Date: 19991210
Docket: 98-555-UI; 98-774-UI; 98-556-UI
BETWEEN:
LAUNA KYDD-LAROCHELLE,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
BETWEEN:
CAREY HAMEL-SCROCHENSKI, LAURIE HALIWYZ-WAY,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
O'Connor, J.T.C.C.
[1] These appeals were heard on common evidence on November 3,
1999 at Regina, Saskatchewan.
Issue
[2] The issue is whether the Appellants, members, as Speech
Language Pathologists, of the support staff employed by the Board
of Education of the Regina School Division No. 4 of Saskatchewan
("School Board"), were employed under contracts of
service with the School Board during the summer break in 1997
with the result that they would be entitled to employment
insurance benefits with respect to the summer break period.
Facts
[3] The Appellants are members (Speech Language Pathologists)
of the support staff employed by the School Board.
[4] The School Board did not generally provide work during the
months of July and August for the Appellants.
[5] The school year for schools operated by the School Board
is usually from the end of August to the end of June
("Normal School Year").
[6] The Appellants have been working for the School Board for
the Normal School Year since August 28, 1995 for Ms. Larochelle
and September, 1991 for the other two Appellants.
[7] The Appellants did not provide any services to the School
Board during the summer break.
[8] The basic terms and conditions of the Appellants'
contracts of employment ("Contracts") were set forth in
a standard printed schedule (Exhibit A-3), annexed to the letters
of the School Board offering employment to the Appellants
(Exhibit A-2).
[9] The letters offering employment provide essentially as
follows:
We hereby offer you the position of Speech/Language
Pathologist with the Board of Education of the Regina School
Division No. 4 of Saskatchewan, on a fulltime basis, effective
August 28, 1995, under the following conditions of
employment:
1) You will be placed in the appropriate increment level for
the Master's Degree, as set out in the enclosed salary
schedule. This salary will be paid in ten equal monthly
instalments (July and August are excepted). In addition, you will
be entitled to receive a monthly car allowance applicable to the
percent of time employed.
2) We are enclosing a schedule of school days for the 1995-96
year for your reference.
3) The office hours of work will be as arranged with Mrs.
Cathy Arthur-MacDonald, Program Consultant, Speech and
Hearing.
4) The parties agree that this agreement may be terminated by
either party at any time with 30 days notice in writing to the
other party.
The Speech/Language Pathologist' Salary Schedule outlines
the conditions of employment further as well as the various
benefits you are entitled to as an employee with our Board.
[10] The Salary Schedule contains the following
provisions:
SPEECH LANGUAGE PATHOLOGIST SALARY SCHEDULE
|
Annual Salary Effective August 25, 1996
|
|
Years of Experience
|
0
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
|
Bachelor Degree
|
Various amounts are provided
|
|
Master Degree
|
Various amounts are provided
|
|
|
|
|
|
|
|
|
|
|
|
|
Annual Salary Effective following December 31,
1996
|
|
Years of Experience
|
0
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
|
Bachelor Degree
|
Various amounts are provided
|
|
Master Degree
|
Various amounts are provided
|
2. Employment is subject to a one-year probationary
period.
3. Incremental credit shall be granted on the first of the
month following completion of the equivalent of one year of full
service with pay. Ten months of full-time service with this Board
shall constitute a year for incremental purposes. Part-time
employees shall have their days of service prorated.
4. Salary is payable in ten equal monthly installments (July
and August excepted) at the end of each month of employment. The
annual salary rates quoted shall include the payment of all
holiday pay.
...
6. Days of work shall coincide with the teaching days of each
school year, including institute days. Any annual holidays as may
be provided under The Labour Standards Act shall be taken during
the periods of school closure at the Christmas, Spring, and
Summer vacation times as provided by The Education
Act.
...
8. Sick Leave: Annual Sick Leave Allowance shall be 20
days. The annual unused portion can be accumulated to a total of
180 days, exclusive of the current year's 20 days. The
entitlement is prorated for part-time employees.
...
15. Employees are requested to give at least four (4) weeks
written notice in the event of terminating their contracts of
employment with the Board. Termination by the Board will be in
accordance with provisions of The Labour Standards
Act.
16. Employees may be requested to work additional days. For
each additional day worked, the employee shall be paid in
accordance with the daily rate determined on the basis that each
additional day's wage shall be 1/200th of the
annual salary payable.
17. Term of Agreement: This Agreement shall be in force
and effect on and from January 1, 1995 up to and including
December 31, 1996, and shall continue to apply until revised or
terminated. Either party may, not less than thirty days nor more
than ninety days before the expiry date hereof, give notice in
writing to the other party to terminate this Agreement or
negotiate a revision thereof.
