Date: 20010118
Docket: 1999-1342-EI
BETWEEN:
DEBBIE KUFFNER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
MacLatchy, D.J.T.C.C.
[1]
This appeal commenced November 18, 1999 in Toronto, Ontario but
was adjourned after a lengthy argument concerning the
admissibility of what appeared to be "expert" testimony
and a request by the parties for direction from this Court as to
the manner in which the hearing should proceed.
[2]
There were two issues to be argued. One issue concerned the
interpretation of the relevant legislation while the other would
be an argument concerning a possible Charter violation. This
Court directed that the issue of interpretation be dealt with
initially and as a result of the outcome on that matter, would
then determine whether a Charter argument would be necessary.
[3]
The matter then came for a resumption of the hearing on August
1st, 2000. At that time, the Court ruled that the evidence to be
advanced by a witness for the Appellant was in the nature of
expert testimony. The witness could not be qualified as an expert
whose evidence was required by this Court. The ruling included
the fact that the Court was concerned that part of that
witness' testimony would include her interpretation of
certain parts of teachers' employment contracts that should
best be left to this Court.
[4]
The hearing proceeded by argument only concerning the relevant
legislation and the issue on appeal.
[5]
An Agreed Statement of Partial Facts was filed with the Court as
Exhibit A-2 and included the following:
"1.
The Appellant, Ms. Debbie Kuffner, is an elementary school
teacher (and now a vice-principal) and a member of the Ontario
College of Teachers.
2.
Ms. Kuffner was (sic) been continuously employed as a
permanent contract teacher with the Ottawa Board of Education and
its successor (the "School Board") since 1983. Ms.
Kuffner was employed on a Permanent Teachers' Contract in the
statutory form of contract provided for in Regulation 310 under
the Education Act.
3.
For the first 13 years of her employment with the
School Board, Ms. Kuffner was employed on a full-time basis.
Ms. Kuffner's first child was born in 1996. After completing
her maternity leave, Ms. Kuffner returned to teaching on January
6, 1997 on a permanent, half-time, job-share contract. She
continued to teach until October 24, 1997. Her second child
was born on November 5, 1997, one month premature.
4.
A collective agreement between the School Board and the Ottawa
Branch Affiliates of the Federation of Women Teachers'
Associations of Ontario and the Ontario Public School
Teachers' Federation, for the term September 1, 1996 to
August 31, 1998 deals with various terms and conditions of Ms.
Kuffner's employment with the School Board at the relevant
time. A copy of this collective agreement is found at Tab 7 of
the Book of Documents.
5.
Under a Letter of Agreement between the School Board and the
elementary teachers' unions dated January 29, 1997, teachers
were deemed to work 7 hours on school days. Part-time teachers
were deemed to work a pro-rated number calculated in accordance
with their teaching assignment. A true copy of this Letter of
Agreement is found at Tab 10 of the Book of Documents.
6.
In the period relevant to the number of insurable hours of
employment at issue, January 6, 1997 to October 24, 1997, Ms.
Kuffner worked a 0.5 teaching assignment. As a half-time teacher,
Ms. Kuffner was deemed to have 3.5 hours of insurable
employment for each half-time school day. Ms. Kuffner worked on a
full-time basis for the 10 school days between October 10, 1997
and October 24, 1997.
7.
During the period between January 6, 1997 and October 24,
1997 there were 154 school days. During the period from January
6, 1997 to October 24, 1997, the following school holidays
occurred: March Break (5 days), Good Friday, Easter
Monday, Labour Day and Thanksgiving Day. There were 44 weekday
days in the summer period, July and August, 1997. True copies of
the school calendars for the relevant periods are found at
Tabs 8 and 9 of the Book of Documents.
8.
By application dated November 11, 1999, Ms. Kuffner applied for
pregnancy and parental employment insurance benefits. A true copy
of her application is found at Tab 5 of the Book of
Documents.
9.
The Record of Employment prepared by the School Board credits Ms.
Kuffner with 577.5 hours of insurable employment in the period
between January 6, 1997 and October 24, 1997. The 577.5 hours
figure represents 3.5 hours multiplied by the 154 school
days, plus an additional 38.5 hours for the 10 days between
October 10, 1997 and October 24, 1997. The School Board did not
credit Ms. Kuffner with hours of insurable employment for the
school holidays or the summer period in the period in issue. A
true copy of Ms. Kuffner's Record of Employment is found at
Tab 5 of the Book of Documents.
