Date: 20020626
Docket: A-151-01
Neutral citation: 2002 FCA 276
CORAM: DESJARDINS J.A.
LINDEN J.A.
SEXTON J.A.
BETWEEN:
SCOTT BISHOP
Applicant
and
CANADA EMPLOYMENT INSURANCE COMMISSION
First Respondent
and
ATTORNEY GENERAL OF CANADA
Second Respondent
Heard at St. John's, Newfoundland on June 26, 2002.
Judgment delivered from the Bench at St. John's, Newfoundland
on Wednesday, June 26, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20020626
Docket: A-151-01
Neutral citation: 2002 FCA 276
CORAM: DESJARDINS J.A.
LINDEN J.A.
SEXTON J.A.
BETWEEN:
SCOTT BISHOP
Applicant
and
CANADA EMPLOYMENT INSURANCE COMMISSION
First Respondent
and
ATTORNEY GENERAL OF CANADA
Second Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at St. John's, Newfoundland on
Wednesday, June 26, 2002)
SEXTON J.A.
[1] This is an application for judicial review of the decision of an umpire dated November 30, 2000 in which the learned umpire allowed the respondent's appeal of a decision of the Board of Referees dated December 1, 1999.
[2] The Board of Referees had reversed the determination by the Commission that the applicant did not qualify for regular employment insurance benefits because, as a teacher, he was not entitled to receive benefits during a non-teaching period.
Facts
[3] The applicant (Bishop) was a teacher hired for a one year contract position ending on June 25, 1999. Prior to June 25, 1999, Bishop had been hired for a further year under a contract for a position for the coming school year. Bishop claimed for employment insurance benefits for the months of July and August being the intervening period. During that intervening period, however, Bishop was still being paid amounts owed to him from the first contract in the form of "hold back pay" whereby a teacher's pay is spread over twelve months even though the teacher works for ten months. This obviously corresponds to the summer holiday period when there is no school.
[4] The umpire in allowing the appeal from the decision of the Board of Referees, found that Bishop was not unemployed during the months of July and August within the meaning of section 33(2) of the Employment Insurance Regulations. The relevant provision is as follows:
| 33.(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.
|
33.(2) Le prestataire qui exerçait un emploi dans l'enseignement pendant une partie de sa période de référence n'est pas admissible au bénéfice des prestations - sauf celles payable aux termes des articles 22 et 23 de la Loi - pour les semaines de chômage comprises dans toute période de congé de celui-ci,sauf si, selon le cas:
a) son contrat de travail dans l'enseignement a pris fin;
b) son emploi dans l'enseignement était exercé sur une base occasionnelle ou de suppléance;
c) il remplit les conditions requises pour recevoir des prestations à l'égard d'un emploi dans une profession autre que l'enseignement.
|
Analysis
[5] Bishop submits that the decision of this Court in Ying v. Canada, [1998] F.C.J. No. 1615 (F.C.A.) (A-101-98) is determinative of the case before us. In Ying the teacher concerned had a one year contract and then signed a second one year contract prior to the end of the first contract and then claimed for employment insurance benefits during the summer months. However, there is a significant difference between the case before us and Ying. In Ying the teacher in question did not receive hold back pay throughout the summer whereas in the case before us Bishop did receive pay. The decision in Ying appears to have turned on the fact that Ying was not contractually entitled to any pay during the summer period. The Court said as follows:
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 continually 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 was 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.
(underlining mine)
[6] Bishop argued before us that the contract by which he was employed was terminated effectively on June 25, 1999. However, if it had actually been terminated then Bishop would not have been paid for the summer months of that year. The fact that he was paid during those months indicates that the contract clearly remained in force. If Bishop had not been paid for those months he would have had a valid action against his employer for payment of those two months.
[7] We are confirmed in our view by another decision of this Court, Attorney General of Canada v. Partridge [1999] F.C.J. No. 974 (F.C.A.). In this case Partridge was a teacher who also applied for unemployment benefits during the summer months. The Court held she was not so entitled and said as follows:
According to the respondent's collective agreement, her annual salary was paid for the entire school year. There is no evidence suggesting that the respondent was not paid for the period at issue. To allow the respondent to collect unemployment benefits from July 12, 1993 until the start of her teaching period in early September would effectively allow her to be doubly compensated for that period of time.
[8] Again, relying on Ying, Bishop argued that his contract for the school year 1999-2000 was terminated before the contract for the succeeding year became effective. However the letter dated June 11, 1999 informing him that he was being rehired stated that he was being hired for the "1999-2000 school year". Section 2(s) of the Schools Act, 1997 of Newfoundland defined "school year" as "commencing on July 1 in a calendar year and ending on June 30 in the following calendar year". We have not been provided with the actual contract in question and in the absence of such contract it is reasonable to interpret the June 11, 1999 letter in accordance with the definition in the Schools Act.
[9] Further, in Ying, it appears there was an interval of time between the claimant"s successive contracts whereas in the present case there was no such interval because Bishop had already been hired for the second school year before the first school year had been completed.
[10] Bishop further argued he became unemployed as a result of a shortage of work. In fact he was not short of work. He was employed up to the end of the school year in June of 1999. There was no work for teachers during the summer months. Bishop was further employed pursuant to the letter dated June 11, 1999 for the school year commencing on July 1, 1999 and ending on June 30, 2000. Thus he was not out of work at all and he was paid during the entire time period for which he was claiming EI benefits.
[11] We are of the view that to allow Bishop to receive unemployment insurance for the summer months would effectively be doubly compensating him for that period of time.
[12] This application for judicial review will therefore be dismissed with costs.
"J" EDGAR SEXTON"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-151-01
STYLE OF CAUSE: SCOTT BISHOP v. CANADA EMPLOYMENT
INSURANCE COMMISSION AND OTHER
PLACE OF HEARING: ST. JOHN'S, NEWFOUNDLAND
DATE OF HEARING: JUNE 26, 2002
REASONS FOR JUDGMENT OF THE COURT: (Desjardins, Linden & Sexton JJ.A.)
REASONS FROM THE BENCH BY: SEXTON J.A.
APPEARANCES:
MR. THOMAS JOHNSON FOR THE APPLICANT
MS. MELISSA CAMERON FOR THE RESPONDENT
SOLICITORS OF RECORD:
O'DEA, EARLE, FOR THE APPLICANT
ST. JOHN'S, NEWFOUNDLAND
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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