF CASE PROCESSING BY ADMINISTRATIVE TRIBUNALS by MICHELE L. LIOY Licence es l e t t r e s , Universite de Paris, 1965 M.A., University of Minnesota, 1970 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES THE DEPARTMENT OF ANTHROPOLOGY AND SOCIOLOGY We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA September, 1978 * Micliele L. Lioy;. 1978 I n p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f t h e r e q u i r e m e n t s f o r a n a d v a n c e d d e g r e e a t t h e U n i v e r s i t y o f B r i t i s h C o l u m b i a , I a g r e e t h a t t h e L i b r a r y s h a l l m a k e i t f r e e l y a v a i l a b l e f o r r e f e r e n c e a n d s t u d y . I f u r t h e r a g r e e t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y p u r p o s e s may b e g r a n t e d b y t h e H e a d o f my D e p a r t m e n t o r b y h i s r e p r e s e n t a t i v e s . I t i s u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l n o t b e a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n . D e p a r t m e n t o f T h e U n i v e r s i t y o f B r i t i s h C o l u m b i a 2075 Wesbrook Place Vancouver, Canada V6T 1W5 D a t e ABSTRACT This study provides an ethnographic analysis of case processing by administrative tribunals. The processing of cases i s done to review decisions which already have been made at another l e v e l i n the administrative system, i n order to arrive at a 'new' decision. The analysis i s based on data co l l e c t e d through the systematic observation of hearing en-counters i n three administrative tribunals i n the f i e l d of s o c i a l welfare. This study documents the tribunals' practices i n a r r i v -ing at a new decision. I t shows how the s o c i a l organizational features of the hearings and, the legal and procedural con-s t r a i n t s which must be taken into consideration, a f f e c t the decision of the tribunal members both i n d i v i d u a l l y and c o l l e c -t i v e l y , and the outcome for the appellants. The fact that the tribunals' task i s to a r r i v e at a decision and the p o s s i b i l i t y that the 'new' decision may be reviewed are other factors which impose constraints on the tribunals' practices. The task of processing cases mainly consists i n assess-ing the story which i s j o i n t l y produced during the hearing by the appellant and the tribunal members who use the case f i l e i n order to obtain background information on the case. The three tribunals examined i n this study use d i f f e r e n t practices to process cases. The lay tribunals use mostly common sense practices which prevent them from rendering consistent decisions e s p e c i a l l y when the l e g i s l a t i o n l e f t them d i s c r e t i o n . The professional tribunal uses l e g a l practices which ensure more consistency, but do not ensure that the appellant feels that j u s t i c e has been done. In fact, the issue i s raised as to whether s o c i a l j u s t i c e i s achieved, even when the decisions are l e g a l l y attained, when cognitive discrepancies between the appellant and the tribunal members are such that there i s no mutual i n t e l l i g i b i l i t y and the appellant can be processed with-out understanding what he has contributed to the processing of his own case and how he was processed. i v TABLE OF CONTENTS Page CHAPTER I INTRODUCTION 1 CHAPTER II THE ORGANIZATIONAL SETTINGS AND THE DATA I INTRODUCTION 21 II DESCRIPTION OF PROCEDURES IN SOCIAL WELFARE TRIBUNALS 24 III THE TRIBUNALS UNDER STUDY 26 (1) THE UNEMPLOYMENT INSURANCE BOARD 27 (a) Background Information 2 7 (b) The Appeal System 30 (c) Use of the Unemployment Insurance Board 32 (2) THE WELFARE TRIBUNAL 3 3 (a) Background Information 33 (b) The Appeal System 35 (c) Use of the Tribunal 38 (3) THE RENTAL HOUSING OFFICE TRIBUNAL 39 (a) Background Information 39 (b) The Appeal System 42 (c) Use of the Rental Housing Office 45 IV THE DATA 46 (1) THE TRANSCRIPTS OF THE HEARINGS 50 (2) THE TRANSCRIPTS OF THE DELIBERATIONS 51 (3) OTHER DATA 5 2 Page V THE SETTINGS 54 (1) THE RENTAL HOUSING OFFICE HEARINGS 54 (2) THE UNEMPLOYMENT INSURANCE BOARD HEARINGS 56 (3) THE WELFARE TRIBUNAL HEARINGS 58 VI CHOICE OF AREAS 59 (1) THE RENTAL HOUSING OFFICE 59 (2) THE UNEMPLOYMENT INSURANCE BOARD 60 (3) THE WELFARE TRIBUNAL 61 CHAPTER III INTERACTION BETWEEN THE CLIENT AND THE ADMINISTRATIVE SYSTEM PRECEDING THE HEARING I INTRODUCTION 62 II PRECEDING EVENTS 63 (1) THE UNEMPLOYMENT INSURANCE AGENCY 70 (2) THE WELFARE AGENCY 79 (3) THE RENTAL HOUSING OFFICE 85 III THE 'CASE FILES' (1) THE 'CASE FILES' IN THE UNEMPLOYMENT INSURANCE AGENCY 91 (2) THE 'CASE FILES' IN THE WELFARE AGENCY 96 (3) THE 'CASE FILES' IN THE RENTAL HOUSING OFFICE 97 IV 'INTERPRETING' AS A ROUTINE ACTIVITY OF THE AGENCIES' PERSONNEL 101 (1) THE UNEMPLOYMENT INSURANCE OFFICER AS AN 'INTERPRETER' 106 (2) SOME UNSHARED MEANINGS IN THE UNEMPLOYMENT AGENCY 110 (a) A v a i l a b i l i t y for Work 111 v i Page (b) Leaving Without Just Cause 122 (c) Misconduct 128 (3) UNSHARED MEANINGS IN THE OTHER TRIBUNALS 129 (a) Standard of Cleanliness 129 (b) Occupation of Premises 131 (c) Unearned Income 135 (4) UNEMPLOYMENT INSURANCE AND EXPECTATIONS OF 'INSURED' INDIVIDUALS 137 CHAPTER IV THE PROCESSING OF CASES BY UNEMPLOYMENT INSURANCE BOARDS AND BY WELFARE TRIBUNALS I INTRODUCTION 143 II THE UNEMPLOYMENT INSURANCE BOARD 144 (1) THE COURSE OF THE HEARING 144 (2) THE USE OF THE SUBMISSION 150 - The Case of Mrs. A 154 (3) PRACTICES USED BY THE BOARD TO PROCESS CASES 169 (a) Assessment of Special Events and Occurrences 171 - The Case of Miss D 171 (b) Assessment of the Intentions of the Appellant 190 - The Case of Mr. J 191 (c) Translation of the Stories i n Reasons 199 - The Case of Mr. 0 200 - The Case of Miss B 214 v i i Page (4) SOME CONCLUDING REMARKS ON THE ASSESSMENT OF THE STORIES BY THE BOARD 225 III THE WELFARE TRIBUNAL 228 (1) THE COURSE OF THE HEARING 229 (2) DIFFERENCE IN THE SOCIAL ORGANIZATION OF CASE PROCESSING BY THE WELFARE TRIBUNAL AND BY THE UNEMPLOYMENT BOARD 234 (3) HANDLING OF IRRELEVANT INFORMATION BY THE WELFARE TRIBUNAL 238 (4) THE PROCESSING OF CASES BY THE WELFARE TRIBUNAL 244 - The Case of Mr. B 244 CHAPTER V CASE PROCESSING BY THE RENTAL HOUSING OFFICIALS I INTRODUCTION 269 II THE COURSE OF THE HEARINGS 2 71 III ASSESSMENT OF THE STORIES 2 75 (1) THE RULE OF EVIDENCE AND RELEVANT INFORMATION 276 (2) ASSESSMENT OF FACTS 281 (a) Managing C o n f l i c t i n g Stories 285 (b) Using Legal Practices to Assess the Facts 295 (3) ASSESSMENT OF INTENTIONS 326 IV IMPLEMENTATION OF THE DECISION 353 CHAPTER VI SUMMARY AND CONCLUDING REMARKS 363 I DISCRETIONARY DECISION MAKING 366 II MUTUAL INTELLIGIBILITY 371 v i i i Page BIBLIOGRAPHY 376 APPENDIX: LIST OF CASES BY TRIBUNAL 386 ix mes parents mon f i l s , Marcell X ACKNOWLEDGEMENTS The supervision, support, and encouragement of Dr. Roy Turner, my thesis advisor, has been invaluable. Further, with-out his patience with my e r r a t i c working patterns, and his prompt reading, I would not have been able to meet my deadlines. I am indebted to my committee members for th e i r comments: Dr. John O'Connor and Dr. Kenneth Stoddart, and to my readers: Professors E l v i Whittaker, Peter Gal l and Robert McKay. I am also appreciative of my Ottawa friends and colleagues who have read parts of the manuscript and discussed them with me, in p a r t i c u l a r Dr. John Evans for his h e l p f u l comments and Peter Engstad for his support and his patient understanding while I was writing this thesis. Acknowledgement i s also due to the Research Division, Department of the S o l i c i t o r General of Canada for i t s co-opera-tion i n my undertaking. I am greatly indebted to the Ministry of the Attorney General of B r i t i s h Columbia which gave me permission to use these research data for my thesis and to D e l l i s Rand and Nancy Butler who assisted me i n c o l l e c t i n g some of the data. Many thanks are due to Connie Jones for typing, and retyping, the several drafts and the f i n a l manuscript. I also wish to thank Marie eve and Roger Hart for taking care of my son on many occasions, and my son Marcello, for being x i an understanding and patient person i n spite, or maybe because, of his age. F i n a l l y , I wish to acknowledge my indebtedness to the s t a f f of the Agencies involved i n the research, to the tribunal members for their understanding, to the appellants for trusting me. They cannot be named since the confidence under which the observations were made i s best respected by having the i n d i v i d -uals remain anonymous. Their co-operation and good w i l l were sincerely appreciated. - 1 -CHAPTER I INTRODUCTION One of the s i g n i f i c a n t developments i n modern Western societies, p a r t i c u l a r l y since the end of World War II, has been an increase i n number and scope of s o c i a l welfare program-mes; associated with this increase i n s o c i a l welfare programmes, there has been a p r o l i f e r a t i o n of professionals, and 'workers' whose task i s to administer these programmes and to work them out at the l e v e l of greatest d e t a i l i n locally-organized face-to-face contacts with c i t i z e n s , now transformed into ' c l i e n t s ' . Individual 'workers' or agency o f f i c i a l s have to bring the l e g i s l a t i o n to bear, case by case, on questions such as ' e l i g i -b i l i t y ' , questions which determine who s h a l l participate, to what extent and i n what form, and must, i n order to process cases, make da i l y routine decisions which affe c t the l i f e of the agency's c l i e n t s . Both within the agencies themselves, and outside - i n p o l i t i c a l opposition, i n mass media, among the law practitioners who see lay individuals administering the law and so on x - there "'"These concerns are r e f l e c t e d i n works done both by the Law Reform Commission of B r i t i s h Columbia and the Law Reform Commission of Canada: Law Reform Commission of B r i t i s h Columbia, Report on C i v i l Rights, part 4, A procedure for J u d i c i a l Review of the Actions of Statutory Agencies, Van-couver, B.C.: Department of the Attorney General, T974; Law Reform Commission of Canada, Administrative Law, Federal  Court, J u d i c i a l Review, Working paper 18, Ottawa: Queen Ts Printer, 1977. - 2 -is concern that these-many transactions, which are routine for agency o f f i c i a l s , but often f a t e f u l for c l i e n t s , should r e s u l t i n decisions which are 'just' and equitable, not i n arbitrary , biased decisions. Thus, a great deal of attention has been given to means of c o n t r o l l i n g administrative decision-making . Administrative agencies are controlled at some l e v e l by the l e g i s l a t i o n which enables them; they also have developed e x p l i c i t p o l i c i e s and guidelines, which s p e l l out the way l e g i s l a t i o n w i l l be understood for the purposes of administer-2 ing programmes . The intent of much of this control i s to reduce d i s c r e t i o n on the part of the agency o f f i c i a l s , since discretion i s seen as opening the door to ine q u i t i e s . L e g i s l a t i o n and, e x p l i c i t and precise p o l i c y statements l i m i t d i s c retion by reducing the alternative courses of action 2 Some authors f e e l that a greater control should be exercised over the administrative process through ' l e g a l i z a -t i o n ' rather than r e l y on p o l i c i e s which are based on administrative constraints as well as on the l e g i s l a t i o n . 'Legalization' refers to the process of subjecting o f f i c i a l decisions to predetermined rules; the advocates of ' l e g a l i z a t i o n ' of the administrative process would thus 'wish to transform p o l i c i e s - broad statements of general objectives, into rules - authoritative general directions that contain s p e c i f i c and concrete guides for decision'. See J. Jowell, Public Law, incorporating the B r i t i s h Journal of Administrative Law, Ed". J.A.G. G r i f f i t h , Stevens and Sons Ltd., London, 1973, p. 183. See also P. Nonet, Administra- tive Justice Advocacy and Change i n Government Agencies, Russell Sage Foundation, New York, 1969, p~. 246. - 3 -3 an o f f i c i a l can take . Two features of d i s c r e t i o n i n particu-l a r can be l i m i t e d by these means: factual situations can be l i s t e d and described p r e c i s e l y i n the l e g i s l a t i o n rather than referred to as broad categories, and concepts used i n the l e g i s l a t i o n be defined i n such a way that they reduce the amount of 'interpretation' that o f f i c i a l s w i l l need to engage i n i n order to translate programmes as outlined i n the l e g i s l a t i o n into routine decisions regarding the granting of benefits or the settlement of disputes. Depending on the type of agency, the degree of ' l e g a l i z a -tion' which i s possible, w i l l vary. In the s o c i a l welfare f i e l d , which i s our concern i n this study, i t i s often argued that a considerable degree of f l e x i b i l i t y i s needed, since 4 situations are so d i f f e r e n t from one another . Laws should be precise enough to ensure consistency and general enough so that they can be applied to d i f f e r e n t cases, which implies leaving a certain degree of d i s c r e t i o n to the agency o f f i c i a l . Consequently, i t i s expected that the workings of such large organizational apparatuses where a great many decisions are discretionary w i l l produce a certain number of 'problems' -errors i n judgement, mistakes i n fact, i n d i v i d u a l interpreta-tions departing from agency p o l i c i e s - a l l of which may have 3 K.C. Davis defines d i s c r e t i o n as follows: 'A public o f f i c e r has discretion whenever the e f f e c t i v e l i m i t s of his power leave him free to make a choice among possible course of action or inaction', K.C. Davis, p. 4 , Discretionary  Justice, A Preliminary Inquiry, University of I l l i n o i s Press, Chicago, 1969. ^ J . Jowell, op. c i t . , p. 178. - 4 -negative consequences for c l i e n t s . J u d i c i a l review i s an already existing recourse here, and i n fact the courts have been i n f l u e n t i a l i n maintaining j u r i s d i c t i o n a l boundaries, i n building a body of case law - referred to as jurisprudence -which contribute to consistency^, and i n ensuring that agencies proceed with due regard to the t r a d i t i o n a l l e g a l 'notion of fairness'^. However, the sheer number of d i s -puted cases^ generated by daily practice prohibit the courts from handling what we might c a l l 'normal' administrative g problems . Moreover, these frequently involve the interpreta-tion of an agency's working language - notions such as The importance of j u d i c i a l review was emphasized i n the Report of the Committee on Administrative Tribunals and  Enquiries, HMSO Cmnd. 218, July 19 57 (Franks' report), p. 25. 'The existence of a r i g h t to appeal i s salutory and makes for ri g h t adjudication. Provision for appeal i s also important i f decisions are to show reasonable consistency. F i n a l l y , the system of adjudication can hardly f a i l to appear f a i r to the applicant i f he knows that he w i l l normally be allowed two attempts to convince independent bodies of the soundness of his case.' ^'notions of f a i r n e s s 1 refers to the common law 'rules of natural j u s t i c e ' . The underlying concept of the 'rules of natural j u s t i c e ' i s that a l l persons who may be affected by a determination of the tribunal should be e n t i t l e d to 'notice and hearing' and should have a f a i r opportunity of p a r t i c i p a t i n g e f f e c t i v e l y i n the proceedings to protect t h e i r i n t e r e s t s . ^In 1974, more than 7,000 appeals of the Unemployment Insurance Agency's decisions were f i l e d i n the Province of B r i t i s h Columbia. See P. Issalys and G. Watkins, Unemploy- ment Insurance Benefits, A Study of Administrative Procedure  i n the Unemployment Insurance Commission, prepared for the Law Reform Commission of Canada, Minister of Supply and Services Canada, Ottawa, 1977, p. 142. o The handling of these problems by the courts would probably mean long delays for matters which are urgent, and i n some instances need immediate attention. 'adequate housing', 'reasonable time', 'proper behaviour', 9 which come to acquire r e l a t i v e l y stable meanings i n the context of maintaining stable practices on a day-to-day basis. In part as a response to this kind of reasoning, the administrative tribunal has come into existence. Administrative tribunals are specialized apparatuses -they are only concerned with one agency - which review deci-sions made by administrative agencies when those decisions r e s u l t i n a disagreement between the agency and i t s c l i e n t . These tribunals should be able to deal with cases faster than a court of law, at a lesser expense1*"*, be less formal and to provide a recourse to the agency's c l i e n t s . It was acknowledged above that the workings of large organizations, such as s o c i a l welfare agencies, are bound to generate a regular quotas of 'normal problems'. We have to add that there i s some discernible s o c i a l organization to Although these notions acquire reasonably stable meanings they do not lose their f l e x i b i l i t y as they s t i l l need to be interpreted. When judges have been c a l l e d to handle such notions, as noted by Street: 'They have been prone to c r y s t a l i z e what would have been merely instances of standards, into r i g i d l egal rules from which they would depart only with reluctance.' See H. Street, Justice i n the Welfare State, 2nd ed., London: Stevens and Sons, 1975 . As was mentioned above, i t i s often argued that i n the s o c i a l welfare f i e l d f l e x i b i l i t y i s necessary to accommodate special circumstances which are features of every human situations. This argument has been used against using the courts to se t t l e administrative problems. Franks report, p. 9 - 6 -these problems. F i r s t , and most obviously, there i s a 'natural' structure created by the difference i n interests of the parties: whereas each c l i e n t i s concerned with the recognition of the j u s t i c e of his own case, the agency knows i t cannot serve a l l who apply, that there must be 11 screening . Client and agency o f f i c i a l s come into dispute, then, over the a v a i l a b i l i t y of the scarce resources the agency administers. But beyond t h i s , there are deep differences i n the ways i n which c l i e n t s and o f f i c i a l s t y p i c a l l y conceptual-iz e the matters which bring them into contact. For the c l i e n t , unemployment, i l l - h e a l t h , and so on, are f a t e f u l matters which have ramification for a l l aspects of his l i f e . For the o f f i c i a l , i n his world of work, there i s a world of legally-defined states and situations : 'unemployed' and 'sick' as they are common-sensically used do not t e l l the o f f i c i a l whether or not a c l i e n t i s e l i g i b l e 'within the meaning of the act'. His task i s to transform the confused and more or less relevant materials the c l i e n t offers him into the l e g a l categories at his disposal and to base his judgement on the adequacy of the f i t . Hence the state apparatus of s o c i a l welfare agencies has created a set of problems, i n which both parties to Each agency has a budget and the available resources must be shared equitably. Being very lenient with granting benefits at one point i n time may r e s u l t i n being unable to grant benefits to more needy individuals at a l a t e r date. In the 'long run' the screening i s f a i r . - 7 -disputes f i n d that the other ' f a i l s to understand' what i s central to his point of view. In p a r t i c u l a r , we must note that the kinds of issues which start out common-sensically defined by media and p o l i t i c a l parties - helping the un-employed, the handicapped, those who are trapped i n land-lords and tenants disputes - end up by being technicalized over the course of the agency's daily experience and practi c e . In this context, the administrative tribunals are very important. It i s i n these hearings, and i n the preparations for them, that o f f i c i a l s must decide, or make e x p l i c i t , such c r u c i a l matters as, what counts l e g a l l y to be 'available for work' or to 'terminate a tenancy properly'. It i s i n these tribunals that both parties to the dispute have an opportunity to formulate th e i r reasons and their understandings. Thus the organized formats for, and the conduct of the hearings of such tribunals are key places where one may go to examine many issues bearing on the important problem of establishing a just s o c i a l welfare system which w i l l handle the day-to-day minor breakdowns of society i n ways which w i l l be i n t e l l i g i b l e to i t s c i t i z e n s . Insofar as i t appears that this mutual i n t e l l i g i b i l i t y i s not always achieved, then we have uncovered a problem of significance to the administration of s o c i a l j u s t i c e i n modern i n d u s t r i a l society. The structure of administrative tribunals varies as do the nature of their relationship with the agencies whose decision they review. Most administrative tribunals claim to be independent from the agency whose decisions they - 8 -review , but they t y p i c a l l y have to.take into consideration the agency's p o l i c i e s , that i s , that agency's o f f i c i a l i n t e r p r e t a t i o n of the l e g i s l a t i o n ; consequently, the agency exerts an i n d i r e c t control over the t r i b u n a l . Further, the independence of the tribunal depends largely on whether the agency's p o l i c i e s can be challenged. If the p o l i c i e s cannot be challenged by a body located out-side the administrative system, as for example an appeal to a court of law, the tribunal w i l l f i n d the agency's p o l i c i e s as binding as the l e g i s l a t i o n because the agency w i l l have the power to enforce i t s p o l i c i e s without interference, and a tribunal's decision contrary to these p o l i c i e s w i l l be overturned as the interpretation of the l e g i s l a t i o n ultimately 13 rests with the agency . What i s 'just' i n this case i s what the agency defines as just, which may not be the same i n t e r -pretation of 'what i s j u s t ' for a claimant or a court of law. What i s 'just' becomes related to administrative constraints •^One of the rules of Natural Justice which i s the basis of our court system, i s that a party to a dispute cannot be judge i n his own case. See D.J. Hewitt, Natural Justice, Sydney: Butterworths, 1972, p. 21. I f a tribunal i s not independent from i t s agency, the agency becomes judge of i t s own case and the above-mentioned rule i s v i o l a t e d . 13 In a case where the statutes are not precise and leave some dis c r e t i o n to the administrator, the administrator, a l -though he applies the law has to use administrative guidelines and p o l i c i e s to make his decision. In such a case, administra-tive constraints ex i s t and do ensure some consistency. However, i f the p o l i c i e s can be challenged by a body outside the agency i t does not make the p o l i c i e s as binding since the agency does not have the e x c l u s i v i t y i n i n t e r p r e t i n g the l e g i s l a t i o n . - 9 -on w h i c h the p o l i c i e s a r e based. I n such a case a t r i b u n a l 'doing j u s t i c e ' w i l l have to d e c i d e between two c o n f l i c t i n g n o t i o n s o f j u s t i c e : the common sense n o t i o n o f j u s t i c e w h i c h i s 'what i s e q u i t a b l e ' , 'what i s f a i r ' and the a d m i n i s t r a t i v e n o t i o n o f j u s t i c e , w h i c h i s to a p p l y a d m i n i s t r a t i v e p o l i c i e s , w h i c h a r e the agency's i n t e r p r e t a t i o n o f the l e g i s l a t i o n . The i n f l u e n c e on o r g a n i z a t i o n a l d e c i s i o n - m a k i n g o f p o l i c i e s w h i c h a re based on a d m i n i s t r a t i v e c o n s t r a i n t s as w e l l as on the l e g i s l a t i o n has been documented i n s e v e r a l s t u d i e s such as C i c o u r e l 1 s 1 ^ s t u d y on the s o c i a l o r g a n i z a t i o n o f j u v e n i l e j u s t i c e w h i c h shows how d e l i n q u e n c y r a t e s change i f the p o l i c i e s o f the p o l i c e change, q u i t e i n d e p e n d e n t l y o f what the j u v e n i l e s may be d o i n g . French 1"^, f o l l o w i n g h i s stud y o f 'the S e l e c t i v e P r o c e s s o f C r i m i n a l J u s t i c e ' i n New Hampshire, c o n c l u d e d t h a t ' s e l e c t i v i t y i s a consequence o f the o p e r a t i o n o f j u s t i c e ' . T h i s f i n d i n g i m p l i e s a v a r i a n c e between our avowed j u d i c i a l i d e a l s w h i c h a re s e l e c t e d i n the common sense n o t i o n o f j u s t i c e and the a c t u a l i m p l e m e n t a t i o n o f j u s t i c e . 16 S k o l n i c k i n h i s s t u d y o f the p o l i c e n o t e d t h a t when p o l i c e o f f i c e r s a r e f a c e d w i t h a c o n f l i c t between u p h o l d i n g the r u l e o f law and m a i n t a i n i n g o r d e r by apprehending s u s p e c t s , 14 A. Cicourel, The Social Organization of Juvenile Justice, Wiley, New York, 1967. X"*L. French, 'The Selective Process of Criminal Justice', International Journal of Criminology, 5(l):63-78, February, 1977. 1 6 J . Skolnick, Justice Without T r i a l , Wiley, New York, 1966 - 10 -they subvert the rule of law. In so doing they are responding to administrative demands regarding the practices surrounding arrest. In other words, a l l police o f f i c e r s respond to the administrative demands of the job rather than to the ideals of c i v i l r i g h t s . Similarly, Quinney i' argues that criminal s t a t i s t i c s are not i n d i c a t i v e of the true nature of c r i m i n a l i t y i n a population but rather r e f l e c t d i f f e r e n t i a l s i n the administra-18 tion of j u s t i c e . Grosman i n his study of the use of dis c r e t i o n by prosecutors claims that the professional be-haviour of prosecutors i s more often determined by the adminis-t r a t i v e demands placed on them and by the informal s o c i a l relationships which exist i n th e i r operational environment than by j u d i c i a l or l e g i s l a t i v e theories. It follows from this that 'there are considerable and important differences between what the prosecutor does and what the legal l i t e r a t u r e and j u d i c i a l decision say he should do' A l l these studies show the importance of administrative R. Quinney (Ed.), The Problem of Crime, New York: Dodd, Mead., 1972, p. 122: 18 B. Grosman, The Prosecutor, Toronto: University of Toronto Press, Toronto^ 1969, p~] 4. Several other examples of the discrepancies between behaviour and decision, and what i s prescribed, can be c i t e d : See R. Turner, "Occupational Routines: Some Demand Characteris-t i c s of Police Work", Paper presented at the Annual Meetings of the CSSA, Toronto, June, 1969; D. Sudnow, ^Normal Crimes: Sociological Featues of the Penal Code i n a Public Defender Office', Social Problems, 12:3:255-76, Winter, 1965 ; H. 0'Gorman, Lawyers and Matrimonial Cases, Free Press, New York, 1963~T^^ - 11 -constraints on the 'doing of j u s t i c e ' . When the agency's p o l i c i e s or administrative require-ments can be challenged by a body located outside the agency, i t lessens the administrative constraints. It implies that the agency's interpretation of the l e g i s l a t i o n can be chal-lenged and may have to be altered as a consequence. It further implies that the review tribunal does not have to subscribe to the agency's interpretation of the l e g i s l a t i o n , i . e . , the tribunal i s independent from the agency. Conse-quently, the mechanisms, i f any, which are set up to review the tribunals' decisions are very important features to be taken into consideration when examining how tribunals process cases i n order to reach a decision. This study i s an analysis of the practices used by various types of administrative tribunals to process cases and arrive at a new decision while taking into consideration the l e g i s l a t i o n , the previous decision, the evidence presented to them, the necessity to reach a decision, and the fact that their decision may be further appealed. In the past two decades there have been a number of studies of administrative tribunals. Considerable research has addressed i t s e l f to the administrative process i n North 19 20 America and i n B r i t a i n . Canadian studies i n this area have only recently begun. These studies have been conducted from B. Burrus and D. Fessler, "Constitutional Due Process Hearing Requirements i n the Administration of Public Assistance: - 12 -two p o i n t s of view: l e g a l and s o c i o l o g i c a l . In the studies based on a l e g a l p e r s p e c t i v e , concern i s focused on the con-t r o l of the a d m i n i s t r a t i v e process. Tribunals are one such mechanism of c o n t r o l . They may be p a r t of the process but s t i l l may be an outside source of c o n t r o l , i f they are independent 21 of the agency whose decisions they review . Other papers w r i t t e n from t h i s p o i n t of view, compare a d m i n i s t r a t i v e t r i b u -n a l s to courts of law, o f t e n considered the i d e a l mechanism The D i s t r i c t of Columbia Experience", America U n i v e r s i t y Law  Review, 16:2:205-235, March, 1967; K.C. Davis, op. c i t . ? R. Dixon, J r . , "The Welfare State and Mass J u s t i c e : A Warn-in g from the S o c i a l S e c u r i t y D i s a b i l i t y Program'1, Duke Law  J o u r n a l , 1972:4:681-741, September, 1972; R. Levy, T. Lewis, P. M a r t i n , S o c i a l Welfare and the I n d i v i d u a l : Cases and  M a t e r i a l s , U n i v e r s i t y Casebook s e r i e s , Mineola, The Founda-t i o n Press Inc., New York, 1971; P. Nonet, op. c i t . f P. Selznick, Leadership i n A d m i n i s t r a t i o n , Row, Peterson, Evanston, 111., 1957; J. Stone, "The 20th Century A d m i n i s t r a t i v e E x p l o s i o n " , C a l i f o r n i a Law Review, 5 2:3:513-542, August, 1964; B. Vulcan, F a i r Hearing i n the P u b l i c A s s i s t a n c e Programs of the New York  C i t y Department, unpublished Ph. D~! Thesis, School of S o c i a l Work, Columbia U n i v e r s i t y , 19 72. 20 M. Elcock, A d m i n i s t r a t i v e J u s t i c e , Monograph i n P o l i t i c s , Longmans, Greens & Co. L t d . , London, 1969; J. G r i f f i t h and M. S t r e e t , P r i n c i p l e s of A d m i n i s t r a t i v e Law, S i r Isaac Pitman & Sons, London^ 1966, i n p a r t i c u l a r Chapter IV; G.B. Doern, I. Hunter, D. Swartz and V.S. Wilson, "The Structure and Be-haviour of Canadian Regulatory Boards and Commission: M u l t i -d i s c i p l i n a r y P e r s p e c t i v e s " , Canadian P u b l i c A d m i n i s t r a t i o n , 18:2:189-215, Summer, 1975; M. S t r e e t , op. c i t . , R. Wraith and P. Hutchesson, A d m i n i s t r a t i v e T r i b u n a l s , G. A l l a n & Union, Oxford, 19 73. 21 J. J o w e l l , op. c i t . ; Law Reform Commission of B r i t i s h Columbia, Report on C i v i l R ights, Procedures Before S t a t u t o r y  Agencies, p a r t 3, Department of the Attorney General of B.C., Vancouver, 1974. f o r rendering j u s t i c e - 13 22 Most of the studies mentioned above were concerned w i t h the l e g a l aspects of these bodies and w i t h the need to c o n t r o l the a d m i n i s t r a t i v e process. Most of the studies of administra-t i v e t r i b u n a l s from the s o c i o l o g i c a l p o i n t of view have been conducted i n B r i t a i n . These are e m p i r i c a l case studies based on observations and i n t e r v i e w s of a p p e l l a n t s , t r i b u n a l members and a p p e l l a n t r e p r e s e n t a t i v e s . Various aspects of the adminis-23 t r a t i v e process have been examined , i n p a r t i c u l a r those aspects r e l a t e d to the f u n c t i o n i n g of t r i b u n a l s such as rep-r e s e n t a t i o n , the "point of view" of the a p p e l l a n t , the 26 membership of the t r i b u n a l , and the use of d i s c r e t i o n by the 27 t r i b u n a l . Very l i t t l e e m p i r i c a l research has been concerned wi t h the t r i b u n a l hearings themselves. 22 D. Gordon, " A d m i n i s t r a t i v e Tribunals and the Courts", Law Quarterly Review, 49:94-120, January, 1933; K.C. Davis, "Evidence", New York U n i v e r s i t y Law Review, 30:1309-1341; November, 1966; T. Eckhoff, "The Mediator, the Judge and the A d m i n i s t r a t o r i n C o n f l i c t R e s o l u t i o n " , i n C o n t r i b u t i o n to the  Sociology of Law, B r i t t - M a r i Persson Blegrad (ed.), Munksgaard, Copenhagen, 1966; Law Reform Commission of B.C., op. c i t . , p a r t 4. 2 3 K. B e l l , P. C o l l i s i o n , S. Turner and S. Webber, "Nation-a l Insurance L o c a l T r i b u n a l s , A Research Study, Part I I " , Journal of S o c i a l P o l i c y , 4:1:1-24, January, 1975. See a l s o W. Adler and A. Bradley (ed.), J u s t i c e , D i s c r e t i o n and Poverty; Supplement B e n e f i t Appeal Tribunals i n Britain" ^ P r o f e s s i o n a l Books L t d . , London, 1975. 24 Ann F r o s t , Carol M i l t o n and Sue Newell, Representation  at A d m i n i s t r a t i v e T r i b u n a l s , unpublished paper, London, 1972; M. A d l e r , E. Burns and R. Johnson, "The conduct of T r i b u n a l Hearings", i n M. A d l e r and A. Bradley (ed.), op. c i t . , pp. 109-128. 25 Carol M i l t o n , "Appellants' Perception of the T r i b u n a l Process", i n M. A d l e r and A. Bradley (ed.), op. c i t . , pp. 129-142. Ross Flockhard, "Some Aspects of T r i b u n a l Membership", - 14 -28 Adler, Burns and Johnson observed tribunal hearings, and recorded transcripts of the spoken contributions during the hearing. They were not concerned, however, with the s o c i a l organization of the hearing, but rather with an examination of structural issues (such as the appointment of non-legally q u a l i f i e d chairperson, the dependence of the lay tribunal on the expertise of the clerk, the irrelevance of precedent and the status of the agency p o l i c y ) . They concentrated their study on how the hearing measured up to c r i t e r i a recommended by the 29 Committee on Administrative Tribunals (Franks report) , i . e . , on the fairness of hearings, the impact of representation and attendance of the appellant on the outcome of the hearing, and the s t r u c t u r a l c h a r a c t e r i s t i c s of the hearings. Their approach i s socio-legal and they do not address themselves to the s o c i a l organization of case processing, they do not deal with what the tribunal actually does. These studies and the l e g a l i s t i c studies mentioned ear-l i e r , do not deal with the ways i n which the tribunal members perform th e i r task of processing cases and a r r i v i n g at decisions. Although, some practices used by the tribunal members are in M. Adler and A. Bradley (ed.), op. c i t . , pp. 99-108; R. L i s t e r , Justice for the Claimant, CPAG Poverty Research Series 4, London, 1974. 27 Steve Burkeman, "We Go By the Law Here", i n M. Adler and A. Bradley (ed.), op. c i t . , pp. 91-98. 28 M. Adler, E. Burns and R. Johnson, op. c i t . ; see also M. Herman, Administrative Justice and Supplementary Benefits, 1972. 29 Committee on Administrative Tribunal, op. c i t . - 15 -described, they are not described as being relevant within a s o c i o l o g i c a l context, but only within a l e g a l one: 'Analysis of the nature and extent of communica-tion between those present suggest that the SBAT (Supplementary Benefit Appeal Tribunals) we ob-served resembled attempts to review decisions taken by the SBC (Supplementary Benefits Commis-sion) whereas the NILT's (National Insurance Local Tribunal) more clos e l y resembled attempts to hear cases de novo.'30 Both these types of studies provide l i t t l e information on what tribunal members actually do, on what i t i s l i k e to be a tribunal member, on the practices which constitute the proc-essing of s o c i a l welfare cases and the settlement of disputes. The d i f f i c u l t y i n finding out what board members 'do' when processing cases i s not only that they 'won't t e l l ' as 31 Hazard said of lawyers, but also that they don't know what to t e l l and how to t e l l i t . I f one asks a tribunal member 'what do you do when you hold a hearing 1, they are l i k e l y to be surprised by the question, and i f they answer i t , the answer w i l l be a description using broad categories of occur-rences which do not t e l l what they r e a l l y do but what can be observed from the outside: 'We l i s t e n to the appellant's point of view, 3 0 M. Adler, E. Burns and R. Johnson, op. c i t . , p. 123. 3 1 G. Hazard, J r . , 'Reflections on Four Studies of the Legal Profession 1, Social Problems, Summer Supplement, 1965, pp. 46-54. 'The great d i f f i c u l t y with finding out i n any d e t a i l what the Wall Street lawyers, or any other lawyers for that matter, i n fact do i n the i r professional capacity i s they won't t e l l . ' - 16 -we ask questions. . .questions to c l a r i f y some points so that we can decide on the case. 1 (FUI02) Furthermore, they are not interested i n t e l l i n g i t , as 32 Garfinkel noted; they are not interested i n studying prac-t i c a l actions and p r a c t i c a l s o c i o l o g i c a l reasoning: 'With respect to the problematic character of p r a c t i c a l actions and to the p r a c t i c a l adequacy of their i n q u i r i e s , members take for granted that a member must at the onset 'know' the set-tings i n which he i s to operate i f his practices are to serve as measures to bring p a r t i c u l a r , located features of these settings to recogniz-able account. They treat as the most passing matter of fact that members' accounts, of every sort, i n a l l their l o g i c a l modes, with a l l t h e i r uses, and for every method for the i r assembly are constituent features of the settings they make observable. Members know, require, count on, and make use of this r e f l e x i b i l i t y to produce, accomplish, recognize, or demonstrate rational-adequacy-for-all-practical purposes of t h e i r procedures and findings.' For members to be 'interviewed' would consist of their under-taking to make the 'reflexive' character of p r a c t i c a l a c t i v i -t i e s observable. However, the method of the members who make the subject of s o c i o l o g i c a l investigations the study of p r a c t i c a l actions and p r a c t i c a l circumstances 'as contingent ongoing accomplishments of organized a r t f u l practices of everyday l i f e ' i s of i n t e r e s t because i t seeks to specify the problematic 33 features of common sense everyday l i f e J^H. Garfinkel, Studies i n Ethnomethodology, Prentice H a l l , Inc., Englewood C l i f f s , New Jersey, 196 7, p. 8. 