10.
Between October 27, 1997 and November 4, 1997, teachers in
Ontario were engaged in a political protest which involved, among
other things, their withdrawal of services during that period.
The School Board did not credit Ms. Kuffner with insurable hours
of employment for the period of the political protest, nor did
the Respondent.
11.
Ms. Kuffner's claim for pregnancy and parental benefits was
denied on the grounds that she did not have at least 700 hours of
insurable employment during her qualifying period. A true copy of
the letter dated January 12, 1998 is found at Tab 1 of the Book
of Documents. This decision is on appeal to a Board of
Referees.
12.
By letter dated June 5, 1998, an officer of the Department of
National Revenue, authorized by the Respondent, ruled that Ms.
Kuffner had 577.5 hours of insurable employment in the period
January 6, 1997 to October 24, 1997. A true copy of this ruling
is found at Tab 2 of the Book of Documents. Ms. Kuffner appealed
the ruling by letter dated July 6, 1998.
13.
By letters dated December 4 and December 15, 1998, the Respondent
decided that Ms. Kuffner had 591.5 hours of insurable employment
in period January 6, 1997 to October 24, 1997. True copies of
these letters are found at Tabs 3 and 4 of the Book of
Documents.
14.
In deciding Ms. Kuffner's hours of insurable employment, the
Respondent multiplied her 3.5 deemed hours of employment by the
154 school days in the period between January 6, 1997 and October
24, 1997, plus the additional 38.5 hours. The Respondent also
credited Ms. Kuffner with 3.5 hours for four statutory holidays
which fell during this period. The Respondent credited Ms.
Kuffner with 3.5 hours for each of the four statutory holidays on
the basis that the Employment Standards Act granted all
employees in Ontario a holiday and pay for statutory
holidays."
[6]
The Appellant appealed a ruling to the Minister of National
Revenue (the "Minister") to determine her hours of
insurable employment while she was employed by the Ottawa Board
of Education, the Payor, during the period of January 6, 1997 to
October 24, 1997, within the meaning of the Employment
Insurance Act (the "E.I. Act").
[7]
By letter dated December 4, 1998, the Minister informed the
Appellant that it had been determined that she had 591.5 hours of
insurable employment during the period in question, pursuant to
subsection 10(1) of the Employment Insurance Regulations
(the "Regulations").
[8]
In making his decision, the Minister relied on the following
assumptions of facts:
"a)
the Appellant was employed by the Employer as a part-time teacher
for the last two years;
b)
based on the document "New Records for Employment for
Ontario Teachers": -
- only 194 teaching days can be recognized
- one day is 7 hours or 35 hours per week
- the hours must be hours that are worked and hours that are
paid
c)
part-time teachers are considered to work 3.5 hours per day;
d)
the Appellant was not paid on an hourly basis;
e)
the Appellant was paid based on her experience and the number of
teaching days;
f)
the Appellant worked 154 days, and in addition she did
38.5 hours of replacement work;
g)
the Employer determined the Appellant's hours of insurable
employment to be 577.5 hours ((154 days x 3.5 hours) +
38.5 hours);
h)
in addition to the 577.5 hours mentioned in paragraph (g), it was
determined that the Appellant had 14 hours of insurable
employment in regards to Statutory Holidays (3.5 x 4 days);
and
i)
based on the 577.5 hours determined in paragraph (g) plus the
14 hours determined in paragraph (h), the Appellant had
591.5 hours of insurable employment."
[9]
The question before this Court is whether the Appellant should be
credited with insurable hours of employment, during the period in
question, for the March Break, summer vacation and statutory
holidays.
[10] The
qualification for entitlement to pregnancy leave under the
Unemployment Insurance Act was a minimum requirement of a
number of weeks employment. The EI Act changed the
terms of entitlement are based on total earning and total hours
worked. The minimum requirement to qualify for benefits is
expressed in hours based on the national average work week of 35
hours. This arrangement was an attempt to modernize the system
"by better accommodating the variety of work arrangements in
today's labour market and to symplify the reporting
requirements for employees and of premium collection which is
from the first dollar earned up to an annual maximum".
[11] The
relevant subsections 10(1) and (2) of the Regulations read
as follows:
"(1) Where a person's earnings are not paid on an hourly
basis but the employer provides evidence of the number of hours
that the person actually worked in the period of employment and
for which the person was remunerated, the person is deemed to
have worked that number of hours in insurable employment.