[11] The Appellants also produced Exhibit A-1 which reads as
follows:
Regina Public Schools
1600 4th Avenue
Regina
S4R 8C8
May 26, 1997
MEMO TO: Non-Teaching 10 Monthly Paid Permanent Employees
FROM: Christine Montgomery, Supervisor of Payroll
RE: Record of Employment at School Year End
______________________________________________________
We have recently been advised by Human Resources Development
Canada (HRDC) that our non-teaching employees who have a
continuing contract, are paid in ten monthly installments, are
required to work the teaching days in each school year and who
are entitled to continued benefit coverage during the summer
months while not working, should be issued a Record of Employment
at the end of each school year.
Therefore, we shall be preparing and issuing a Record of
Employment to you at the end of this school year. This does not
mean that your contract has been terminated. The Record of
Employment is being issued to you, because there is considered to
be an interruption of earnings from school year end until your
return to work at the beginning of the 1997/98 school year.
Questions regarding your eligibility for Employment Insurance
benefits during this period should be directed to the local HRDC
office.
[12] The School Board did not notify the Appellant that her
employment with it had been terminated as of June 28, 1997 nor
was she laid off but it issued the Record of Employment (Exhibit
A-1).
[13] The Appellant did not notify the School Board that she
was terminating her employment with it as of June 28, 1997.
[14] The School Board advised the Appellant that the Normal
School Year would commence on August 26, 1997 and the Appellant
commenced performing services for the School Board on and after
that date.
[15] The Appellant did not have to apply to the School Board
for a job for the Normal School Year beginning August 26,
1997.
Submissions
[16] The Appellants point to the Exhibits and argue that they
were not employed during the summer break since they did not work
and received no pay during that period.
[17] Counsel for the Respondent submits the Appellants'
contracts of employment were on an annual basis, even though they
did not work and received no pay during the summer period.
Analysis and Decision
[18] The Federal Court of Appeal in Re Petts et al. and The
Umpire Under Section 92 of The Unemployment Insurance Act,
[1974] 2 F.C. 225 held that section 158 of the Regulations,
dealing with teachers and the summer period, was not a valid
exercise of the powers conferred by section 58(h) of the
Act, the section authorizing the enactment of
Regulations.
[19] At p. 234, Jackett, C.J. stated:
Any regret that I might otherwise have had because I have
reached that conclusion is eliminated by the fact that I have not
been able to conceive of any problem in connection with the
non-teaching period of teachers that is not adequately dealt with
by s. 2(1)(n) [the section defining
"interruption of earnings"] and s. 21(2) [the
section dealing with when a period off is not a period of
unemployment]. Whether a teacher receives one-twelfth of his
annual salary at the end of each month of the year, one-tenth at
the end of each of 10 months of the year, or, as in Alberta,
one-twelfth at the end of each of nine months and three-twelfths
at the end of a 10th month, if his contract of service
continues throughout the year, there has been no
"lay-off" or "separation form ...
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.
[20] Petts is cited with approval in the Supreme Court
of Canada decision in Dick et al. v. Deputy Attorney General
of Canada, [1980] 2 S.C.R. 243.
[21] Further, in Attorney General of Canada v. Lori Fox
(1989) 103 N.R. 315 the Federal Court of Appeal stated as
follows:
From the definition of "employment" in s. 2 of the
Unemployment Insurance Act ... as elaborated on in s. 57(1)
of the Regulations ..., the relationship of employer and
employee and the existence of employment are not dependent on the
actual performance of services under the contract of employment.
It is sufficient that a contact of employment exists, which is
the situation in this case.
In CUB 16774 In the matter of a Claim by
Singh, David Reed J., acting as an Umpire stated:
The claimant in this case was not remunerated on a weekly or
other periodic basis. The contract was for a year. The salary
paid was expressed to be an annual salary. Whether during the
football season or outside of it there would be weeks during
which the claimant would not receive any money because the times
at which his salary instalments were paid to him depended upon
the football schedule and not on other timing considerations.
Thus "his usual remuneration" was paid by reference to
a system under which there would be weeks during which he
received no salary instalment because no games were played that
week. The payment schedule contemplated this type of
irregularity. Therefore, I do not think the claimant has proven
that he suffered an interruption of earnings. The weeks during
which he received no salary instalment were part of the planned
procedure pursuant to which he received "his usual
remuneration".
[22] The Contracts were to be effective as of January 1,
1995 and remain in force and effect up to and including
December 31, 1996 and from year to year thereafter.
[23] The most relevant provisions of the Employment
Insurance Act and the Regulations are:
2.(1) In this Act,
...
"employment" means the act of employing or the state
of being employed;
...
"interruption of earnings" means an interruption
that occurs in the earnings of an insured person at any time and
in any circumstances determined by the regulations;
5(1) Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more employers,
under any express or implied contract of service or
apprenticeship, written or oral, whether the earnings of the
employed person are received from the employer or some other
person and whether the earnings are calculated by time or by the
piece, or partly by time and partly by the piece, or
otherwise;
...