33 A rationale for this position i s provided i n several works, i n p a r t i c u l a r : William F. Whyte, Street Corner Society, University of Chicago Press, Chicago 1943; Robert W..""iiabenstein, Pathways to Data, Aldine, New York, 1970; A. Cicourel, Method and Measurement i n Sociology, Free Press, New York, 1 9 6 4 . — - 17 -This study seeks to provide an ethnographic descrip-tion and analysis of the p r a c t i c a l workings of the administra-tive process, i n the s o c i a l welfare f i e l d , as manifest i n the usual practices of three administrative tribunals with d i f -ferent structures. It i s a study of the practices used by tribunal members i n performing th e i r task as tribunal members. As was mentioned above, their task i s to resolve c o n f l i c t s or se t t l e disputes by processing cases and a r r i v i n g at decisions on how the c o n f l i c t s or the disputes w i l l be s e t t l e d . In performing their task they have to take into consideration the l e g i s l a t i o n and the administrative p o l i c i e s of the agency whose decision they are reviewing; these considerations impose le g a l , procedural and administrative constraints on the workings of the tribunals. The purpose of the hearing i s to reach a decision with reasons. O f f i c i a l l y , the decision i s reached aft e r delibera-tions, on the basis of the evidence, which was placed before the t r i b u n a l . This, however, does not inform us as to how decisions are made. Many so c i o l o g i s t s , logicians and l e g a l i s t s have studied decision-making and several theories have been proposed which aim at describing the mechanisms of decision-making. Decision theories usually focus on the study of ra t i o n a l or l o g i c a l decision-making. Some theories have been concerned with describing this process by constructing models which simulate as accurately as possible the behaviour of the decision-maker; others use an analysis of the process which i s assumed to take place i n an in d i v i d u a l to 'arrive' at a - 18 -3 A-decision . None of these studies are concerned with the concrete practices of s o c i a l members who engage i n decision-making as a systematic a c t i v i t y . Like the jurors studied by 35 Garfinkel the tribunal members must make decisions within a le g a l frame of reference. This frame of reference constrains their decision-making practices, although they are i n a d i f -ferent s i t u a t i o n than jurors, who are mere l i s t e n e r s during a court hearing. The tribunal members are located i n a p r i v i -leged position where they are able to ask questions and to seek information, i n order to l e g i t i m i z e t h e i r decision. The orientation which they entertain during the hearing w i l l leave a dir e c t influence on the decision they w i l l reach and conse-quently on the outcome for the claimant. The concerns they w i l l have addressed during the hearing w i l l be r e f l e c t e d i n their decision. Depending on the concerns they are addressing during the hearing encounter the tribunal members w i l l use d i f f e r e n t practices. We intend to i d e n t i f y the practices used by tribunal members when they process cases; how they go about the business of getting the facts, the evidence they w i l l use i n t h e i r decision; how they manage the various constraints -l e g a l , procedural, administrative - which they have to take into consideration during the hearing as they orient towards making a decision. 34 The l i t e r a t u r e on decision-making theory i s vast and com-plex but we do not address the same concerns as are addressed i n this l i t e r a t u r e . In this study, we intend to examine the prac-tices used by the tribunal members as they process a case i n order to reach a decision. We do not intend to develop a theory of decision-making. 35 H. Garfinkel, op. c i t . , p. 109. - 19 -In summary, this study focuses on the s o c i a l organiza-t i o n a l features of the p r a c t i c a l a c t i v i t i e s i n which tribunal members usually engage when holding a hearing. This study also shows how the organizational features of the tribunal members' task a f f e c t s the decision, that i s , the outcome for the appellant. In other words, this study i s an i n v e s t i g a t i o n of the s o c i a l organization of case processing by administra-tive tribunals. In attempting to discover the actual practices of members and i n attempting to understand the structure of the constraints that generate these practices, as well as the out-come of these practices a method which i s sensitive i n display-ing the structural features of routine practices i s most l i k e l y to be e f f e c t i v e . Although such a study may be l i m i t e d be-. cause the ethnographer remains an outsider as pointed out by 36 Sudnow , i t i s hoped that i t w i l l provide a contribution to the understanding of the decision-making practices used by administrative tribunals processing s o c i a l welfare cases. In the following chapter, the organizational context i s described, as i s the data and the settings where the i n v e s t i -gation was conducted. In the t h i r d chapter, the events D. Sudnow, Passing On, the Social Organization of Dying, Englewood C l i f f s , New Jersey: Prentice H a l l , 1967. 'An ethnographic report of this kind i s subject to several possible sources of serious error. My perspective i n the world of medical a f f a i r s i s , i n the f i n a l analysis, very much that of an outsider . . . and while some of the consid-erations which I f e e l govern work i n that world have been stated, there i s much I f e e l which remains inaccessible to the ethnographer. 1 p. 176. - 2 0 -preceding the hearing and the i n t e r a c t i o n of the c l i e n t with the agency are examined taking into consideration their impact on the events which w i l l occur during the hearing. Chapter four presents an analysis of the s o c i a l organization of case processing and decision-making i n the Unemployment Insurance 3 7 Board and i n the Welfare Tribunal . Chapter f i v e i s concerned with the s o c i a l organization of dispute s e t t l i n g i n a one man tribunal, whose dai l y a c t i v i t y i s the making of decisions on landlord and tenant disputes. A summary and some conclusions w i l l be presented i n chapter s i x . The tribunal names have been changed. This practice was adopted to emphasize the fact that the present study i s concern-ed with the practices used by tribunal members and i s not intend-ed to single out any p a r t i c u l a r body for c r i t i c i s m or d i r e c t comments. The t h i r d tribunal i s c a l l e d the Rental Housing Office (RHO). CHAPTER I I THE ORGANIZATIONAL SETTINGS AND THE DATA I INTRODUCTION: As was pointed out i n the i n t r o d u c t o r y chapter, a d m i n i s t r a t i v e t r i b u n a l s have developed as c o n t r o l mechanisms f o r the a d m i n i s t r a t i v e process. They are i n t e r n a l mechanisms, that i s , they are pa r t of the a d m i n i s t r a t i v e system whose dec i s i o n s they review. C e r t a i n of the events which occur before a case i s processed by a t r i b u n a l are r e l e v a n t to the hearings, as are the various c o n s t r a i n t s which must be taken i n t o c o n s i d e r a t i o n by the t r i b u n a l i n performing i t s tasks. In the f i e l d of s o c i a l w e l f a r e , t y p i c a l l y a claimant makes an a p p l i c a t i o n f o r b e n e f i t s to an agency. The agency personnel are t r a i n e d to handle such a p p l i c a t i o n s and to determine whether or not b e n e f i t s should be granted. These d e c i s i o n s , however, are not f i n a l , and can be challenged e i t h e r by the claimant - i f b e n e f i t s are not granted - or by the agency, i f i t i s f e l t that the b e n e f i t s should not have been granted. The challenged d e c i s i o n i s then reviewed''- and i f the 'new' d e c i s i o n i s not s a t i s f a c t o r y , i t can be appealed ^Review mechanisms vary from one agency to another, but they are t y p i c a l l y based on a h i e r a r c h i c a l system: the super-v i s o r of the o f f i c e r who made the o r i g i n a l d e c i s i o n w i l l i n general review the d e c i s i o n . In some instances i t may even be reviewed by the o r i g i n a l decision-maker. 2 'new' i s used to i n d i c a t e that the o r i g i n a l d e c i s i o n has been reviewed as that another d e c i s i o n has been made. I t does not imply that i t i s a d e c i s i o n which i s d i f f e r e n t from the o r i g i n a l d e c i s i o n . -Ti-to a tribunal, which w i l l consider the case and make a 'new' decision. Typically, the decision of such a tribunal i s binding except when an error has been made on a point of fact or a point of law; when new evidence i s provided; or when the tribunal has made a decision which was not within i t s j u r i s -d i c t i o n . In those cases the decision of the tribunal can be appealed, usually to a court of law, or to a higher l e v e l within the administrative system. Both the facts that the tribunal must reach a decision on each case ( i t i s the purpose of i t s task) and that the decision can be appealed under certain circumstances impose constraints on the a c t i v i t i e s of the tribunal members. Procedural requirements also impose constraints on the a c t i v i t i e s of the members. Although procedures i n tribunals are less formal than i n a court, some procedures must be respected to insure that the appellant i s not denied 'Natural Justice . In the courtroom, behaviour i s generally formalized: the entry of the judge, announced by the clerk marks the formal beginning of the court hearing, and the departure of the judge marks the end. Between those two occurrences, the individuals present i n the courtroom are expected to behave i n a certain way; they are expected to deal with and interact with each other i n an observable and reportable manner, which i s 'Natural Justice' and procedural fairness are defined i n chapter one, p. 4, footnote 6. - 23: -accountable and recognizable as being a court hearing en-counter. Outside the hearing room, before and aft e r the hearing, the members act d i f f e r e n t l y . The s i t u a t i o n legitimizes the behaviour, the talk and the events which are taking place. In the case of a hearing of an administrative tribunal, procedures are less structured and less formal. The audience does not r i s e when the tribunal enters the room; nor i s i t always clear when the hearing o f f i c i a l l y starts or ends. It i s r a r e l y announced by the tribunal that: 'the hearing i s now closed' implying that what subsequently takes place w i l l not be taken into consideration i n the making of the decision. However, one can i d e n t i f y a period of time during which the events which take place form the basis for the decision of 4 the tribunal and influence the outcome of the dispute . During that time, the participants i n the hearing are also expected to behave and inter a c t with each other i n cert a i n ways: i . e . , they have to wait for their turn to speak, or, i n the language of the tribunal, make their submission, or present t h e i r case; they are not permitted to i n s u l t each other, or to raise t h e i r voice. The tribunal has to ensure that the participants have an opportunity to present th e i r case. The practices of the tribunal members for processing a case and coming to a decision, within the constraints i d e n t i f i e d above, are the phenomena under in v e s t i g a t i o n i n this study. The events surrounding the dispute to be s e t t l e d by the tribunal w i l l be referred to as a 'case'. - 24 -II DESCRIPTION OF THE PROCEDURES IN SOCIAL WELFARE TRIBUNALS: This study i s li m i t e d to administrative processes i n the f i e l d of s o c i a l welfare. It deals with cases where at le a s t one of the parties i s an i n d i v i d u a l i n need of a s s i s -tance. In the context outlined above, administrative tribunals are formal organizations whose task i s the processing of 'cases'. The cases present occasions for the handling of disputes for settlement within the constraints of legal process. For one of the tribunals studied, the Rental Housing Office (RHO), the two parties of the disputes are individuals, namely the landlord and the tenant; i n the other two tribunals, one of the parties i s an i n d i v i d u a l and the other, an agency of the State"' . In both cases, the tribunal members have to assess the evidence placed before them, which includes the 'story' of each party. With the guidance of the statutes and regulations and the information contained i n the 'case f i l e 1 , they must reach a decision as to which of the two parties i s i n the right, i n the l i g h t of the occurrences which take place during the hearing. In this way they s e t t l e the dispute. The o f f i c i a l purpose of a hearing i s to provide an This i s true even when the agency i s represented by an i n d i v i d u a l , because this i n d i v i d u a l has to comply with and accept a l l the p o l i c y of the agency whether he personally agrees with them or not. - 25 -opportunity for both parties to state t h e i r cases before an impartial body; and to provide them with an opportunity to confront the other party . The o f f i c i a l 'story' i s contained i n the 'case f i l e ' and the decision under review i s the issue to be addressed. It i s this decision which has to be proven wrong by the appellant. If he cannot prove the decision 'wrong', i t w i l l stand. The f i r s t task of the tribunal i s to learn about the appellant's side of the 'story'. In order to do so, the tribunal asks the appellant to 'comment on the submission 1 or to present his 'case'. The appellant may do so alone or with the assistance of a representative. He may also c a l l witnesses who w i l l corroborate or support some of the evidence. In a court of law, the order of events i s r i g i d l y fixed. For administrative tribunals, although often described as being q u a s i - j u d i c i a l bodies employing court procedures, the order of events i s i n fac t more f l e x i b l e and varies from one tribunal to another. The respondent i s not always present for rebuttal, p a r t i c u l a r l y when he i s a representative of an agency. A written submission to the tribunal may be used i n l i e u of a personal presentation i n the hearing. When the respondent i s not present, the hearing i s reduced solely to the presentation The confrontation corresponds to what i s c a l l e d cross-examination i n a court of law. Each party i s given an op-portunity to ask questions of the other party or of the other party's witnesses. - 26 -of the appellant's case; when the respondent i s present he i s given as i n a court, the opportunity to respond to the appel-lant's presentation either by himself or with the assistance of a representative, and/or witnesses. After the evidence has been presented and each party present has had an opportunity to cross-examine the other party ( i f both parties are present), the tribunal must reach a decision regarding the dispute. This i s to be a "reasoned decision"^ 7. In the following section we w i l l give background information on each tribunal studied and because of their influence on the administrative constraints we w i l l b r i e f l y describe the appeal system for the review of the tribunal's decision. I l l TRIBUNALS UNDER STUDY: g Four tribunals were o r i g i n a l l y selected for study . They represented four types of control mechanisms. Because of administrative l i m i t a t i o n s i t was impossible to study one of the tribunals during the time available for the fieldwork. It i s evident that when the tribunal consists of only one person there are no observable deliberations. However, a process of reasoning must occur to produce the decision with stated reasons which i s acceptable within the constraint of the l e g i s l a t i o n . Q These data were co l l e c t e d at the request of the Attorney General of B.C. and not solely for the purposes of this study. - 27 -Consequently, the present study concerns i t s e l f only with 9 three tribunals . (1) THE UNEMPLOYMENT INSURANCE BOARD:10  (a) Background Information: The history of Unemployment L e g i s l a t i o n i n Canada begins i n 1935 with the Employment and Social insurance Act (1953, S.C. c.38) which established an unemployment insurance scheme sim i l a r to the present one. Although i t probably grew out of a reaction to the 1929 depression, this Act formed part of the general trend towards s o c i a l insurance l e g i s l a t i o n i n the i n d u s t r i a l i z e d countries. The Unemployment Insurance Act (S.C. 1940 - c.44) was 9 The Workers Compensation Board of Review was the fourth t r i b u n a l . The B.C. Workers' Compensation Act provides that i n any industry to which the Act or the main part of i t applies: 'workers who sustain personal injury by accident a r i s i n g out of and i n the course of their employment or who are disabled by s p e c i f i e d i n d u s t r i a l diseases are e n t i t l e d to compensation.' (CCH Canadian Ltd., 1975-76) The Boards of Review are established by the Lieutenant Governor, and are comprised of a chairperson and two others, one of whom is selected for service after consultation with one or more organized groups of employers, and the other a f t e r consultation with one or more groups of employees. (Workers' Compensation Act, Section 76A(1) Province of B.C.) The Board Members were therefore 'professional' f u l l - t i m e adjudicators. The decisions of the Board of Review could be appealed to the Commissioners of the Workers Compensation Board. In these cases, there was no external review mechanism. The constraints imposed on this tribunal were consequently d i f f e r e n t from the constraints imposed on the other tribunals, as w i l l be seen. 1 0See footnote 37, chapter 1, p. 20. - 28 -passed i n 1940. It i s of i n t e r e s t to note that the law re-garding administrative procedures has changed l i t t l e since that time. However, there are considerable differences between the two Acts as far as the substantive provisions of the scheme are concerned. A desire to encourage the mobility of the labour force, and to r e d i s t r i b u t e wealth within Canadian society, as well as the economic changes that have occurred since the l a s t war^ contributed to the perceived need for a complete overhaul of unemployment insurance i n the l a t e 1960's. Such a fundamental reform was proposed i n 1970 i n a White Paper which was embodied i n l e g i s l a t i o n i n the 19 71 Unemp1oyment  Insurance Act. Under this act the Umeployment Insurance Agency has exclusive j u r i s d i c t i o n to decide whether an unemployed wage-earner i s e l i g i b l e for benefits. In this study we are concerned with only one of the functions of the Unemployment Insurance Agency, the payment of benefits to unemployed wage-earners under the Unemployment Insurance Act. When a worker becomes unemployed, he f i l e s a claim for benefits with the Unemployment Insurance Agency. He then i s c a l l e d to an interview with an Insurance o f f i c e r who w i l l assess his circumstances and decide on his e l i g i b i l i t y . The o f f i c e r may decide to pay, to refuse or to withhold benefits, depending on his assessment of the s i t u a t i o n . I f the benefits ''•"'•p. Issalys and G. Watkins, Unemployment Insurance Bene- f i t s A Study of Administrative Procedures i n the Unemployment  Insurance Commission^ Minister of Supply & Services, Ottawa, 1977, p. 9. ; : - 29 -are refused or withheld the claimant i s informed by a l e t t e r , i n which the o f f i c e r should mention the p o s s i b i l i t y of an appeal of the decision to the Unemployment Insurance Board. 12 Should the claimant wish to appeal the o f f i c e r ' s decision, he may so n o t i f y the o f f i c e r who w i l l review the case for completeness and c l a r i t y and, where necessary, seek additional information from the parties concerned. The o r i g i n a l decision may be altered at this time. If the claimant i s not s a t i s f i e d a f t e r this review, an appeal may be f i l e d with Ul Board, an appointed body which functions independently of the Unemployment Insurance Agency. Board Members and Chairpersons are not employees of the Agency and do not s i t f u l l - t i m e . For each region, there are three panels, one for independent Chairpersons, one for Employees' Representatives (also referred to, i n this paper, as Labour Representatives), and the other for Employees' Representatives. The Board Members for a p a r t i c u l a r set of 13 hearings are drawn from these panels. The Board Members, therefore, are lay persons 1^, who l i v e i n the area where the """^ The Agency and the employer may also appeal the o f f i c e r decision. This however, i s a rare occurrence. A l l the hearin we observed were appeals by claimants. 13 A Board hears an average of 10 to 12 hearings i n one day. When some of the hearings are related to labour problems however, less cases are heard i n one day. We did not observe any 'labour case' but only i n d i v i d u a l appeals and a l l the s i t -tings which were observed scheduled a half-hour per hearing. x^The Board personnel receive a stipend for holding hear-ings. (The full-day rate i s $85 for a Chairman and $65 for a Member), but they do not s i t every day. Some Members i n fact - 30 -claim has originated. However, r u r a l areas may be part of very large regions, and considerable travel may be necessary i f the claimant wishes to attend. The Board Members, i n addition may not be as f a m i l i a r with the employment s i t u a t i o n i n remote areas as they are with t h e i r immediate home environ-ment. (b) The Appeal System: If one of the parties to the hearing i s d i s s a t i s f i e d with i t s outcome he may appeal to the Umpire"'""'. This r i g h t i s set out i n Section 95 of the Unemployment Insurance Act, but i s subject to certain l i m i t a t i o n s : the claimant's union (whether or not the union has represented him at the hearing), an em-ployer 's association and the Agency have unrestricted rights of appeal. Claimants who are not members of a union and in d i v i d u a l employers also have the r i g h t of appeal, provided the Board's decision was not unanimous. Otherwise, they must apply for leave to appeal to the Umpire from the Chairman of the Board. Such an ap p l i c a t i o n for leave to appeal to the Umpire must be submitted within 30 days from the day on which the Board's decision was communicated to the claimant. The decision of the Umpire w i l l be f i n a l and not subject to appeal or review by any court except i n accordance with the Federal complained that they sometimes sat no more than once or twice a month and "not enough to keep informed and with i t " . •^Umpires, pursuant to Section 92 of the Act, are judges of the Federal Court ( T r i a l Division) who are appointed by the Governor-in-Council. 31 Court Act, although this r a r e l y occurs. Umpires e s t a b l i s h 16 the jurisprudence of the system The features of the appeal system, as described above, have di r e c t implications for the conduct of the hearings. Be-cause the Agency always has the ri g h t of appeal, the decision must always be within the meaning of the Act, the regulations and i n agreement with the jurisprudence as well as with Agency p o l i c i e s , otherwise the decision may be appealed. The Agency p o l i c i e s have to be i n agreement with the jurisprudence and are generally based on the jur i s p r u d e n c e ^ . This had the eff e c t of reducing administrative constraints on substantive issues to a minimum i n the i r tribunal, since the jurisprudence had precedence over c o n f l i c t i n g Agency polic y . The Chairman almost without exception spends some time during the hearing explaining to the claimant that they have to enforce the Act; that although they are an independent Board, the Agency's p o l i c i e s have to be taken into account. When a claimant i s represented by a union member, i t i s The decision of the Umpire constitutes a jurisprudence which i s used extensively, although i t i s not indexed. These decisions are referred to as CUB's (Canada Umpire Benefits) and are followed by a number. The decisions of the UI Boards do not constitute precedents. UI regulation was found i l l e g a l by the Umpire. (Sec-tion 145 of regulations) This section of the regulations dealt with the 'mechanics' of f i l i n g a claim and the require-ment of the regulations were found i l l e g a l . Before the Agency could enforce those requirements, i t had to have i t incorpo-rated into the Act. (Section 55). - 32 -for the Board an i n d i c a t i o n that the 'union feels that they 18 have a case, otherwise they would not bother coming' , then the Board Members are very circumspect with the questions they ask during the hearing. They are also more thorough i n examining ' a l l the angles' of the s i t u a t i o n during the delib erations. The t h i r d preoccupation of the Board i s getting a unanimous decision, but this i s not d i r e c t l y apparent during the hearing. (c) Use of the Unemployment Insurance Board: There were 40,758 appeals to the Unemployment Insurance Board i n Canada i n 19 74 and 10,831 during the f i r s t quarter of 1975. The P a c i f i c regions (including B.C. and the Yukon) accounted (in 19 74) for 13.5% of the benefits and 19.3% of the appeals to the Ul Board. Of those, 341 were appealed to the Umpire (13.5%. of a l l appeals to the Umpire i n Canada i n 1974). Claimants f i l e d 203 appeals while 94 were f i l e d by unions, 2 by employers' associations, none by employers and 42 by the Agency. Most of the appeals at both levels (2/3) were concerned with the ' a v a i l a b i l i t y for work' (Sec. 25(a)) or the 'voluntary leaving' (Sec. 41(1)) of the claimant. The success rate of The contrary argument was used to assess the seriousness of bad working conditions i n SUI05 which i s quoted i n Chapter III . When a union member represents an appellant the hearing proceedings are recorded; this i s because the Board feels that i f the union feels the claimant has a case, they w i l l be ready to appeal i f the decision i s not i n the appellant's favour. - 33 -appeals to the Board of Referees was 10% i n the P a c i f i c Region, the lowest i n Canada. This does not include amended decisions. (2) WELFARE TRIBUNALS: (a) Background Information: The Department of Human Resources of the Province administers the delivery of various income assistance and subsidy programs, under the Guaranteed Available Income for 19 Need Act (GAIN Act) . Decisions regarding the granting of services such as counselling or day-care, although they may be subsidized by the Department of Human Resources under the GAIN Act are not appealable. Only decisions regarding income assistance programs are appealable. The Social Assistance Program includes basic s o c i a l assistance and allowances for special and emergency needs. The handicapped person allowance program i s a supplementary allowance to the basic s o c i a l assistance allowance which i s to 'provide the income essential for disabled persons to meet their everyday l i v i n g require-ments and maintain th e i r sense of independence and dignity.'20 19 In 1976, a l l the Prov i n c i a l Acts related to income maintenance were consolidated into one act: the Guaranteed Available Income for Need Act (GAIN Act). The programs under this act are administered by the regional o f f i c e s of the Department of Human Resources. This w i l l be referred to as j. the Welfare Agency. B.C. Dept. of Human Resources, Services for People;  Annual Report of the Department of Human Resources 1975, Queen's Printer, V i c t o r i a , 1976 - 34 -'Mincome1, another income assistance program, provides a guaranteed Minimum Income to senior c i t i z e n s , aged 60 or more, and who are residents of B r i t i s h Columbia. A person i n need must f i l e a claim at the l o c a l Depart-ment of Human Resources o f f i c e . A s o c i a l worker, i n coopera-tion with a f i n a n c i a l worker, both employees of the Welfare Agency, w i l l decide on e l i g i b i l i t y a f t e r one or several interviews. In cases of d i s s a t i s f a c t i o n with the decision the claimant may, under the Act, f i l e an appeal. Social workers do not consistently inform their c l i e n t s about t h e i r rights to appeal and have on occasion been known to refuse to f i l e these appeals. Each regional director i s assigned the res-p o n s i b i l i t y of case review when an appeal i s f i l e d and he has the power to either rescind or amend the decision of the ind i v i d u a l s o c i a l worker. In cases of handicapped persons, this task i s to be performed by the Medical Review Commission, at the request of the regional d i r e c t o r . If the appellant i s not s a t i s f i e d with this administra-tive review, his appeal w i l l be heard by a Tribunal, as spec i f i e d by the Act. The procedures to set up a Tribunal are s p e c i f i e d i n the GAIN Act Regulations. When he has been n o t i f i e d of an appeal, the regional director n o t i f i e s the appellant that the matter i s to be heard by a Tribunal. The regional director and the appellant each nominates a person to represent them on the tr i b u n a l . These nominees cannot be employees, o f f i c e r s or o f f i c i a l s of the pr o v i n c i a l government - 35 -or of any municipality or community resources board within the province. The two nominees have to nominate a t h i r d person to act as Chairperson. The Tribunal, so constituted, i s therefore made up of lay persons, who generally serve only once. These persons are volunteers who serve without stipend or reimbursement of expenses. They are independent from any administrative con-21 t r o l , and thus act as a tribunal of peers rendering 'community j u s t i c e ' . To .prepare for the hearing, each T r i -bunal Member must read the material provided i n an 'Appeal K i t ' which contains a copy of the GAIN Act, a copy of the Regulations, and a copy of the section of the p o l i c y manual r e l a t i n g to appeals. (b) The Appeal System: According to the Regulations, the decision of the T r i -bunal s h a l l be the decision of a majority of i t s members. However, the Tribunal may reopen the appeal and hold further hearings upon receipt i n writing, of a request from one of the parties to present evidence not previously heard i n the proceedings, provided such request i s received by the Chair-person within 30 days of the o r i g i n a l decision of the Tribunal. These nominees are not accountable to the Agency nor do they have to worry about job performance as do the RHO O f f i c i a l s or the UI Board Members, where performance i s reviewed periodic-a l l y . - 36 -Neither i n the Regulations nor i n the Act i s there mention of any further appeal. However, i n practice a l l the decisions are reviewed by the o f f i c e of the Minister to consider whether they are i n agreement with the l e g i s l a t i o n and the p o l i c i e s established by the agency. If i t i s , the decision stands, i f not i t i s reexamined by the o f f i c e of the Minister. Two outcomes are possible: the decision i s overturned by the Minister or the p o l i c y regarding that p a r t i c u l a r issue i s revised. 'Copies of a l l appeals must be sent to Income Assistance D i v i s i o n i n order that Regulations and F i e l d Manual instructions can be modified i f required. In addition, the information i s needed i f an Appeal Board goes beyond i t s area of j u r i s d i c t i o n and makes a decision that i s contrary to the Regulations or contrary to a p o l i c y that i s at the d i s c r e t i o n of the Minister or Director, then the matter w i l l be appealed by the Department. ' 22 Therefore, the Minister can overturn any decision made by a Tribunal on a point of law or p o l i c y while the appellant does not have any further recourse. This has d i r e c t implications for the hearing. The Tribunal has to be p a r t i c u l a r l y concerned with the l e g i s l a t i o n and the p o l i c i e s of the agency when making a decision unless they wish to challenge the established p o l i c i e s . This s i t u a t i o n i s very d i f f e r e n t from the s i t u a t i o n i n the Unemployment Insurance Boards insofar as the Welfare Agency p o l i c i e s have the same Province of B r i t i s h Columbia, Department of Human Re-sources, Policy Manual, Section 1(84)(t), 1975. - 37 -weight as the Statutes since they cannot be challenged i n a court of law. The administrative constraints i n this Tribunal are a very important feature influencing the practices of the Tribunal Members. In any case, they have to document very precisely, within the context of the law, why such a decision should be sustained. (This i s p a r t i c u l a r l y true of decisions made i n favour of the claimant.) A great deal of time i s spent i n the hearing, examining whether potential benefit recipients can be defined as handicapped, common-law etc., i n order to determine whether or not an appellant i s 23 e l i g i b l e for benefits. The Tribunal Members' task i s p a r t i c u l a r l y d i f f i c u l t because they are provided only with the l e g i s l a t i o n and part of the p o l i c i e s (the parts relevant to the case at hand). Further, none of them are aware of preceding decisions; the 20 members interviewed a l l stated that they did not know about them. In the policy manual for s o c i a l workers a d i r e c t i v e dated July 1975 requires that: A catalogue of appeal decisions w i l l be compiled in Income Assistance D i v i s i o n and are to be 23 In one case, the entire purpose of a hearing was to determine whether two persons of d i f f e r e n t sexes, who l i v e d i n the same dwelling, who admitted to sharing the same bed, were to be considered as ' l i v i n g common-law', i f the male was not supporting the female. Common-law wives are not e l i g i b l e for s o c i a l assistance, while single women are. The male partner, in this case, was on a Manpower r e t r a i n i n g course and had only a minimum income. The Tribunal sat three times i n order to gather s u f f i c i e n t facts for i t s decision. In this case there was no s p e c i f i c established p o l i c y and no one had previously challenged the d e f i n i t i o n of a common-law r e l a t i o n s h i p . - 38 -available for s t a f f as a reference which would be of assistance i n reaching a decision i n a p a r t i c u l a r s i t u a t i o n . These w i l l be catalogued by sections and subsections of the Regulations24. At the time of the study, no one ever referred to this catalogue of decisions. The p o l i c y manual was always quoted as the 'authority' which should be consulted i n order to make decisions. (d) Use of the Tribunal: During 1976, 254 appeals were f i l e d to be heard by 25 Tribunals i n the province, of which 122 were i n Big City Metropolitan Regional D i s t r i c t . Of these appeals, 65 were granted by administrative review, 30 were granted by Tribunals, 8 were refused by Tribunals. The remainder were rejected or amended by administrative review and were not followed up by the appellant. In the entire year there were only 5 tribunal hearings outside of Big City Metropolitan Regional D i s t r i c t . In that same year, while more than 50,000 individuals and families received s o c i a l assistance monthly, only 217 i n d i v i d -uals appealed the decision of a s o c i a l worker. Of these, only 19 went to a Tribunal. Again i n 1976 between 10,000 and 12,000 handicapped persons received the handicapped persons Province of B r i t i s h Columbia, Dept. of Human Resources, Policy Manual, Section 1(34)(3), 1975. 25 A l l the names of C i t i e s have been changed to preserve the complete anonymity of the participants i n the hearing encounters. The dates are always incomplete for the same reason. - 39 -allowance (between 2,600 and 2,900 i n Big C i t y ) . In that period, 37 appeals concerned with Handicapped Persons Bene-f i t s were f i l e d . Nineteen went to a Tribunal and a l l were granted. A l l appeals originated i n Big City. (3) THE RENTAL HOUSING OFFICE: (a) Background Information: The Rental Housing Office (RHO) i s a recently es t a b l i s h -ed body. It was brought into being i n October 1974 through new landlord and tenant l e g i s l a t i o n . This was done following a recommendation by the Law Reform Commission of B r i t i s h Columbia^ . Before the 1974 Act, only the courts had the j u r i s d i c -tion to make binding decisions between parties, i n landlord-tenant disputes. Administrative tribunals such as the Big City Rental Accommodation Board were held to possess 'no j u d i c i a l powers, and any orders made had no force and e f f e c t 27 at law' . The j u r i s d i c t i o n of these tribunals was l i m i t e d to advising landlords and tenants as to t h e i r rights and to receiving complaints regarding contraventions of the l e g i s l a -t ion governing tenancies. Law Reform Commission of B.C., Landlord and Tenant  Relationships: Residential Tenancies, Queen's Printer, V i c t o r i a , 1973, pp. 25-26. 27 See Halst VS Wells, Vancouver P r o v i n c i a l Court No. 8783171 (unreported). - 40 -The Law Reform Commission of B r i t i s h Columbia pointed out that the courts were not a sa t i s f a c t o r y means for the resolution of landlord-tenant disputes as they acted too slowly and lacked investigative powers and expertise i n landlord-tenant problems. The solution i t recommended was to d r a s t i c a l -l y c u r t a i l the courts' j u r i s d i c t i o n over matters involving 28 r e s i d e n t i a l tenancies . Following these recommendations, the RHO was created to administer the Landlord and Tenant 29 Act and to resolve a l l landlord and tenant disputes The RHO replaced the court and other tribunals i n matters concerning tenant and landlord disputes - and has the power to make binding decisions regarding the settlement of disputes. The head of the RHO, the Rentalsofficer, and 30 his s t a f f are f u l l - t i m e p r a c t i t i o n e r s . He i s charged with administering the l e g i s l a t i o n concerning the rights and obligations of both parties - landlords and tenants - i n matters regarding tenancy agreements, terminations of tenancy, 2 8 Law Reform Commission of B.C., op. c i t . , 1973, pp. 31-38 29 At a l a t e r date, the Rent Review Commission was created, taking away from RHO the administration of the section of the Act concerned with rent control. I t was f e l t that RHO could not administer these sections of the Act without experiencing a c o n f l i c t of in t e r e s t . Although the two administrative bodies are completely independent from each other, there i s s t i l l confusion i n the public as to the j u r i s d i c t i o n and responsi-b i l i t y of each body. 30 The Rentalsofficer, who i s the head executive of the Rental Housing Office, i s assisted by Deputies who have the same powers as the Rentalsofficer and some RHO o f f i c e r s who process and hear cases when they f i r s t come i n the RH O f f i c e . The Rentalsofficer and his Deputies are referred to as 'RHO O f f i c i a l s ' or 'Deputies'. - 41 -the over-holding of rental premises, the non-payment of rents, standards of maintenance, subletting, rights of privacy, etc. The Rentalsofficer also has r e s p o n s i b i l i t i e s as an advisor, an investigator, an a r b i t r a t o r , an educator, a mediator and a judge. His rulings - or the rulings of his Deputies - carry the weight of court orders. Only i n exceptional cases are his 31 decisions subject to j u d i c i a l review When a case comes before the RHO, the o r i g i n a l decision is usually made by an RHO o f f i c e r . The r u l i n g of the o f f i c e r i s subject to an in t e r n a l appeal to be heard by one of the 32 RHO O f f i c i a l s . The o f f i c e r ' s l e t t e r of decision i s accom-panied by an appeal form. If one of the parties i s d i s s a t i s -f i e d with the decision, he may appeal within 14 days. Most of the appeals are made on matters related to security deposit disputes - a few for very small amounts of money ($13.47 was one example) - while others deal with contested notices of termination of tenancy. There i s no cost involved for either party i n requesting the help of the RHO i n s e t t l i n g the d i s -pute, nor on the appeal of the decision of the o f f i c e r . J" LOnly 10 cases were appealed to County Court i n 1976, out of 299 cases heard by the Rentalsofficer or his Deputies. Of these: s i x decisions were upheld, one was dismissed, one was discontinued, one was adjourned and only one was reversed 32 A new Landlord and Tenant Act has done away with this l e v e l of appeal and has replaced i t with an in t e r n a l review, and a di r e c t appeal to the County Court aft e r the in t e r n a l review. The new Act was proclaimed i n November, 1977, af t e r the fieldwork for this study was completed. - 42 -(b) The Appeal System: There are provisions i n the Act for a j u d i c i a l review of the decision of the Rentalsofficer or his Deputies. (1) Where a landlord or a tenant alleges the.:. Rentalsofficer or commission erred upon (a) a point or question of law or j u r i s d i c t i o n ; or (b) a finding of fact, necessary to e s t a b l i s h j u r i s d i c t i o n , that i s , manifestly incorrect, a County Court Judge of the county i n which the r e s i d e n t i a l premises are situated s h a l l , upon application i n accordance with the Regulations, review the order, direction, decision, or deter-mination of the Rentalsofficer or commission33. The parties are generally informed at the time of the hearings that j u d i c i a l review i s available to them on the two grounds quoted above. I f one party chooses to appeal to County Court the regulations lay out precise procedures for the f i l i n g of such a notice; the requirements the appellant must f u l f i l l are as follows: (2) A notice of review must be completed by the applicant i n a l l respects, [ ]34 (6) The applicant must also f i l e with the Registrar a l l a f f i d a v i t s and other material as required by these Regulations or the rules of court i n respect of the matters i n issue. (7) The applicant s h a l l serve the respondent i n the manner provided i n the Act, and (a) the Rentalsofficer by registered mail [ ] with the Province of B r i t i s h Columbia, Landlord and Tenant Act, Chapter 45, Section 54(1), Consolidated September 3, 1976. 