(2) Except where subsection (1) and section 9.1 apply, where
there is doubt or lack of specific knowledge on the part of the
employer as to the actual hours of work performed by a worker or
by a group of workers, the employer and the worker or group of
workers may, subject to subsection (3) and as is reasonable in
the circumstances, agree on the number of hours of work that
would normally be required to gain the earnings referred to in
subsection (1), and, where they do so, each worker is deemed to
have worked that number of hours in insurable
employment."
[12] The
School Board - for whom the Appellant worked - and
the Teachers Union agreed that a full-time teacher should be
credited with seven hours of insurable employment per school
day. The Appellant, as a half-time teacher, should be
credited with 3.5 hours per day of insurable employment for each
half-time day worked. This would appear to be fairly
straightforward except for the fact that the teaching profession
is treated somewhat differently from the employment by reason of
the very nature of how teaching is performed. A school day is a
day on which teaching and teaching related activities are
performed and the Appellant was not given credit with hours of
insurable employment for nine school holidays or the 44 summer
vacation week days. The Education Act, Part X, and
particularly subsection 260(1) provides:
"Unless otherwise expressly agreed and subject to
subsections (3) to (6), a teacher is entitled to be paid his or
her salary in the proportion that the total number of school days
for which the teacher performs his or her duties in the school
year bears to the total number of school days in the school
year."
The Education Act provides that regulations can be made
thereunder in subsection 11(7) as follows:
"Subject to the approval of the Lieutenant Governor in
Council, the Minister may make regulations,
(a)
prescribing and governing the school year, school terms and
school holidays;
(b)
authorizing a board to vary one or more school terms or school
holidays as designated by the regulations; and
(c)
permitting a board to designate, and to implement with the prior
approval of the Minister, a school year, school terms and school
holidays for one or more schools under its jurisdiction that are
different from those prescribed by the regulations."
The form of a teacher's contract is set by regulation, as
well, subject to certain variations that may be agreed to by the
Board and the teacher. The payment to the teacher of his/her
annual salary is prescribed in the form to ensure that there is
regularity of payment and provision for payment for the summer
period of the balance of the annual salary.
[13]
Teachers' contracts are for a year from September 1st to
August 31st of the following year and continue until either party
terminates the contract. The Appellant's contract was not
filed with the Court but the parties agreed that it complied with
the statutory or regulated form. The Appellant applied for
benefits as a major attachment claimant but was denied benefits
as she did not qualify with 700 hours of insurable employment in
the qualifying period. The Minister determined that the Appellant
should be credited only for hours of insurable employment for the
154 teaching days during the period in question.
[14] Section
54 of the E.I. Act reads in part as follows:
"(j)
prohibiting the payment of benefits, in whole or in part, and
restricting the amount of benefits payable, in relation to
persons or to groups or classes of persons who work or have
worked for any part of a year in an industry or occupation in
which, in the opinion of the Commission, there is a period that
occurs annually, at regular or irregular intervals, during which
no work is performed by a significant number of persons engaged
in that industry or occupation, for any or all weeks in that
period;"
Subsections 33(1) and (2) of the Regulations
provide:
"(1) The definitions in this subsection apply in this
section.
"non-teaching period" means the period that occurs
annually at regular or irregular intervals during which no work
is performed by a significant number of people employed in
teaching. (période de congé)
"teaching" means the occupation of teaching in a
pre-elementary, an elementary or a secondary school, including a
technical or vocational school. (enseignement)
(2) A
claimant who was employed in teaching for any part of the
claimant's qualifying period is not entitled to receive
benefits, other than those payable under sections 22 and 23 of
the Act, for any week of unemployment that falls in any
non-teaching period of the claimant unless
(a) the claimant's contract of employment for
teaching has terminated;
(b) the claimant's employment in teaching was on a
casual or substitute basis; or
(c) the claimant qualifies to receive benefits in
respect of employment in an occupation other than
teaching."
The Appellant's contract of employment for teaching had
not terminated and she is entitled to receive benefits for the
reasons in this section. Similar provisions were contained in the
Unemployment Insurance Act.
[15] This
Court was referred to several cases decided under the provisions
of the Unemployment Insurance Act including Abrahams v.