7(1) Unemployment benefits are payable as provided in this
Part to an insured person who qualifies to receive them.
7(2) An insured person, other than a new entrant or a
re-entrant to the labour force, qualifies if the person
(a) has had an interruption of earnings from
employment;
(b) has had during their qualifying period at least the
number of hours of insurable employment set out in the following
table in relation to the regional rate of employment that applies
to the person.
...
11(1) A week of unemployment for a claimant is a week in which
the claimant does not work a full working week.
11(2) A week during which a claimant's contract of service
continues and in respect of which the claimant receives or will
receive their usual remuneration for a full working week is not a
week of unemployment, even though the claimant may be excused
from performing their normal duties or does not have any duties
to perform at that time.
11(3) A week or part of a week during a period of leave from
employment is not a week of unemployment if the employee
(a) takes the period of leave under an agreement with
their employer;
(b) continues to be an employee of the employer during
the period; and
(c) receives remuneration that was set aside during a
period of work, regardless of when it is paid.
...
Regulations
14.(1) Subject to subsections (2) to (7), an interruption of
earnings occurs where, following a period of employment with an
employer, an insured person is laid off or separated from that
employment and has a period of seven or more consecutive days
during which no work is performed for that employer and in
respect of which no earnings that arise from that employment,
other than earnings described in subsection 36(13), are payable
or allocated.
...
(4) Where an insured person is employed under a contract of
employment under which the usual remuneration is payable in
respect of a period greater than a week, no interruption of
earnings occurs during that period, regardless of the amount of
work performed in the period and regardless of the time at which
or the manner in which the remuneration is paid.
...
(6) A period of leave referred to in subsection 11(3) of
the Act does not constitute an interruption of earnings,
regardless of the time at which or the manner in which
remuneration is paid.
...
36.(8) Where a vacation pay is paid or payable to a claimant
for a reason other than a lay-off or separation from an
employment, it shall be allocated as follows:
(a) where the vacation pay is paid or payable for a
specific vacation period or periods, it shall be allocated
(i) to a number of weeks that begins with the first week and
ends not later than the last week of the vacation period or
periods, and
(ii) in such a manner that the total earnings of the claimant
from that employment are, in each consecutive week, equal to the
claimant's normal weekly earnings from that employment;
and
(b) in any other case, the vacation pay shall, when
paid, be allocated
(i) to a number of weeks that begins with the first week for
which it is payable, and
(ii) in such a manner that, for each week except the last, the
amount allocated under this subsection is equal to the
claimant's normal weekly earnings from that employment.
[24] The most relevant provisions of the Contracts are cited
above.
[25] With respect to vacations, section 166 of The
Education Act, 1995 being Ch. E-0.2 of the
Statutes of Saskatchewan, 1995, as amended, provides as
follows:
166(1) The following vacation periods are to be observed:
(a) a Christmas vacation, which is to commence not later than
December 23 and end not earlier than January 2, both days
inclusive;
(b) a spring vacation, which is to be the five days following
Easter Sunday;
(c) a summer vacation that is at least six consecutive weeks
from the last school day in one school year to the first school
day in the following school year and that ends no earlier than
the first Monday in August.
[26] The Appellants were under contracts of service covering
the period from January 1, 1995 to at least December 31, 1997.
Although not receiving pay, they remained entitled during the
summer break to the various benefits provided under the
Contracts. The summer break is a vacation period. The Appellants
were clearly not laid-off and clearly did not terminate their own
employment. Their Contracts continued during the summer break
notwithstanding that no services were rendered nor income
received during that break. Also, it is clear from the Contracts
that the Appellants were paid on an annual (12 month) basis
notwithstanding that the instalments were paid during the 10
months of the Normal School Year.
[27] The School Board indicated in Exhibit A-1 that it would
issue a Record of Employment and implies that employment benefits
may be available in respect of the summer period. However, that
document is not decisive of the issue. Moreover, it specifically
states that the Record of Employment does not mean the contract
has been terminated.
[28] The cases related to teachers may not be totally
determinative because there is a Regulation (s. 33) specifically
applicable to teachers. However, the reasons for the decisions in
the teachers' cases and in Singh would appear to support the
Respondent's position. Moreover, in Petts the Federal
Court of Appeal held the then Regulation on teachers to be
invalid and based its decision on the provisions of the
Act.
[29] Also section 166 of The Education Act makes it
clear that the summer break is a vacation period, i.e., not a
lay-off period. In other words, there was no interruption of
earnings as contemplated by section 2(1) of the Act and
section 14 of the Regulations.
[30] For all of the foregoing reasons the appeals are
dismissed and the determinations of the Minister are
confirmed.
Signed at Ottawa, Canada this 10th day of December 1999.
"T.P. O'Connor"
J.T.C.C.
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