Franke v. M.N.R., docket 98-487-UI

Date: 19990929

Docket: 98-487-UI

BETWEEN:

MARK FRANKE,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Bonner, J.T.C.C.

[1] This is an appeal under section 103 of the Employment Insurance Act ("Act") from a decision on an appeal to the Minister of National Revenue ("Minister") under section 91 of the Act. The Minister's decision, which was communicated on April 20, 1998, was that the Appellant had a total of 343.28 hours of insurable employment during the periods from July 28 to August 20, 1997 and September 1 to December 31, 1997. During those periods the Appellant worked for the University of Victoria as a summer studies instructor and as a sessional lecturer respectively.

[2] The issue in this appeal is whether the Minister properly calculated the Appellant's number of hours of insurable employment. The difficulty in making the calculation arises because of the somewhat unusual nature of the Appellant's contract of employment. The contract was not a conventional exchange of an employee's time for payment at a fixed rate. Rather the contract, little of which was reduced to writing, required the Appellant to expend the time and the effort necessary to do the work properly. There was no effort made to directly link compensation to time worked.

[3] The concept of hours of insurable employment is fundamental to the smooth operation of the Act. Under section 7 of the Act unemployment benefits are payable to persons who qualify. In order to qualify an insured person must have a minimum number of hours of insurable employment during a qualifying period. The Appellant required a minimum of 910 hours of insurable employment in order to qualify for unemployment benefits. Subsection 6(3) of the Act provides that the number of hours of insurable employment that a claimant has in a period shall be established as provided by section 55 of the Act. 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. The Regulations must not be construed in a manner which is likely to produce arbitrary or capricious results.

[4] Subsection 10(1) of the Regulations, which is the provision on which the Minister says he relied in making the decision now under appeal, reads:

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.

[5] The Appellant was hired by the University as a summer studies instructor to teach two political science courses. The courses were to be taught during the period from July 28, 1997 to August 20, 1997. The University completed the Appellant's Record of Employment, Exhibit R-1, and allocated 140 hours of insurable employment in respect of the period. Exhibit A-2, the appointment status sheet issued by the University to the Appellant, indicates that the Appellant was paid $8,616 plus 4 percent vacation pay for the period. Subsequently the Appellant was hired by the University as a sessional lecturer to teach a political science course during the period from September 1, 1997 to December 31, 1997. In Exhibit R-1 the University allocated 203.28 hours of insurable employment to the Appellant in respect of that period. The appointment status sheet, Exhibit -3, issued by the University in respect of that period of employment indicates that the compensation is to be $1,144 per month. I gather that the monthly rate was arrived at by the division of the lump sum compensation fixed for the course by the four-month teaching period.

[6] There was no written contract containing a comprehensive statement of the Appellant's duties. The evidence does include information sheets furnished by the University of Victoria to sessional lecturers. The two documents produced were not in force during the relevant period but I understand they indicate in a general way the nature of the contract. One such sheet, Exhibit A-5, indicates under the heading "responsibilities" that normally a special lecturer will have only teaching responsibilities. The appointment status sheets are indicative of part of the contract but it appears from the Appellant's evidence and that of Janice D. Bennett, Manager of Payroll and Student Tuition Fees at the University of Victoria, that the expectations of the University are normally conveyed orally by the head of the department to the instructor. The head of the political science department of the University was not called to give evidence and the Appellant did not give a detailed account of any discussion defining his duties. However, it is clear from the evidence of the Appellant and of Ms. Bennett that the Appellant's responsibilities involved much more than in-class teaching.

[7] At the hearing of the appeal the Appellant produced detailed breakdowns of the number of hours which he spent in carrying out what he considered to be the duties of his employment. His calculations set out in Exhibit A-1 were as follows:

1. Political Science 240 (Q01), International Politics: (a summer course)

- in class teaching (lecturing and leading seminar discussions): 34 hrs.

- invigilation of final exam:      3 hrs.

- tutorial instruction outside of class (office hours):    5 hrs.

- class preparation, and writing of lectures:    240 hrs.

- 16 class days with 5 hours preparation and writing per day

- 160 hours of reading/research of new course materials

- course design and construction (finding suitable class materials and

developing overall study plan):     80 hrs.

- evaluation of students writing (eight 6-10 page essays): 10 hrs.

- evaluation of final exams:     2 hrs.

- total hours worked:     374 hrs.

2. Political Science 300B, Early-Modern Political Thought: (a summer course)

- in class teaching (lecturing and leading seminar discussions): 34 hrs.

- invigilation of final exam:      3 hrs.

- tutorial instruction outside of class (office hours):    20 hrs.

- class preparation, and writing of lectures:     64 hrs.

- 16 class days with 4 hours preparation and writing per day

- course design and construction (reviewing old and finding new material

suitable for study in the course):     35 hrs.

- evaluation of students writing (thirty-two 8-10 page essays): 40 hrs.

- evaluation of final exams:     8 hrs.

- total hours worked:     204 hrs.

3. Political Science 300C, Post-Enlightenment Political Thought:

- in class teaching (lecturing):      37.5 hrs.

- invigilation of final exam:       4 hrs.

- tutorial instruction outside of class (office hours):    50 hrs.