34 [ ] this convention i s used when the quote or the tr a n s c r i p t i s edited. - 43 -(c) notice of review as f i l e d ; and (d) a l l a f f i d a v i t s and other material that the applicant intends to use i n support of his argument or review, not less than 14 days before the date of hearing of review, unless a Judge, on such terms and conditions as he considers appropriate, orders otherwise35.' The RH Office also has to provide the court with appropriate documents, including: (a) a concise description of the order, direction, decision, or determination in question, with an attachment being a true copy of the order, direction, decision, or determination as i t was reduced to writing; (b) an attachment, including true copies of a l l relevant instruments, records, and documents r e l a t i n g to the matter; (c) the findings of fact relevant to the dispute as made by the Rentalsofficer or commission; and (d) the reasons of the Rentalsofficer or commission for making the order, deci-sion, direction, or determination being reviewe d36. The Rental Housing Office can f i l e and serve both docu-ments and a f f i d a v i t s (which have to be confined to firsthand knowledge of facts) as they consider appropriate. The Rental Housing Office becomes party to the appeal by the applicant. The O f f i c i a l ' s considerations during the hearings are therefore directed toward assessing how the stories of both Province of B.C., Landlord and Tenant Act Regulations, B.C. Reg. 654/74 amended B.C. Reg. 791/74, 3/75, 534/75. Section 17(2), (6) and (7). 3 6Idem Section 18(8). - 4 4 -parties f i t into the law, and assessing the various pieces of evidence presented to him, so that his decision i s based on documented or l e g a l l y proved facts. Generally, j u d i c i a l review i s perceived as a gauge of an individual's performance. I f many decisions of the part i c u -l a r i n d i v i d u a l were to be appealed, he would not be considered competent to be an RHO O f f i c i a l . J u d i c i a l review i s seen as an external control 'to make sure the law i s applied properly'. It i s in t e r e s t i n g to note that some parties, during the hear-ing, use the threat of j u d i c i a l review to try to influence the decision of the RHO O f f i c i a l s . By statute, the RHO O f f i c i a l i s given d i s c r e t i o n i n 37 deciding on cases without being bound by precedents , however, because of the p o s s i b i l i t y of appeal on a point of law, the decision has to be made 'within' the law and interpretation enters i n only when the law leaves room for d i s c r e t i o n . When a County Court Judge, who i s bound by legal precedents, has ruled on a case similar to the case before, RHO O f f i c i a l s f e e l that i t would be f u t i l e not to follow the judge's interpretation of the l e g i s l a t i o n since, i f the decision i s appealed, the subsequent r u l i n g would be consistent with the already established precedent. This i s why when the l e g i s l a -t i o n does not o f f e r precise guidance for meeting a decision, 37 'The Rentalsofficer s h a l l make his decision upon the rea l merits and j u s t i c e of an application or matter before him, and he i s not bound to follow l e g a l precedents.' (Land-lord and Tenant Act Section 51(1), consolidated Sept./76) - 45 -the O f f i c i a l s welcome j u d i c i a l review as a tool for the establishment of p o l i c i e s as the following quotation shows: 'I wish they would appeal i t . This mobile home business... the law does not specify... You know, these people are tenants but they are owners as well... Every time a mobile home case comes up, we know we are i n for trouble.' (excerpt from f i e l d notes -conversation which took place after PRE01) In summary, during the hearing, the RHO O f f i c i a l s take into consideration the l e g i s l a t i o n ; the p a r t i c u l a r facts which define the s i t u a t i o n of the parties before him; and court decisions, i f any, related to the matter before him. Further, although the Rental Housing Office has p o l i c i e s , these p o l i c i e s can be challenged i n court and may as a consequence_be altered. This explains why O f f i c i a l s are so concerned with making decisions within the accepted int e r p r e t a t i o n of the law. (c) Use of the Rental Housing Off i c e : The services offered by the RHO were f a i r l y extensively used. In 1976, there was an estimated 280-300,000 rental units i n B.C., approximately 707o of which were located i n Big 38 City Metropolitan area . During that year, 10,125 case f i l e s were opened, of which 6,450 (63.7%) originated i n Big City Metropolitan area. Two hundred and ninety-nine cases (3%, of opened f i l e s ) were heard by the Rentalsofficer or his deputies. Of these, 90%, were located i n Big City Metropolitan area. Estimate of the Rent Review Commission, given over the phone i n A p r i l 1977. - 46 -The RHO i s located i n Big City, but both o f f i c e r s and deputies may travel outside Big City Metropolitan area to 39 hold hearings IV THE DATA: The data consists mostly of transcripts of hearings held i n three tribunals described above and which were observed by the researcher. The presence of the researcher at the hearing, i t i s recognized, may have influence on the events which occurred. As S t o d d a r t ^ points out: 'For those who do the i r s o c i o l o g i c a l work v i a strategies requiring their i n t e r a c t i o n a l presence i n the domain of concern their very being there i s received as problematic i n serious ways: i . e . , i n ways that stand to erode the p o s s i b i l i t y of achieving the goal that occasioned their presence i n the f i r s t place . ' The researcher consequently made very clear i n each si t u a t i o n that she was not a participant and that she was there Deputies occasionally held hearings which were not appeal hearings. Order of possession hearings were always heard by Deputies, although the preliminary work was made by the RHO O f f i c e r . In other cases the hearing was held by a Deputy because i t was complex and involved parties whose d i s -pute had lasted a long time. In those cases, both parties usually had had many contacts with the Rental Housing O f f i c e . F i n a l l y , i f the hearing was not to be held i n the Big City Metropolitan area, a Deputy often heard i t i n order to prevent any further appeal, that i s , any further t r i p s . Deputies had more experience as adjudicators and could, i n theory, make better decisions than the O f f i c e r s . This procedure, used for administrative expediency, had for e f f e c t to reduce the appeal l e v e l to one. ^K. Stoddart, unpublished paper, 'The Presentation of Everyday L i f e : Strategies for 'Adequate Ethnography', UBC 1977. - 47 -only to observe. The researcher remained s i l e n t during a l l of the hearings and deliberations. The researcher refused to comment on the proceedings even when asked and reminded the observed that 'she did not have an opinion, she was just an observer'. It was noted that 'di sat tending' actually occurred^ 1. There was an 'erosion of v i s i b i l i t y through time 1. While at the beginning of a day of hearings, the Ul Board Members seemed to monitor their talk as a r e s u l t of the researcher's presence and remarked that 'we should not say that i n front of her', aft e r a few hearings they did not appear to notice the researcher's presence. The researcher had 'faded into the background'. A s i m i l a r phenomenon took place with the deputies of the RHO Of f i c e . The researcher missed one appeal hearing and the deputy observed 'where were you, I missed you', displaying a need for the researcher to be there for the s i t u a t i o n to be 'normal' . After attending so many hearings the researcher became part of the scene. As noted by Skolnick, with time the relationship between the 'observed' and the 'observer' changes: . . . I f a s o c i o l o g i s t rides with the police for a day or two he may be given what they c a l l ^ XK. Stoddart, op. c i t . , p. 8. / 9 The Deputies were used to having observers; part of the tr a i n i n g for new o f f i c e r s was attendance at some appeal hearings. Legally the RHO hearings are open, although there i s no public notice that the hearing w i l l be held. - 48 -the 'whitewash to u r 1 . As he becomes part of the scene, however, he comes to be seen less as an agent of control than as an accomplice43. In the case of the Welfare Tribunal i t was not time which made the researcher i n v i s i b l e - most Tribunals were hearing no more than one case. Rather, i t was the f e e l i n g by the Tribunal Members that they were i n a non-familiar s i t u a -tion and that they did not know what to expect of the si t u a -tion. They could not take for granted the events which were occurring during the hearing. The researcher was just another unfamiliar feature i n an unfamiliar s i t u a t i o n . Her presence consequently was not a great salience. Further, the Tribunal Members were not preoccupied before disattending occurred, at having t h e i r performance evaluated as were the Board Members and the RHO O f f i c i a l s might have been. They were learning how to perform t h e i r task while performing i t ^ . The appellant was i n the same si t u a t i o n as the.Tribunal Members. The si t u a t i o n was not 'normal' for the appellant i n the sense that i t was not a s i t u a t i o n which occurred normally i n his everyday l i f e and the presence of the researcher was no more than another element i n an abnormal s i t u a t i o n . In the few cases where the researcher was not i n t r o -duced, there was no 'active' misrepresentation on her part since the researcher did not represent herself as anything. 43 J. Skolnick, op. c i t . , pp. 116-185. ^H. Garfinkel, op. c i t . , pp. 116-185. Individuals who are 'passing' often learn how to 'act' according to the role they play while playing i t . - 49 -She was just present. However, to a certain extent there was a 'passive' misrepresentation, as on occasion, i t appeared that the appellant thought that the researcher was 'some sort of recording clerk' for the Board or for the Rental Housing Offi c e . The researcher does not subscribe to Denzin's po s i t i o n t h a t 4 5 : . . . the s o c i o l o g i s t has the right to make observations on anyone i n any setting to the extent that he does so for s c i e n t i f i c purposes. The goal of any science i s not harm to subjects, but the advancement of knowledge. Any method that moves us towards that goal without unneces-sary harm to subjects i s j u s t i f i a b l e . Furthermore, the researcher f e l t more comfortable when she was introduced to everyone including the appellant. However, to reveal who she was would have been contrary to the researcher's goal which was a s t r i v i n g for i n v i s i b i l i t y . Anonimity was guaranteed by the researcher to the T r i -bunal Members for a l l the participants. The recording of the hearing was done openly and permission for the p a r t i c i -pants to read the transcripts was never refused to the participants. The researcher's presence, i t could be argued, did not harm the appellant; but may even have helped him. I f there had been any influence on the Tribunal, i t may have pressured the Members to be f a i r e r , than they would otherwise have been, as they had an audience. 45 N. Denzin, The Research Act i n Sociology, the Theoretical Introduction to Soc i o l o g i c a l Methods~ Butterworths, London, 1970, p. 333. - 50 -(1) THE TRANSCRIPTS OF THE HEARINGS: The transcripts were taken down verbatim (including indications of emotion) during the hearing. Each transcript was checked for accuracy and r e a d a b i l i t y a f t e r each hearing and an analysis of the transcript was made using a standard form. This procedure ensured the completeness of the record. When excerpts from transcripts are used i n this d i s -sertation names, places and dates have been either omitted or changed to ensure complete c o n f i d e n t i a l i t y . Appendix A contains a l i s t of the observation trans-c r i p t s . In regard to the sampling procedures for the hearings, the researcher attempted to attend a l l Rental Housing Office and the Welfare Tribunal appeal hearings which occurred during the fieldwork of eight months. Two appeal hearings of the RHO were missed, however, because of a c o n f l i c t i n scheduling be-tween the Rental Housing Office and the Welfare Tribunal. Two hearings of the Tribunal were ,not attended because the researcher was not n o t i f i e d before the hearing. With regard to the Unemployment Insurance Board, the dates of attendance were selected on the basis of convenience for the researcher who did not know who the Board Members would be. Permission to attend hearings was never r e f u s e d ^ . On only one occasion at the RH Offic e , did an appel-lant's lawyer ask who the researcher was. After the deputy - 51 -It appears, therefore, that the sample of hearings was not biased through s e l f - s e l e c t i o n . A l l the hearings who were selected by the researcher were actually observed. (2) TRANSCRIPTS OF THE DELIBERATION: . The l e g i s l a t i o n s p e c i f i e s that no employee of the Un-employment Insurance Agency i s permitted under any circumstances to attend the deliberations of the Board. It does not specify whether other persons may be allowed to attend. It i s generally l e f t to the d i s c r e t i o n of the Chairperson to grant such permis-sion. In one case, the Labour Representative was against the attendance of the researcher, and no deliberations were observed for the Board. In two other instances, the Chairman asked the researcher to leave after the f i r s t hearing and then, changing his mind, t o l d her that she could stay - that ' i t did not mat-ter, since they did not have anything to hide'. When allowed to stay, the verbal exchanges between the Members were recorded except i n one case where the Chairman granted permission to attend but not to record the delibera-tions. Only a few notes, written a f t e r the day of hearings are available from that Board's deliberations. In some instances, there was no hearing as such since the appellant was not present, nor did he send a representa-t i v e . In those cases, only the deliberations were recorded. had explained who the researcher was and what she was doing, the lawyer raised no further objection. - 52 -(3) OTHER DATA: In addition to the transcripts of hearings and of the deliberations, the data consist's of the following: a) Notes on the behaviour of the participants, both during the hearing and during the deliberations. b) notes on conversations with appellants and Tribunal Members, which took place either before or afte r the hearings. In the case of the Rental Housing Office Deputies, long conversations took place during airplane f l i g h t s , journeys by car, or meals when the hearings were outside of Big City. The researcher and the Deputy frequently found themselves on the same f l i g h t or elected to travel together. c) some background information on the cases obtained from the f i l e s or that portion of the f i l e s ( i n the case of the Welfare Agency) to which access was granted. A l l the submis-sions for the Unemployment Insurance Board hearings were sent to the researcher i n advance of the hearing. d) copies of the l e t t e r s of decision for a l l cases which were 47 closed before the end of the fieldworkd e) newspaper c l i p p i n g on each tribunal, on the i r a c t i v i t i e s and on p a r t i c u l a r cases which were exposed i n the press. f) interviews were conducted with Board, Tribunal and RHO Only two RHO cases were not closed at the end of the fieldwork. - 53 -members on a systematic basis with a structured questionnaire. This contained a series of open-ended questions dealing with the procedural and the substantive aspects of case-processing, as well as information regarding the respondent's concept of j u s t i c e and fairness. Other items which were discussed i n these interviews were: the role of the Tribunal vMembers as perceived by themselves; the role of administrative tribunals; th e i r attitudes towards s o c i a l welfare programs; and background information such as age, occupation and education. The interviews were informal and the interviewees usually were at ease and were very forthcoming. The interviews were not tape-recorded but the researcher took extensive notes which were edited immediately following the interview. Inter-views lasted on the average two hours, but they ranged i n 48 length from one and a h a l f hours to seven hours g) several non-structured interviews were conducted with the individuals who were functionally responsible for the tribunals or who were i n charge of the administration of the l e g i s l a t i o n under which the tribunal operated. 48 This i s a summary of the data on which this study i s based: Transcript Transcript Sub-Tribunals Hearings Deliberations missions Rental Housing Office 51 -Social Welfare Tribunal 11 5 Unemployment Board 40 65 83 102 70 83 - 47 interviews were conducted: 7 with Rental Housing Offi-c i a l s , 20 with Social Welfare Tribunal Members and 20 with the Unemployment Commission referees. - 54 -A l l the Agencies and individuals contacted were cooperative and h e l p f u l ; there was, however, a problem of communication between the Ministry of Human Resources and Big City Welfare Agency o f f i c e which prevented the researcher from attending several of the Welfare Tribunal hearings. Back-ground s t a t i s t i c s were also provided i n addition to access to f i l e s at the RHO and to a lim i t e d extent (excluding c o n f i d e n t i a l material) at the Welfare Agency. In summary, during the eight months of the fieldwork considerable time was spent either observing hearings, i n t e r -viewing Board Members or meeting with them on an informal basis. What follows i s a b r i e f description of the settings where the hearings of the various tribunals were held, and an i d e n t i f i c a t i o n of some features relevant to the hearing. V THE SETTINGS: (1) THE RENTAL HOUSING OFFICE HEARINGS: When a dispute between landlord and tenant originated i n the Big City Metropolitan area, the hearing was held i n 49 the Agency o f f i c e . I f i t originated elsewhere i n the province the hearings were held i n a municipality close to the s i t e of the premises, either i n a l o c a l government agent's At the time of the fieldwork the RHO had only one o f f i c e . Another o f f i c e was opened i n Capital City the l a s t week of the fieldwork. - 55 -o f f i c e , a courthouse or elsewhere i f necessary"^. When the hearing was held i n Big City, the O f f i c i a l could conduct the hearing i n a board room which was rather formal, or i n his o f f i c e , which was less formal. The Rentalsofficer or the Deputy decided on the set-ting according to the kind of case he expected i t would be. Hearings which were expected to be d i f f i c u l t , either because the landlord and tenant were on bad terms, or when a lawyer was present were held i n a more formal setting, i . e . , i n the board room. Outside the Big City, Deputies had l i t t l e control over the type of room or setting of the hearings: for example, within the same courthouse, on two separate occasions, two di f f e r e n t settings were used. Once the hearing was held i n a formal courtroom, while on the other occasion a tiny room with a small desk used by lawyers to interview t h e i r c l i e n t s before a court hearing, was the setting. This room was large enough for two people, but rather small for six. The hearings were 'semi-public' i n the sense that they were not required by the l e g i s l a t i o n to be 'closed 1. However, there was no public notice of the date, time and place of the In one case the hearing was held i n the back of a store. It frequently occurred that the Deputy moved the furniture i n order to create a more or less formal atmosphere. In some instances the rooms were very small. Once, the hearing was held i n a courtroom, but the Deputy sat i n the middle of the room with the other participant, not at the Judge's desk. hearings. Further, the Rentalsofficer or the Deputy holding the hearing could at their own dis c r e t i o n ask a person to leave i f , i n their opinion, his behaviour or talk was not proper. Witnesses were not allowed to attend u n t i l they gave evidence, but could stay af t e r they had fini s h e d t e s t i f y i n g . (2) THE UNEMPLOYMENT INSURANCE BOARD HEARINGS: The Unemployment Insurance Board hearings were held i n the D i s t r i c t o f f i c e of the Unemployment Insurance Agency. Consequently, most of the appellants appeared to associate the Board with the Unemployment Insurance Agency, i n spite of the assurance given by the Chairman that the Board was an independ-ent body. The rooms where the hearings were held, had the appear-ance of most board rooms; the Board Members, the Chairman, the appellant and his representative sat around a table. On each occasion the Chairman decided where the Members would s i t . In general, the appellant was introduced by the clerk to the Chair-man who i n turn introduced the Members to the appellant. The Board then proceeded to question the appellant or asked the appellant to present his case i n order to est a b l i s h the facts. Witnesses could t e s t i f y at such hearings, but were rarely present. (It never occurred during the course of the study.) The appellant was then asked to leave and the Board deliberated. The clerk r a r e l y attended the hearings, and he was never present during the deliberations. - 57 -When the Board had reached a decision, the Chairman c a l l e d the clerk and dictated the decision, with reasons, to him. During the whole s i t t i n g , there was a fee l i n g of hurry, as hearings were scheduled at half-hour i n t e r v a l s . Although his role i s not very evident, the clerk has a number of important r e s p o n s i b i l i t i e s : he must schedule the hearings, select Board Members from the panels, and mail the submissions prepared by the Insurance O f f i c e r to the Chair-person, the Members and the appellant. The clerk i s also responsible for writing to persons whose presence at the hear-ing i s considered by the o f f i c e r or the Chairman, as being necessary for the settlement of the case and for d i r e c t i n g them to attend"^. The Board Members can address any questions regarding the submission or precedents to the clerk. I f he i s not attending, they can c a l l him i n when he i s needed, but the clerk must not pa r t i c i p a t e i n the hearing, unless his assistance i s s o l i c i t e d by a Board Member. Since the Unemploy-ment Insurance Board i s not a court but an administrative body, the hearings, i n p r i n c i p l e , are not open to the public - only 52 the interested parties have a formal r i g h t to be heard These l a t t e r are the claimants and i n certain cases, the employer as when he himself i s the appellant or when he i s "^This i s done very rar e l y ; i t was never done i n any of the 76 cases which were observed. It would be to the advan-tage of an appellant who l i v e s some distance away from the Dis-t r i c t o f f i c e to be summoned i n this way since the Act stipulates that they s h a l l be reimbursed for t r a v e l l i n g expenses and for time l o s t , when they are requested to attend. 52 Unemployment Insurance Regulations R182 (1). - 58 -d i r e c t l y affected by the decision. The right to be heard includes the right to be heard through a representative or an interpreter. However, sometimes observers (such as new clerks or new Tribunal Members) are allowed to s i t i n at the discre-tion of the Chairperson. (3) THE WELFARE TRIBUNALS: The proceedings of the Welfare Tribunal were generally less formal than for the Unemployment Insurance Board. Further, each Tribunal deals with one, or at most two cases at one s i t -ting, because each Tribunal i s constituted e s p e c i a l l y for each case. The hearings were held at the o f f i c e of one of the participants, the choice of location being determined by taking into consideration the mobility of the appellant and of the other participants. The rooms where the hearings were held were either a meeting room, a recreation room i n the church or a classroom. The participants usually sat informally i n a c i r c l e . There was no deliberate determination of seating arrangements as i n the case of the Unemployment Board. The proceedings were co n f i d e n t i a l and each participant -except the parties, i . e . , the appellant, the regional director and their witnesses, - signed an oath of c o n f i d e n t i a l i t y , and no one was to attend without special permission except the 53 parties and the witnesses while giving evidence . A l l 53 One of the regional directors interviewed f e l t that he should be allowed to stay i n the deliberations i n order to guide the Tribunal and ensure that their decision would con-form to the l e g i s l a t i o n and the Agency's p o l i c i e s . - 59 -participants except the Tribunal Members were to leave the hearing room for the deliberations. However, i n practice, each regional director monitored"^ the procedures and each Tribunal which was observed used d i f f e r e n t procedures. VI CHOICE OF AREAS: (1) THE RENTAL HOUSING OFFICE: The Office"^ was located i n Big City Metropolitan area, but serviced the whole Province. A l l the hearings originated from a dispute related to r e s i d e n t i a l premises situated i n the Metropolitan area and i t s fringes were heard i n the Big City o f f i c e . If the address of the dispute was outside of this area, a Deputy would tr a v e l to a location close to the s i t e of the dispute. The researcher attended a l l but two of the appeal hearings which were held during the fieldwork period. A few 'order for possession 1 hearings which were never heard by o f f i c e r s , also were not attended. Because i t was considered important by the researcher to observe the Deputies out of their usual surroundings, i t was decided to travel with the o f f i c i a l s as they went to hold hearings across the Province. There was, however, no rationale for choosing one location rather than another as, there was no reason to expect the Deputies to conduct th e i r hearings d i f -f erently i n one location rather than another, when not i n the "^This was not done at a l l the hearings which were observed. "^See footnote 46 i n this chapter. - 60 -Big City O f f i c e . (2) THE UNEMPLOYMENT BOARD: It was not possible to attend hearings i n a l l of the d i s t r i c t s of the Province, so several areas were selected on the following basis: most appeals originated i n Big Ci t y Metropolitan area, where almost hal f of the p r o v i n c i a l popula-tion resides. Consequently, i t was decided to select a l l the D i s t r i c t o f f i c e s situated i n Big City Metropolitan area where hearings were heard; one was situated i n the c i t y and serviced Big City and some of the suburbs; the others were i n the suburbs and serviced the other suburbs and the fringe areas. A small urban area was selected i n order to examine the functioning of the Boards i n a setting where individuals were l i k e l y to be acquainted with each other and where d i f -ferent processes might occur. There were only three other D i s t r i c t o f f i c e s for the rest of the Province where appeals were heard: one serviced the Southwestern part of the Province (exclusive of Big City Metropolitan area) and included another smaller metropolitan area; another serviced the Southeastern part of the Province; and the l a s t serviced the huge Northern part of the Province as well as part of the Yukon Ter r i t o r y . This l a t t e r included a large r u r a l and sparsely populated area. The l a t t e r region was selected as i t was f e l t that i t represent-ed a contrasting s i t u a t i o n to that of the Metropolitan area. The o f f i c e located i n Central City heard appeals o r i g i n a t i n g from eight D i s t r i c t o f f i c e s located between 76 and 550 miles - 61 -from Central City. The type and a v a i l a b i l i t y of employment in the Northern area of the Province were also very d i f f e r e n t from those i n Big City Metropolitan area. (3) WELFARE TRIBUNALS: In 1976, there were 37 Tribunal hearings held i n the Province: 33 were held i n Big City Metropolitan area, of which 2 7 originated i n the City. During the fieldwork period, only one Tribunal hearing was held outside of Big City, but the researcher was not contacted. These considerations explain why a l l the hearings which were observed were held i n Big City. - 62 -CHAPTER III INTERACTION BETWEEN THE CLIENT AND THE ADMINISTRATIVE SYSTEM PRECEDING THE HEARING I INTRODUCTION: Although as was pointed out i n Chapter I this i s a study of 'hearing encounters' i t should be noted that the 'hearing encounter' i s part of a process. To gain an understanding of the encounter i t i s necessary to place the hearing i n context''". The hearing i s one phase i n a process of resolution and i s linked both to the events which preceded i t and to the events which follow i t . The c o n f l i c t which i s to be resolved between the benefits granting Agency and the c l i e n t r e s u l t s from the events which took place before the hearing, when the c l i e n t was i n t e r a c t i n g with the agency employee who was handling his case. The information which w i l l be used by the agency to prepare i t s case i s also c o l l e c t e d during this time. Therefore, i n order to interpret what happens i n the hearing, we must have some knowledge of those events which occurred before the hearing. Similarly, i n the Rental Housing Office tribunal the events which occur while the parties are i n t e r a c t i n g with RHO o f f i c e r s are relevant to the hearing encounter. I f the RHO o f f i c e r had been able to resolve the c o n f l i c t between the two parties, there would not be an appeal. In Justice Without T r i a l , Skolnick i d e n t i f i e s the need to see the p o l i c e as a segment of the Criminal Law Community both because the other segments influence police work and be-cause knowledge about the police can be gained from the other segments. J. Skolnick, Wiley, New York, 1966. - 6 3 -In this chapter, we w i l l examine the events which took place before the hearing encounter, taking into consideration their relevance to the course of the hearing. II THE EVENTS PRECEDING THE HEARING: As was pointed out e a r l i e r , the main function of the administrative tribunals being examined i s to resolve con-f l i c t s between two parties. This c o n f l i c t may r e s u l t from 2 di f f e r e n t interpretations of the l e g i s l a t i o n or from a lack of understanding of the l e g i s l a t i o n (statutes and regulations) by the c l i e n t who may have l i t t l e notion of what the law re-quires him to do i n certain circumstances. In one's everyday l i f e , the notion of law i s vague; i t refers to 'things one can do' and 'things one should not do 1, but the common sense notion of the law does not include a precise knowledge of what the law actually requires one to do. It i s only when c o n f l i c t s arise which need to be s e t t l e d by having recourse to the law that one i s confronted with what-the-law-really-is, i . e . , a set of very precise rules and regulations which may constrain one's way of going about one's a c t i v i t i e s . In theory, the c l i e n t could have access to both the The law i s sometimes ambiguous. Ambiguity may be intentional as for example when the l e g i s l a t o r s wish to give d i s c r e t i o n to the enforcer - or unintentional, when the draft-ing i s not s u f f i c i e n t l y precise. In other cases, i t may be impossible to take into account a l l the factors which should influence a decision and only guidelines are included i n the law. This i s sometimes remedied by administrative p o l i c i e s , which are i n e f f e c t an interpretation of the law by the agency responsible for enforcing the law. - 64 -3 statutes and the regulations should he wish to consult them but he ra r e l y has direc t access to the administrative p o l i c i e s . Administrative p o l i c i e s were not available to c l i e n t s i n any of the three tribunals which were studied. The c l i e n t i s also u n l i k e l y to have p r a c t i c a l access to the case law, jurisprudence or to the decisions which were taken i n similar cases i n the 4 past . In practice, most c l i e n t s do not know that they can obtain these documents. But even i f they were able to obtain them, they would l i k e l y not understand them as they are written i n l e g a l i s t i c language. In fact, most c l i e n t s who came i n con-tact with the tribunals being examined did not have a conceptual framework capable of handling l e g a l categories nor the way they were applied to their everyday world. They could not under-stand either the ' o f f i c i a l ' i n terpretation of the law, which i s embodied i n the agencies' administrative p o l i c i e s with which they were confronted, although the Agency employee may have t r i e d to explain them to them. Because they did not have a notion of what are legal categories and of how they are applied, the c l i e n t s did not understand the l e g a l constraints which were imposed on the events which occurred i n his common sense world. Consequently, ""The l e g i s l a t i o n i s not co n f i d e n t i a l and can be consulted i n l i b r a r i e s or obtained from the agency o f f i c e . However, many individuals are not aware of this fact. ^Although the use of the jurisprudence i s a routine l e g a l practice, few individuals are aware that previous decisions are used as guidelines for future decisions. Further, i n some agencies the jurisprudence i s not available as previous deci-sions are not gathered together systematically. - 65 -he did not use the same guidelines as the agency employees for handling his case and his expectations regarding the outcome of the c o n f l i c t were di f f e r e n t from those of the agency. The following i s an example of this lack of understanding of the law by an Unemployment Insurance claimant, a young man who has been informed that: "We f i n d that you are not e n t i t l e d to benefits from , . You f a i l e d to prove that you are a v a i l -able for work while attending a course of i n s t r u c -tion and as you are r e s t r i c t i n g yourself to part-time employment only." The claimant's response was d i s b e l i e f as i s shown i n his l e t t e r : I would l i k e to appeal about your decision not to e n t i t l e me of the Benefits which I am claiming. I just can't understand why? Because of the rea-son I can't work during every working day and l e f t my employment without a cause which i s not true, you have decided to turn down my claim. For the reason of explaining my part I would l i k e to t e l l you, that i n my f i r s t l e t t e r of applica-tion which I mailed before, i t explains why I quit my job. It's not for the reason I don't want to work, but the thing i s I am going to school at that time. Since, I have to go to school f i v e days a week and go to work as well afterwards things are not easy for me. Just try to understand my s i t u a -t i o n I've t r i e d hard to do these for the f i r s t three months of my study, but l a t e r I found out going to School and working at the same time i s r e a l l y hard to do. F i r s t of a l l , I have to go to School at 8 A.M. and finished at 3 P.M., a f t e r that I have to go straight to my job r i g h t away which starts at 3:30 P.M. t i l l 11:30 i n the even-ing. By the time I can go home ri g h t i n Surrey is gonna be past midnight because i t takes me 30 to 40 minutes driving. As soon as I get home I don't have any time to look at my book to study or to do my homework since I've got to wake up early the next morning (6:30 A.M. most of the time). I didn't take these courses just for fun or something else. What I want i s to learn - 66 -something which would benefit myself i n the near future. And one thing I don't l i k e to stay with my job forever i n my whole l i f e . Probably, i f you were me you would do the same thing too as what I did. I know i t s not a bad job but I want learn something which I could say a good profes-sion which i s suitable and secure my well-being. I am s t i l l young and I knew that's why I don't want to waste any time before I blame myself. I don't know i f this w i l l s a t i s f y you i n consider-ing my appeal but I would be hoping. As matter of fact before I took this course I went to the Man-power i n New Westminister and applied hoping they would send me to School. But i t turn the other way, because when I see a counselling o f f i c e r he tol d me there would be a long period of waiting l i s t . Then he t o l d me I would be i n the l i s t . So I wait for their response but I don't got any, then I decided to go back and ask them why. Then a guy tol d me I was not included i n the l i s t . After what happen I decided to take the course even i f I pay my own fee 'cause I can do anything i f I try to applied to the Manpower again I'm gonna waste my time again waiting. So far that was my f i r s t d i s -appointment and this i s the second time which I don't want to think i t ' s gonna happen again, thought you can help me f i n i s h this course I'm taking. Once more, I hope you w i l l understand me this time. I am on my own to help myself, i f there are some i t would not be a l l the time. I am sorry i f these l e t -ter i s too long for you to read. The comments of the O f f i c e r were: "As the claimant l e f t his employment to better himself and his career, he can be commended but he can f i n d no r e l i e f under the UI Act as he must f u l f i l l the conditions of a v a i l a b i l i t y to prove