Canada (1983), 142 D.L.R. (3d) 1 (S.C.C.) by Wilson, J.
of the Supreme Court of Canada.
"Since the overall purpose of the Act is to make benefits
available to the unemployed. I would favour a liberal
interpretation of the reentitlement provisions. I think any doubt
arising from the difficulties of the language should be resolved
in favour of the claimant".
It is accepted jurisprudence that such interpretation be given
to social legislation. The same interpretation was given to the
intent for pregnancy leave by Justice Austin of the Ontario
Court of Appeal in Schafer v. Canada (Attorney
General) (1997) 149 D.L.R. 732 (4th) when he stated:
"... but the purpose of the pregnancy leave benefit
is not to provide income support to parents who care for their
children. It is to provide a flexible system of income support to
women who need time away from work because of pregnancy and
childbirth."
The question of leave implies permission to be absent from
employment and be entitled to hours of insurable employment if
the Appellant was provided with remuneration during such leave.
The Respondent argued that the insurable hours of employment
agreed to by the School Board and the Teachers' Union was for
school days only. March Break and summer holidays were periods
when no work was performed.
[16] The
Appellant, in argument, asks this Court to allow her appeal on
the grounds that designated school holidays should be considered
as days for which she should be credited with hours of insurable
employment as should the weekdays in July and August and the five
days during the March Break. These days should be considered as
paid leave days, paid holidays or vacation days or non-working
for which remuneration is paid. The basis for such a conclusion
should be drawn from the fact that through legislation and
agreements between the School Board and Teachers' Union her
salary is an annual salary and is paid for the whole year. She
should be credited with hours of insurable employment because the
days in question are days on which she is employed and in respect
of which she receives remuneration. These days should be either
"paid holidays" or "vacation days" within the
meaning of section 10.1(1) or "non-working" days for
which teachers are remunerated within the meaning of section
10.1(3)(b) of the Regulations which reads:
"... does not work on that day, the person is deemed
to have worked in insurable employment for the number of hours
that the person would normally have worked on that day."
[17] Annual
salary should be seen as remuneration for an annual period of
employment. Teachers' contracts are to be in the form as set
forth in the legislation and express the contract period will be
from September 1 through to August 31, a year. Salary will be
paid in accordance with the legislation or as may be agreed
between School Board and the Teachers' Union known as the
Collective Agreement (tab 7 of Exhibit A-1).
[18] The
agreement provided ten instalments of 8% each and one instalment
of 20% to be paid at a particular time during the year. This is
supposed to indicate that it is an annual salary.
[19] Human
Resources Development Canada (H.R.D.C.) issued a publication to
assist School Boards in the preparation of Records of Employment
under the E.I. Act to commence January 1, 1997.
Included in the information directive is:
"... the hours must be hours that are worked and hours
that are paid."
Insurable hours can only be counted for days recognized and
reimbursed by the employer which for teachers in Ontario can only
include the 194 teaching days in the school year. In the
Appellant's situation only 154 teaching days would be
counted. The Appellant states this is an arbitrary direction and
does not represent the true reality of her situation based on an
understanding of what an annual salary represents.
[20] This
Court was referred to many cases including Abrahams
(supra), Petts v. Umpire under s. 52 of the Unemployment
Insurance Act (1974), 53 D.L.R. (3d) 126 (F.C.A.), Dick v.
Canada (Deputy A.G.) (1980), 112 D.L.R. (3d) 654 (S.C.C.) and
Moyer v. Canada (Minister of Employment and Immigration)
(1981), 128 D.L.R. (3d) 378 (F.C.A.) and the major decisions
dealt with entitlement to unemployment insurance or employment
insurance benefits during the non-teaching periods including
those in the spring or March Break and the months of July and
August. The interpretation was that there was no termination of
the teachers' contract of employment and the teachers were
effectively remunerated for the non-teaching periods. These cases
should clearly indicate that the Appellant operated pursuant to a
yearly contract, on a yearly salary and the salary not only was
referable to working days but included remuneration for school
holidays and summer vacation. As stated in Petts, supra,
at page 134:
"... if his contract of service continues throughout
the year, there has been no "lay-off" or
"separation from ... employment" giving rise to an
"... interruption ... in ... earnings"
and he is receiving his "usual remuneration"; and I do
not, therefore, conceive of the circumstances in which s. 158, or
some similar provision, is necessary to avoid payment of
unemployment benefits to teachers who are not out of work in the
ordinary acceptation of that expression."
