After an Appeal - Reconsideration FAQs

1. What is new evidence?

For evidence to be new it must not have existed at the time your appeal was being decided or, if it did exist, you did not know about it and you would not have been able to find it if you had tried. This is called reasonable diligence.

New evidence must be substantial, that is, have weight and support a different conclusion. It must also be material, that is, it must be relevant to the decision. For example, a new medical opinion based on a newly introduced medical test might be "new" evidence, while the opinion of a new specialist confirming a medical opinion already on your file might not.

2. What is a jurisdictional error (defect)?

A jurisdictional error occurs if we did something we had no power to do, or if we did not do something that we were required to do.

A jurisdictional error occurs if a vice chair's decision was patently unreasonable. This means that the mistake must be so large and so obvious that no reasonable decision-maker should have ever made it. It is not enough that a different vice chair might have decided the appeal differently. For example, to be patently unreasonable, the original vice chair must have based the decision on no evidence at all, or overlooked critical evidence, or not explained why they accepted certain evidence and not contradictory evidence, or the decision must not be capable of being rationally supported.

A jurisdictional error also occurs if we did not act fairly. For example, a jurisdictional error would occur if we did not give you an opportunity to make a submission, or did not send you new evidence we obtained, or did not consider information submitted by the deadline we gave you. To qualify for a reconsideration because of jurisdictional error, you must show that we did not act fairly in all the circumstances.

3. How does the reconsideration proceed?

Tribunal Counsel Office will examine your application to see if you have set out potential grounds for reconsideration. If you have, they will send your application to our Registry. If you were the appellant, the Registry will then invite the respondent to participate in the reconsideration even if they did not participate in the appeal. If you were the respondent, the Registry will then invite the appellant to participate in the reconsideration.

The Registry will invite written submissions from the appellant and the respondent. Once the Registry receives all submissions, they will forward your reconsideration application together with all written submissions to a vice chair who will decide whether there are grounds for reconsideration; that is, whether the threshold test has been met. This vice chair will issue a formal written decision.

If the reconsideration vice chair decides that the threshold test has been met, they will allow your application for reconsideration. Your appeal will be reheard either by the original vice chair, or by the reconsideration vice chair, or by a new vice chair.

It may take some time for us to make a decision on your reconsideration because we give priority to new appeals.

4. Can I apply for reconsideration and judicial review at the same time?

Yes. You can apply for reconsideration and judicial review of the same decision at the same time. In that case, we will provide the reconsideration vice chair with the judicial review petition and related documents. The vice chair will consider the portions of those documents which are relevant to the reconsideration application.