his entitlement to benefit as he was not directed by the Commission to attend this course... ." From a l e g a l point of view, the appellant i s not available for work, therefore, he i s not e n t i t l e d to U.I. benefits. His expectations, as i s apparent from his l e t t e r were c l e a r l y d i f -ferent. This decision, being ' l e g a l l y ' correct, was not altered. - 67 -In the case of the Rental Housing Office, the con-f l i c t arises between two individuals and there i s no similar discrepancy between the information available to the p a r t i e s 5 , but the parties s t i l l are constrained by the law and have to take into consideration both the l e g i s l a t i o n and the p o l i c i e s of the RHO which i s i n charge of resolving their c o n f l i c t . The lack of understanding of the law by the tenant (wife) i s apparent in the following example; while the RHO Deputy i s c l a r i f y i n g the facts with both landlord and tenants, i t be-comes more and more apparent to the wife (tenant) that she has not given proper notice under the Act and that the r u l i n g would be made against her and her husband. She t r i e s several times to bring into the hearing, information which, i n her view, j u s t i f i e d their moving out: should not the landlord give them back their security deposit as they moved out be-cause of the children's and wife's schooling, although they had given only one day's notice . The wife f i n a l l y exclaimed, "What you are saying i s j u s t i c e can't be done." The Deputy concludes the hearing with the following words: (after explaining the l e g i s l a t i o n for the second time) ^Education, place of residence and other factors may l i m i t the p r a c t i c a l access to the knowledge relevant to the c o n f l i c t . Education i n p a r t i c u l a r i s relevant here as a well-educated i n d i v i d u a l has a conceptual framework which w i l l help him understand the l e g i s l a t i o n . Economic status may be relevant as well as one can buy the services of lawyers who are persons whose da i l y a c t i v i t y i s the i n t e r -pretation of l e g i s l a t i o n . ^The had been given a sixty-day legal notice by the landlord to move out. They moved out before the sixty days without giving the 30-day notice require by the Act. - 6 8 -RG: the tenancy has not been terminated.... Tenant: [she interrupts] but i t was impossible at the time... RG: ....but the landlord has a claim.... there was no proper notice of termina-tion. I can't see any other al t e r n a t i v e . I am sorry. The issue i s pretty clear when rela t e d to the Act. I am varying the decision of the o f f i c e r but the f i n a l r e s u l t i s the same. (SRE15) In such cases, where the l e g a l constraints are such that the tribunal has no discretion, and the case cannot be judged on i t s own merits, i t becomes clear that the conceptual frames of reference are d i f f e r e n t for the agency O f f i c i a l and for the c l i e n t . The l a t t e r i s not aware of the l e g a l constraints which should have governed her a c t i v i t i e s , i . e . , giving proper notice. The O f f i c i a l i s using a l e g a l i s t i c framework to interpret the events which occurred when the tenancy was terminated while the tenant interprets her world as continuous and does not seem able to i s o l a t e certain events as being 'proof that she did not give proper notice, i . e . , that the tenancy was not termi-nated. The events for her cannot be separated from the context. Her notion of the law was that i t would ensure that 'justice be done 1, but as the Deputy explains the requirements of the Act, she comes to r e a l i z e that what she perceives as just w i l l not be done, and her reaction i s d i s b e l i e f and anger. She can i n t e l l e c t u a l l y understand the legal reasoning used by the Deputy but i t does not correspond to her notion of 'what the law i s about 1. In order to decide what was just and unjust she used a d i f f e r e n t frame of reference, a common sensical frame of reference. - 69 -I t i s d i f f i c u l t f o r most c l i e n t s to i n t e r p r e t , even a p o s t e r i o r i , t h e i r e v eryday w o r l d i n terms o f l e g a l c a t e g o r i e s . D u r i n g the i n t e r a c t i o n between the a d m i n i s t r a t i v e system and i t s c l i e n t s , a c o n f r o n t a t i o n between two w o r l d s t a k e s p l a c e . The c l i e n t s ' w o r l d i s the everyday l i f e w o r l d w h i c h does n o t i n c l u d e l e g a l c a t e g o r i e s as c l e a r c a t e g o r i e s . The a d m i n i s t r a -t i v e employee's w o r l d does i n c l u d e l e g a l c a t e g o r i e s as they r e l a t e to h i s w o r l d o f work, i . e . , he uses l e g a l c a t e g o r i e s r o u t i n e l y i n h i s d a i l y work, b u t he i s u s u a l l y knowledgeable o n l y o f the c a t e g o r i e s w h i c h r e l a t e to h i s work. The t a s k o f the a d m i n i s t r a t i v e p e r s o n n e l i s t o i n t e r p r e t the s t o r y o f the c l i e n t so t h a t i t becomes u s a b l e to make l e g a l d e c i s i o n s . T h i s t a s k may be performed by the a d m i n i s t r a t i v e p e r s o n n e l w i t h o u t the c l i e n t b e i n g p a r t o f i t o r b e i n g aware o f i t . Even when the c l i e n t i s aware t h a t the agency employee i s i n t e r p r e t -i n g h i s w o r l d , he s t i l l need n o t u n d e r s t a n d i t . T h i s p u t s the agency employee i n a p o s i t i o n o f power over the c l i e n t , who can be p r o c e s s e d w i t h o u t even u n d e r s t a n d i n g how he was p r o c e s s e d . T h i s l a c k o f u n d e r s t a n d i n g o f what the a d m i n i s t r a t i v e l e g a l w o r l d i s about i s o f t e n the b a s i s f o r an a p p e a l . The c l i e n t f e e l s t h a t ' j u s t i c e was n o t done', o r ' t h a t i t c a n ' t be t r u e ' a c c o r d i n g t o h i s n o t i o n o f what the law i s about. He f e e l s t h a t t h e r e must have been a m i s t a k e and he t r i e s to get r e d r e s s a t a h i g h e r l e v e l . I t i s d u r i n g the i n t e r a c t i o n between the agency employ-ees and the c l i e n t s t h a t the c o n f r o n t a t i o n o f the two w o r l d s -everyday common sense w o r l d and l e g a l a d m i n i s t r a t i v e w o r l d - 70 -takes place, that the c l i e n t learns of the existence of the legal administrative world and i n some instances acquires some knowledge about this world. We are now going to examine the s p e c i f i c events preceding the hearing i n each of the three administrative systems of which the administrative tribunals studied were part. (1) THE UNEMPLOYMENT INSURANCE AGENCY: Contact i s established by the claimant once he becomes unemployed. Persons applying for Unemployment Insurance bene-f i t s have certain rights under the U.I. Act provided they meet a number of conditions. Where a claim for benefits i s present-ed, i t i s adjudicated by an o f f i c e r to whom the U.I. Agency has delegated the authority to decide whether or not benefits are payable. To reach this decision the o f f i c e r gathers i n f o r -mation i n order 'to assess the circumstances'. In order to do so the o f f i c e r may contact the claimant's previous employer, certain employment advisory services, and the claimant himself who has to provide the o f f i c e r with information... 'giving the claimant's employment circum-stances and the circumstances pertaining to any interruption of earnings, and such other information as the Agency may require'7. A l l of this information i s accumulated i n the 'case f i l e ' of the claimant. Government of Canada, Unemployment Insurance Act, 1971, Section 53(2). - 71 -In addition to f i l i n g a claim, providing the informa-t i o n required by the Agency, the claimant i s required to take certain actions such as attending an i n i t i a l e l i g i b i l i t y i n t e r -view, r e g i s t e r i n g for employment, looking a c t i v e l y for employ-ment and obtaining 'proof that he i s looking for suitable employment. whether or not he takes these actions, according to the o f f i c e r , w i l l be documented i n the 'case f i l e ' . The f i l e w i l l also include any additional correspondence or notes pertaining to further contracts between the Agency and the claimant. During the i n i t i a l e l i g i b i l i t y interview the o f f i c e r who i s handling the case, asks questions concerning the reasons for the claimant losing his employment, what he i s doing at present, what kind of employment he i s looking for, what wages he would accept, etc. The o f f i c e r phrases his questions i n everyday language but interprets the answers within the le g a l constraints governing his world of work. It i s on the basis of this interpreted information that the o f f i c e r makes his decision on the e l i g i b i l i t y of the claim-ant who i s then n o t i f i e d i n writing. In most instances, he i s then advised of his ri g h t of appeal to a tribunal within 30 days of receiving n o t i f i c a t i o n of the decision. The appeal procedures are outlined further i n a booklet which i s available at the U.I. Agency o f f i c e . O f f i c e r s must enclose information o u t l i n i n g how the appeal may be prepared, the information which i t should contain and where the appeal may be f i l e d . If the claimant wishes to appeal, he n o t i f i e s the o f f i c e r who then reviews the appeal for completeness and - 72 -c l a r i t y and, where necessary, seeks additional information from the parties concerned, i . e . , the claimant and his employer. At this time the o f f i c e r re-examines the case to determine whether the o r i g i n a l decision should stand, be amended or be rescinded. If the o f f i c e r reverses his e a r l i e r decision and allows the claim, no further action i s required. If no change i s warranted, according to the o f f i c e r , or i f the o r i g i n a l decision i s simply modified, a submission to the tribunal i s prepared by the o f f i c e r , setting out the relevant facts, to-gether with any information submitted by the claimant. As far as i s possible, completeness and accuracy are v e r i f i e d by sending a copy of the submission i n advance of the appeal to the appellant, who w i l l then be able to speak to the g submission . The claimant i s not informed that he can be represented and only a few bring a representative to the appeal hearings. If he belongs to a union or i s i n contact with a le g a l information o f f i c e or a c i v i l r i g h t s o f f i c e , the claimant may be informed by these organizations that he can bring a representative to a s s i s t him presenting his case. However, 9 l e g a l representatives are expensive and few unemployed i n d i v i -duals can af f o r d a lawyer. Q The notion of speaking to a submission w i l l be discussed in the next chapter when we examine the events which take place during the hearing encounter. q The most frequent representatives are union o f f i c i a l s , but according to a Board Member "they come only when they, know they have a case". In Big City, a five-lawyer, non-profit law firm specializes i n testing cases i n administrative tribunals. Their objective i s to c l a r i f y the law when i t i s ambiguous and to create precedents which w i l l generate p o l i c y changes. In general, however, legal aid does not handle c i v i l cases. - 73 -The i n t e r a c t i o n between the claimant, or his represen-tat i v e , and the Agency o f f i c e r i s very important i n that, the manner i n which the claimant or his representative i s treated by the o f f i c e r , w i l l greatly determine the degree to which they f e e l they have been accorded j u s t i c e and the i r future attitude towards the agency. The r o l e of the o f f i c e r i s also very important from two other points of view. He i s the person who c o l l e c t s the information which i s placed i n the 'case f i l e ' and who prepares the submission, that i s , summarizes notes from interviews, and assembles i n one folder a l l the material he feels i s relevant for the t r i b u n a l . Except on special r e q u e s t 1 0 , the Board does not see the 'case f i l e 1 but only the submission. In some cases (when the appellant does not attend) this i s the only information available on which to base a decision. The o f f i -cer's work i s therefore d i r e c t l y relevant to the hearing encounter, insofar that he i s the person who provides the Board with the information i n the case. The other reason the o f f i c e r i s a key person i n the process i s that many of the c o n f l i c t s which are appealed to the Board are due to the claimant's lack of understanding either of the law or of the o f f i c e r ' s intentions as was di s -cussed above. The o f f i c e r often has used words such as ' a v a i l a b i l i t y ' , 'just cause', 'misconduct' and 'insurance' which when used i n everyday l i f e may have a quite d i f f e r e n t This happened only twice out of 76 cases observed. - 74 -meaning. The o f f i c e r speaks, for instance, of the a v a i l a -b i l i t y for work as defined i n the Act, the regulations and the jurisprudence. The claimant most often i s not aware of this meaning. The o f f i c e r i s instructed in the p o l i c y manual"'""'" to inform the claimant of his 'rights and obligations and the possible consequences of the statements made during the i n t e r -views and other acts and -omissions 1 , but he either does not do so or he does i t with very l i t t l e success. The c o n f l i c t s placed before the tribunal are often a re s u l t of the fact that the claimant has not f u l l y understood the implications of statements, which were made by him o r a l l y or i n writing, i n everyday language, i n response to questions which although they may have been phrased i n everyday language had l e g a l i s t i c implications. The o f f i c e r 'interprets' the answers using his own frame of reference which may d i s t o r t what the c l i e n t 12 a c t u a l l y meant . The following excerpt from a submission (SUT2 9) i s an example: Exhibit #3 - Report of interview dated December , 1976: Claimant was interviewed today and i d e n t i f i e d signature on application and had looked over "'"''"Government of Canada, U.I.C. Manuic I (4) p. 9. 12 The communication process which takes place between the o f f i c e r and the claimant would be a worthwhile subject of study. Unfortunately, the data available for this study only allows us to show the discrepancies, not how they were generated. - 75 -Rights & Obligations booklet and understood i t . Has had no work or earnings since on claim. Total work history has been for 17 weeks as a f i s h cannery worker. Total job search has been to check at Holiday Inn and P a t r i c i a Hotel, during November, for chambermaid work, and twice at Canada Manpower Hastings St. l a s t December, without success. Since the claim, the minimum she would accept work for i s $5.00 per hour, as a f i s h cannery worker, chambermaid, food or general goods packer only, and not i n any other type of work such as waitress or janitoress as she has no previous experience i n those areas. She would work f u l l - t i m e any s h i f t and any days, i n Big City and not beyond the l i m i t s , as she travels by bus. She i s of non-union status. She was t o l d that the going rate of pay for packaging non-union i s $3 to $5 per hour, for f i s h can-nery worker union rate $5.33 to $6.41 per hour, cannery worker i n fresh and frozen foods non-union $3 to $3.25 per hour, but her minimum income requirement i s $5.00 per hour. She has not been l a i d up sick, or away from the area since on claim. I read this report  along with the claimant who said she understood  i t and" that i t was true, and was given and  accepted" a copy of i t , ' and had nothing further  to add to i t . (emphasis mine) Exhibit #4 - Insurance o f f i c e r ' s decision dated December , 19 76: We f i n d that you are not e n t i t l e d to benefits from 14 December 19 76 as you f a i l e d to prove  that you are available for work. You are not considered available for work as you have placed  r e s t r i c t i o n s on the employment acceptable to you to such an extent that your prospects of finding work are severely reduced. (emphasis mine) After being unemployed 14 weeks you are r e s t r i c t -ing to work at a minimum of $5.00 per hour which i s greater than the p r e v a i l i n g wage for the type of work you are seeking. Exhibit #5 - The claimant's l e t t e r of appeal received December 21. - 76 -I wish to appeal. My name i s ' My s o c i a l insurance number i s . On December 21st, I r e c e i v e d a l e t t e r a d v i s i n g me of your d e c i s i o n . The reasons why I have no job now because i t i s so d i f f i c u l t f o r me to f i n d t h i s k i n d of job i n the B r i t i s h Columbia as I have no experience i n other kinds of jobs. On the other hand, on December 14, when the  agent asks me how much pay should I want.? I say "5 d o l l a r s " per hour, then I was f a l l i n g - i n a  tr a p . Anybody l i k e s a high pay r i g h t ? But when I can f i n d a job even l e s s than 5 d o l -l a r s , I must do i t because I am not a r i c h man or employer. 5 d o l l a r s are only my wish, every-one can have h i s wish, r i g h t ? So when I r e c e i v e t h i s l e t t e r , I f e e l t e r r i b l y sad' because he mis- understands my meaning. I w i l l hear the appeal i n E n g l i s h . I hope you w i l l make the d e c i s i o n . again. I t i s my wish. (underline mine) In h i s f i n a l comments i n the submission the o f f i c e r s t a t e d that statements made previous to the d i s e n t i t l e m e n t are more c r e d i b l e than statements made a f t e r , and he pointed out: 'the claimant has a l s o f a i l e d to show that minimum wage lower than $5.00 per hour she i s w i l l i n g to accept.' We do not wish here to address the i s s u e of whether the state-ments made by the claimant before and a f t e r d i s e n t i t l e m e n t a c t u a l l y have the same meaning, but of whether or not the claimant had understood the i m p l i c a t i o n s of her statements previous to d i s e n t i t l e m e n t . I f she had, i t could be argued, she would not have asked f o r a $5.00 per hour wage, as i t had the consequence of d i s q u a l i f y i n g her from b e n e f i t s . Another example of the o f f i c e r s ' work of i n t e r p r e t a t i o n f o l l o w s : t h i s e x h i b i t , which i s p a r t of a submission, i s a - 77 -standard questionnaire used by the Agency to obtain additional information about the claimant's s i t u a t i o n . Q. "What type(s) of work are you looking for and what i s the minimum rate of pay you are w i l l i n g to accept for each type of work indicated? A. Cooking, $3.50 or $3.95. Q. Would you accept any other kind of work? If yes, give d e t a i l s of the type of work you are prepared to accept and are capable of performing. A. Yes, room cleaning. Q. What hours per day/days per week are you available for work? A. 9 A.M. to 5 P.M., Monday to Friday. Q. Are you available for f u l l - t i m e or part-time employment? I f part-time only, what hour per day or days per week w i l l you work? A. Full-time. The insurance o f f i c e r ' s decision was: "We f i n d that you are not e n t i t l e d to benefits from December 6, as you f a i l e d to prove that  you are available for employment within the  meaning of the Unemployment Insurance Act." You are r e s t r i c t i n g the conditions (type -cooking or room cleaning, hours - 9:00 A.M. to 5:00 P.M., Monday to Friday) under which you w i l l accept employment to the extent that your prospects of re-employment are severely reduced. (emphasis mine) [ ] To the question 'what type(s) of work are you looking for', the claimant responded 'cooking', having only one type of work, which was interpreted as 'I only want to be a cook'. This question i s used i n everyday l i f e and one would not - 78 -expect the respondent to l i s t several occupations. On the questionnaire, there are no special instructions which specify that the claimant should l i s t a l l the kinds of jobs that she i s ready to accept, although there i s an 's' i n parenthesis to the word 'type'. The claimant appealed the decision showing i n her l e t -ter of appeal that she did not agree with the o f f i c e r ' s i n t e r -pretation of her answers: 'I am writing i n regards to the l e t t e r you recently sent to me. I had gotten some other person to f i l l out the paper you had sent be-fore. I never knew what they wrote on there as I am available for work at any time and w i l l take any kind of job that I can do properly. I spoke my own language when I was t e l l i n g her  and she probably misunderstood me as she doesn't  r e a l l y understand my language. I to l d her I was available any time and for any kind of job. As long as i t ' s walking distance as I've no car.' (underline mine) (SUI09) The above examples show how important the o f f i c e r ' s work i s as a step i n the process leading to an appeal to the Board. If the o f f i c e r could ensure that a l l claimants understood the implications of t h e i r statements, why their claims were denied, and ensured that claimants were given an opportunity to provide any additional information which could r e s u l t i n a change i n the decision, many appeals would not take place. The key element i n the misunderstanding between o f f i c e r and claimant seems to be related to the fact that c l i e n t s do not have any notion of the l e g a l i s t i c world where the o f f i c e r routinely makes decisions about U.I. benefits. They do not have a conceptual framework capable of handling the law as - 79 -i t r e a l l y i s . Some of the key concepts routinely used by the insurance o f f i c e r s w i l l be examined i n part 4 of this chapter. (2) THE WELFARE AGENCY: The contact between the Welfare Agency and the c l i e n t i s generally i n i t i a t e d when the c l i e n t needs assistance. Be-fore deciding on whether help should be granted, s o c i a l workers and f i n a n c i a l workers make an assessment of the situ a t i o n which includes, i n the case of so c i a l assistance, an examination of needs based on f i n a n c i a l assets, income, housing costs, and family size. In the case of benefits for the handicapped the c l i e n t (who should already be receiving s o c i a l assistance i n order to be e l i g i b l e ) i s requested to go and see medical ex-perts who w i l l assess his degree of handicap as per the regula-tions : "Such designation (as handicapped person) s h a l l be made only after a q u a l i f i e d medical p r a c t i -tioner has confirmed that the d i s a b i l i t y i s apparently permanent and that there i s no re-medial therapy available for the in d i v i d u a l to s i g n i f i c a n t l y lessen the d i s a b i l i t y , and provided the d i s a b i l i t y i s s u f f i c i e n t l y severe that a) the in d i v i d u a l requires extensive assistance or supervision to manage normal d a i l y functioning, or b) as a dire c t r e s u l t of the d i s a b i l i t y the ind i v i d u a l requires unusual and continuous ex-penditures for transportation or for special diets or for other unusual but essential and continuous needs^-^," Province of B r i t i s h Columbia, Guaranteed Available  income for Needs Regulations, B.C. Reg. 479/76, f i l e d August 23, 19/6, Section 2(12). - 80 -However, the administrative p o l i c y manual s p e c i f i e d that these experts are to be chosen by the Agency. It also sp e c i f i e s that 'an application submitted by a person whose primary reason for being unable to work i s due to addiction to alcohol or drugs should not be grantedl3.' This condition i s not mentioned i n the l e g i s l a t i o n . This i s the Agency's policy, rather than a l e g a l requirement. A l l the information col l e c t e d during the 'assessment of the s i t u a t i o n ' i s col l e c t e d i n a 'case f i l e ' ^ , which w i l l be used as a basis for the Agency's case i f the decision i s appealed^. The 'case f i l e ' w i l l also be used by Tribunal Members who w i l l have access to the documents and information contained i n the f i l e . The c l i e n t does not have access to the f i l e . The c l i e n t s are not systematically informed of their r i g h t to appeal, and they learn about i t i n a haphazard way^. 13 Human Resources Dept., Policy Manual, Section III, p. 4, Reg. 5 ( f ) . •^Once information i s i n the 'case f i l e ' i t becomes e v i -dence i n the l e g a l sense and 'proof has to be provided i n order to contradict i t . ^ I f the claimant i s asking for assistance i n order to get a service such as counselling, the decision of the worker cannot be appealed. Only the decisions concerned with f i n a n c i a l a s s i s -tance can be appealed. ^Some workers t e l l t heir c l i e n t s and even encourage them to appeal. Other workers do not mention the p o s s i b i l i t y . Some cl i e n t s learn about i t when they meet welfare rights advocates who work i n the same m i l i e u as the c l i e n t s . Many s o c i a l welfare c l i e n t s need support to be able to carry out an appeal. They are not the kind of persons who are accustomed to pursuing d i f -f i c u l t endeavours. - 81 -Once the decision i s appealed, i t i s reviewed by the 17 regional director . If he i s unable to resolve the c o n f l i c t , 18 the appeal i s heard by a three-person Tribunal , where 'the appellant and the regional director s h a l l be parties i n these appeal proceedings 1^'. Before the Tribunal hearing the regional director acts as an adjudicator, who has the power, when he reviews the worker's decision, to rescind or to vary i t . During the proceedings he becomes a 'party', that i s , he has to j u s t i f y his own decision. The role of the workers with whom the claimant has been in contact i s very important as i n the Unemployment Insurance Agency. These workers have to interpret the world of the claim-ant i n order to determine whether or not they are e l i g i b l e for f i n a n c i a l assistance. The workers w i l l be c a l l e d upon to 20 t e s t i f y at the hearing regarding their report on the 1 7 P r o v i n c e of B.C., GAIN Regulations, 1976, Section 34(3). 18 Although the regulations imply that i f the c l i e n t s t i l l desires to pursue the matter, the appeal should automatically be heard by a Tribunal, many c l i e n t s never become aware of this p o s s i b i l i t y and never require that a Tribunal be set up to hear the case. Once the c l i e n t decides to pursue the appeal the Tribunal i s set up as described i n chapter 2. The c l i e n t , however, receives very l i t t l e information i n regard to the hearing. He i s not informed that he can be represented, nor that he can bring witnesses. 1 9 Province of B.C., GAIN Regulations, 1976 - Section 34(7). 20 Although their reports are i n the case f i l e , i t i s a p o l i c y of the Agency to ask the workers to come and t e s t i f y at the hearing. - 82 -investigation which they conducted to assess the claimant's situation, and which they documented i n the 'case f i l e ' . Consequently, the int e r a c t i o n between the worker and the claimant i s p a r t i c u l a r l y relevant to the hearing, as the hear-ing w i l l be a formal opportunity for the appellant to have the worker t e l l him i n front of informed witnesses why he did not support his claim. In this Agency as well as i n the Unemployment Insurance Agency, the role of the worker as an interpreter of the claim-ant's world i s very important, as for example i n this account a claimant made of his relationship with his worker: Claimant: she [her s o c i a l worker] told me to appeal she explained to me that the law says that I can't get this money, but that maybe the law should be changed she said she could not do anything about i t because the law says i t i s unearned money (SGA02) In this excerpt, the claimant shows that her worker had explain-ed the law to her and had encouraged her to appeal. The in t e r p r e t i n g which takes place i n the Welfare Agency is similar to that which occurs i n the Ul Agency. The workers do transform common sense notions of the everyday world of the claimant into l e g a l categories, i . e . , for an in d i v i d u a l who i s defined as being ' l e g a l l y ' handicapped; a pension i s according to the regulation 'unearned income'. The claimant does not always understand the difference between being 'handicapped' - 83 -21 and being 'legally handicapped' as one appellant stated at the beginning of his presentation: Chairwoman: Could you t e l l us why you f e e l you should get the handicapped person allowance ? Claimant: B a s i c a l l y I am handicapped [everyone looks at him expectantly - he then proceeded to describe his handicap] (SGA03) The appellant answers the Chairwoman's question with a common sense answer. He does not seem to understand that he had to f u l f i l l the requirements of the leg a l d e f i n i t i o n of a handicap ped person i n order to qua l i f y . Because of the lack of data on the events which occurre when the claimant and the worker were communicating, i t i s im-possible i n this study to comment at any length on how the worker interprets the world of the claimant or on whether the gap between the worker's and the claimant's cognitive worlds were as great as i n the Unemployment Insurance Agency, or whether the worker t r i e d to bridge the gap as a routine a c t i v i Although we cannot document i n this study how the workers do i n fact interpret the world of the claimant, i t should be noted that they a c t u a l l y perform this task i n order to be able to arrive at a decision within the law. Other events which precede the hearing, two i n the For the l e g a l d e f i n i t i o n of 'handicapped person', see above, p. 7 9 . - 8 4 -case of handicapped persons, should be considered b r i e f l y . The review of the case by the regional director i s important because i t makes the director knowledgeable about the case and prepares him for the hearing encounter where he w i l l be party to the proceedings. The regional director knows that i f he does not grant the benefits applied for he may have to make his case i n front of a Tribunal, and i t i s l i k e l y that he w i l l have 'a pretty tight case', i f he turns the claimant down. His decision, with reasons i s included i n the case f i l e . Claimant applying for handicapped benefits must v i s i t medical experts; this is another relevant event. The experts w i l l write a co n f i d e n t i a l report on the claimant. This w i l l be the basis of the review, done by a medical review commission which makes a recommendation to the regional d i r e c t o r . The context of these reports are of p a r t i c u l a r importance for the review, since the commission does not see the claimant. These reports become part of the case f i l e and during the hearing their technical content w i l l be matched by the Tribunal Members with the appearance as well as with the submission of the claim-ant . As we have seen, i n this b r i e f description of the events preceding the hearing the communication of the claimant with his worker(s), the review of his claim and i n the case of 'handicapped benefits' case, the medical experts' assessments are a l l relevant to what w i l l occur during the hearing. A l l these events are documented i n the 'case f i l e ' which w i l l be - 85 -used as the Agency statement on the case. F i n a l l y , i t should be noted that because the claimant never has access to his 'case f i l e ' , i t may be d i f f i c u l t for him to address certain points. He has to r e l y on the Agency personnel to learn what i s i n the f i l e and to respond to the various documents which are i n the f i l e . (3) THE RENTAL HOUSING OFFICE: The Rental Housing Office tribunal d i f f e r s from the other two discussed above. It i s a one-person tribunal which does not adjudicate c o n f l i c t s between an agency and an i n d i v i -dual, but rather the c o n f l i c t s between two individuals, the landlord and the tenant. This c o n f l i c t which does not ari s e as a r e s u l t of n o n - e l i g i b i l i t y for benefits, as i n the case of the Unemployment Insurance Agency or the Welfare Agency, occurs before the parties, or one of the parties, enters into contact with the Rental Housing O f f i c e . The function of the Office i s : "to mediate, a r b i t r a t e and rule on r e s i d e n t i a l landlord - tenant matters22" Once the contact i s i n i t i a t e d , similar steps to those i n the other Agencies are taken. The RHO o f f i c e r to whom the case i s assigned w i l l undertake to "assess the s i t u a t i o n " and open a 'case f i l e ' . Information to be placed i n the case f i l e i s obtained from both parties (the landlord and the tenant) irrespe c t i v e of who i n i t i a t e d contact with the Agency, and 22 Province of B.C., Landlord and Tenant Act Regulations, B.C. reg. 654/74, amended B.C. regs. /yi//4, 3//5, 534/ lb, Appendix A, p. 4. - 8 6 -sometimes from witnesses. Site v i s i t s are made on occasion and the information obtained from such v i s i t s also becomes part of the 'case f i l e ' . The notices of termination, corre-spondence and any other documents which are relevant to the case w i l l be placed i n this 'case f i l e 1 . These documents w i l l be used i n the hearing to es t a b l i s h certain facts, e.g., that a notice was served l e g a l l y and i s v a l i d . The o f f i c e r then t r i e s to mediate the c o n f l i c t and, i f this f a i l s , a hearing i s held where both parties w i l l have an opportunity to present their cases. The information brought forth during the hearing i s c o l l e c t e d by the o f f i c e r who w i l l adjudicate the c o n f l i c t on the basis of the information i n the 'case f i l e ' and any new information brought forward at the hearing. The o f f i c e r 23 informs the parties of his decision by l e t t e r where he spec i f i e s the decision may be appealed to the Rentalsofficer, the head executive of the RHO o f f i c e . In the event one of the parties appeals, the Rentalsofficer or one of his Deputies (also referred to here as RHO O f f i c i a l s ) w i l l hear the appeal. In the registered l e t t e r confirming the appeal hearing, both parties are advised: "... to bring a l l documents, exhibits, witnesses, etc., that you may require. You may be represented by counsel, by an agent, or you may wish to appear in person24 . ' Although they sometimes inform the parties of their decision at the end of the hearing, the Of f i c e r s always con-firm their decision by a l e t t e r . Form l e t t e r RFL21B, see Appendix B. - 87 -The f a c t t h a t the p a r t i e s a r e i n f o r m e d o f t h e i r r i g h t s t o b r i n g r e p r e s e n t a t i v e s may be i m p o r t a n t . I n the h e a r i n g s o b s e r v e d , 25 a r e l a t i v e l y h i g h e r p r o p o r t i o n o f i n d i v i d u a l s were r e p r e s e n t -ed by members o f the l e g a l p r o f e s s i o n (who was n o t a c o s t l y p r i v a t e l a w y e r ) a t the R e n t a l Housing O f f i c e than i n the o t h e r t r i b u n a l s . P r i v a t e l a w y e r s were a l s o p r e s e n t more f r e q u e n t l y but t h i s may be due to the d i f f e r e n c e i n income between the l a n d l o r d / t e n a n t groups and the o t h e r a p p e l l a n t s s t u d i e d . The e v e n t s w h i c h o c c u r r e d d u r i n g the f i r s t h e a r i n g , h e l d by an o f f i c e r , a r e r e l e v a n t to the a p p e a l h e a r i n g . The i s s u e o f the d i s p u t e i s i d e n t i f i e d i n the o r i g n a l h e a r i n g and no new C l i e n t s w i t h r e p r e s e n t a t i o n a t the t h r e e t r i b u n a l s : Type o f R e p r e s e n t a t i v e R e n t a l Housing Re-A p p e l - spond-l a n t ent Un-employ-ment Wel-f a r e P r i v a t e l a w y e r L e g a l A i d l a w y e r A r t i c l i n g s t u d e n t Union members Tenant A s s o c i a t i o n F r i e n d o f f a m i l y Church advocate No r e p r e s e n t a t i v e TOTAL < 2 S22.7% N/A 33 75.0% 0 \18.2% , N/A 0 } 4.5% 34 : 77.3% ° l 1 > 1.3% 0 ) N/AI 10 .5% IS 67 88.2% 0 1 0 N/A N/A 0 5 4 44 .44 . . . 76 ,i 10 - 8 8 -26 issues can be raised i n the appeal hearing . This also l i m i t s the evidence which can be introduced to the appeal hearing. A l l evidence to be considered i n the appeal hearing has to be re-lated to the issues i d e n t i f i e d i n the o r i g i n a l hearing. Further, because the purpose of the appeal hearing i n the Rental Housing 27 O f f i c e i s to prove that the o f f i c e r erred i n his decision, the decision of the o f f i c e r and the reasons are most relevant to the appeal hearing. Other events which may have occurred before the appeal hearing such as conversation between the RHO o f f i c e r and one or both the parties, are also documented i n the 'case f i l e ' . The RHO o f f i c e r , l i k e the o f f i c e r s i n the other Agencies which were examined, interprets the stories of both parties i n order to arrive at his decision. He has to translate the occur-rences reported by the parties into l e g a l categories before he can apply the law to them. This i s apparent from the way they phrased their d e c i s i o n s ^ . 26 Sometimes the RHO O f f i c i a l s choose to have the case heard 'de novo', that i s , without considering the previous deci-sion. As w i l l be discussed below, the task of the appellant in the hearing i s to prove that the o f f i c e r has erred. If the case i s heard 'de novo', i t i s heard as i f i t has never been heard and i f i t was not an appeal. The 'case f i l e ' i s s t i l l used, but the task of the appellant i s d i f f e r e n t : he does not have to prove that the o f f i c e r erred. 27 The parties i n appeal hearing were frequently reminded of this purpose by the RHO O f f i c i a l s . The grounds for appeal are defined i n this Act. 28 We were not granted permission to copy material from the f i l e s , but some l e t t e r s of decision were discussed and read during the hearings which were observed. - 8 9 -As i n the case of the Welfare Agency, we cannot examine any further how the RHO o f f i c e r performed his task as we do not have the firsthand data which would permit us to do t h i s . However, the fact that the RHO o f f i c e r does interpret the parti e s ' stories i s relevant to the appeal hearing as i t has a dire c t bearing on the i d e n t i f i c a t i o n of the issues which w i l l be considered at the appeal hearing. In this section, we have examined the various preceding events which have relevance for the events which w i l l occur during the appeal hearing encounter. In a l l three tribunals under study, o f f i c e r s c o l l e c t information which i s placed i n a 'case f i l e 1 which becomes a source of information for the t r i -bunal. The information contained i n the 'case f i l e ' i s there-fore very important. When reviewing the f i l e , the Tribunal Members use the information to prepare for the case but i t also gives them an idea of 'what-kind-of-person the appellant or the parties are'. This was apparent i n the discussion which took place before the hearings, either between Board Members or between the Tribunal Members and the researcher. The following comments, for instance, were made before a hearing (SUI76). The U.I. appellant had alleged i n her l e t t e r of appeal, sex discrimination on the part of her employer as a source of bad working conditions. Chairman: 'Sex discrimination, eh? One of these women... Labour Representative: She has been here before. But the hearing was - 90 -adjourned as a l e t t e r from her employer had arrived a f t e r the hearing [ ] Employer Representative: She seems to have a sense of humour. The head cook took the male cook under his wing! eh! (laugh)' The 'case f i l e ' , therefore, may influence the Tribunal Members 29 i n t h e i r decision as i t gives them a preconceived idea about the persons who are going to be heard. Because the 'case f i l e ' i s such an important document which w i l l be used by the Tribunal Members, the next section w i l l examine, i n more d e t a i l , the features of the information i t contains, taking into consideration t h e i r relevance to the hearing encounter. I l l THE CASE FILE: The 'case f i l e s ' and the submissions to U.I. Board are prepared by employees of the Agency. In the case of both the Welfare Agency and the U.I. Agency the 'case f i l e ' i s used as the Agency's sole evidence supporting the decision being 30 appealed . In the Unemployment Insurance Agency, the o f f i c e r 29 The 'case f i l e ' gives the Tribunal Members certain stereotypical preconceptions about the appellant or the parties which are similar to the 'dope sheet' described by Sudnow, i n 'Normal Crime: Sociological Features of the Penal Code i n a Public Defender Office', Social Problems, 12:3:255-76, (Winter 65). 