[21] The Court
was referred to the Gauthier v. Board of Referees,
September 12, 1994, CUB 26838, Côté v.
Board of Referees, March 25, 1998, CUB 41000, and
Canada (A.G.) v. Partridge, [1999] F.C.J. No. 974 (C.A.)
(Quicklaw) cases as well as Bruneau v. Canada (Employment
Insurance Commission) (1998), 171 D.L.R. (4th) 127
(F.C.A.) and Canada (Attorney General) v. Tuomi, [2000]
F.C.J. No. 1570 to indicate that the courts have concluded a
teacher's salary should be allocated to both the teaching
and non-teaching periods. The Appellant draws the conclusion that
this Court should credit her with hours of insurable employment
for the school holidays and other non-teaching periods, during
the period in question, as paid leaves or as non-working days for
which she was remunerated in accordance with her annual
salary.
[22] The
Respondent argued that the Appellant was not paid for the school
holidays or for the summer vacation. The employment insurance
regime did not envision such a circumstance. The only way the
Appellant could qualify for benefits as a claimant major
attachment would be if she had the required number of hours of
insurable employment pursuant to sections 9.1, 9.2, 10 and 10.1
which read as follows:
"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.
Subject to section 10, where a person's earnings or a
portion of a person's earnings for a period of insurable
employment remains unpaid for the reasons described in subsection
2(2) of the Insurable Earnings and Collection of Premiums
Regulations, the person is deemed to have worked in insurable
employment for the number of hours that the person actually
worked in the period, whether or not the person was
remunerated.
10.
(1) Where a person's earnings are not paid on an hourly
basis but the employer provides evidence of the number of hours
that the person actually worked in the period of employment and
for which the person was remunerated, the person is deemed to
have worked that number of hours in insurable employment.
(2) Except where subsection (1) and section 9.1 apply, where
there is doubt or lack of specific knowledge on the part of the
employer as to the actual hours of work performed by a worker or
by a group of workers, the employer and the worker or group of
workers may, subject to subsection (3) and as is reasonable in
the circumstances, agree on the number of hours of work that
would normally be required to gain the earnings referred to in
subsection (1), and, where they do so, each worker is deemed to
have worked that number of hours in insurable employment.
(3) Where the number of hours agreed to by the employer and
the worker or group of workers under subsection (2) is not
reasonable or no agreement can be reached, each worker is deemed
to have worked the number of hours in insurable employment
established by the Minister of National Revenue, based on an
examination of the terms and conditions of the employment and a
comparison with the number of hours normally worked by workers
performing similar tasks or functions in similar occupations and
industries.
(4) Except where subsection (1) and section 9.1 apply, where a
person's actual hours of insurable employment in the period
of employment are not known or ascertainable by the employer, the
person, subject to subsection (5), is deemed to have worked,
during the period of employment, the number of hours in insurable
employment obtained by dividing the total earnings for the period
of employment by the minimum wage applicable, on January 1 of the
year in which the earnings were payable, in the province where
the work was performed.
(5) In the absence of evidence indicating that overtime or
excess hours were worked, the maximum number of hours of
insurable employment which a person is deemed to have worked
where the number of hours is calculated in accordance with
subsection (4) is seven hours per day up to an overall maximum of
35 hours per week.
(6) Subsections (1) to (5) are subject to section 10.1.
10.1 (1) Where
an insured person is remunerated by the employer for a period of
paid leave, the person is deemed to have worked in insurable
employment for the number of hours that the person would normally
have worked and for which the person would normally have been
remunerated during that period.
(2) Where an insured person is remunerated by the employer for a
period of leave in the form of a lump sum payment calculated
without regard to the length of the period of leave, the person
is deemed to have worked in insurable employment for the lesser
of
(a)
the number of hours that the person would normally have worked
and for which the person would normally have been remunerated
during the period, and
(b)
the number of hours obtained by dividing the lump sum amount by
the normal hourly rate of pay.
(3) Where an insured person is remunerated by the employer for
a non-working day and
(a)
works on that day, the person is deemed to have worked in
insurable employment for the greater of the number of hours that
the person actually worked and the number of hours that the
person would normally have worked on that day; and
(b)
does not work on that day, the person is deemed to have worked in
insurable employment for the number of hours that the person
would normally have worked on that day."