- class preparation, and writing of lectures:    138 hrs.

- 23 class days with 6 hours preparation and writing per day

- course design and construction (reviewing old and finding new material

suitable for study in the course):     25 hrs.

- supervision of teaching assistant:     20 hrs.

- evaluation of students writing (fifty-four 10-12 page essays): 60 hrs.

- evaluation of final exams:     14 hrs.

- total hours worked:     347.5 hrs.

TOTAL HOURS WORKED FOR TEACHING

OF ALL THREE COURSES:     925.5 hrs.

Ms. Bennett confirmed in her testimony that the Appellant's employment required him to do work of the type generally described in the calculation just reproduced.

[8] Some comment is required with regard to two areas of the Appellant's calculation. The Appellant testified that he devoted 160 hours to reading and research of new course materials required for the Political Science 240 summer course. The intensive nature of the course required that the reading and research be done prior to the commencement of the teaching period. In addition, the Appellant's calculation includes time spent in course design and construction. The appointment status sheets, read literally, suggest that the period of employment did not commence before July 28, 1997 in the case of the two summer courses and before September 1, 1997 in the case of the third course. However, I have concluded on the evidence as a whole that research undertaken to identify materials suitable for use in teaching the courses together with the general work of course design and construction was a service which the Appellant performed in response to the requirements of the contracts of employment and, as well, a service for which he was paid even though the work was performed prior to the commencement of the two teaching periods. The preparatory work was not undertaken to qualify the Appellant generally but rather was related specifically to the courses which the Appellant was required to teach. It is obvious that work of this kind can usefully be done only before the commencement of the classes.

[9] The Appellant's Record of Employment form dated January 2, 1998 was completed by a clerk in the payroll department of the University working under Ms. Bennett's supervision. Ms. Bennett produced the following calculation of the number of hours of insurable employment as shown in that record:

1.5 UNITS TEACHING = .33 FTE

MONTH DAYS HOURS X .33

Sept    23 161 53.13

Oct    20 140 46.20

Nov    23 161 53.13

Dec    22 154 50.82

TOTAL    203.28

July 28 – Aug 20, 1997

140 hours summer session

140 + 203.28 = 343.28 HOURS

At the hearing of the appeal the Respondent took the position that this calculation which had been provided by the University was "... evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated..." within the meaning of subsection 10(1) of the Regulations.

[10] The evidence adduced at the hearing of the appeal makes it clear that the calculation on which the Respondent relied is not evidence of the sort contemplated by subsection 10(1) of the Regulations. The calculation of the 203.28 hour figure for the months of September to December was prepared in accordance with a formula negotiated between the Canadian Association of University Teachers and Employment Insurance officials for the purpose of establishing the hours of insurable employment of university lecturers. As I understand Ms. Bennett's evidence, that formula assigns to the instructor for each course taught a predetermined number of hours of in-class teaching time and after-class teaching time. The number of hours assigned per course varies with the number of credits towards a degree which are earned by a student who successfully completes the course. The course taught by the Appellant was considered on that basis to have a value of .33 of a full-time course. The University's general rule is that for every hour of class time, three hours of preparation time is required. Ms. Bennett testified that the preparation time is intended to cover, among other things, office hours, setting of assignments, setting of final exams, marking of assignments, marking of final exams, organization of course and preparing daily lectures. Ms. Bennett admitted that the number of hours required by lecturers to discharge the duties under the employment contract varies depending on the course being taught, the design of the course and the individual instructor. There was no suggestion that there exists any relationship between time actually spent by an instructor and the formula based result. Accordingly subsection 10(1) of the Regulations does not apply to determine the Appellant's hours for either of the two teaching periods.

[11] Ms. Bennett explained that the 140 hour total assigned to the summer session was calculated on the basis of four weeks times 35 hours per week. That part of the calculation was, I believe, intended to respond to subsection 10(5) of the Regulations. That provision reads:

10.(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.

Ms. Bennett explained that 35 hours a week is the figure that the University uses for the calculation of hours of insurable employment for fulltime employees in the same position as the Appellant. The Appellant was in my view a truthful witness. I accept the evidence summarized in the first two sections of Exhibit A-1 that the number of hours which he worked in fulfilling the requirements of the contract of employment which called upon him to teach the two summer courses was 578. By reason of that evidence and the opening words of subsection 10(5) of the Regulations that subsection cannot apply.

[12] The University produced no evidence of the hours actually worked by the Appellant during either of the two teaching periods. The question was, quite simply, not addressed by the person who completed the Record of Employment. In completing that record the University relied on the 35 hour per week maximum for the summer period and on the formula for the fall period. In both cases the University failed to address the question which in my view is relevant under the statute, namely, time in fact spent in the performance of duties imposed on the employee by the contract of employment. In the result I find that if the Record of Employment had been prepared with due regard for the facts it would have reflected the 925.5 hours as calculated by the Appellant.

[13] The appeal will be allowed and the decision varied under subparagraph 103(3)(a) of the Act to provide that the number of insurable hours worked and for which the Appellant was remunerated was 925.5.

Signed at Ottawa, Canada, this 29th day of September 1999.

"Michael J. Bonner"

J.T.C.C.