30 The creation of a 'case f i l e ' i s an important step i n the administrative system. Once information i s i n the 'case f i l e ' i t i s very d i f f i c u l t to contradict i t . It becomes evi-dence i n the l e g a l sense of the term. - 91 -who prepares the submission i s r a r e l y i n v i t e d to attend the , . 31 hearing (1) THE 'CASE FILE 1 IN THE UNEMPLOYMENT INSURANCE AGENCY: As was outlined above, the Board Members do not receive the 'case f i l e ' but rather a submission, prepared by an o f f i c e r , which i s based on the 'case f i l e 1 . As stated i n the p o l i c y 32 manual 'The information (co l l e c t e d by the Agency) usually det a i l s the claimant's name, postal address, s o c i a l insurance number, marital and family status, reason for separation from employment, insurable earnings, dura-tion of employment, occupation and any ad-d i t i o n a l information necessary to determine the claimant's entitlement to benefits. This would include any information conveyed by way of correspondence emanating from the claimant, his employer or other interested parties. The c o l l e c t e d information w i l l be retained by the commission i n the claimant's f i l e [ ]' Although the submission contains most of the informa-tion c o l l e c t e d i n the case f i l e , some documents cannot be made public. Medical information i s released only at the d i s c r e t i o n The o f f i c e r was never i n v i t e d to attend any of the cases. A Board Member, when interviewed, mentioned that he remembered only once or twice was the o f f i c e r asked to come in to c l a r i f y the case. Unless arranged i n advance, i t i s not always possible for the o f f i c e r to be c a l l e d i n without previous warning, as he does not always work i n the o f f i c e where the Board meets. 32 Government of Canada, U.I.C., Manuic I, part I, subject 20. - 92 -of the medical advisor. Further, information emanating from the physician providing treatment: 'may be disclosed to the claimant or his lawyer for the preparation of an appeal, i f p r i o r w rit-ten consent i s obtained by the claimant from the treating physician33' In this l a t t e r case, when the medical advisor authorizes the release of information but the treating physician does not, the tribunal has at his disposal information which i s not available to the claimant. There are further l i m i t a t i o n s on the disclosure of 'private information' and l i b e l l o u s informa-tion which may be contained i n the f i l e . I f such documents remain with the f i l e presented to the Board with the submission in the appeal, t h e i r contents cannot be .disclosed to outside parties, nor can they be used as evidence i n support of the 35 Board's decision . In these cases, the o f f i c e i s expected to make ef f o r t s to have the conf i d e n t i a l character of the documents waived. If the o f f i c e r ' s e f f o r t s are unsuccessful, an attempt would be made to provide a substitute for the missing evidence by i n v i t i n g the interested party to the appeal hearing so that the evidence can be provided o r a l l y . This party i s then pro-tected by q u a l i f i e d p r i v i l e g e , as provided by Section 115 of the Unemployment Insurance Act. 33 Government of Canada, U.I. Act, I 20 Section 4, p. 11. 3 A-It i s rare that the Board requests the 'case f i l e ' . I t generally considers only the submission. A request for the 'case f i l e ' happened only twice during our observations. 35 A l l p o l i c e reports are treated as being s t r i c t l y - 93 -Likewise, l i b e l l o u s statements made by one party must not be communicated to the other party. For example, as a protection to the employer where misconduct has been alleged by him, and where statements are made about the claimant's honesty or character, the phrase: 'lost his employment for cause within the mean-ing of Section 41(1) of the Act' should be substituted for the accusation i n the submission and the person making such statements should be i n v i t e d to attend the hearing. Information i n the f i l e i s r a r e l y c o n f i d e n t i a l , but when there i s some confidential information i n the f i l e the Board i n fact has more information than the appellant. Although i t i s instructed not to consider such evidence i n making the decision, the fact that i t knows about i t may influence, to some extent, the decision of the Board. This i s another instance of the importance of the 'case f i l e ' . . Although Board Members generally stated i n the interview that they did not discuss the case p r i o r to the hearing, during the observation, i t appeared that - though they r a r e l y c o n f i d e n t i a l and are not communicated to the Board under any circumstances. Officers of the Agency may use these reports as a basis for investigation and, i n exceptional cases, permis-sion to o f f i c i a l l y use police reports has to be secured from the Chief of Police. They did not discuss every case before the hearing. This may have been due to the presence of the researcher. How-ever, i t happened on several occasions that the Members talked very f r e e l y while remarking that they should not be doing this - 94 -discussed a case i n a systematic fashion, they frequently made remarks, to one another, which gave some indicati o n as to what they f e l t about the case or as to what kind of person they expected the appellant would be. This happened p a r t i c u l a r l y 37 often i n what they referred to as clear-cut' cases where the issue was a notion of law not understood by the claimant and when the Board said they 'could not do anything 1 as i n cases when claimants were day-students. Discretion between Board Members also occurred when some of the exhibits contained i n the submission were badly written (SUT63), were written i n anger (SUI21), or when the claimant had written to 'Action 38 Line' or had obtained some other outside p u b l i c i t y about his claim. On the whole, however, Board Members did not f e e l that being informed i n advance through the submission, influenced th e i r decision or prejudiced them. In any case, they f e l t that because of the observer. They often acted as i f they had forgotten the presence of the observer, being reminded only occasionally. The observer never participated i n any debate and refused to o f f e r any opinion on any case. 37 'Clear-cut' cases were . cases which were defined by the same set of elements. However, i t should be noted that for a case to be defined as clear-cut had to be defined as such, i t was not 'clear-cut' by i t s e l f ; i t implied there was no problem i n defining such a case for a Member who had the knowledge necessary; i t obviously was not clear-cut to the claimant. O Q 'Action Line' i s a column i n one of Big City's d a i l y newspapers. Citizens can write about their grievance to the paper who checks for them whether something can be done about i t . - 95 -with a three-man Board, there was a check on possible bias or any ideas they may have developed i n advance of the hear-ing, or, i n the words of two Employees' Representatives: 'We don't know what the others think but you come to a conclusion i n your own mind.' (FUI20) 'That's an i n t e r e s t i n g question. At the meeting of the U.I. Agency and the Association, one person said we don't need preparation, that we should come i n cold, review and decide. I stood up and objected to that. If we read and review only, there could be some wrong decisions. Often we have changed decisions as a r e s u l t of the appellant coming i n pre-reading gives a background to the case - we have only a half-hour per hearing with a three-man Board, i f one misses, another picks up!' (FUI04) Most of those s i t t i n g on the panels seemed to f e e l that i f they had not been previously informed they would not be able 'to do their homework', that i s , consult the jurisprudence relevant to the case, nor could they process twelve cases a day. The Board Members do not speak of the submission as the 'agency case', but rather as factual background i n f o r m a t i o n 4 0 . However, they use this as a statement of the Agency's case. The decision of the o f f i c e r stands u n t i l the claimant refutes "'''The events which take place during the hearing encounter and lead to the decision w i l l be discussed i n chapter 4. 4 0Although o f f i c e r s are instructed i n the p o l i c y manual not to place opinions or recommendations before the Board, but rather to confine themselves to statements of fact, they do 'interpret' the statements of the claimants i n t h e i r comments to the Board. They expound the meaning of the claimant's state-ment i n the context of the U.I. Act, while most of the time the claimant does not draw up his statement taking into account i t s implications i f translated into l e g a l terms. - 96 -i t o r p r o v i d e s new e v i d e n c e . A l t h o u g h they say t h a t t h e i r d e c i s i o n i s n o t i n f l u e n c e d by the s u b m i s s i o n , i t i s i n t e r e s t -i n g to n o t e t h a t the Boards w h i c h were o b s e r v e d n e v e r r e s c i n d e d a d e c i s i o n when the a p p e l l a n t d i d n o t a t t e n d the h e a r i n g . Only i n two cases d i d they v a r y the d e c i s i o n . The a p p e l l a n t does n o t have a c c e s s t o h i s 'case f i l e ' but has a c c e s s to the s u b m i s s i o n and c o n s e q u e n t l y knows what i n f o r m a t i o n the Board has on h i s c a s e . I n t h e o r y , t h i s s h o u l d a l l o w the a p p e l l a n t to p r e p a r e f o r the h e a r i n g . We s h a l l a d d r ess the i s s u e o f how the a p p e l l a n t speaks to the s u b m i s s i o n i n the n e x t c h a p t e r . ( 2 ) THE 'CASE F I L E ' IN THE WELFARE AGENCY: The r e s e a r c h e r d i d n o t have a c c e s s t o the W e l f a r e Agency's f i l e s . The 'case f i l e s ' are t r e a t e d as h i g h l y c o n f i -d e n t i a l i n p a r t i c u l a r m e d i c a l r e p o r t s i n the case o f handicapped b e n e f i t s . The T r i b u n a l Members are g i v e n i n f o r m a t i o n p e r t i n e n t to t he case o n l y i m m e d i a t e l y p r i o r to the h e a r i n g and are r e q u e s t e d to r e t u r n a l l documents i m m e d i a t e l y a f t e r the h e a r -i n g , even i f they have n o t r e a c h e d a d e c i s i o n and have d e c i d e d to meet a t a l a t e r time to d e l i b e r a t e . I t i s l e f t to the r e g i o n a l d i r e c t o r ' ; t o ? p r e s e n t some r a t h e r than o t h e r among the i n f o r m a t i o n c o n t a i n e d i n the 'case f i l e ' . The T r i b u n a l , as a c o u r t would, i s to c o n s i d e r o n l y the e v i d e n c e p r e s e n t e d b e f o r e i t . The r e g i o n a l d i r e c t o r ' s case, - 97 -the other party to the dispute, i s based exclusively on the information i n the 'case f i l e ' . The pieces of evidence which are used routinely are a history of 'how the claimant came to need assistance', the 'assessment of need' statement, and i n the case of handicapped benefits, doctors' reports. Letters, notes from interviews or phone contacts are sometimes used to provide backup for the history of the case. The c l i e n t does not know formally what i s i n the f i l e , nor what w i l l be used at the hearing. However, he has met with the regional director p r i o r to the hearing and generally has an idea of what i s going to be presented to the Tribunal. (3) THE 'CASE FILE' AT THE RENTAL HOUSING OFFICE: Although these f i l e s were con f i d e n t i a l , access by the researcher was granted i n order to complete the information r e l a t i n g to the hearing being observed. They were used follow-ing the hearing, when the transcripts were being analyzed. These f i l e s contained a l l documents related to the case, including l e t t e r s of complaint, copies of notices of eviction, l e t t e r s of decisions by o f f i c e r s , photographs of premises and receipts issued for registered mail or for work done on the rental premises. Neither party had access to the 'case f i l e ' , but the RHO O f f i c i a l s did. They generally spent time studying the f i l e before the hearing and as was mentioned above, on occasion consulted (for c l a r i f i c a t i o n purpose only) with the o f f i c e r who made the o r i g i n a l decision. When the RHO O f f i c i a l s were - 98 -interviewed, after the completion of the observations, they indicated awareness of possible bias i f they consulted the o f f i c e r . A l l of them indicated that they t r i e d not to consult with the o f f i c e r , or, that i f they did, i t was only on questions of fa c t . 'We get the f i l e . I don't normally speak to the o f f i c e r unless there i s something ambiguous. It i s better not to talk to the o f f i c e r . One could be accused of bias, of being unduly influenced by their opinions.' (FRE03) They are also aware of the difference between the t r i b u -nal and a court, where the judge i s not informed of the case i n advance. 'This i s a unique concept of tribunals versus a court. We have a t o t a l l y d i f f e r e n t role from a judge, but i t does not prejudice us, i t depends on personal i n t e g r i t y . ' (FRE05) The point that the 'role of the tribunal i s d i f f e r e n t from the role of a judge' i s important. A judge makes decisions on the basis of evidence presented before him - he adjudicates. The Rentalsofficer 'has and s h a l l exercise, subject to this Act, exclusive j u r i s d i c t i o n to receive an applica-tion, investigate, hear, and make order, deci-sion, d i r e c t i o n , or determination, respecting any matter i n respect of which he i s s p e c i f i c -a l l y given j u r i s d i c t i o n under the Act^-1' The RHO O f f i c i a l s are not 'judges' but rather are Province of B.C., Landlord and Tenant Act, consolidated September 3, 1976, Section 50(1). - 99 -advisors, or mediators who use adjudication only when a l l e l has f a i l e d . One of the interviewees a r t i c u l a t e s this notion 'Not to be informed would be a disservice to what the l e g i s l a t i o n i s trying to do. Being informed does a f f e c t your frame of reference. For example, you can have a groundless appeal. Before you even hear the evidence you can talk to the part i e s , ex-pl a i n how they stand and of f e r a l t e r n a t i v e s . ' (FRE05) In this context the information contained i n the f i l e i s perceived as a tool which i s to be used to determine the conduct of the hearing: 'I prepare a draft a framework for the hear-ing. I have pre-hearing notes to make sure the points are covered i n the hearing.' (FRE04) Another Deputy remarks when asked whether he feels tha being informed about the case before the hearing influences his attitudes: D: I know the danger of that but I am a l e r t , to the danger. I make sure i t does not bias me Int: How? D: My frame of mind; the attitude I adopt my emphasis i s on complete i m p a r t i a l i t y -the separation of genuine facts from those which are questionable, or i n some doubt. Int: You f e e l your i m p a r t i a l i t y i s not affected? D: No, the f i l e i s imperfect and a l l kinds of biases may be r e f l e c t e d i n that f i l e . I t would be f o o l i s h to become biased by the review of incomplete material. Int: Whose biases? D: Those of the parties involved, of the person making up the f i l e . Int: The o f f i c e r ? - 100 -D: Yes i t could be omissions from the f i l e . I t i s a very imperfect document i t would be f o o l i s h to be biased.' (FRE06) In general, the interviewees recognize the danger of being informed i n advance about the case, but a l l f e e l that they could remain open-minded, and that information i s neces-sary for them to be able to carry out their r o l e . They also emphasize that even i f they form an idea before the hearing, i t i s subject to change. It may be an idea based on the 'case f i l e ' evidence but that new evidence may change t h i s . 'I try not to l e t i t [influence me]. But many times I have one idea before the hearing and change my mind i n the hearing. My ideas can be changed i f I have any pri o r to the hearing We t r a i n our people to put information on the f i l e not opinions I have dealt with miserable buggers and they have won - but so what? They would s t i l l be r i g h t Maybe we do have ce r t a i n attitudes before we go i n we are human.' (FEE 02) As examplified i n thi s l a s t statement the information i n the f i l e probably influences attitudes of the O f f i c i a l s before the hearing, but they f e e l that personal i n t e g r i t y and training as well as the recognition that the information i n the 'case f i l e 1 i s f a l l i b l e largely offsets the bias which may res u l t from being informed about the case before the hearing. Being informed allows the O f f i c i a l s to check the l e g i s l a -tion, to determine whether there were any improper procedures 42 used and, i n some cases where the law i s ambiguous, to check 'e.g., the procedures to serve a notice of e v i c t i o n are described i n d e t a i l i n the Act (Sections 15 and 16) - i f a - 101 -decisions which have been made by County Court judges i n 4- 3 similar cases . He i s as a r e s u l t of i t more prepared to deal with the case within i t s legal boundaries and i s more able to advise landlords and tenants as to th e i r standing. As we were examining the 'case f i l e s ' and their i n f l u -ence on the tribunals, we mentioned that the agency's personnel interpreted the statements made by the c l i e n t . We w i l l now examine this practice i n more d e t a i l . IV INTERPRETING AS A ROUTINE ACTIVITY OF THE AGENCY'S PERSONNEL: When members of a society inte r a c t , i . e . , talk to each other, they expect to share a common background of expecta-tions, a common understanding or as Schutzproposed: 'for the conduct of his everyday a f f a i r s the person assumes, assumes the other person assumes as well, and assumes that he assumes i t of the other person, the other person assumes i t of h i n M v * notice i s not served according to these procedures, i t i s i n v a l i d and cannot be enforced. 4 3The RHO O f f i c i a l s are not bound by precedent: '[He] s h a l l make his decision upon the r e a l merits and j u s t i c e of an application or matter before him, and he i s not bound to follow l e g a l precedent.' (Landlord and Tenant Act), Province of B.C., consolidated September 3, 1976. 51(1)) However, i n some instances the law i s not s p e c i f i c and several cases were appealed to County Court. As one of the O f f i c i a l s stated: 'We are not bound by precedent, but i f we ignore the decisions of the judge, the case w i l l keep being appealed, and the judge i s bound by precedent. What they do i n fact i s interpret the law when i t i s not s p e c i f i c enought. So, we have to take their decision into account i n si m i l a r cases.' (FRE02) Schutz quoted i n Harold Garfinkel, Studies i n Ethnomethod- ology, p. 50, Prentice H a l l Inc., Singlewood C l i f f s , N.J., 1967. - 102 -There are many matters which need not be stated e x p l i c i t l y but the partners i n the discourse understand what was not mentioned. However, matters which the partners under-stand i n common are understood only i n and through the course of understanding which consists of treating an actual l i n g u i s -t i c event 'as 'the document o f , or 'pointing to', as standing on behalf of an underlying pattern of matters that each already supposed to be the matter that the person, by his speaking, could be t e l l i n g the other about. The under-l y i n g pattern was not only derived from a course of i n d i v i d u a l documentary evidences but the documentary evidence i n th e i r turn were interpreted on the basis of what was known and a n t i c i p a t o r i l y knowable about the underlying patterns4-5' Interpreting the documentary evidence i s not possible for an auditor unless he knows or assumes something about the biography and the purpose of the speaker, and the circumstances of the utterance. Most utterances do not have a meaning which remains i d e n t i c a l through the changing occasions of th e i r use. 'the a n t i c i p a t i o n that persons w i l l under-stand, the occasionality of expressions, the s p e c i f i c vagueness of reference, the retrospective-prospective sense of present occurrence, waiting for something l a t e r i n order to see what was meant before are sanc-tioned properties of common discourse. Persons require these properties of dis-course as conditions under which they are themselves e n t i t l e d and e n t i t l e others to claim that they know what they are talking about, and that what they are saying i s understandable and ought to be understood^6, 1 H. Garfinkel, op. c i t . , p. 40. H. Garfinkel, op. c i t . , p. 41. - 103 -During an encounter or a telephone conversation with an agency employee, the claimants generally take for granted these properties of discourse and f e e l e n t i t l e d to claim that th e i r discourse ought to be understood. However, when the agency employee proceeds with the interpreting of his i n t e r -locutor's statements, he uses background understandings which are not fa m i l i a r to his i n t e r l o c u t o r . When the claimants are confronted with the 'interpretations' of their statements, they f e e l cheated, bewildered, i n a si m i l a r manner as was described by Garfinkel i n his experiments 4^. According to Shutz the feature of a scene, 'known i n common with others' i s compound and consists of several constituents 4^. Some of these constituents of discourse 'which were assumed to have been known i n common with the agency employee', were not present: the meanings of events were products of language but the language of the agency employee was actually d i f f e r e n t from the language of his partner i n the encounter: the agency employee did not use the everyday s o c i a l -l y standardized meanings f o r some words: the encounter of the c l i e n t and of the agency employee did not have a commonly entertained scheme of inte r p r e t a t i o n consisting of a standard-ized system of symbols. 4^Idem, pp. 60-63. 4^Schutz, A., 'Common Sense and S c i e n t i f i c Interpretation of Human Action' i n Collected Papers I: The Problem of Social  R e a l i t i e s , pp. 207-259. - 104 -Some of the symbols used by the agency employee are not used i n everyday l i f e and are not known to the c l i e n t . He and the c l i e n t do not share the same pre-established corpus of s o c i a l l y warranted knowledge. The actual determination that the events exhibited for the agency employee, were not the potential determinations that i t would have exhibited for the c l i e n t were they to have exchanged positions. The c l i e n t and the agency employee have selected and interpreted actual and potential determinations of events i n an empirically d i f f e r e n t manner which was not s u f f i c i e n t for the p r a c t i c a l purposes of the c l i e n t . The events do not have membership i n a 'known-in-common-with-other1 environment, according to Garfinkel's phrase, because i t s determinations could not be seen respectively, by the other person, i f their positions were to be exchanged. The expectations that make up the attitude of the c l i e n t towards the event, i . e . , the encounter with the agency employee or his exchange of correspondence with him, assigned expected features to the c l i e n t ' s environment which were breached by the agency employee in t e r p r e t i n g his discourse i n a non-common environment. Surprise, bewilderment, anger were common emotions expressed by the c l i e n t i n response to the agency employee. Further, i t was often d i f f i c u l t for the claimant to respond to the agency employee since he did not share the same knowledge at hand. The c l i e n t ' s environment was included i n the agency's employee environment, while the reverse was not true. In regard to the matters at hand, that i s , the c l i e n t ' s claim or complaint, the agency's employee uses extensively and - 105 -consistantly this part of his environment, this knowledge at hand which he does not share with his c l i e n t s , because he i s in charge of applying l e g i s l a t i o n which gives everyday words other meanings than the standardized meanings commonly shared by the members of society. For instance, what a c l i e n t de-scribes as his 'basic belongings' for a need assessment, i s interpreted as being 'assets' by the s o c i a l worker, and be-come d i r e c t l y relevant to his e l i g i b i l i t y for benefits. For an RHO o f f i c e r , a 'v a l i d notice of termination' has some c h a r a c t e r i s t i c s which are defined i n the l e g i s l a t i o n , such as being i n writing, being signed, dated; i t has to specify the date of termination of tenancy, i d e n t i f y the premise to be vacated, specify the right to ask for reasons, and the right to dispute i t . Further, i f the notice i s d i s -puted, the reasons have to be 'legal' reasons, that i t , s p e c i f i e d i n the l e g i s l a t i o n . Any other notice, not being v a l i d , i s not for p r a c t i c a l purpose a notice of termination. Another example of this i n t e r p r e t i n g the c l i e n t ' s complaint into legal language i s that a tenant's statement complaining about the conduct of one of his neighbours becomes a complaint under Section 23(2)(c) regarding the 'quiet enjoy-ment of other tenants'. In the context of the law this does not mean that the tenant i s noisy but that he disturbs other tenants: i t may be because he always leaves the laundry room dir t y , throw his garbage on the balcony below or ste a l other people's food from the r e f r i g e r a t o r i n premises with a shared kitchen. Similar 'interpretations' and 'editing' i s ca r r i e d - 106 -out by the Insurance o f f i c e r s . This interpreting and edit i n g of information causes disruption to the c l i e n t s who do not share the same symbols as the o f f i c e r s . We propose to examine some of the most f r e -quent 'interpretations' done by Insurance o f f i c e r s as they are documented i n the submissions to the appeal Boards. We w i l l then examine some of the interpretations which take place i n the other agencies as they were observed during the hearings, since we did not have access to the f i l e s i n the Welfare Agency nor to the RHO o f f i c e r s ' log. (1) THE UNEMPLOYMENT INSURANCE OFFICER AS AN 'INTERPRETER' :  How the o f f i c e r 'transforms' the statement of the claim-ant depends on a number of factors. His training, h is under-standing of the law and his knowledge of the jurisprudence gives him a di f f e r e n t point of view. Further, he i s not acquainted with the circumstances of the claimant's l i f e and does not use the same frame of reference to interpret events which took place i n the claimant's l i f e as does the claimant. However, some systematic patterns which influence the i n t e r -pretation of the claimant's statements have been i d e n t i f i e d . As a policy, statements made previous to a d i s e n t i t l e -ment often carry more weight than statements made by the claimant a f t e r he has been d i s e n t i t l e d . A great deal of jurisprudence puts forward this p r i n c i p l e . This p r i n c i p l e i s applied p a r t i c u l a r l y when the claimant has not taken any steps - 107 -to show the v a l i d i t y of his new statements. 'In CUB3371 the Umpire considered statements before and after d i s q u a l i f i c a t i o n and consid-ered the conduct of the claimant as related to the claimant's attitudes toward accepting employment.' (Excerpt, o f f i c e r ' s comments SUI63) In fact, i n CUB3371, the Umpire states: 1...the conduct of the claimant i s r e a l l y more important than the statements made...' The o f f i c e r s generally apply this p r i n c i p l e : 'In view of the length of time or claim, a claimant should expand from part-time r e s t r i c -tions to f u l l - t i m e and accept a lower wage than previously desired i n a variety of occupations. In this case, the Insurance o f f i c e r feels that statements made p r i o r to disentitlement be given more weight than those made af t e r . ' (I.O.'s comment SUI06) However, the o f f i c e r does not seem to consider that the claimant either may not have understood the implications of his statement, and that once he understands i t , he may wish to reconsider his answer; or that he may not have understood the intent of the o f f i c e r ' s question. 'Since on claim, the minimum she would accept work for i s $4 per hour, as a dishwasher, kitchen helper, j a n i t o r or factory production worker, al*-though has had no experience i n l a s t f i e l d , work-ing f u l l - t i m e , between 8 A.M. and 6 P.M., Monday to Friday only, and only i n Big City, and not beyond the l i m i t s , as she travels by bus. She was advised that the non-union rate of pay for kitchen helper and l i g h t j a n i t o r i s $3 to $3.25 per hour, and for factory production worker non-union i s $3 to $4.50 per hour. She i s non-union status, and her minimum i s $4 per hour. She has a daughter 16, twin daughters 7 i n grade 2, and a son aged 5, attending kindergarten from 1 to 3 P.M. on week-days. Her eldest daughter looks aft e r the son, - 108 -and as well, her mother-in-law who l i v e s i n the house i s her babysitter, and available whenever needed, as she does not work.1 (excerpts from o f f i c e r ' s notes on interview with claimant. SUI11) Following the interview and a labour market information request, the o f f i c e r informed the claimant of his decision: 'We f i n d that you are not e n t i t l e d to benefits from 6 Dec. /76 as you f a i l e d to prove that you are available for work. You are not con-sidered available for work as you have placed r e s t r i c t i o n s on the employment acceptable to you to such an extent that your prospects of finding work are severely reduced. You are r e s t r i c t i n g to a wage of $4.00 per hour only which i s higher than the p r e v a i l i n g rate paid for the work you state you w i l l accept, i . e . , dishwasher, kitchen helper, j a n i t o r or factory worker. You have further r e s t r i c t e d the hours you w i l l work, i . e . , 8 A.M. to 6 P.M., Monday to Friday only. To date, this work has proved to be unobtainable. After a lengthy period of unemployment, i . e . , 33 weeks, the t o t a l above i s considered to be an undue r e s t r i c t i o n on your a v a i l a b i l i t y for work.1 In the notice the o f f i c e r gives the reasons for his decision: the wages and the hours to which the claimant l i m i t s herself. Within a week of the date on which the disentitlement notice had been sent out, the claimant sent the following l e t t e r of appeal: I wish to appeal. I w i l l appear with Representation - please show address East th Ave. - interpreter East th Ave. - my own Reason When I came to the o f f i c e I was asked i f I would work for $4.00/hr. and I said yes. Then I was asked i f I would work day s h i f t and I said yes. - 109 -These facts were misinterpreted on the form and I have been stopped the unemployment insurance. When I gave these answers I didn't mean I wouldn't work for less than $4.00/hr. or wouldn't work night s h i f t . I am w i l l i n g and able to work any s h i f t for even $2.50/hr. or $3.00/hr. I need a job very badly. I am trying very hard to f i n d a job but I have had no luck49. Although the o f f i c e r could not use the claimant's con-duct as the reason to hold the disentitlement, because she did not have time to show that she had actually applied for lower paying jobs, he s t i l l stated: 'The Insurance o f f i c e r was of the opinion that i n the present case, Mrs. 's clear and simple statement of her a v a i l a b i l i t y made on December r e f l e c t e d her actual attitude and intention toward accepting employment. Following the jurisprudence established i n CUB2088, no change was made i n the d i s e n t i t l e -ment under Sections 25(a) and 36(1) of the Unemployment Insurance Act.' In this p a r t i c u l a r case, the claimant was East Indian and may have encountered some problems i n finding employment due to discrimination. The reason why she was not rehired i n her job where she had worked for 7 months, was that she was not suitable as a dishwasher, although there was no complaint against her while working there. She was not f i r e d but l a i d o f f because of a shortage of work. A l l these factors were never taken into consideration and her previous statements were the basis on which the o f f i c e r made his decision. The practice of interpretation i s not clear to the appel-lant who i s not oriented to the procedure she i s subjected to as something which she has to take into consideration when she makes her statement. - 110 -A sim i l a r attitude on the part of the o f f i c e r i s express-ed i n the following comments, although i n this case he refers to the conduct of the claimant: 'Insurance Officer's Comments' The Insurance o f f i c e r reviewed the l e t t e r of appeal but i n the absence of any s p e c i f i c e v i -dence to indicate that the claimant had sought  any other type of work, the Insurance o f f i c e r considered that the statement made before d i s -q u a l i f i c a t i o n c a r r i e d more weight than i n the statement following the d i s q u a l i f i c a t i o n and maintained the decision.' CUB2088 (emphasis mine) This has the e f f e c t of placing the onus on the claimant to prove that his l a t e r statements are true, and not ju s t a verbal reaction to the o f f i c e r ' s decision. The claimant has to prove that his f i r s t statements, which were taken at face value and 'interpreted' as being 'true' statements representing his intentions, are not i n fac t true. In the following section, we w i l l examine some^ of the concepts which routinely are not understood by the claimants. (2) SOME UNSHARED MEANINGS IN THE UNEMPLOYMENT AGENCY: The o f f i c e r probably also has a private interpretation of the statements made by the claimant i n the l i g h t of such considerations as what he considers to be the t y p i c a l way people look for work; as a member of society, the o f f i c e r has expecta-tions regarding what the claimant w i l l do, according to his ~^The submission reports the outcome of some e a r l i e r procedures that we cannot recover from the data av a i l a b l e . The submissions suggest that the structure of the interview between claimant and o f f i c e r may be a worthwhile subject of research. - I l l -common sense understanding of what-kind-of-a-person the claim-ant i s . The interpretation of the claimant's statement focuses on some key concepts which are related to his status and the prerequisites for e l i g i b i l i t y . Therefore, the claimant's statements w i l l be interpreted i n such a way as to indicate whether the claimant i s 'available for work', whether he l e f t employment v o l u n t a r i l y and with 'just cause' or whether he l o s t his employment because of his own 'misconduct'. We w i l l now examine how the information given by the claimant i s 'interpreted' by the o f f i c e r i n assessing the s i t u a t i o n of the claimant. (a) A v a i l a b i l i t y of Work: Various factors are taken into consideration by the o f f i c e r i n determining whether a claimant i s available for work. He f i r s t has to assure himself that the claimant i s p h y s i c a l l y 5 - able to work. Then, the o f f i c e r has to assess the claimant's intentions regarding work taking into considera-52 tion other factors which might be construed as ' r e s t r i c t i o n s ' By being p h y s i c a l l y able to work, i s implied that the claimant i s not i l l , i s i n the area where he says he i s looking for work, has transportation to get to work, and/or has babysit-ting arrangements i f she/he has young children who need to be taken care of. In a l l the examples c i t e d i n this note, the claimant i s c l e a r l y unable to work i f the conditions are not met. These r e s t r i c t i o n s are f a i r l y e a s i l y communicated to claimant who seems to understand how these r e s t r i c t i o n s prevent them from being available. However, the r e s t r i c t i o n regarding transporta-ti o n i s not always understood as a r e s t r i c t i o n , as i s shown by this o f f i c e r ' s comments; i n response to a claimant's statement: 'no one i s required to have a car, but one must make adequate transportation arrangements i n order to be able to immediately accept work.' (SUI04) 52 A claimant i s said to be ' r e s t r i c t i n g ' himself i f he on his a v a i l a b i l i t y for work. Among these i s a determination of whether the claimant i s available during 'normal' working -i 53 hours In the following example, the o f f i c e r , by stating that, because the claimant i s not available for work during the day, he i s not available for work, c l a s s i f i e s the claimant as a 'typical student'. ' a claimant who has l e f t his employ-ment to follow a course of i n s t r u c t i o n i s not  normally available for work while attending  the course. As the claimant l e f t his employ-ment to better himself and his career, he can be commended but he can f i n d no r e l i e f under the Unemployment Insurance Act as he must f u l -f i l l the conditions of a v a i l a b i l i t y to prove his entitlement to benefit as he was not directed by the Agency to attend this course. The claim-ant gave up his job i n order to continue his studies and his intention at present i s imposes conditions on the type of work he w i l l accept. Each of the conditions i s c a l l e d a ' r e s t r i c t i o n ' . 53 'normal' hours w i l l be determined by taking into consid eration the type of employment the claimant i s q u a l i f i e d f o r . For instance: Exhibit #4 - Labour Market Information dated Waitress normal hours. 37% to 40 hr. work week Monday to Sunday Day and afternoon s h i f t Part-time employees are highly u t i l i z e d Drive-In Waitress s h i f t work. 12:00 noon to 6:30 6:00 P.M. to 12:30 A.M. Monday to Sunday required Job opportunities good. Kitchen Helper normal hours. 