These regulations are explained by Judge Bonner in
Franke v. M.N.R., [1999] T.C.J. No. 645 (Quicklaw):
"[3]
... Section 55 of the Act authorizes the enactment of
subordinate legislation for the establishment of hours of
insurable employment. The Employment Insurance Regulations
("Regulations") are intended for use in determining
the number of hours of insurable employment where unconventional
arrangements such as those now under consideration are present.
The statutory scheme cannot work as intended unless the
Regulations are construed and applied as attempts to measure in
hours the time that the employee "actually worked"
and for which the employee was compensated by the
employer. ..."
[23] The issue
was once again restated that the core in this appeal is a
question of paid leave and/or a remunerated non-working day.
There is no presumption that the teachers are paid for those days
in issue. The history behind section 33 was outlined and stated
to have been passed as a result of decisions of the courts that
had concluded that teachers were not paid for those periods of
non-teaching otherwise they could qualify for benefits during
those periods.
[24] On
examination of section 33 it disentitles teachers to benefits
unless their contract of employment is terminated. Many cases
were referred to but in the final analysis the argument was that
each case depended on its own facts and that a conclusion can
only be reached by examining both the legislation and the
collective agreement and the contract under which the Appellant
was employed. On examination of these items the school year was
from September 1 to June 30 in each year and would include 194
school days. School days by agreement would not include school
holidays which were, according to a lengthy list, including
14-day Christmas break, 5-day March Break and other
specific days such as Good Friday, Easter Monday, Victoria Day,
every Saturday and Sunday and Labour Day. The Appellant was a
permanent half-time teacher and was paid a "yearly
salary" in a defined fashion but did not provide for pay in
respect of school holidays or summer vacation nor set out the
days in respect of which the salary was payable. Subsection
260(1) of the Education Act did set the days of which a
teacher's salary was payable.
"Unless otherwise expressly agreed and subject to
subsections (3) to (6), a teacher is entitled to be paid his or
her salary in the proportion that the total number of school days
for which the teacher performs his or her duties in the school
year bears to the total number of school days in the school
year."
The exceptions in subsection 260(3) to (6) provided that where
a teacher is absent from work for certain reasons listed she was
entitled to be paid for sickness, quarantine or jury duty. The
collective agreement also provided for other paid leave such as
bereavement, court leave, family care, serious illness of a
dependant and could have gone further and provided for other paid
leave days but did not.
[25] Further
argument was given in regard to the changes in the E.I.
Act concerning qualifications for benefits from weeks of
employment to hours of employment. The reasons were to recognize
changing work patterns, make all work insurable, coverage to
multiple-job holders and to provide disincentive to employers to
provide less than 15 hours of work to an employee's week.
It is a different system from that under the Unemployment
Insurance Act. Employees who might not have received benefits
under the old system might receive benefits under the new system.
It is true that there may be some persons who qualified under the
Unemployment Insurance Act who now will not qualify for
benefits under the E.I. Act.
[26] This
Court has reached the conclusion that the Appellant should not be
credited with insurable hours for non-working days or for summer
or other holidays in the period in question.
[27] The
Appellant was a permanent half-time teacher working pursuant to a
yearly contract in a form as directed by legislation including
any altered terms made between the School Board and the
Teachers' Union. It was a continuing employment contract so
long as it was not terminated by either party. The contract would
renew itself each year unless terminated. The contract commenced
each September 1 and remained in force until the following
August 31 in each year. The teaching profession is unique in
that there are considerable periods during the contract year when
teachers are away from their schools and not required to perform
any work. Communication between the School Board and teacher
would be minimal during these periods. For purposes of proper
continuation of the operation of the school system and the
orderly recall of teachers it would seem prudent to have a
contract that would continue unless terminated. This uniqueness
was obviously recognized in the legislation and regulations made
under the Ontario Education Act. The provision for a
general form of contract with terms for payment of the annual
salary suited to teachers requirements during that contract year.
Each school board would set the calendars for the year dealing
with its expectations from the teachers for the number of school
days in the school year.
[28] It would
be in the best interest of the teacher that the contract continue
for the preservation and continuation of the benefits provided to
teachers through their collective agreement for dental, medical,
long term disability and group life insurance and other benefits.
