Date: 19981103
Docket: A-101-98
CORAM: THE CHIEF JUSTICE
STRAYER J.A.
LINDEN J.A.
IN THE MATTER OF: THE UNEMPLOYMENT INSURANCE ACT, R.S.C. 1985, c.U-1
BETWEEN:
ANNEMARIE YING,
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba on November 3, 1998)
STRAYER J.A.
[1] Mr. Justice Linden and I are of the view that the facts of this case as presented to the Board of Referees and the Umpire make it distinguishable from earlier decisions of this Court in such cases as Gauthier v. Attorney General [1995] F.C.J. 1350 and Attorney General v. Hann (A-678-95). We agree with the findings of the Board of Referees that there was no continuity of employment here. We find that the facts indicate that there was a termination of the claimant's term contract of employment on June 30, 1996 and her next contract of employment did not begin until August 26, 1996. The evidence also indicates that she was not contractually entitled to any pay in respect of this period. While she signed the new contract in June, 1996, for employment commencing in August, this in our view does not mean that she was continuously employed in the meantime. We emphasize that the language of paragraph 33(2)(a) of the Employment Insurance Regulations allows for benefits in such circumstances if "the claimant's contract of employment for teaching has terminated". We conclude that there was a period between June 30 and August 26, 1996 when the claimant could not have been said to have a contract of employment in operation.
[2] We believe that Gauthier, and the Hann case which followed it, can be distinguished because the Court in both these cases, on the basis of the record before it, was able to conclude that by operation of law there was no interval between the claimant's successive contracts of employment.
[3] The Chief Justice dissents from our conclusion because he does not see any distinction in principle between this case and the Gauthier and Hann cases.
[4] The application for judicial review should be allowed with costs, the decision of the Umpire set aside, and the matter remitted to the Chief Umpire for an affirmation of the decision of the Board of Referees in accordance with these reasons.
"B.L. Strayer"
J.A.
WINNIPEG, MANITOBA
November 3rd, 1998
Date: 19981103
Docket: A-101-98
CORAM: THE CHIEF JUSTICE
STRAYER J.A.
LINDEN J.A.
IN THE MATTER OF: THE UNEMPLOYMENT INSURANCE ACT, R.S.C. 1985, c.U-1
BETWEEN:
ANNEMARIE YING,
Applicant,
- and -
THE ATTORNEY GENERAL OF CANADA,
Respondent.
Heard at Winnipeg, Manitoba, on November 3, 1998
Judgment delivered from the Bench at Winnipeg, Manitoba on November 3, 1998
REASONS FOR JUDGMENT BY: STRAYER J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-101-98
STYLE OF CAUSE: Annemarie Ying v. The Attorney General of Canada,
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 3, 1998
REASONS FOR JUDGMENT
OF THE COURT: THE CHIEF JUSTICE
STRAYER J.A.
LINDEN J.A.
DELIVERED BY: STRAYER J.A.
DATED: November 3, 1998
APPEARANCES
Mr. Elliot Leven for the Applicant
Ms. Erika Bottcher
Department of Justice
211 Bank of Montreal Building
10199 - 101 Street
Edmonton, Alberta
T5J 3Y4 for the Respondent
SOLICITORS OF RECORD
Myers Weinberg Kussin Weinstein Bryk
Barristers & Attorneys-at-Law
724 - 240 Graham Avenue
Winnipeg, Manitoba
R3C 0J7 for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
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