37% per week Monday to Sunday - s h i f t s required Job opportunities - Good. (SUI11) - 113 -c l e a r l y to complete his course, not to obtain employment.' (excerpt from o f f i c e r ' s comments, SUI20) (emphasis mine) The interpretation i s based on two CUB's (3683 and 3836) where the Umpire considers that a claimant who i s follow-ing a f u l l course of i n s t r u c t i o n on his or her own i n i t i a t i v e had not proven a v a i l a b i l i t y for work under the Act. Taking into consideration how a t y p i c a l 'full-time student' would look for work and what his intentions would be, the o f f i c e r decides that the claimant's intention i s not to a t t a i n employment but to complete his course of study. In other words, the o f f i c e r c l a s s i f i e s the claimant by looking at some s p e c i f i c aspects of his s i t u a t i o n . i n order to be able to apply to him the rules and jurisprudence which w i l l guide him i n his decision. The previous work experience of the claimant i s another factor which the o f f i c e r w i l l examine. Past experience i s used to l e g i t i m i z e the statements made by the claimant: ' In CUB1173A the Umpire shows the p r i n c i p l e that a claimant who shows previous work experience i n a limited employment area, should be given reasonable time to seek other work i n a si m i l a r area, p r i o r to a finding of a v a i l a b i l i t y . In CUB 1712 the Umpire considers a general p r i n c i p l e to define 'reasonable time' as 2 weeks for each year of employment i n the l i m i t e d opportunity area i n question (or i n other areas with similar labour market conditions.' ( o f f i c e r ' s comment SUI51) The above statement implies that because the claimant has experience i n working i n such an area he i s more l i k e l y ' t y p i c a l l y ' to f i n d employment. A claimant who does not have - 114 -this experience w i l l ' t y p i c a l l y ' not have as much chance to f i n d employment according to the Umpire. Conversely, employment history i s also used to show that the claimant i s not available for work. 'CUB1772 considers a case of a claimant pre-viously l i v i n g and working i n a large centre who moves to a small area and has no recent work experience i n that small town (or s i m i l a r l o c a t i o n ) . The Umpire considers a general rule of allowing one week per year of work when the prospects are not proven to be n i l . ' (SUI52, excerpt - o f f i c e r ' s comments) The general rule set up by the Umpire i n regards to reasonable time implies that such a claimant would have h a l f the chance, a claimant who had l i v e d i n a low employment op-portunity area would have to f i n d a job. In the same manner, a claimant who wishes to work part-time i s assessed by taking into consideration his history: 'Ms. has no hi s t o r y of part-time employ-ment. The p r i n c i p l e considered by the Umpire in CUB2 794 was that a claimant, previously employed f u l l - t i m e and now r e s t r i c t i n g to part-time employment c h i e f l y for personal reasons, was not available for work af t e r she had been allowed a reasonable period of time to look for part-time work.' ( o f f i c e r ' s comments, SUI64) The length of time the claim has been active i s another of the factors the o f f i c e r examines to determine a v a i l a b i l i t y " ^ . In order to estimate whether a claim has been active a 'reasonable' amount of time or more the o f f i c e r uses some of the rules and general p r i n c i p l e s spelled out i n the j u r i s p r u -dence such as those mentioned above i n regards to finding employ-ment i n areas of low employment opportunity. In practice, the o f f i c e r s do not themselves review systematically t h e i r caseload. The cases are reviewed by a computer which i d e n t i f i e s claimant who should be reviewed. Comments from Board Members indicated - 115 -If a claimant has been on claim for a long time, this i n i t s e l f can be used as a proof of r e s t r i c t i o n on the part of the claimant. 'After 50 weeks of unemployment the 1.0. i s of the opinion that there should be no r e s t r i c t i o n as to the type of work a claimant would be w i l l -ing to accept. In the l e t t e r of appeal, Mr. admits that the opportunities of employment in" his p a r t i c u l a r occupation are almost non-existent. Yet he gives no i n d i c a t i o n that he has been seeking or w r i t i n g to apply for other types of work.' ( o f f i c e r ' s comments, SUI13) It i s also used as an indicator of the external s i t u a t i o n i n which the claimant i s : 'the length of time unemployed i s i n i t s e l f a considerable comment on the labour market si t u a t i o n within the r e s t r i c t i o n s set down. (CUB1171, o f f i c e r ' s comments SUI49) These r e s t r i c t i o n s set down by the claimant may be r e s t r i c t i o n s related to job type as i n SUI13 or geographical area as i n SUI49; but these r e s t r i c t i o n s are imposed by the claimant and presumably he has control over them. The fact that the o f f i c e r also considers the external circumstances i n which the claimant finds himself, has far-reaching implications for defining the a v a i l a b i l i t y of some claimants, i n p a r t i c u l a r claimants who are l i v i n g i n low employment opportunity areas: i f the labour market i s bad and there are no jobs available by d e f i n i t i o n , the claimant w i l l not be available for work (this that since governmental f i n a n c i a l r e s t r a i n t s had come into effect, more austere measures were being implemented, cases were reviewed e a r l i e r i n the l i f e of the claim and more often. - 116 -w i l l be discussed further below). Another important factor considered by the o f f i c e r i s 55 the 'job search' . Three aspects of the job search are relevant to a v a i l a b i l i t y . F i r s t , the e f f o r t s a claimant has made i n regard to securing employment for himself are often construed as a general proof that he i s or i s not a c t i v e l y looking for work. In the following case, the claimant stated he was not looking for work as he was going back to work i n a month's time for his former employer. He had been l a i d o f f because of shortage of work two weeks e a r l i e r . The o f f i c e r : '[ ] considered that the claimant was not available for temporary employment pending re-c a l l to his former employment.' ( o f f i c e r ' s comments SUI54) and n o t i f i e d the claimant that he was not e n t i t l e d to benefits as he f a i l e d to prove he was available for work. Even when the claimant states that he i s looking for work, the number of contacts he has made i s construed as proof of his a v a i l a b i l i t y , as i n the following cases: 'the conduct of a claimant i s r e a l l y more important than the statements made ' (CUB3371) ( o f f i c e r ' s comments SUI51) 'Your minimal personal e f f o r t s to secure employment i s also an ind i c a t i o n of your n o n - a v a i l a b i l i t y . ' ( o f f i c e r ' s comments SUI15) The job search i s a l i s t of employers who allegedly have been contacted by the claimant. No actual proof that contacts have been made with prospective employers are requested and telephone contact should" be included. - 117 -Second, the job search i s an i n d i c a t i o n of the type of r e s t r i c t i o n the claimant put on his a v a i l a b i l i t y . Although a claimant may state that he i s w i l l i n g to accept other types of employment than his usual occupation, that he i s w i l l i n g to work for a certain wage or i n a determined area, the job search i s used as a check to determine the 'real' intention of the claimant, as i s shown i n the following example. A l -though the claimant wrote i n her l e t t e r of appeal that she was w i l l i n g 'to work i n any hotel i n the lower Mainland area 1, the o f f i c e r noted i n his comments: '[.....] Mrs. has not shown that she has applied for work anywhere other than the area, nor does she show that she has applied for work which paid the p r e v a i l i n g rate of pay [ ] The 1.0. [Insurance o f f i c e r ] was of the opinion that i n the present case, Mrs. 's clear and simple statement of her a v a i l a b i l i t y made on effected her actual attitude and inten-tions toward accepting employment.' (SUI30) Third, the job search may be used not to determine whether the claimant intends to f i n d work, but to assess how r e a l i s t i c his prospects of finding work are. In these cases an extensive job search may be construed as proof that the claimant i s not l i k e l y to f i n d employment, therefore that he i s non-available for work within the meaning of the Act. Prospects may be l i m i t e d by factors i n t r i n s i c to the claimant (personal r e s t r i c t i o n ) or by e x t r i n s i c factors (such as the labour market) . The following case i s an example of factors i n t r i n s i c to the claimant: the claimant i s a Japanese gardener (with a - 118 -university degree i n agr i c u l t u r e ) . While his work experience i s i n agriculture, his li m i t e d knowledge of English prevents him from being referred to any job i n which he does not have direc t experience. The claim was reviewed i n February, when the opportunities for gardeners are very poor. Consequently, he was found non-available for work by the o f f i c e r (SUI63) who d i s e n t i t l e d him. The e x t r i n s i c factor related to a v a i l a b i l i t y are the conditions of the labour market either i n a certain geographical 56 area or for a certain type of occupation . An extensive job search i n an area of employment can be construed by an o f f i c e r as an i n d i c a t i o n that such employment i s not available as i s stated i n the following: 'At the time that the decision was made, the 1.0. considered the claimant's statements regarding her r e s t r i c t i o n s to searching on unspecified alternate employment for not less than $60.00 per day i n conjunction with the length of time the claimant has been unemployed and on claim. As a r e s u l t i t was considered that the claimant had placed undue r e s t r i c t i o n s on her a v a i l a b i l i t y for employment and, because she was s t i l l unemploy-ed as of the date of disentitlement, the 1.0. further considered that the claimant had proven that the type of employment for which she stated she was available was not rea d i l y obtainable ' ( o f f i c e r ' s comments SUI39) (emphasis mine) A 'job search' i n a s p e c i f i c geographical area i s also used as an i n d i c a t i o n that employment i s l i m i t e d i n this area: Although we do not intend to examine this issue i n d e t a i l , i t should be noted that 'any job' does not mean the same for a q u a l i f i e d u n i v e r s i t y graduate or for a non-English speaking immigrant without North American experience. - 119 -'We f i n d that you are not e n t i t l e d to benefits from as you f a i l e d to prove that you are available within the meaning of the Act. After a prolonged period of unemployment (21 weeks), you are continuing to r e s t r i c t your a v a i l a b i l i t y to an area where prospects of work are considered very l i m i t e d . ' ( o f f i c e r ' s deci-sion SUI51) As pointed out e a r l i e r , the implication of this decision is that a claimant who l i v e s i n an area where employment i s limited, although he has experience i n this area or si m i l a r areas, a f t e r a 'reasonable amount of time' as defined by the Umpire, i s considered non-available for work because work i s not available, not because he i s not looking. The concept of a v a i l a b i l i t y under the Act and i t s Regulations requires an insured person to be seeking employment he may reasonably expect to obtain i n an area where there are reasonable prospects of obtaining i t . This type of l e g a l i s t i c reasoning i s not well understood by claimants who often - i r o n i c a l l y enough - try to blame their f a i l u r e to f i n d employment on the lack of job op-portunities and the state of the economy. The following two cases are examples of such arguments which the claimant f e e l s , w i l l help his cause, when i n fact, they confirm the findings of the o f f i c e r who made the decision and prove their own non-a v a i l a b i l i t y . Case 1: The claimant has been unemployed for 14 weeks, and her only experience i s as a f i s h cannery worker. She previously said that she would work as a chambermaid, food or general store packer. 'I wish to appeal The f i r s t reasons why I - 120 -am making the appeal are that f i r s t of a l l I have no job now because i t i s so d i f f i c u l t for me to f i n d this kind of job i n the B r i t i s h Columbia as I have no experience i n other kinds of jobs [ ] 1 (excerpt from l e t t e r of appeal, SUI29) Case 2: The claimant i s a teacher and has always worked as a teacher for 15 years. In his l e t t e r of appeal he outlines his various alternatives and what he has done to f i n d employ-ment. He has been unemployed for seven and a h a l f months at the time of the appeal. '[ ] In conclusion, I would l i k e to point out that the fact that I have been, unhappily, unable to f i n d suitable employment since does not appear to be a f a i r argument for disentitlement i n the l i g h t of unemployment figures of well over 700,000 and I c a t e g o r i c a l l y r e j e c t the option that I am r e s t r i c t i n g my a v a i l a b i l i t y to work.' (ex-cerpt from l e t t e r of appeal, SUI62) The main factors according to the submissions available to the research which an o f f i c e r may take into consideration when determining the a v a i l a b i l i t y of a claimant, have been reviewed above. We have t r i e d to document the communication problems caused by this i n t e r p r e t i n g of the claimant's state-ments and s i t u a t i o n to determine a v a i l a b i l i t y 'within the meaning of the Act'"^. ' A v a i l a b i l i t y ' within the meaning of the Act implies that a minimal amount of r e s t r i c t i o n should be put between a claimant and a potential job. Further, that any r e s t r i c t i o n s Although the phrase 'within the meaning of the Act' i s seldom used during interviews, i t i s always implied. It i s generally used i n the l e t t e r of disentitlement. - 121 -w i l l be proven unreasonable by the fact that the claimant does not f i n d a job. The o f f i c e r uses these factors for determining a v a i l a b i l i t y , as indicators of the claimants' intentions. As one o f f i c e r stated: 'Whether or not a claimant i s available for work depends largely on his intention and mental attitude toward accepting any employ-ment for which he i s suited by s k i l l , aptitude or t r a i n i n g . ' (SUI31, o f f i c e r ' s comments) It should be noted here that a claimant, whose benefits have been suspended because he was r e s t r i c t i n g himself, can, 5 8 by finding a job within his own r e s t r i c t i o n s , prove, a p o s t e r i o r i , that he was actually 'available', for work (see SUI39), because he has f u l f i l l e d the requirment of the Unemploy-ment Insurance Agency that a claimant 'prove that he i s a v a i l -able for work within the meaning of the Act': finding employment i s 'proof' that one's r e s t r i c t i o n s were not un-reasonable, consequently, the disentitlement w i l l be l i f t e d . whether the outcome i s i n t h e i r favour or not, i t i s d i f f i c u l t for many claimants to understand this l e g a l i s t i c reasoning, e s p e c i a l l y when i t i s not explained to them i n d e t a i l . Although the o f f i c e r s are instructed i n the p o l i c y 59 manual to inform the claimant of his 'rights and obligations and the possible The appellant may claim retroactive pay from Ul Agency since his disentitlement for a period up to s t a r t i n g his new employment. 59 Government of Canada, Manuic I, Subject 11, p. 9. - 122 -consequences of the statements made during the interviews and other acts and ommissions.' i t became evident, when examining the submissions and observing the hearing that the claimants do not always understand these 60 implications , and that there are many discrepancies between what a claimant thinks 'being available for work' means and the meaning which i s being used by the o f f i c e r . In the following pages, we s h a l l be examining other important concepts which are often not understood by the claimants and, which are relevant to the determination of the status of th e i r claim. The fact that these concepts are not understood i s often the basis for the appeal. (b) Leaving Without Just Cause: The reasons for leaving one's employment are taken into consideration by the o f f i c e r who decides whether a claimant w i l l obtain benefits immediately or whether he w i l l be d i s -e n t i t l e d for up to s i x weeks, during which time benefits are uuWe do not address i n this study the issue of case process-ing by the o f f i c e r s . However, the issue of whether or not the appellant understands the meaning of the l e g i s l a t i o n i s relevant to this study: i n some instances, i f the appellant had been capable of interpreting the l e g i s l a t i o n or of understanding the policy of the Unemployment Agency, he would not have appealed. When this was the case the task of the Board i n processing the case was to inter e s t and explain the l e g i s l a t i o n to the appellant and to indicate to him why i n his case the decision could not be changed within the l e g a l constraints. These cases were referred to as 'clear-cut cases' by the Board. See footnote 37 i n this chapter for a discussion of clear-cut cases. - 123 -deemed to have been paid. The e f f e c t of this i s to shorten the period of e l i g i b i l i t y . A claimant i s not d i s e n t i t l e d i f he leaves his employment with 'just case 1. As i n the case of a v a i l a b i l i t y , 'just cause' as used by the o f f i c e r s r e a l l y means 'just cause within the meaning of the Act'. According to the Regulations and the Agency's p o l i c i e s personal reasons are not reasons of 'just cause'. Several unacceptable reasons are defined as such i n the jurisprudence. For instance, leaving one's employment to study i s not considered as 'just cause' but rather as a personal decision, according to CUB's 1941 and 3247: 'Voluntary leaving employment for the purpose of attending a course of i n s t r u c t i o n i s general-l y not considered to be leaving with just cause within the meaning of the Act.' (excerpt from o f f i c e r ' s comments, SUI20) Another reason interpreted as being personal i s the desire to acquire new experiences: 'I l e f t my job with the Bank of because I wanted experience i n other f i e l d s of work. After working i n a bank I decided that I wanted something d i f f e r e n t . ' (excerpt' from l e t t e r of appeal) The Board decision was: 'There being no new evidence, the claimant by her own admission, quit her job because she wanted to gain experience i n other f i e l d s . However, a person acting i n a prudent manner in l i k e circumstances i s expected to make an e f f o r t to secure other employment p r i o r to leaving their present employment. The claim-ant's decision was a personal one and personal - 124 -reasons cannot be considered as just cause for v o l u n t a r i l y leaving one's employment within the meaning of the Act. The Board, therefore, up-holds the decision of the Insurance o f f i c e r . The appeal i s disallowed. (SUI70) (emphasis mine) Other examples of personal reasons are contained i n the following Board decision which upheld the o f f i c e r ' s decision: 'There being no new evidence, the claimant states that he l e f t his employment because of working conditions, wages and his desire to obtain exper-ience on other types of a i r c r a f t . A person acting i n a prudent manner under sim i l a r circumstances would be expected to seek other employment p r i o r to q u i t t i n g . The claimant's reasons were personal and personal reasons cannot be considered as just cause for v o l u n t a r i l y leaving one's employment within the meaning of the Act. The Board upholds the decision of the Insurance o f f i c e r . The appeal i s disallowed. In both the above cases, the Board points out that 'a prudent person' would seek employment before q u i t t i n g . It i s based on the b e l i e f - expressed by several Board Members that 'any job i s better than none', that Unemployment Insurance i s not a pension, nor for that matter i s i t an 'insurance' l i k e car insurance where the insurance company w i l l pay even i f one is at f a u l t . One has to f u l f i l l c e r t a i n conditions to become 61 e l i g i b l e . Therefore, one cannot expect the insurance plan to pay for the 'carelessness 1, or the lack of prudence of This issue of what Unemployment Insurance i s , w i l l be discussed below, pp. 137-141. - 125 -employees The Agency i n some instances, recognized that circum-stances may have made i t d i f f i c u l t for the employee to remain on the job. However, from the examination of the submissions and observation of the hearings, there does not seem to be any fixed c r i t e r i a d i f f e r e n t i a t i n g between 'good reasons' for leaving and 'personal' reasons. I l l - h e a l t h caused by the job or i t s location i s sometimes accepted as a good reason. In other cases i t i s only considered as an extenuating circum-63 stance In the SUI68 case, the Board decision c l e a r l y i d e n t i f i e s health reasons as personal reasons: 'the claimant argues that the type of work she was doing was hard on her both ph y s i c a l l y and for health reasons and because of t h i s , she did not return to her employer. However, from the evidence before the Board, the employer was w i l l -ing to accept the claimant back but she made no attempt to contact him nor discuss her employment pr i o r to q u i t t i n g . The claimant's decision was of a personal nature.' (emphasis mine) In another case, the appellant, because of a discontinued bus service, had to commute for from f o r t y - f i v e minutes to one hour each way every day. Recently she has been having problems, staying awake when driving home and her a r t h r i t i s has been This was often explained to the claimant at some point during the hearing. 6 3 Only health problems which are not severe enough to prevent working are considered here. - 126 -aggravated by the long drive. Further, because of the time taken up by the driving she did not have the opportunity to look for a job i n her own area, so she quit. The Board decision reads: "The Board had the opportunity of examining the appellant and considering the reasons stated i n the above exhibits, and also considering the appellant's age, the Board feels that there are extenuating circumstances i n this case. However, the Board reel that the appellant should have t r i e d to locate other employment p r i o r to leaving her employer. The Insurance o f f i c e r recognized the extenuating circumstances and the Board feels the same. [ ] The Board, however, reduces the present four week d i s q u a l i f i c a t i o n to a two week period of d i s q u a l i -f i c a t i o n . [ ] (SUI22) (emphasis mine) Similar c o n f l i c t i n g decisions were made i n regard to 'unsatisfactory' working conditions as reasons for q u i t t i n g . In the SUI08 case, the appellant was a desk clerk i n a h o t e l . She quit working, according to her statement, because of intolerable working conditions. My reasons for leaving: a) working conditions are so into l e r a b l e I f e e l that I was placed i n the position of having to quit, I don't f e e l I quit of my own v i o l a t i o n . b) the management provides no protection i n spite of several requests. c) do not compensate i n wages for the personal r i s k s involved. (excerpt from additional informa-tion obtained from claimant aft e r interview) It i s documented that: - 127 -claimant has lodged complaints with Business Rep from , Union, l o c a l , on several occasions" (to no avail) She has complained to the manager and there was a high turnover of personnel at the h o t e l . ' (excerpts from Exhibit #4) The Board decision shows the need for c r i t e r i a : 'While there may have been some extenuating circumstances surrounding the claimant's employ-ment, i t must also be recognized that the Union  did not consider her s i t u a t i o n serious enough to take the matter up with Management and no formal grievance was i n i t i a t e d i n this case [ ] the appeal i s disallowed.' (emphasis mine) This need for some c r i t e r i a to decide how many weeks the d i s q u a l i f i c a t i o n should be, was repeatedly expressed by Board Members. Their only rule 'of thumb' was that i f there were extenuating circumstances, maximum d i s q u a l i f i c a t i o n was not to apply, but how many weeks the d i s q u a l i f i c a t i o n should be was always problematic and often a bargaining process occurred be-tween the Labour and the Employer Representatives ,. Another example of the need for external c r i t e r i a i s i n the use of the extent to which the claimant has t r i e d to have his grievance remedied. The e f f o r t s of a claimant to have his grievance remedied i s interpreted as a desire to keep his employment as appears i n the decisions below: ' [ ] In view of the extenuating circumstances surrounding this case, and the e f f o r t put f o r t h  by the claimant to have his complaint adjusted, the Board w i l l reduce the d i s q u a l i f i c a t i o n from six to two weeks.' (SUI42, emphasis mine) A si m i l a r need for c r i t e r i a i s apparent i n 'misconduct The bargaining alluded here was discussed i n chapter I I . - 128 -(c) Misconduct: The issue i n a 'misconduct case' i s to determine whether the claimant has l o s t his job because of his own misconduct. I f he has, Sections 41(1) and 43(1) of the U.I. Act provide that an insured person may be d i s q u a l i f i e d from receiving bene-f i t s for a period of up to s i x weeks. In cases of alleged personality c o n f l i c t s , the Board places the onus on the claim-ant to prove his good conduct. 'My foreman and I never got along at any time during my employment there, as when I started there I had never work i n a m i l l before or even knew how they were run. He expected everyone to know everything when they started. This i s the reason I am appealing this decision.' (excerpt from l e t t e r of appeal SUI67) The Board decided that: [ ]'From the evidence before this Board, i t appears the claimant did not have adequate transportation arrangements and th i s , along with disagreements with his foreman, he was dis -charged, (sic) The Board, therefore, upholds the decision of the 1. 0. * This pattern was present i n a l l the cases of 'misconduct' observed. Most Board Members, (although i n a few cases, the Labour Representative did not agree) f e l t that i f the incident or incidents which provoked the f i r i n g were i n i t i a t e d by the claimant, the claimant had i n fact l o s t his employment because of h i s own misconduct. The implications of this notion of misconduct are that an employee has to do everything he can to keep his employment, i . e . , that the onus i s on the employee to - 129 -6 5 not to get f i r e d So far the problems of communication between claimant and Insurance o f f i c e r have been discussed. These problems r e s u l t from discrepancies i n the meaning of the concepts we have examined, between the o f f i c e r and the claimant. The o f f i c e r ' s i n t e r p r e t a t i o n of those concepts r e f l e c t the ov e r a l l p o licy of the Unemployment Insurance Agency, which i s based on the nature of the Unemployment Insurance scheme. In the case of the other tribunals, although the d e f i n i -tion of the concept were often included i n the regulations and there seemed to be less room for interpretations, the law also had to be interpreted c l a r i f y i n g the meaning of the concept as used i n the l e g i s l a t i o n . We are now going to examine a few examples of concepts which have a di f f e r e n t i n t e r p r e t a t i o n when used i n everyday l i f e as against th e i r use i n the context of the l e g i s l a t i o n . " ( 3 ) UNSHARED MEANINGS IN THE OTHER TRIBUNALS: (a) Standards of Cleanliness: The Landlord and Tenant Act spe c i f i e s that: A tenant s h a l l maintain ordinary health, c l e a n l i -ness, and sanitary standards throughout r e s i d e n t i a l premises i n respect of which he has entered into a The Board did not examine i n d e t a i l the circumstances of the ' f i r i n g ' , nor did i t put i n context the incident(s) which caused the f i r i n g . - 130 -tenancy agreement 66 Most of the security deposit disputes are based on d i f f e r e n t interpretations of this section by the two parties. The Rental Housing Office has guidelines to interpret 'ordinary standards' which are known to a l l the o f f i c e r s and O f f i c i a l s . The p o l i c y i s that a tenant was to clean the premises and remove a l l garbage, boxes and other items which are not part of the prem-ises. However, the landlord i s expected to do some additional cleaning to bring the premises to a 'spic and span' l e v e l of cleanliness before the incoming tenant takes possession of the premises. This p o l i c y i s based on the interpretation of the Act which requires that Tenants and even more frequently landlords, as was apparent from hearings, have their own interpretations of what 'ordinary cleanliness' means. A landlord begins his submission as follows: Province of B.C., Landlord and Tenant Act, Chapter 45, Section 30(4)(a), September 3, 1976. 6 7 Province of B.C., Landlord and Tenant Act, Chapter 45, Section 30(4)(a), September 3, 19 76. There i s a misunderstanding i n the meaning of the Act I have been 30 years i n the apartment rental industry Section 52(c) functions of the Rentalsofficer [he quotes] disseminate information for the purpose of educating and advising landlords and tenants with respect to rental practice, rights and remedies the ren-t a l practices are established so that's 66 - 131 -Section 30, the landlord's duties the tenant should give back the premises the same way there i s a discrepancy i n standard of cleanliness also for the ten-ants. This i s a l i s t of tenants who moved at that time, to demonstrate that the RHO lowers standards. (SRE23) This landlord i s claiming 'established rental practices' which have been enforced according to him for a long time as the standard for gauging cleanliness rather than the p o l i c y estab-l i s h e d by the RHO. The l a t t e r i s based on-the Act i n which only 'ordinary standards' are required, according to the RHO o f f i c e , and therefore, should overrule 'established practices'. (b) Occupation of Premises: Under Section 17 of the Landlord and Tenant Act, a land-l o r d may give notice to a tenant i f he bona fide requires [the] r e s i d e n t i a l premises for the purpose of occupation by himself, his spouse, or a c h i l d or parent of his or his spouse°8. The concept of occupation i s a problematic one. For most tenants, i t means that the landlord or someone from his family intends to move into the rented premises. For landlords, i t sometimes means moving i n but i n other cases i t means using the premises for business or storage rather than r e s i d e n t i a l purposes. The following excerpt from a tran s c r i p t i s an example Province of B.C., Landlord and Tenant Act, Chapter 45, Section 17, September 3, 1976. - 132 -of how the concept of occupation may be interpreted. Each party i s represented by a s o l i c i t o r . The tenant's lawyer (Mr. G) i s presenting h i s submission f i r s t since the tenant i s appealing: We do not dispute the fact of her [landlady] intended use of the premises the o f f i c e r had mistaken the thrust of the dispute my c l i e n t does not deny the landlord's intentions Our side claim i s that the o f f i c e r erred i n law i n holding that under Section 17 and 23 (2)(e) of the Act, a landlord may e v i c t or terminate, not because of her need to move i n but merely because the landlord wishes to put the premises to di f f e r e n t use [the landlady i n t e r j e c t s but her lawyer t e l l s her to wait]. The o f f i c e r has broadened the section beyond i t s proper scope. This i n t e r p r e t a t i o n means i t i s licence to e v i c t i o n on 60-day notices i n wanting to put premises to di f f e r e n t use. The Act r e s t r i c t s landlords to dealing properly with tenants and i t s thrust i s to provide security of tenure to the tenant and the Act i s consistent with t h i s . That the tenant holds premises at the pleasure of the landlord i s no longer v a l i d and the Act abolishes this notion. Unless the landlord can use one of the things spelled out i n the Act, the landlord cannot terminate. Timely and proper notice i s no longer s u f f i c i e n t to e v i c t [the lawyer reads Sections 17 and 23 (2)(e) as proof of his statement]69. i submit that the law intends that the landlord can l i v e i n i t or require i t for occupation. I t i s clear from the wording that the e d i f i c e of secure tenure shouldn't be torn down. I t used the term 'occupation' not 'use of premises'. The landlord doesn't plan to have her family move i n . Occupa-tion and use must be involved for ev i c t i o n . The o f f i c e r erred i n his decision, i t should be re-versed and the notice set aside. (PRE06) Section 17 i s quoted above, p. 131. Section 23 (2)(e) reads that 'the RHO w i l l not set aside a notice of termination unless he i s of the opinion that the notice was given i n accordance with Section 17'. - 133 -In this submission, the s o l i c i t o r makes a d i s t i n c t i o n between 'occupation' and 'use' of the premises. He used the intent of the law, which i s to protect tenants' rights and prevent a r b i t r a r y eviction. The landlord's lawyer (Mr. W) has a di f f e r e n t interpre-tation of the word occupation: The o f f i c e r had the p a r t i c u l a r s of what was intended when he made the decision.....The fact that the landlady intended to merely extend the care f a c i l i t i e s next door. Mr. G [tenant's lawyer] l i m i t s the use of the word occupation to residence. The Act envisioned a case where the landlord maintained control of the building. 'Occupation' raises ques-tion of control of j o i n t residence. I f e e l the o f f i c e r ' s interpretation included the use of the bui l d i n g for the owner's l i v e l i -hood. The landlady's lawyer uses a di f f e r e n t , broader meaning of 'occupation'. 'Occupation' of premises according to him, includes use of the premises by the owner for her l i v e l i h o o d . The tenant's lawyer rebutted as follows, ( i n fact repeating what he stated e a r l i e r i n his submission): Mr. W [landlady's lawyer] would l i k e to extend the d e f i n i t i o n of occupation to include s i t u a -tions when the landlord exercises dominion over the property without actually moving i n for example converting a house into a motel. That i s not what the l e g i s l a t i o n had i n mind As long as he exercises dominion, he can evi c t . That's a novel and ingenious broadening of the Act. In the excerpts quoted above, both s o l i c i t o r s had given an interpretation of the Statutes. The tenant's lawyer evokes - 134 -the intent of the l e g i s l a t i o n to protect the tenant while the landlady's lawyer's statement implies that the intent of the l e g i s l a t i o n , i n our society, could not be to take away control of his property from a landlord, i n so doing trying to counter Mr. G's argument. In his rebuttal Mr. W's interpiretation f i r s t by giving an u n l i k e l y example, to r i d i c u l e the submission and then by c a l l i n g his adversaries' i n t e r p r e t a t i o n 'novel' implying that his own i n t e r p r e t a t i o n i s the usual or convention-a l one. The Deputy listened, t o l d both parties that he could not give them a decision immediately, and adjourned the hearing for a few minutes. When he came back he made the following state-ment : 'Mr. G's argument i s very strong I t i s d i f f i c u l t to understand the tenor of the Act i s to give security of tenancy to tenants my decision may be challenged i n County Court Section 17 i s the only way to e v i c t a tenant My order i s to confirm the o f f i c e r ' s decision of October 1 s t , e f f e c t i v e October 31, . Any act or challenge by Mr. G w i l l stay and act by the landlord. The landlord i s e n t i t l e d to demand an order and Mr. W'may discuss i t . ' Although the Deputy has made a decision he seems to be welcoming an appeal to c l a r i f y what the law 'means'. He goes into extensive d e t a i l , compared to other hearings, explaining that the decision can be appealed and what the implications of an appeal by Mr. G would be for the l a n d l o r d ^ . In this The decision was i n fact appealed and reversed and the judge's decision was used as a p o l i c y guideline i n subsequent cases . - 135 -case, not only was the d e f i n i t i o n unclear for the parties, but, i t was unclear for the tribunal i t s e l f . (c) Unearned Income: The Regulations of the GAIN Act include a large number of d e f i n i t i o n s . However, even i n the Welfare Tribunal the issue of c o n f l i c t i n g i nterpretation arose. The GAIN Act Regulations for example, define unearned income as follows: 'unearned income' means money, goods, c a p i t a l gains, or services derived from any of the f o l -lowing sources: (and then follows a comprehen-sive l i s t of possible sources of income apart from that gained through employment which includes i n subsection j , Widow's or orphan's allowances) 7!. A widow receiving a pension appealed because the t o t a l amount of her widow's pension was being deducted from her s o c i a l assistance check as i t was defined as 'unearned' income During the hearing the following discussion took place: Chairman: An insurance would i t be deducted? Social Worker: Yes.....I think so. Chairman: A pension plan i s considered earned income? Social Worker: Yes but U.I.C insurances are unearned. Chairman: It's d i f f i c u l t to appreciate because i t was b u i l t up from earned income did your husband have a pension ^ P r o v i n c e of B.C., Guaranteed Available Income for Need. Regulations, Section 2 ( 2 0 J T - 136 -Appellant: No i t ' s a government pension Canada Pension Plan. Chairman: Did you say the law should be ques-tioned? When? Ap. Rep.: She i s penalized because he i s dead. Even i f he was a l i v e and very i l l , the welfare money would be there i f he paid c h i l d support i f he worked .... . i t would be earned money by him not deducted! [ ] Ap. Rep.: As a Board the question to answer i s whether widow's pension i s earned or unearned income we have to agree or disagree with the Regulations. (SGA01) The d e f i n i t i o n of unearned income i n the Regulations ((Section 2(j)) s p e c i f i e s that widow's pensions are to be con-sidered as 'unearned income': the Tribunal questions this d e f i n i t i o n on the grounds that no i n d i v i d u a l could receive Canada Pension Plan unless he or his spouse had worked and contributed to the plan with earned income. The concepts discussed above and th e i r various i n t e r -pretations are an i l l u s t r a t i o n of the fact that l e g i s l a t i o n always need be interpreted. It would not have any meaning out-side of a s o c i a l context where s o c i a l i z e d individuals could use t h e i r s o c i a l knowledge i n the interpretations. Although i t could be argued that the Tribunal Members were doing a 'legal' rather than a s o c i a l i n t e r p r e t a t i o n of the law, i t should be taken into consideration that without .'social referents they could not proceed to do t h e i r legal interpretation. They need to know what an insurance, a pension and c h i l d support, - 137 -a l l s o c i a l concepts, to be able to discuss the leg a l concept of 'earned income'. The interpretation, however, i s generally done by the Agency's O f f i c i a l s , the Board or the Tribunals. The appellants do not have enought knowledge of the statutes and regulations to a c t u a l l y interpret them. However, they have a notion of what 'they should get', 'what's ju s t ' and 'what's fair:', as well as 'what ought to be'. The l e g i s l a t i o n i s remote; although they know i t exists, they do not use i t to order their everyday l i f e and are not f a m i l i a r with i t . Consequently, they have expectations of what the l e g i s l a t i o n should allow them to do or to obtain which may be discordant with any interpretations done by the agency's o f f i c e r s , or tribunals. We are now going to examine the expectations of the Unemployment Insurance claimants as an example of common sense expectations as they relate to the application of Unemployment Insurance l e g i s l a t i o n . (4) UNEMPLOYMENT INSURANCE AND THE EXPECTATIONS OF ' INSURED' INDIVIDUALS : . As was mentioned above Unemployment Insurance i s not an insurance against unemployment, but rather a s o c i a l program aimed at helping individuals who are unemployed and who also f u l f i l l some conditions i n order to receive benefits. These conditions are spelled out i n the Act: a claimant has to have been working i n insurable employment at least 8 weeks i n the l a s t 52 weeks. (Section 17 (2)(a)) - 138 -be unemployed (Section 17 (2)(b)) be able to prove (a) he i s available for work within the meaning of the Act (b) he i s capable of working (c) he i s unable to obtain suitable employment. Further, conditions under which separation from l a s t employer occurred are also considered. A claimant who i s f i r e d or quit without 'cause' i s to be penalized by a loss of bene-f i t s for a period of up to s i x weeks. As r e f l e c t e d i n the l e t t e r s and statements of claimants appealing i n the submissions, many do not understand or are unaware of these l i m i t a t i o n s of e l i g i b i l i t y . Some consider Unemployment Insurance to be due to them because they have paid into i t : 1 [ ] I know that I am e n t i t l e d to one of two things, either a job or UIA benefits, of which I have paid a l l the time I worked.' (SUI05) '[ ] I f e e l a f t e r working 1% years and pay-ing Unemployment Insurance, I should be e n t i t l e d to receive more than one month's benefit.' (ex-cerpt from l e t t e r of appeal, SUI34) '[ ] I f e e l I am e n t i t l e d to benefits under the Unemployment Insurance Commission which are required immediately.' (excerpt from l e t t e r of appeal, SUI38) 'I wish to appeal the decision on my claim (dated ) to a Board of Referees . I am making the appeal because I f e e l that since I have paid into this fund, for my own benefit, I should be allowed to receive a portion thereof. [ ] (excerpt from l e t t e r of appeal, SUI59) [ ] Also UIA i s i n fact an insurance p o l i c y - 139 -and I f e e l that my disentitlement i s unfair as no matter where I l i v e I have to pay into this p o l i c y and yet i f something should go wrong I cannot c o l l e c t i t . (excerpt from l e t t e r of appeal, SUI50) This l a t t e r quotation indicates that there may be a misunderstanding regarding the nature of Unemployment Insurance, based on the fact that one does not have any choice, regarding payment of the premiums since they are compulsory. The same f e e l i n g i s expressed i n the following l e t t e r : '[ ] We f e e l uncomfortable, l i k e we're doing something wrong i n claiming. I have worked steady for three years. My husband, for 23 years, and we are forced to pay our premiums'. (excerpts from l e t t e r of appeal, SUI21). Many claimants seem surprised when they f i n d out that they are not e l i g i b l e . They wonder, l i k e the two women quoted above, why they pay into an insurance plan which i s not helping them when they need i t . They f e e l they have been treated un-f a i r l y , unjustly. In some instances, they explain why they f e e l themselves to be unjustly treated: 1 [ ] After paying into UIA for 14% years ( 4 years before I married) without making a claim, I f e e l I am being treated very unfair It i s not my f a u l t i f there i s no part-time work available. The same should apply then for seasonal workers. I f not they should be the only ones who should pay into the fund and we should have a choice whether we want to or not.' (excerpt from l e t t e r of appeal, SUI69) This f e e l i n g of unjustice i s p a r t i c u l a r l y strong for - 140 -claimants who have contributed to the Unemployment Insurance for a long time. 