The salary is based on a yearly figure settled between the
parties. The method of paying that salary is negotiated and
settled in the contract. The fact that it is paid at irregular
intervals is peculiar to the teaching profession and was agreed
to by the parties. It provides regularity of income to the
teacher and a lump of income before the summer when the teacher
is not required to be in attendance. It cannot be presumed that
the salary is allocated to each day of the contract period for
there are those periods when no work is required. For this
reason, the negotiated annual salary must be looked at as being
paid for the days actually worked by the teacher which are
described in the school calendar as school days. These days are
set by the School Board and during the relevant Appellant's
period there were 154 school days. Such days are working days
when the teacher is required to use her teaching talents and
educational training for which she was hired. The remaining days
during the school year and the contract year are non-working days
when no work is required to be performed.
[29] The
non-working days cannot be considered for purposes of
insurability as they are not days when work is performed and for
which remuneration is paid. The new scheme for calculating
eligibility would bring into coverage many persons unable to
previously claim for benefits. It may also prevent others from
coverage who previously may have qualified for benefits under the
Unemployment Insurance Act.
[30] The
concept that days in the period in issue are paid leave days is
not supported by the working of the E.I. Act or in
its Regulations or in other relevant legislation. The
jurisprudence reviewed seems to indicate that for leave to be
granted with pay the worker would be excused from the requirement
of performing work for that period when, otherwise, the worker
would be so required to perform. The periods in question were not
work days nor were they stated to be such in any legislation or
by agreement.
[31] The
Education Act contemplates leave with pay from work for
sickness, quarantine and jury duty. It could well have included
leave with pay for school holidays and the summer months but it
did not. The Collective Agreement contained other kinds of leave
such as bereavement, illness of a dependant, etc. but did not
provide for the periods in question to be periods of leave.
[32] Section
33 of the Regulations is particularly to avoid teachers
from receiving benefits during non-teaching periods. The Federal
Court of Appeal in the case of Canada (Attorney General) v.
Donachey, [1997] F.C.J. No. 579 (C.A.) (Quicklaw) at
paragraph 5 described the object of the provision as follows:
"The object of section 46.1 (now s. 33) of the
Regulations is to prevent teachers, whose salary is spread over a
twelve-month period but who do not provide services every day,
from being able to receive monies which come from two separate
sources but which fulfil the same role."
This section deals with the prohibiting of payment of benefits
to persons who work in occupations in which there is a period
that occurs annually, at regular or irregular intervals, during
which no work is performed by a significant number of persons
engaged in that occupation, for any or all weeks in that period.
The Regulation deals with the payment of benefits not
whether a person's employment is insurable. Many decisions
may have indicated that teachers were not paid for the
non-teaching periods and might be entitled to benefits thus the
Regulation was issued to prevent such a flow of
benefits.
[33] This
Court has been persuaded that the Appellant should not be
credited with insurable hours of employment for the days in issue
which included those in the March Break, summer or statutory
holidays. The Minister was correct and he cannot credit her with
hours of insurable employment for those days. The appeal is
dismissed and the decision of the Minister is confirmed.
[34] This
Court has not considered any of the submissions made concerning a
possible Charter violation. If either of the parties wish to
continue argument in that regard they should contact the
Registrar of this Court to obtain a time for such
continuation.
Signed at Toronto, Ontario, this 18th day of January 2001.
"W.E. MacLatchy"
D.J.T.C.C.
COURT FILE
NO.:
1999-1342(EI)
STYLE OF
CAUSE:
Debbie Kuffner and M.N.R.
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
August 1, 2000
REASONS FOR JUDGMENT BY: The
Honourable Deputy Judge
W.E. MacLatchy
DATE OF
JUDGMENT:
January 18, 2001
APPEARANCES:
Counsel for the Appellant: Karen Schucher
Counsel for the
Respondent:
Arnold H. Bornstein
Kimberly Moldaver
COUNSEL OF RECORD:
For the
Appellant:
Name:
Karen Schucher
Firm:
Cavalluzzo Hayes Shilton McIntyre &
Cornish
Toronto, Ontario
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-1342(EI)
BETWEEN:
DEBBIE KUFFNER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on August 1st, 2000 at Toronto,
Ontario, by
the Honourable Deputy Judge W.E. MacLatchy
Appearances
Counsel for the
Appellant:
Karen Schucher
Counsel for the
Respondent:
Arnold H. Bornstein
Kimberly Moldaver
JUDGMENT
The
appeal is dismissed and the decision of the Minister is confirmed
in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 18th day of January 2001.
D.J.T.C.C.
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