|
Citation: 2005TCC125
|
|
Date: 20050210
|
|
Docket: 2002-3876(EI)
|
|
BETWEEN:
|
|
DELL SUTTON,
|
|
Appellant,
|
|
and
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent.
|
REASONS FOR JUDGMENT
Teskey, J.
[1] The Appellant appeals the decision
of the Minister of National Revenue
(the "Minister") wherein he confirmed the Canada
Custom and Revenue Agency's (now Canada Revenue Agency)
determination that the Appellant had acquired
476.25 insurable hours of employment with School
District 36 during the period from June 14, 2000 to
June 14, 2001 (the "Period").
Facts
[2] In determining that the Appellant
had 476.25 insurable hours during the Period, the Minister
relied on 10 separate assumptions of fact that were set
forth in the Reply to the Notice of Appeal in paragraph 3,
subparagraphs a) to j).
[3] The Appellant agreed with
subparagraphs a) to g) inclusive, which read as follows:
a) the
Appellant was employed by Surrey School District 36 to teach
English as a Second Language ("ESL");
b) teachers in
British Columbia are covered by the Provincial Collective
Agreement between the B.C. Public Schools Employers Association
("BCPSEA") and the British Columbia Teacher's
Federation ("BCTF");
c) the
Appellant is considered an Adult Education Teacher
("AET");
d) the
Appellant taught from Monday to Thursday from 6:30 p.m. to
9:30 p.m. at Princess Margaret School;
e) the
Appellant did some substitute work;
f) the
Appellant was paid on an hourly basis at the rate of $44.40 per
hour and was paid by-weekly;
g) AET's
are covered by the Provincial Collective Agreement;
[4] The Appellant originally was
represented by a solicitor who was disbarred before the
conclusion of this appeal. He, on behalf of the Appellant, agreed
to the assumption of fact in subparagraph h), which
reads:
h) under the
collective agreement, AET's are not entitled to be paid for
preparation time;
[5] When this matter came back before
me, the new solicitor representing the Appellant did not agree
with this assumption. Over the objection of counsel for the
Respondent, I allowed the withdrawal of agreement to accept this
fact, my reasoning being that this assumption was irrelevant and
misleading. The collective agreement simply fails to make
provision for AETs in the same way that it does for elementary
and secondary school teachers.
[6] The agreement does not preclude
AETs from having their preparation time recognized by the
Employment Insurance Act
(the "Act").
[7] The Court received testimony from
the Appellant who has been a AET since 1987 and from
Susan Newman, who has been a substitute AET since October of
2002, and Douglas Flemming, who, besides holding a
full-time AET position for the past 20 years, is about
to defend his thesis in a Phd program on adult teaching English
as a second language.
[8] I find that the Appellant spent a
minimum of one and half hours of preparation for every three
hours spent in the classroom.
[9] Over the objection of counsel for
the Respondent, a letter from School District 36 (Surrey) to
the Appellant, dated January 20, 2003, was taken as
Exhibit A-1. This letter states:
... I want to confirm that the service provided by adult
education teachers in Surrey goes beyond the instructional hours
for which they are paid. For example, it would include
preparation and marking. The "time" taken to complete
these tasks are required and considered as "paid for out of
the hourly rate".
[10] In light of the testimony that was
adduced, I accept this letter as factual.
Analysis
[11] The Minister based his decision on
section 9.1 of the Employment Insurance Regulations
(the "Regulations"), which reads:
9.1 Where a person's
earnings are paid on an hourly basis, the person is considered to
have worked in insurable employment for the number of hours that
the person actually worked and for which the person was
remunerated.
[12] The Appellant was not paid by the hour
in the manner contemplated by the above regulation, but rather
the wage for AETs was set to reflect the additional time required
in preparation outside the regular instructional hours.
[13] I am satisfied that for all AETs to
perform their teaching jobs properly (and that even a
17-year veteran AET such as the Appellant) has to spend at
a minimum one and half hours of preparation for every three hours
of teaching in the classroom.
[14] My colleague Bonner J., in
Franke v. M.N.R., [1999] T.C.J. No. 645 (Q.L.), as
herein, found that the Appellant was expected to spend the time
and effort necessary to do the teaching properly.
[15] Associate Chief Justice Bowman of this
Court, in Chisholm v. M.N.R., [2001] T.C.J. No. 28
(Q.L.), noted that the rules set out in the Regulations
cannot prevail against the true facts. Therein, he found that the
Appellant could not possibly have accomplished what was expected
of her within the time set out in the terms of employment.
[16] I believe there is an ambiguity in the
language of Regulation 9.1 when faced with the factual
situation presented herein. The words "actually worked"
in the Regulation is in conflict with the words "for
which the person was remunerated".
[17] Iacobucci J. of the Supreme Court of
Canada determined in Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, that when dealing with benefit
conferring legislation, that it should be interpreted in a broad
and generous manner and that any doubt arising from difficulties
of language should be resolved in favour of the claimant.
[18] I am aware of my colleague
Tardif J.'s decision in Dupuis v.
Canada(Minister of National Revenue - M.N.R.),
[2002] T.C.J. No. 295 (Q.L.). I agree with his decision
therein, dealing with the factual background of that decision.
Herein, the evidence justifies the Court's intervention.
[19] For all of the above reasons, the
appeal is allowed and the decision of the Minister is varied
under paragraph 103(3)(a) of the Act to
provide that the number of insurable hours worked during the
period in question was 714.37 hours.
Signed at Toronto, Ontario, this 10th day of February,
2005.
Teskey, J.
Email this Content