'Being that I have been working for the SAME  EMPLOYER since 1946 30 years most of the time very steady and that I am just temporary out of work and was t o l d to return back to work about this week, me and my employer f e e l that the UIA i s not treating me f a i r l y [ ] (excerpt from l e t t e r of appeal, SUI54) The issue of what i s just i s central here and needs to be examined. The employees of the Unemployment Agency are paid to enforce the law. They are trained to enforce the law as i t i s written. They are bound by law to follow the provisions of the Act and Regulations as published, and cannot ignore them for any reason. There i s no provision which authorizes that a decision can be based on compassionate grounds (CUB1580) or which allow any Agency employee to disregard p a r t i c u l a r provi-sions which may be considered to be unfair i n certain instances (CUB1383). They have no authority to allow benefits to be paid when i t i s clear that certain conditions are not being met. They must interpret the l e g i s l a t i o n as we show i s always neces-72 sary and apply i t (CUB558). In several decisions, the Umpire has reminded the Boards that i t i s essential that they follow the p r i n c i p l e s established by the Umpire (CUB598 and CUB855) and that they not ignore an established p r i n c i p l e when i t i s applicable (CUB908). 72 The Board cannot interpret the l e g i s l a t i o n f r e e l y but must use the Agency p o l i c y manual and the jurisprudence to do so. - 141 -The claimants, however, are not trained to apply the law their knowledge of which, i s at best, incomplete and i n general inexact. Most often they do not have any notion of the exact requirements of the law. In addition, they are not accustomed i n their d a i l y l i f e to orient to such l e g a l i s t i c categories, nor do they apply l e g a l i s t i c rules to t h e i r behaviour. The amount of d i s c r e t i o n given to the employees of the Agency i s such that i t cannot accommodate p a r t i c u l a r circumstances, or grounds of compassion. For instance, i t i s d i f f i c u l t for a separated man, l i v i n g i n a r u r a l area, with three children, i n a house which he owns, to understand that he i s not available for work because he i s not w i l l i n g either to t r a v e l long distances to work or to move. He feels that the law i s invading his l i f e : 'You say I am not e n t i t l e d to benefits anymore because I have placed r e s t r i c t i o n s on myself for future employment, because of where I l i v e . Well I now l i v e i n , but besides that I would l i k e to know what ri g h t you have to t e l l me where to l i v e . ' (excerpt from l e t t e r of appeal, SUI48) The o f f i c e r who made the decision, however, only applied the law. There i s no work i n the area, he has been out of work for more than a 'reasonable time', as defined by the Umpire, therefore, he i s not available for work and consequently he i s not e l i g i b l e for benefits. In many instances, the r e s t r i c t i o n s imposed by the claim-ant are imposed by himself and he has some control over them. L i f t i n g them would mean working for less money, or i n a d i f f e r e n t - 142 -job which one may not l i k e as much, and although they would have an e f f e c t on his l i f e s t y l e , they would not a l t e r i t fundamentally. In other instances, i n order to c o l l e c t , claim-ants would have to completely change the i r l i f e s t y l e , move out of an area which has been their home for years (SUI48), commute to work for up to four hours a day (SUI51). In a l l these cases the claimant f e l t that the Agency was unduly intruding into their private l i v e s and they f e l t cheated at having to pay their premium while not, i n the end, being e l i g i b l e for bene-f i t s because of the way i n which the Unemployment Insurance interpreted the l e g i s l a t i o n . In t h i s chapter we have examined the contents of the 'case f i l e 1 , t heir influence on the Tribunal Members and the problems of communication between the c l i e n t s and the agencies' employees. These aspects of the events preceding the hearing have an influence on the hearing i t s e l f . In the next chapter we w i l l be examining the s o c i a l organization of the hearing encounter. - 143 -CHAPTER IV THE PROCESSING OF CASES BY UNEMPLOYMENT INSURANCE BOARDS AND BY WELFARE TRIBUNALS I INTRODUCTION: In the previous chapter we have examined the d i s t i n c t i o n between the c l i e n t s ' world and the bureaucratic world. The agencies' employees use l e g a l i s t i c language and categories to interpret the world of the c l i e n t , whose human stories are sum-marized i n a few lines from which a l l l i f e i s squeezed out. We did not observe the interviews during which the c l i e n t provided the information which became the basis of the 'case f i l e ' or of the submission. It was therefore impossible to know how the translation from a c o l o r f u l human story to a dry submission was made. The appeal decision, which i s the purpose of the hearing, i s also a short, dry summary of the evidence presented before the Board or the Tribunal. In this chapter, we w i l l examine how the Board or the Tribunal translates the story of the appellant into a decision. In order to do so excerpts from hearing transcripts w i l l be analyzed and we w i l l focus the analysis on the practices which the Unemployment Insurance Board and the Welfare Tribunal use; to process cases. In addition we w i l l i d e n t i f y some of the features of the structure of s o c i a l organization of case proces-sing. The transcripts are analyzed taking into consideration three features which influence t h e i r structure: the 'case - 144 -f i l e ' or ' o f f i c i a l story', the legal and policy constraints and the task the Tribunal has to perform within these con-s t r a i n t s , i . e . , interpret the stories of the appellant i n order to reach a decision on the i r case. II THE UNEMPLOYMENT INSURANCE BOARD: Before we proceed with the analysis of the transcripts, the course of the hearing w i l l be described b r i e f l y i n order to describe the surroundings where the hearings were held. These surroundings are not f a m i l i a r to the appellant and i f the clerk i s not at his desk when he arrives at the s i t e of the hearing, the appellant may f i n d himself alone, i n a busy o f f i c e where no one pays attention to him. He may have to wait i n this uncom-fortable s i t u a t i o n , for 15 to 20 minutes i f the clerk attends the hearing. When the clerk comes back, he informs the appel-lant of how long he w i l l have to wait and when the Board i s ready to hear his case, the clerk escorts the appellant into the hear-ing room. (1) THE COURSE OF THE HEARING: It became apparent through observation of the hearings that the seven Boards which were studied follow the same general pattern i n the conduct of the appeal hearings. Although the introduction procedures vvary- from one Board to another, (in some instances the clerk introduces the appellant (and his representative when he has one) to the Board and the Board Members) i n a l l cases, the i d e n t i t y and role of - 145 -each of the participants, the appellant, the Chairman, the Labour Representative and the Employer Representative are c l e a r l y established at the onset of the hearing"'". After the introductions, the Chairman inv i t e s the appellant to be seated 2 at the table and proceeds to explain that the Board Members and himself are not employees of the Agency but that they are 3 independent , that they are there i n order to l i s t e n to what the appellant has to say on his own behalf and to make a f a i r decision based on the evidence presented before them. Every Chairman begins the hearing with s i m i l a r statements. The Chair-man then informs the appellant that he and the other Board Members have read the submission^ and are f a m i l i a r with the As was mentioned i n Chapter 2, the researcher was not always introduced. When she was introduced, i t was done at the beginning of the hearing, during the preliminaries. How the presence of the researcher was occasionally interpreted by the appellant was discussed i n Chapter 2, pp. 46-49. 2 Seating arrangements varied and were generally determined by the Chairman who always sat at one end of a long board table. In some instances, the two Board Members were on one side, i n others they were situated on each side of the Chairman. In a l l instances the appellants were asked to be seated on the long side of the table, so that they either faced the two representa-tives, or were seated on the same side as one of them. The appellant was never relegated to the end of the long table, and never actually faced the tribunal d i r e c t l y . These arrangements contributed to the informal character of the hearing encounters as compared with a court hearing. 3 A l l appellants were not convinced that the Board was independent; the fact that the hearings were conducted i n the Agency's o f f i c e somewhat reinforced t h e i r conviction that the Board i n fact - i f not i n theory - was the instrument of the Agency. This was apparent i n some of the st o r i e s . ^One of the Chairmen i n s i s t e d that the submission be read aloud at the hearing before the appellant or before the delibera-tions i n the event of the appellant not attending. He asked the representatives to take turns i n reading i t . He wanted to insure that the appellants knew that the submission had been read. This, - 146 -facts contained i n i t . The following i s a f a i r l y t y p i c a l introduction statement: 'The Board i s independent. We are not employees of the Agency, but we have to go by the Act. We try to be f a i r We have the same document [he waves the submission]. We a l l have read i t . We w i l l chat with you, hear your comments, then we w i l l make a decision and you w i l l get a reply within a day or so.' (Introduction by Chairman, SUI56) Following this introduction, the Chairman generally summarizes the case and points out the issues which are before the Board 5, as they are "..identified i n the submission, i n the form of one or two standard questions. The following examples are the most common questions on which the Board has to decide: 'Has the claimant proven that he i s available for work within the meaning of the Act from ? ' 'Has the claimant proven he was incapable of work by reason of i l l n e s s , . i n j u r y or quarantine from ?' 'Did the appellant make statements or representa-tions i n r e l a t i o n to his claim for benefits that however, resulted i n longer hearings and deliberations and i t was d i f f i c u l t for this Board to be on schedule. One other Chairman had the clerk read the submission while the appellant was present. 5The Board has to decide on the issues i d e n t i f i e d i n the submission, but does not have j u r i s d i c t i o n to deal with any other issues. I f a new issue i s raised, i t must be dealt with, f i r s t by a U.I. o f f i c e r , who w i l l make a decision i n i t s regard. I f the claimant i s not s a t i s f i e d with the o f f i c e r ' s decision on the new issue, he w i l l then be able to appeal i t and only then would the Board be able to consider i t . - 147 -he knew to be fa l s e or misleading?' 'Did the appellant leave his employment volun-t a r i l y , without just cause, within the meaning of the Act?' 'Has the appellant, without just cause, neglected to a v a i l himself of an opportunity of suitable employment? 1 The Chairman generally points to the appellant's atten-tion the fact that these are the only issues before the Board. The routine processing of cases by the Board i s dis-arranged when the appellant i s represented by a lawyer or a union representative. When this i s the case, other events take place before the hearing i s permitted to proceed to the sub-stantive issues. The hearing proceedings are recorded on tape; the Chairman explains why this i s necessary and how each participant i n the hearing encounter i s to i d e n t i f y himself before uttering any statements. He also c l a r i f i e s the respective roles of the appellant and his representative i n terms of presenting the case, consulting with each other, etc.. °The Board Members, and the Chairmen even more frequently, expressed some resentment at the fact that some appellants are represented. Although none would context their right to be represented, most f e l t that 'It i s not the place for a lawyer i t slows the proceedings down [pause] and i t makes no difference to the decision of the Board.' (FUI06) or 'Lawyers are not so he l p f u l as they might be. They are i n c l i n e to get more t i e d up i n leg a l aspects and put l i t t l e more pres-sure on Board Members to accept their point of view. We are there to hear the claimant's true story, not to have i t d i s t o r t ed by someone.' (FUI02) - 148 -I f the appellant i s represented by a lay person, the proceedings are not recorded, but the Chairman also c l a r i f i e s the respective roles of the appellant and his representative: i s he there for moral support? to present the case? i f so, why? does the appellant understand English? does the appellant wish to be heard i n English or i n French^? These preliminaries attempt to bridge some of the gaps which exist because the appellant and the Board do not share a common understanding of what i s going to happen during the hearing. By informing the appellant of the hearing procedures, the preliminaries permit the hearing to proceed to the sub-stantive issues. Whether the submission has been read aft e r the p r e l i m i -naries or just summarized by the Chairman, the appellant i s usually asked to comment on i t or on part of i t , to answer a s p e c i f i c question related to some of the statements written i n the submission, as the following examples show: 'Do you have anything to add?' (SUI6 7) 'This point i s important because appellants have the right to request a hearing i n either of the o f f i c i a l languages and i f the Chairman or any Member i s not fluent i n the chosen language, the case has to be referred to another Board as no translation may be done-] When the interested parties are not s u f f i c i e n t l y f a m i l i a r with either of the two o f f i c i a l languages, i t i s th e i r r e s p o n s i b i l i t y to be accompanied by an interpreter. If an interpreter i s not present, i t i s not necessary to have one, unless one i s readi l y available. In the case that the appellant i s fluent i n either of the o f f i c i a l languages, the v a l i d i t y of the decision may depend on whether he was heard or given the choice to be heard i n the language of his choice. - 149 -'Do you want to add anything or i s anything not r i g h t ? . . . . . f e e l free to add to i t . ' (SUI67) 'You l a s t were employed i n July [this hearing was held i n January]. The o f f i c e r has taken the position that you were not available within the meaning of the Act. You are r e s t r i c t i n g yourself as to occupations and salary.' (SUI37) Although the Chairman has explained to the appellant how they w i l l proceed, the appellant i s s t i l l i n an unfamiliar s i t u a t i o n and the tasks he i s c a l l e d upon to perform are neither 'familiar' nor 'everyday': 'speaking to a submission' i s not g part of one's everyday world . The Chairman usually makes sure that both Board Members have an opportunity to ask a l l the questions they wish to ask and had a l l the information regarding the case which they f e l t was necessary. I t i s only when both Members indicate that they do not have any more questions to ask that the Chairman termi-nates the hearing. He generally thanks the appellant for coming and reminds him that the decision would be i n the mail 'in a day or two'^. Often during the course of the hearing, a Board Member, although r a r e l y the Labour Representative, informed the appel-lant about the Act and some of i t s implications. Most appel-lants were t o l d that 'UIA i s not a pension', 'that one has to This task performed by the appellant w i l l be discussed further i n the next section of this chapter, p. 152. 9 Sometimes, when the hearing had been fr i e n d l y , the Board Members had a casual 'chat' with the appellant, but this was rare. - 150 -work at finding work to be e l i g i b l e ' , and 'that one has to f u l f i l l the requirements of the Act'. They then referred them to the booklet 'on rights and obligations' for further informa-tion on the l e g i s l a t i o n . The clerk has a very minor role during the hearing. He sometimes provides f i l e s or information when requested to do so, but he i s not allowed to p a r t i c i p a t e . Now that the 'stage i s set' we w i l l examine the prac-tices used by the Board Members during hearing encounters, i n order to perform th e i r task. P a r t i c u l a r consideration i s given f i r s t l y to how the Board uses the submission. (2) THE USE OF THE SUBMISSION: In the preceding section, the observable practices of the Board were described. We w i l l now analyze the transcripts of the hearings i n order to i d e n t i f y the practices used by the Board to determine which features of the story they w i l l address and how they w i l l obtain the information necessary to legitimize t h e i r decision. I t was pointed put i n the preceding section, a f t e r the preliminaries, the f i r s t thing the Board does i s to ask the appellant, to comment on the submission or answer a s p e c i f i c question re l a t e d to the submission. What the appellant t e l l s them i s referr e d to by the Board Members - although rarely - 151 -during the hearing - as 'his s t o r y ' ^ . However, as we w i l l see i n the following examples the 'story' which i s produced during the hearing i s not produced s o l e l y by the appellant but i n fact i s a j o i n t production. The appellant i s i n a s i t u a t i o n where the power i s inequally d i s t r i b u t e d . The Board not only has more knowledge at hand to manage the s i t u a t i o n but i t also has the r i g h t to ask questions - and i n fact does so at the onset of the hearing; consequently, the appellant cannot express him-s e l f f r e e l y . His task i s to t e l l a story which w i l l get him his benefits back, however, he i s not free to t e l l 'his' story, he has to respond to the s p e c i f i c queries of the Board Members, and consequently has to shape what he wants to say i n a way which f i t s within the context of his answers to the s p e c i f i c questions of the Board. This may mean that he has to reduce what he o r i g i n a l l y may have wanted to say; that he may have to leave out what he thought were the most important parts; that he must emphasize aspects and events he would have chosen to downplay or omit; or that he forgets i n the course of answering the Board's questions, d e t a i l s that he would have 'naturally' mentioned i f l e f t to speak fr e e l y . Even i f the appellant gets a chance or requests l a t e r i n the hearing an opportunity to present his own submission, he has then to take into "^The word 'story' i s not used derogatively by most Board Members but rather as an i n d i c a t i o n that everyone has his own version of the facts. They f e e l that the s i t u a t i o n i n which the appellants f i n d themselves - appealing a decision f o r benefit -has an influence on how the claimant describes what happened. For a discussion of the meaning of the word 'story' i n the l e g a l community see P.H. Groves unpublished PhD thesis: Lawyer C l i e n t  Interviews and the Social Organization of Preparation f o r Court i n Criminal and Divorce Cases, UBC, 1973. - 152 -consideration his answers to the questions which were e a r l i e r asked of him. Further, any statements made by the appellant are related or w i l l be related by the Board Members to the submis-sion because i t i s an appeal hearing and a decision has already been made on the basis of the materials contained i n the submis-sion. This decision w i l l stand unless the appellant can prove that the materials i n the submission were either misinterpreted or f a l s e . The 'story' which i s produced during the hearing may not do what the appellant intended i t to do for several reasons: f i r s t , the appellant does not have complete control over the production of the story; as mentioned above he has to answer questions and rel a t e his answers to the submission; second, because speaking to a submission i s not an a c t i v i t y which i s part of the everyday world of the appellant. 'Speaking to a submission' i n a legal framework implies choosing features of the submission which are to be addressed rather than others, because they are relevant to the issue being considered, and presenting these features i n such a way that their presentation 'works' i n one's favour. The concepts of 'evidence' and of 'proof as used i n the leg a l world are diff e r e n t from those used i n the everyday world. The appellant i s not accustomed to i s o l a t i n g events, or to re-ordering them in such a way that they become 'proof that other events either have or have not occurred. Further, the appellant has to comply with the format offered to him by the hearing s i t u a t i o n : he has to frame his presentation so that i t conforms to leg a l and procedural requirements - 153 11 Appellants who did not prepare a response to the Unemployment Insurance submission may welcome questions from the Board and the constraint of the submission as 'something to hang on to', but the appellants who are prepared f e e l that 'they don't even give you a chance 1. This confrontation with the submission i s a practice which l i m i t s the appellant during the hearing even i f he has understood why his claim i s being denied, since i t shapes his story and i t locates him i n an unfamiliar s i t u a t i o n ^ . It i s probably safe to assume that before the hearing most appellants think over what they are going to say about the events which lead to th e i r d i s q u a l i f i c a t i o n for benefits. The appellant receives a copy of the submission i n advance of the appeal and consequently knows the U.I. Agency's case, and may prepare himself to respond to the arguments of the o f f i c e r who made the decision, that i s , i f he understands the decision of the o f f i c e r , which i s not always the case as we have seen i n the previous chapter. Further, as speaking to a submission i s an unfamiliar a c t i v i t y for the appellant he may be address-ing the wrong features. Even i f the appellant has a rebuttal ready, unless he i s fam i l i a r with the Board's procedures he may be thrown 'off guard' by the dir e c t approach of the Board. I f he has some knowledge of court procedures or of other administrative hear-ing procedures, he may have expectations as to how the Board w i l l proceed. Depending on his repertory of previous exper-iences, the Board's procedures may or may not be a surprise for him. If i t i s a surprise he i s l i k e l y to f e e l disoriented and perplexed. 12 If the appellant did not understand the o f f i c e r ' s reasons as to why he was d i s e n t i t l e d , the submission i s l i k e l y to be of l i t t l e help to him. For instance, i f he stated then that he would expand his job search, he may not comprehend why the claim i s s t i l l denied. Such an appellant arrives before the Board to speak to his own appeal and does not know what he i s supposed to do i n order to become available for work 'within the meaning of the Act'. The a v a i l a b i l i t y of transportation, for instance, i s d i f f i c u l t for the appellant to understand as the following example shows: - 154 -The submission has another influence on the hearing encounter. From reading the submission the Board Members develop an idea of the appellant or of the 'kind of case i t i s ' . Some of the remarks the Members make before the hearing c l e a r l y indicated that they had thought about the case and arrived at an idea about both the kind of person the appellant i s and the 13 kind of case i t i s . Consequently, the appellant not only i s confronted with the submission but with the way i n which the submission has prejudiced or influenced the Board. The idea, which the Board Members have developed about the case and the appellant influence the kind of questions they w i l l ask during the hearing as we s h a l l see i n the following example: The Case of Mrs. A (SUI55): Mrs. A had two part-time jobs, one permanent part-time and a temporary part-time job which she l e f t . She then l e f t 'No one i s required to own a car, but one must make adequate transportation arrangements i n order to be able to immediately accept work.' (excerpt from decision, SUI04) Although there i s an i n d i c a t i o n of what the transportation requirements are to be defined as 'available for work' the appellant does not have the knowledge at hand to int e r p r e t the lack of transportation into n o n - a v a i l a b i l i t y and i s not given this knowledge i n the o f f i c e r ' s l e t t e r . 13 The Boards sometimes discuss the case before the hear-ing ( p a r t i c u l a r l y i f i t i s running ahead of time or i f the appellant i s late , generally not as a matter of policy) and make statements such as: 'Exhibit #7 i s more than meets the eye [ i t states appellant was not c a l l e d back to work as she was not considered suitable for the job] not much easier job than wash dishes she must be pretty bad.' (SUI11) - 155 -the other job because she could not l i v e on the money which she made on i t . She held these part-time jobs i n P r a i r i e C i t y (Saskatchewan). She. i s now on the West Coast. She has been d i s q u a l i f i e d from benefits for s i x weeks because she was considered to have l e f t her employment 'without just cause'. She appealed the decision of the o f f i c e r ; the l e t t e r of appeal i s included i n the submission. She has not worked since August, i t i s now February. The claim was o r i g i n a l l y f i l e d i n mid-October . Mrs. A enters the hearing with a grim face. She i s 50 years old and looks her age. The Employer's Representative asks her whether she wants to take her coat off, but she does not wish to do so. The clerk introduces Mrs. A to the Board and the Chairman introduces himself (by name and t i t l e ) and the other Board Members. He then explains that 'the Board i s independent from the U.I. Agency 1 and that 'they have received the same documents as she has h e r s e l f . He indicates that they a l l have reviewed these, he proceeds with a summary. This i s the submission which the Board and Mrs. A have received; Exhibit #1 contains deta i l s regarding her previous employment. EXHIBIT #2 - Supplementary Record of Claim dated Jan. I l l Claimant states: Employment with _____ Cleaning Div. was permanent part-time. Employment with Motel was temporary only and would have terminated i n September 19 76 for seasonal slowdown. Since would not be able to l i v e on part-time work - 156 -with , decided to quit both jobs and attempt to f i n d f u l l - t i m e employment. EXHIBIT #3 - Supplementary Record of Claim dated Jan. I l l . Claimant states: Was working for 2 part-time employers ( Cleaning Div. and ^ _ Motel) . Quit both employers because wasn't making enough money to l i v e on. States doesn't have permanent address - staying at various hotels i n West End. EXHIBIT #4 - Notice of D i s q u a l i f i c a t i o n dated Jan. I l l . On the information which has been presented i n connection with your claim for benefit, you are d i s q u a l i f i e d under Sections 41(1) and 43(1) of the Unemployment Insurance Act. These Sections of the Act provide that an insured person may be d i s q u a l i f i e d from receiving bene-f i t i f he l o s t his employment by reason of his own misconduct or v o l u n t a r i l y l e f t his employ-ment without just cause. In reference to your employment with Motel, i t i s considered that you have l e f t your employment without just cause. Benefit i s therefore suspended for the f i r s t 6 weeks for which benefit would otherwise be payable and benefit w i l l be deemed to have been paid for such weeks. This has the e f f e c t of reducing your potential benefit entitlement by six weeks.' EXHIBIT #5 - Claimant's l e t t e r of Appeal dated Jan. and rec'd Jan. I l l . Re: Notice of D i s q u a l i f i c a t i o n re Motel. I wish to appeal with reference to the above d i s q u a l i f i c a t i o n . This was temporary, seasonal employment every Saturday and Sunday only and this motel employs several g i r l s on a part and f u l l - t i m e basis for - 157 -the busy summer t o u r i s t season, but once Labour Day weekend i s over the s t a f f i s cut down to one long-term employee with another Sr. employee on part-time--the newly hired summer s t a f f are released i n preference to older s t a f f . Therefore, when I informed this Motel that I had to go back home [Ontario] because there was a death i n my family, I knew there was no point i n returning to this job for a matter of a further two or three Saturdays and Sundays' work which would involve, also, the payment of my return r a i l fare. It seemed much more sensible, under the circumstances, to try to obtain work i n Ontario City. The above-mentioned motel has units only, which are used c h i e f l y by summer tour i s t s and are not geared for weddings, dances, cocktails nor large conventions and th e i r small coffee shop i s almost always closed, so a f t e r the summer i s over, busi-ness f a l l s very sharply. I f you wish to confirm that there was a death i n my family and also that I worked feverishly for weeks, every single day, on trying to f i n d a job, i n Ontario City, before making application i n Small Town, you may contact a Mr. at Canada Manpower, Ontario City. In other words, I t r i e d to get a job and not make application at U.I.A. with the hope I could get that job. Doing without these funds when I deserved to have them and e n t i t l e d to them caused me a great hardship i n Ontario City and since I have already thus suffered, which was your gain. I hope you w i l l see that I have been more than f a i r and honest about this and grant this 6 weeks which I sincerely deserve. P.S. Any v e r i f i c a t i o n to the above motel would be hard come by unless you could contact the former manageress, who hired me. Her f i r s t name i s M . She i s the one who hired me and to whom I spoke of the death i n my family. Sorry I don't know her l a s t name. In regards to the Bookkeeper and Pay r o l l , they have no idea what i s taking place with regards to det a i l s on employees, such as above, and can only guess, since their o f f i c e i s about eight miles away from the motel. They never see the employees. - 158 -Insurance Officer's Comments: The records of employment, on f i l e , indicate as the reason for separation, quit, i n both instances. Upon review of the claimant's reason for separa-tion the Insurance o f f i c e r considered that the claimant had l e f t her employment v o l u n t a r i l y as i t paid i n s u f f i c i e n t wages for her needs. In CUB768 the Umpire rules that i t i s better for an insured person to work on a short time basis than to leave his employment altogether when he has no assurance of another job. On review of the claimant's l e t t e r of appeal i t i s the opinion of the Insurance o f f i c e r that there are no new facts to j u s t i f y changing the o r i g i n a l decision. At the beginning of the hearing, the Chairman reminds Mrs. A of the submission which includes her f i r s t reason (which i s also the only reason the o f f i c e r has i d e n t i f i e d ) , for leav-ing her employment: 'since Mrs. A would not be able to l i v e on part-time work with " Cleaning Div., decided to quit both jobs and attempt to f i n d f u l l - t i m e employment.' She has been advised by the notice of d i s q u a l i f i c a t i o n and by the o f f i c e r ' s comments i n the submission (see CUB768 below) that this reason i s not considered to be 'just cause' for leaving one's employment. It should be noted that i n her l e t t e r of appeal she answers d i r e c t l y the notice of disentitlement and explains why she quit one of the jobs she had but does not provide any information as to why she quit the other job. Nowhere i n the submission, i s there an explanation as to - 159 -why, i f her home - as she states - i s i n Ontario, she was l i v i n g and working i n Saskatchewan; there i s no mention either of why she i s now on the West Coast. The Agency's case, based on the submission i s interpreted as 'clear': this person had at least one part-time job which she could have returned to af t e r the death i n her family. She did not do so because i t would not have paid enough to support her and because she would have had to pay her fare back to P r a i r i e City. Both these reasons are personal reasons, and are c l e a r l y i n contradiction with CUB768 where the Umpire rules: 'that i t i s better for an insured person to work on a short time basis than to leave his employ-ment altogether when he has no assurance of another job.' The l e t t e r of appeal also raises many questions which remain unanswered. After summarizing the submission, which made i t clear that i t was the 'starting point' for the Board, the Chairman asked Mrs. A to comment on i t . From the s t a r t she i s nervous and self-righteous: Mrs. A: the job at the motel would terminate in a couple of weeks. I was working only Saturdays and Sundays no busi-ness, no b i g setup. [Chairman i n t e r -rupts ] Ch: But i t was a part-time job! Mrs. A: They lay o f f the summer s t a f f a f t e r Labour Day. The other part-time job was a j a n i t o r i a l job. Ch: How much did i t pay? - 160 -Mrs. A: $55 a week af t e r deductions but there was a death i n the family. There was no point i n coming back for a l i t t l e dribble of money with the fare i t was not worth i t i n there the emphasis i s on the fact that I l e f t the job, not on the death i n the family. I t r i e d hard to f i n d a job i t did not materialize i n Big City [the appellant then seems confused] I asked for my book she said I don't have to resign unless you want to I l e f t i t open. These were the comments Mrs. A made while speaking to the submission. F i r s t , she t r i e d to show how l i t t l e she a ctually gave up: 'I was working only Saturdays and Sundays' and this was only for two weeks, i . e . , only four days' work. She then b e l i t t l e s the job as a whole: 'no business, no big setup'. The Chairman's intervention reinstates this small, 'no big setup', hardly worth mentioning job, to being what i t was -'a job' rather than 'no job', i . e . , unemployment. The Chairman does not want to go along with her to agree that some jobs are not as good as 'no job'. This notion of employment being only a 'state', the contrary of unemployment, i s very d i f f e r e n t from most in d i v i d u a l s ' notion of what work i s about. I t implies that work i s undifferentiated, that a l l jobs are 'just jobs'. It i s at variance with the common notion of work as a career, or as a vocation, which implies continuity i n a type of occupation as well as a preference for a certain type of occupation"^. 