Date: 19981204
Docket: A-113-98
Coram: PRATTE J.A.
DESJARDINS J.A.
DÉCARY J.A.
Between:
DANIELLE BRUNEAU
Applicant
- and -
CANADA EMPLOYMENT INSURANCE COMMISSION
- and -
DEPUTY ATTORNEY GENERAL OF CANADA
Respondents
Hearings held at Montréal, Quebec, on Wednesday, December 2, 1998,
and Friday, December 4, 1998.
Judgment delivered at Montréal, Quebec, on Friday, December 4, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.
Date: 19981204
Docket: A-113-98
Coram: PRATTE J.A.
DESJARDINS J.A.
DÉCARY J.A.
Between:
DANIELLE BRUNEAU
Applicant
- and -
CANADA EMPLOYMENT INSURANCE COMMISSION
- and -
DEPUTY ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal
on Friday, December 4, 1998)
DÉCARY J.A.
[1] Applicant Bruneau"s case was chosen by the Canada Employment Insurance Commission and the Centrale de l"Enseignement du Québec as a test case for the Court to specify how to allocate the earnings of a teacher who has signed a part-time teaching contract under the [TRANSLATION] "Agreement between the Catholic school boards" management bargaining committee and the teachers" union represented by the Centrale de l"Enseignement du Québec".
[2] The issue to be settled is straightforward. Of subsection (3) and subsection (4) of section 58 of the Unemployment Insurance Regulations (C.R.C. 1978, c. 1576, as amended), which one applies in this case? Those provisions read:
| 58. . . .
(3) Earnings payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.
(4) Earnings, payable to a claimant under a contract of employment without the performance of services or payable in consideration of a claimant returning to or commencing work with an employer, shall be allocated to the period for which they are payable.
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58. . . .
(3) La rémunération payable au prestataire aux termes d'un contrat de travail en échange des services rendus doit être répartie sur la période pendant laquelle ces services ont été fournis.
(4) La rémunération payable au prestataire aux termes d'un contrat de travail sans que soient fournis des services ou celle payable par l'employeur au prestataire pour qu'il revienne au travail ou commence à exercer un emploi doit être répartie sur la période pour laquelle elle est payable.
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[3] Under the collective agreement, the general provisions that apply to full-time teachers are applicable to part-time teachers, with appropriate adjustments. Therefore, this case must be analysed in the following light: a teacher is hired under an [TRANSLATION] "annual contract"; she receives an "annual salary", which "includes working days, statutory holidays, non-working days and vacation days"; "the working year consists of 200 working days", which, unless otherwise agreed, "are scheduled from September 1 to the following June 30"; and the "annual salary" is paid "in 24 instalments, in the following manner:
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(a) every second Thursday of the working year, the teacher receives 1/24 of the annual salary amounts applicable . . . on the first working day of the relevant pay period; |
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(b) at least two instalments together are paid to the teacher when she or he leaves for the summer holidays; |
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(c) notwithstanding paragraph (a), the last two instalments in a school year must be readjusted such that the teacher receives, for that school year, 1/200 of her or his applicable annual salary, as well as her or his applicable supplements or bonuses, if any, for each working day that she or he worked during that school year. |
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[Applicant"s record at p. 83] |
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[4] It follows that a part-time teacher such as the applicant, whose contract took effect on August 24, 1993, and ended on June 29, 1994, was paid from August 24, 1993, to June 29, 1994, and that her earnings covered her working days as well as statutory holidays, non-working days and vacation days that occurred in the course of her period of employment, including, in particular, the Christmas holidays and the Easter holidays.
[5] To simplify things, let us say that, in practice, what is at stake in this case is the following: when allocating the salary of a claimant who was a part-time teacher in her qualifying period, should the salary received be allocated to each of the weeks of the employment period, regardless of whether or not the teacher performed services in each of those weeks, or should it be allocated to only those weeks in which services were performed, which in the case at bar would exclude the weeks of the Christmas and Easter holidays.
[6] Based on the Supreme Court of Canada"s judgment in [1980] 2 S.C.R. 243">Dick et al. v. Deputy Attorney General of Canada , [1980] 2 S.C.R. 243, the Commission was of the view that subsection 58(3) applied. The board of referees was of the view that subsection 58(4) should apply instead. The umpire agreed with the Commission.
[7] It is certain that were it not for Dick, subsection 58(4) would apply to the weeks of the Christmas and Easter holidays since those are weeks for which earnings are payable to the claimant "under a contract of employment without the performance of services". As this Court said in Canada (Attorney General) v. Sylvain (1991), 137 N.R. 336:
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. . . it is now certain (Attorney General of Canada v. Frenette, A-951-90, unreported decision of November 8, 1991, 137 N.R. 330) that, in order to apportion the remuneration paid under a contract of service in the course of which some services were not always rendered, it is necessary to have regard to the period for which the remuneration was payable rather than the dates on which the employee performed his or her duties. |
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[Mr. Justice Pratte at pp. 339-40] |
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However, this Court did not refer to Dick in Sylvain and Frenette, despite the fact that it had been handed down some ten years earlier.
[8] In our view, Dick does not block application of subsection 58(4) to this case. The circumstances and the provisions of the collective agreement were different in that case, and above all, the regulations then in force were not the same as today. In fact, in order to avoid having Dick apply except as provided in sections 18 (pregnancy benefits) and 20 (parental benefits) of the Unemployment Insurance Act, the Governor in Council enacted section 46.1 of the Unemployment Insurance Regulations (SOR/80-536) on July 11, 1980. In our view, it follows that the Supreme Court"s reasoning on the allocation issue in Dick must not prevent the provisions of subsection 58(4), which seem clear to us, from applying to cases like the one before us.
[9] We are therefore of the view that subsection 58(4) applies in this case.
[10] The application for judicial review will be allowed, the Umpire"s decision will be set aside, and the matter will be referred back to the Chief Umpire or to an umpire designated by him for redetermination on the basis that the board of referees was justified in holding that the manner of allocation was that prescribed by subsection 58(4) of the Unemployment Insurance Regulations.
Robert Décary
J.A.
Certified true translation
Peter Douglas
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-113-98
STYLE OF CAUSE: Danielle Bruneau v. Canada
Employment Insurance Commission
and Deputy Attorney General of
Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 2 and 4, 1998
REASONS FOR JUDGMENT OF THE COURT: (Pratte, Desjardins,
Décary JJ.A.)
DELIVERED FROM THE BENCH ON DEC. 4 BY: Décary J.A.
APPEARANCES:
Jean-Guy Ouellet
William De Merchant for the applicant
Paul Deschênes
C. Provencher for the respondents
SOLICITORS OF RECORD:
Campeau, Ouellet et
Associés
Montréal, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondents
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