14 The notion of work as a career or a vocation does not exclude the notion of work as a way to get an income, but i t - 161 -As a response to the Chairman's remark, Mrs. A answers that the summer s t a f f i s l a i d o f f after Labour Day. This indicates again that she would not have had a job a f t e r Labour Day i n any case and reconfirms what she had written regarding the Motel i n her l e t t e r of appeal, which i s contained i n the submission. She goes on to describe her second part-time job b r i e f l y . The Chairman again intervenes and asks 'how much did i t pay?'. This brings the appellant back to the reasons for he q u i t t i n g as stated i n the submission - ' i t (her employment) pai i n s u f f i c i e n t wages for her needs'. Mrs. A answers the Chair-man's query but immediately steers away from the denunciative statement and emphasizes the reason for absenting herself from P r a i r i e City - 'there was a death i n the family'. Her statement i s aimed at emphasizing the death i n the family, the cost of t r a v e l l i n g back to P r a i r i e City and b e l i t t l ing the job and the amount of money which i t yielded to her. She t r i e s to assign a d i f f e r e n t weight to the two arguments: the o f f i c e r i n the submission stated that she quit because the job did not pay enough. She i s arguing that she did not come back because she could not a f f o r d i t . She then informs the Board that 'she has been trying to i s less l i m i t e d . This notion i s becoming more and more s o c i a l l y accepted i n most Western societies where the number of individuals who work at 'any job' just i n order to get an income i s diminishing. In modern society, work includes, thanks to the union movement, fringe benefits, decent work-ing conditions i f not a vocation. - 162 -f i n d a job'. This, she knows i s a necessary condition of e l i g i b i l i t y . She wants to show the Board that she has behaved well. She then mentions Big City, where she i s now but immediately acts as i f she had not mentioned i t . In her l a s t utterance, she 'comes back to the job', and t r i e s to explain that she had not resigned at the time of her departure for Ontario but had l e f t the option of her coming back, open. In other words, she t r i e s to convince the Board that she did not 're a l l y ' quit. After these statements, the hearing consists of a dialogue between the Chairman, the Employers' Representative and the appellant"*""* . They ask her questions which aim at c l a r i f y i n g the submission and at f i l l i n g the gaps. The f i r s t question i s 'why i s the appellant i n Big City now?'. According to the submission she worked i n Saskatchewan, c a l l e d Ontario home, but she has never made any statement as to why she i s 16 now on the West Coast . The Employers' Representative's question follows from Mrs. A's mentioning 'looking for a job' and 'Big City' i n succession: ER: You looked for a job i n Big City? The Labour Representative asks only one question and makes one comment during the whole encounter. 1 6 When a claimant moves, i t i s customary to have a state-ment of the reasons for moving. The lack of a statement i n i t s e l f probably provoked the c u r i o s i t y of the Board. - 163 -Mrs. A: Yes, I want to work. UIA i s not enough I could not f i n d work i n Ontario a f t e r the death i n the family. When I came back, they did not have an opening. Ch: When did you come back? Mrs. A: November, /76. ER: What type of job? Mrs. A: Social work with the elderly. LR: Where? Mrs. A: Also homemaker, i n North Suburb. ER: How come do you travel so much? Mrs. A: [she looks annoyed at the question] I winter i n B.C [Silence - the Board Members look expectant, they seem to be waiting for an explanation] I had two cars. One old car you know how hard they are i n Ontario for old cars.. I could not s e l l i t I knew more people i n P r a i r i e City so, I c a l l e d people i n Saskatchewan. ER: Who died i n the family? Mrs. A: My grandfather. LR: This i s not relevant ER: Wait a minute, l e t Mrs. A answer so, you went to Ontario City. Mrs. A: Yes. ER: Why did you come here? Mrs. A: It's very grim there l o t s of unemploy-ment . ER: The P r a i r i e s are the best place [agreeing] Thank you. I was just wonder-ing about your movement. Mrs. A: It i s a free country [resentful] Ch: [addressing himself to LR] any questions Mr. ? - 164 -LR: No. Ch: We w i l l meet now. You w i l l have our decision i n a few days. Do you want to add anything else? Mrs. A: The emphasis should be on the death, not on q u i t t i n g the job I looked for work I hate the hassle the pay deduc-tions can't l i v e on $55 a week some people would rather commit suicide. Ch: This i s a l i t t l e extreme. We w i l l take into account the reasons why you quit your job, and everything you said and we w i l l make a decision. This i s why these Boards have been set up so that you could come and t e l l your side you have done that. You w i l l hear from us i n a few days. Mrs. A: I f e e l I have been very l o y a l to UIA. Ch: Most people are l i k e that. Thank you. Mrs. A: Thank you. [Mrs. A exits s t i l l very stem] In her answer to the Employers' Representative's question, Mrs. A s t i l l t r i e s to convey her intent to work, but her state-ment does more than just state her intent. It i s t e l l i n g the Board that she has looked for work i n Ontario as well - as proof of her intent - and that she expected to have a job i n B r i t i s h Columbia: 'when I came back they did not have an open-ing' implies that she came back to a s p e c i f i c job although who 'they' are would generally have been included i n the submission. The next few questions from the Board are questions of fact. They are trying to f i l l the gaps i n the submission, but the Employers' Representative's question: 'how come do you travel so much?' i s perceived as personal rather than a request for factual information. - 165 -These questions of fact were not needed by the Board to make i t s decision, as they are not d i r e c t l y relevant to the question which the Board has to answer: 'Did the claimant leave her employment v o l u n t a r i l y without just cause within the meaning of the Act?' The questions asked by the Employer's Representative seem to indicate that he i s 'puzzled' by the appellant and he t r i e s to 'size her up', to decide what kind of person she i s . What kind of person, l i v i n g on Unemployment Insurance would 'winter i n B.C.'? What kind of person i s a 50 year o l d widow who does not have a fixed address and l i v e s i n hotels? In order to make his decision, he needs to have an opinion on the kind of person the appellant i s . The Labour Representative t r i e s to prevent more probing by stating that the questions are ir r e l e v a n t , but the Employers' Representative ignores him. Mrs. A, although she looks annoyed at being asked, answers a l l the questions, but gives only b r i e f statement of fact. Prob-ably she fears that i f she refused to answer she w i l l make the Board Members suspicious 1' 7. As her statements show she wants to present a p o s i t i v e image of herself and cannot do so by refusing to answer. When the Employers' Representative has a l l the informa-tion he feels he needs to f i l l the gaps i n the submission or As was noted above the Board i s i n a position of power. The onus i s on the appellant to prove his story or disprove the submission. I f he does not succeed the previous decision stands and they lose their appeal. - 166 -18 at least a l l that he feels he can ask , he thanks Mrs. A for answering, as i f acknowledging that he was 'off-bounds' when asking those questions. This makes Mrs. A defensive, and her next statement implies that there i s no reason to question or to suspect her behaviour. The Chairman then asks whether there i s a need for more questions, and he prepares to close the hearing according to routine procedures, since neither Board Member showed a desire to ask any further questions. For the Board the hearing i s completed. Mrs. A has t r i e d since the beginning of the hearing to present a p o s i t i v e image of he r s e l f as a person who r e a l l y wants to work but has been striken by i l l - f a t e , a person whose motives for leaving her job have been misjudged. She feels the need to show this image again a f t e r the long and i r r e l e v a n t interrogation where facts have been brought fort h which do not f i t with the image she has been trying to establish. Unemployed women who are looking hard for work do not 'winter' i n B r i t i s h Columbia. She also t r i e s to express how miserable she i s , by stating that 'some people would commit suicide', and t r i e s to touch the emotional chords of the Board Members. The Chairman closes the hearing, but this time does not do so routinely. He refuses the emotional involvement and brings the hearing back 18 The Employers' Representative said during the delibera-tion that he did not dare ask her how old her grandfather was, and why she did not have a fixed address. The constraints imposed by the hearing s i t u a t i o n prevented him from asking any more i r r e l e v a n t questions. - 167 -to a r a t i o n a l , matter of fact plan, and t e l l s Mrs. A that the Board w i l l do i t s job properly, implying that whatever the decision, i t w i l l be ju s t . Mrs. A then goes back to a more r a t i o n a l , non-emotional stance: her l a s t statement i s to confirm what she stated i n her l e t t e r of appeal. She has looked for a job before applying for Unemployment Insurance, she has been l o y a l , and she did not try to cheat. By saying 'most people are l i k e that', the Chair-man implies that Mrs. A i s not di f f e r e n t , that she i s just another claimant. He does not expect her to challenge such a statement. By making a statement which he does not expect to be challenged the Chairman e f f e c t i v e l y dismisses Mrs. A. Saying 'thank you' makes i t evident that the hearing i s over. It has lasted 25 minutes, and the Board i s very conscious of the fact that they only have 30 minutes per case. Consequently i t i s becoming imperative that the hearing be terminated. It i s apparent from the above analysis that the appellant did not have control over her story. Several issues were brought up by the Board Members which she did not wish to discuss, i . e . , her t r a v e l . She t r i e s to emphasize some other aspects of the story, i . e . , the death i n the family and the fact that she has been looking for work but i s not very success-f u l . This tra n s c r i p t also shows how d i f f i c u l t i t i s for Mrs. A to speak to the submission. She offers r a t i o n a l i z a t i o n s about q u i t t i n g her job rather than reasons. She does not understand - 168 -that 'a job' i s the contrary of 'unemployment', but she s t i l l t r i e s to show that her job was not a good job. She i s unable at f i r s t to address the issue of the need for 'just cause within the meaning of the Act' to quit her employment. This analysis also showed how the Board Members use the submission to generate the appellant's story. Not only did the Board Members ask the appellant to comment on the submission but they asked numerous questions related to the information contained i n and missing from the submission. I t was confusing and incomplete and did not provide the Board with enough informa-tion i n order to a t t a i n a clear idea of the case; the Board proceeded i n asking questions so that the gaps i n the story would be f i l l e d . The Board Members, i t seemed, have to sort out the story i n common sense terms before they can use l e g a l categories. Once the story, j o i n t l y produced, made sense to the Board Members, they f e l t they had enough information to make the i r decision. The deliberations which followed the hear-ing were b r i e f : a l l Members agreed that Mrs. A was a strange person, that she did not f i t the category of a f i f t y year old widow who i s out of work. The Board Members did not say that they disbelieved any of the statements made by Mrs. A, but they did say that she was not the type of a person who-would-leave-a-job-only-if-she-had-to. It i s on this basis, a f t e r deciding what kind of a person she was, that they decided to apply the legal categories to their assessment of the appellant, i . e . , that she had l e f t her employment v o l u n t a r i l y without just cause. The task of the Board however, does not end when they - 169 -have made the decision. In order to do so they have to translate the story produced during the hearing into reasons for the decision. The Board, therefore, f i r s t assesses the story produced during the hearing, story which we saw, i s a j o i n t production of the appellant and of the Board Members who use the submission as a base, then applies l e g a l categories to their assessment and f i n a l l y translate the story into reasons for their decision. We are now turning our attention to the practices used by the Board Members to gather the information necessary to answer the question which summarizes the issue being appealed, i . e . , make a decision, and how they translate the stories produced during the hearing into reasons for the decision. (3) PRACTICES USED BY THE BOARD TO PROCESS CASES: Once confronted with the submission, the appellant can t e l l h is side of the story or at least part of i t . He generally does some explaining and he produces either by himself or with the help of the prompting of the Board Members, another version of the submission, or of part of i t which involved some r e i n t e r -pretation, explanation, 'translating' and sometimes a set of new facts which were not included i n the submission. Thus the Board Members always ask questions and as we saw above a j o i n t story i s produced during the hearing. In some instances, the production of this story i s problematic because the appellant's side-of-the-story i s i n c o n f l i c t with - 170 -the submission. The Board Members are sometimes provided with 'proof by the appellant, as i n these cases where the appel-19 lants actually manage to f i n d work within their r e s t r i c t i o n s ; i n other cases, a substantial job search w i l l prove to the Board that the appellant i s a c t u a l l y looking for work. Most of the time, however, the Board does not have such concrete help i n deciding who and what to believe. In everyday l i f e we can often substantiate our stories when challenged simply by saying i n an offended tone: 'Do you (think) believe I am l y i n g ' or 'Just ask Ann 1. The appellant who i s not l e g a l l y represented may often take recourse i n such 'everyday l i f e ' devices, and when the Board has no documented evidence to r e f e r to, they sometimes l e t themselves be i n f l u -enced by them. In other cases they w i l l react to these devices, resent them and may perceive their use as a means to influence them, as a 'proof that the appellant cannot document what he i s saying. As a consequence, they may give even less credence 20 to the appellant's story Once a condition for employment imposed by a claimant i s defined as a r e s t r i c t i o n i t becomes d i f f i c u l t for the claimant to prove that i t i s not one. One of the ways he can do this i s by finding work as i n SUI39 and SUI21. Another way i s to 'prove' as i n the case of Mr. 0 that the o f f i c e r has made a mistake -that he had misjudged the s i t u a t i o n - but this i s very rare. F a i l i n g to do either of the above, the claimant becomes available only i f he can prove that he intends to remove the r e s t r i c t i o n which he has imposed on himself. 20 This happened i n the case of Mrs. A, when she looked offended by the Board's questions regarding her travel., During the deliberations they commented on the fact that she looked offended which prevented them from questioning her any longer. This was the i n d i c a t i o n for the Employers' Representative. How-ever, they f e l t she reacted this way, not because the questions - 171 -In some instances, the Board has to assess the c r e d i -b i l i t y of the appellant's story i n regards to some s p e c i f i c facts or occurrences; i n other cases, they have to assess the intentions of the appellant before they can make the i r decision. We w i l l now examine the practices the Board uses i n order to proceed with these assessments. (a) Assessment of Spe c i f i c Events and Occurrences: In the following case, the appellant, a 30 year o l d single woman has quit her job, because, she alleged, her employer discriminated against women. Several exhibits recount her side of the story and also that of her employer: - The Case of Miss D (SUI76): This case had been heard previously but further evidence, i n the form of a l e t t e r from the claimant's employer and one from her immediate supervisor were delivered to the Board, a f t e r the previous hearing since they had been delayed i n the mail. The claimant therefore had no opportunity to see this additional evidence, and the Board adjourned the case, so that she could be given this opportunity were offensive but because she did not want to discuss this sub j ect. 21 The decision following the previous hearing i s not known. The case was heard, at the time of observation, by a dif f e r e n t Board. The Board Members were not cogniscent of the previous decision. They only had the notice of adjournment attached to the submission; the Labour Representative who was on the pre-vious Board said that he remembered the appellant but did not remember the s p e c i f i c decision of the.Board. - 172 -The submission read as follows: EXHIBIT #2^ - Letter from claimant regarding separation dated . The reason that I quit my job as cook at Lodge was because of sex discrimination. I worked with two other cooks and a chef. The task assignments were not based upon a b i l i t y or s e n i o r i t y and as time went on over a period of s i x months, I became the senior cook below the chef. However, he chose to give the major tasks--for example, preparing the main dishes and butchering the chickens, to the male cook beneath me, who he took under his wing, leaving me with such tasks as sandwich and salad making which I had been doing since the f i r s t day of my employment there. (This i s not to mention the other woman cook who did most of the clean-ing) . In addition, the chef did not once v a l i -date my jobs well-done, yet unless I related to him on such a level--such as to compliment his soup or meat dish, he was t o t a l l y obnoxious from the minute he arrived at work, f e e l i n g comfortable venting his resentments and grumpi-ness at the women s t a f f , often making very sarcastic and sexist jokes of belittlement. I was able to reasonably tolerate his behaviour u n t i l one day he came up behind me, and without warning burned my forearm with a huge soup pot he was carrying, for which he blamed me for 'not getting out of the bloody way'. I do not think that I should be penalized for q u i t t i n g this job. Insurance Officer's Comments: Where a claimant alleges unsatisfactory working conditions just cause i s generally considered not to exist unless the claimant has shown that they were so unsatisfactory that he/she had no alternative but to resign. In the present case, the Insurance o f f i c e r did not consider that the claimant took the action which o r d i n a r i l y would have been taken by a The Exhibit #1 contained the usual data regarding previo employment. See Appendix C. - 173 -prudent person to r e c t i f y her grievance. Further-more, there was no evidence that the claimant made any e f f o r t s to f i n d employment pr i o r to leaving her job. In CUB3609, the Umpire considered voluntary leav-ing where differences existed between an employee and supervisor. In CUB3715, the Umpire considers voluntary leaving where sex discrimination i s alleged. EXHIBIT #3 - Notice of D i s q u a l i f i c a t i o n dated December On the information which has been presented i n connection with your claim for benefit, you are d i s q u a l i f i e d under Sections 41(1) and 43(1) of the Unemployment Insurance Act. These sections of the Act provide that an insured person may be d i s q u a l i -f i e d from receiving benefit i f he l o s t his employ-ment by reason of his own misconduct or v o l u n t a r i l y l e f t his employment without just cause. Benefit i s therefore suspended for the f i r s t 6 weeks for which benefit would otherwise be payable and benefit w i l l be deemed to have been paid for such weeks. This has the e f f e c t of reducing your potential benefit entitlement by s i x weeks. EXHIBIT #4 - Letter of Appeal dated January I wish to c l a r i f y that the information I included i n l e t t e r form, along with my application for Ul benefits, was i n fact intended to be received as an appeal, and not merely information about why I l e f t Lodge. This l e t t e r (one of these sheets) was dated approximately December . I received my notice of d i s q u a l i f i c a t i o n dated December , and I would l i k e my appeal to be i n English. (The agent i s Agent II) . Insurance Officer's Comments: As the claimant wished her l e t t e r of Exhibit #2 to be considered as one of appeal, there were no new - 174 -facts to be reviewed. The appeal i s presented for the Board's consideration. This was the o r i g i n a l submission. Following are the l e t t e r s and notes received af t e r the f i r s t hearing, which are responses to the allegations made by Miss D as appears i n her l e t t e r of appeal contained i n the submission quoted above. Attention: Board of Referees Dear S i r , Thank you for the n o t i f i c a t i o n of hearing regard-ing Miss D. My Chief Manager, Mr. ' has written to you, as he was her supervisor during her employment at this f a c i l i t y . She commenced employment on the of June , and received $3.25 an hour. From August , she received $3.85 an hour. On the of December she v o l u n t a r i l y resiged giving Her reason that she was returning to school. I'm sorry that neither Mr. or myself w i l l be able to attend the session on the of January , but please f e e l free to contact me should I be able to help you i n any way. Yours tru l y , Administrator. Attention: Board of Referees Dear Si r s , RE: January Session In reply to your n o t i f i c a t i o n of hearing of the of January regarding the above claimant, I o f f e r comments as follow on the allegations contained i n Miss D's l e t t e r of appeal. Sex Discrimination: This i s completely unfounded. Since being employed at Lodge I have hired - 175 -three women and two men, which hardly supports, a sexist argument. I should l i k e to add that I encouraged my wife to return to College and that she i s now enjoying her own career with my enthusiastic support--I admire i n t e l l i g e n t women. A b i l i t y and Seniority: As for seniority, this i s true regarding her length of service. As you can appreciate, however, length of service does not always r e f l e c t degree of a b i l i t y . She com-pl e t e l y lacked former tr a i n i n g so her s k i l l s were i n f e r i o r to those of the other cook. I r e a l i z e d her lack of experience when I employed her. How-ever, she did not appreciate that this takes more than s i x months and also requires a r e c e p t i v i t y to i n d i v i d u a l s . She resented guidance not only from myself but from the other cooks, seeming to consider i t interference. R e s p o n s i b i l i t i e s : As for r e s p o n s i b i l i t y , she was completely i n charge (during my absence) of the main meal every Saturday and therefore had to prepare and cook a l l the items for that meal. On my return on Mondays, however, I was .often informed by my s t a f f of a variety of inexcusable errors i n her cooking performance. Upon the acq u i s i t i o n of a Union l a s t October, I was advised by my supervisor to keep notes on in d i v i d u a l employee performance, both good points and bad, and I have included a copy of my notes on Miss D for your perusal. Alleged Assault: Miss D was asked to move out of the way as I approached her with a f i v e g a l -lon pot of soup. I proceeded to pour the soup out of the pot and while doing so, touched her arm with i t . I f e e l no r e s p o n s i b i l i t y for this as I had given f a i r warning. I have witnesses to the incident who confirm t h i s . General Comments: I gave Miss D every oppor-tunity and more leeway than any other employee as I appreciated her lack of experience. Unfor-tunately, this leniency proved to be a mistake and I admit that, had she not resigned, I would have dispensed with her services unless some change i n her attitude and performance had occurred. It i s my b e l i e f that she anticipated her dismissal; the fact remains that she volun-t a r i l y l e f t her employment and was not dismissed. Frankly, this l e t t e r i s a greater courtesy than Miss D's l e t t e r deserves. Yours very t r u l y , - 176 -Chief Manager. Notes: Miss D October Phoned i n Saturday morning to say she would not be i n that day or following day. Claimed she had f l u . (Do not believe) Came on Mon-day morning for regular breakfast s h i f t . Did not phone to l e t me know she was coming back (had brought i n K--to replace her). Warned her to l e t me know i n future. Tuesday, October Made baked egg custard. Everyone complained s h a l l t e l l her to follow menu. Sunday, October Miss D made r i c e pudding. It was uncooked! For second time I told her on following day. No response. October Miss D was putting holes i n 160 baked potatoes with a fork. I asked her why (no sa t i s f a c t o r y answer). Explained that i t was unnecessary. She resented my intervening (as usual). W i l l not take advice off myself or L . There-fore I have to supervise her constantly! In this case the appellant i s confronted with concrete facts, incidents that both parties, the employer and the employee, admit have taken place, although they give d i f f e r e n t interpretations to them. In Exhibit #2, the appellant des-cribes her job as she saw i t : two women i n the s t a f f doing a l l the menial jobs, while the chef took the other male 'under his wing 1 and gave him more in t e r e s t i n g jobs to do although the male cook had less seniority. In this l e t t e r , a few alleged facts - 177 -are mentioned as well as some ind i c a t i o n of the bad feelings between the appellant and her supervisor. The supplementary evidence i s a response to the l e t t e r of Exhibit #2. The administrator confirms the facts regarding the appellant's employment and introduces a new reason for quit-ting: the appellant was returning to school. The chef's l e t t e r i s a d i r e c t answer to the appellant's l e t t e r , treating each incident mentioned i n i t separately and commenting on i t . The notes, which he encloses i n the l e t t e r , serve as a background to his comments. He wishes to l e g i t i m i z e his comments by show-ing that he has made negative comments on the appellant without being s o l i c i t e d to do so; he wishes to show that his l e t t e r i s not simply a reaction to the appellant's l e t t e r which he admits, i n the closing sentence of his l e t t e r , to have resented. During the hearing, the Board has to assess which of the c o n f l i c t i n g interpretations of the facts are true i n order to be able to decide whether Miss D l e f t her employment v o l u n t a r i l y without just cause. After the preliminaries, the appellant, a young and l i v e l y woman, i s asked to comment on the new evidence, i . e . , the l e t t e r s which were not i n the o r i g i n a l submission. Here, again the appellant i s t i e d to the documents which are before the Board to present her side of the story, she cannot just t e l l them fr e e l y about what happened at the ' Lodge. Miss D: We have l o t s of time? [laughs] Ch: Theoretically h a l f an hour, but as long as you want. - 178 -Miss D: The f i r s t l e t t e r [referring to the administrator's l e t t e r ] the statement i s f a l s e . I was not intending to go to school. I l e f t because of the chef at the beginning of December. She asked me what I was going to do. I said I was going back to school. ER: What school? Ch: You to l d the person the reason comment on the l e t t e r . Miss D: It's d i f f i c u l t to absorb. Ch: Go ahead. Miss D: He hired three women and two men with the low pay, more women would apply that's a defensive statement. Ch: A defensive statement, ok Miss D: The statement regarding the tra i n i n g i s not true. I'd fi v e years of home economics I was a sole cook on a ranch. Ch: It sounds l i k e experience Miss D: And he was aware of that he states a l l the way through that I was not trained. Ch: And that you refused guidance. Miss D: No, he did not t r a i n me. I got along with the trainer, then I trained other lots of turnover. ER: What do you mean the trainer? Miss D: When I came I got trained from the senior cook who works d i r e c t l y under the chef. When that cook l e f t I became tra i n e r . Ch: Any comments about the next statement? Miss D: Can't remember any p a r t i c u l a r case. Ch: This i s not to check on you but. any p a r t i c u l a r case [referring to s t a f f complaining on Mondays] Miss D: I w i l l explain l a t e r . Alleged assault not true. He did not give warning. - 179 -Gh: Could i t be that you did not hear? Miss D: No. Ch: I am asking again. Miss D: No [she then proceeds to describe the kitchen setup and explains the reason why she could not not hear a warning]. I did not want to get burnt again lack of experience [referring to the l a s t statement]. Ch: Would you l i k e to comment on the other enclosures [handwritten notes; she nods] yes, you do. Miss D: A l l the statements were made within a week. Ch: When did the Union come in? Miss D: It was on the making a l l the time. It was c e r t i f i e d i n September, retroactive August 15. [at this point LR and the Chairman had a discussion as to whether i t i s normal practice to keep f i l e s on i n d i v i d u a l employees] Miss D: I was i n fact sick; I'm not being paid sick benefits. Ch: What about not t e l l i n g him? Miss D: This i s true--my s h i f t started at 6:30 A.M., I did not say I was coming back, but i t did not make any difference. [Miss D then proceeds to explain why she did not f e e l i t was necessary for her to c a l l ] It would have been better. Ch: They may be right on both sides. ER: As Miss D says an employee should l e t the employer know I would not l i k e to wonder i f an employee i s going to show up. Ch: The custard? - 180 -Miss D: Some recipe! I t was on the menu. ER: I took i t from this that people com-plained that i t was not on the menu. Miss D: I didn't interpret i t this way. Ch: You remember? Miss D: Vaguely. Ch: Let's have i t . Miss D: He wanted me to use less eggs [follows a discussion about the di f f e r e n t ways to make custard and r i c e pudding]. Ch: Maybe you should do i t the way the boss wanted i t . Miss D: Yes I f e e l I did accommodate him a l o t . I t i s the way i t i s done here. ER: We come to the hole into the potatoes. Miss D: More time on potatoes [laugh] had l o t s of time to do i t wh n we had baked potatoes. I poke holes i n them [she explains i n d e t a i l how she prepares baked potatoes]. He does not adhere to this method of baking potatoes [she then explains what happens to his potatoes.] They are a l l old people you have to be c a r e f u l . ER: I t i s a senior c i t i z e n type home? Miss D: Yes [follows a succession of jokes by ER on how to cook potatoes. Every-one laughs]. Ch: Now, the small paragraph general statement. Miss D: I happened to get along with Loretta [almost r e s e n t f u l ] . ER: Don't take i t wrong.....do you f e e l that you knew better? Miss D: No I accommodated and a way of l i v i n g Ch: Did you f e e l he was trained or what i t - 181 -that he f e l t there was a ri g h t and a wrong way? Miss D: No he was not always i n f l e x i b l e he was a good chef I did not get along with him. LR: That was what Mr. [ER] asked. Was there any c o n f l i c t ? Miss D: I t r i e d a l o t . Ch: Do you think 6 months i s a l o t [Ch. then mentions another appellant who t r i e d for a whole year] What about the turnover? Miss D: Low wages they had the a b i l i t y to cook but trained people go elsewhere. Ch: People who l e f t got other jobs? Miss D: Yes. Ch: Mr. LR, any questions? LR: No. ER: No question. Ch: You w i l l get a decision this time. ER: You are working now? Miss D: No. . [Then they make more jokes about cook-ing and they laugh23.] During this hearing, although the appellant was given the op-portunity to comment on each piece of evidence without being asked s p e c i f i c questions, the Board Members asked questions when Miss D's story c o n f l i c t e d with her employer's story, or when Miss D t r i e s not to confront one piece of evidence. It 23 The hearing lasted for twenty-eight minutes - 182 -should also be noted, as can be seen from the tr a n s c r i p t that the Chairman frequently brings both the Board Members and the appellant back to the matter at hand: the confrontation with the evidence. In order to do so, he brings everyone's attention to the next piece of evidence to be discussed, for instance: 'Any comments about the next statement?' By laughing and joking about how long i t would take to t e l l all-what-was-wrong-about-the-job, the appellant indicates to the Board that she i s not threatened by the new evidence, which, when read, appears detrimental to her. She also i n d i -cates that she has a l o t to t e l l . She sets the tone of the encounter and prepares the Members for a long hearing. She then proceeds to respond to the new evidence: she very e a s i l y takes care of the administrator's statement. Although she says that the statement i s fals e , she produces an explanation of why the administrator had the b e l i e f that she wanted to go back to school. She relates an everyday l i f e b i t of conversation, and implies that the administrator misinterpreted her statement - a very common occurrence i n everyday l i f e . The administrator does not have any reason to l i e , and generally, i t i s a common sense b e l i e f that people such as the administrator would not l i e . I t was therefore a good strategy for the appellant not to challenge the honesty of the administrator. The Board seems to accept her interpre-tation. At the i n s t i g a t i o n of the Chairman, Miss D makes a - 183 -general statement which indicates that she does not agree with her supervisor's l e t t e r . In fact, she appears shocked. 'It is d i f f i c u l t to absorb' indicates that she has d i f f i c u l t y accepting the l e t t e r as r e f e r r i n g to her. As the Chairman encourages her to proceed she comments on each statement: she does not disagree with the fact that he has hired more women than men, but she gives a diff e r e n t , plausible explanation -because of the low wages more women are l i k e l y to apply. She then t e l l s the Board that ' i t i s a defensive statement' on the part of her supervisor; she alleges that he made this statement in order to 'defend' himself against her own accusation of sex discrimination. Here again, she gives a plausible explanation which the Board does not challenge. She disagrees with the next statement concerning her traini n g ; i n this case she does not have to speculate about the motivation of her supervisor - which she questions - but rather she deals with the facts. She knows what her experience has been. The Board i s convinced by her statement regarding her experience and this may have the ef f e c t of di s c r e d i t i n g her supervisor's c r e d i b i l i t y . This time, instead of going on d i r e c t l y to the next statement, she gives another piece of information to the Board i n order to further attempt to d i s -c r e d i t her supervisor: 'And he was aware of that he states a l l the way through that I am not trained.' In the second part of her statement she i s , i n fact, - 184 -saying that a l l the way through his l e t t e r , her supervisor i s making a statement which he knows to be untrue. Neither the Chairman nor any Member comments on this statement: to agree with i t would be to agree that the supervisor i s a l i a r , on the other hand, Miss D seems to have a point. She does have some experience. When confronted with the next statement: 'and that you refused to take guidance', Miss D does not answer d i r e c t l y . She adopts a strategy similar to the one she used when dealing with the f i r s t statement: she provides a d i f f e r e n t i n terpreta-tion; she did not have to take guidance from him as he was not the one who trained her. She 'got along' with the person who trained her. In order to back-up her statement that she 'got along' with the trainer, she states that she h e r s e l f became a trainer when the trainer quit. By this statement she shows to the Board that she accepted guidance, and that she 'got trained', that she became good enough to t r a i n others, and that there i s a high turnover of s t a f f , (an unfavourable c h a r a c t e r i s t i c for a place of employment). She hints at the 'bad working conditions' which were f e l t not only by herself, but also by others. The next statement does not r e f e r to any p a r t i c u l a r occurrences or any p a r t i c u l a r Monday, so Miss D t r i e s to dismiss the statement by saying that she does not remember. The Chair-man, who feels i t necessary to not take her statement at face value presses her to answer, implying that something must have happened. Miss D and her supervisor may have d i f f e r e n t - 185 -interpretations of the occurrence, but i t i s unlikely that the supervisor would have 'invented' events which did not take place. People l i k e the supervisor may be mistaken, but they do not l i e . Instead of refusing d i r e c t l y to deal with the state-ment, Miss D uses an everyday practice: 'I w i l l explain l a t e r ' and immediately comments on the next statement, concerning the alleged assault. In this case the 'warning' either has been given or i t has not - she has to openly disagree with her supervisor's interpretation of the incident. When the Chairman suggests another explanation, 'could i t be that you did not hear?', which i s more i n agreement with what a person l i k e the super-vi s o r would do, she s t i l l says 'no'. This outright a l l e g a t i o n that the supervisor l i e d i s not acceptable to the Board. The Chairman repeats the explanation that he had offered e a r l i e r , which would be face-saving for Miss D, and would f i t the idea that the Board has of a supervisor: people-like-the-supervisor do not go around throwing hot soup on their employees, neither do they l i e . Consequently, i t i s more l i k e l y that Miss D i s lyin g . In order to regain her c r e d i b i l i t y without changing her statement - which i n i t s e l f would destroy her c r e d i b i l i t y -Miss D has to give an explanation as to why the interpretation provided by the Chairman cannot be true. She proceeds to challenge the supervisor's interpretation using another frequently used everyday practice: 'why should I do that, i t was not i n my intere s t ? ' . She makes i t d i f f i c u l t for the Board - 186 -to say that she i s l y i n g because i t would imply that she stayed i n the way, knowing that she would get burnt by the hot soup. Why would she do that? In order not to accept her explanation, the Board would have to f i n d an answer to this l a s t question: would she stay i n the way so that she could accuse her supervisor of assault? This i s far-fetched and even the supervisor does not suggest i t . Further, i t does not f i t with the idea that the Board Members have of Miss D. In fact, they have found them-selves