Docket: 2009-2708(EI)
BETWEEN:
SANDY DA SILVA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeal
heard on March 19, 2010, at Toronto, Ontario
Before: The Honourable
Justice Valerie Miller
Appearances:
|
For the Appellant:
|
The
Appellant herself
|
|
Counsel for the Respondent:
|
Roxanne Wong
|
____________________________________________________________________
JUDGMENT
The appeal from the decision made under the Employment
Insurance Act for the period from September 1, 2007 to October 31, 2008 is dismissed and the
decision of the Minister of National Revenue is confirmed.
Signed at Ottawa, Canada,
this 3rd day of May 2010.
“V.A. Miller”
Citation: 2010TCC235
Date: 20100503
Docket: 2009-2708(EI)
BETWEEN:
SANDY
DA SILVA,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1]
The issue in this
appeal is whether the Minister of National Revenue (the “Minister”) correctly
determined the number of insurable hours that the Appellant accumulated during
the period September 1, 2007 to October 31, 2008.
[2]
The Appellant is
employed by the Toronto District School Board (TDSB) as a mathematics teacher
at Forest Hills Collegiate Institute.
[3]
In 2003, she signed an
agreement with her employer which provided for a leave of absence for one
school year with pay at 80% of her salary. This agreement was called the “FOUR
OVER FIVE PLAN” (the “Agreement”) and it had been negotiated between the
Appellant’s union, The Ontario Secondary School Teachers’ Federation (“OSSTF”),
and the TDSB.
[4]
Pursuant to the
Agreement, the Appellant received 80% of her salary for four years and during
the fifth year, she had a leave of absence with pay at 80% of her salary. The
Appellant’s leave period was September 1, 2007 to August 31, 2008 (the “leave
period”).
[5]
During the leave
period, the Appellant became pregnant. Due to health complications, she gave
birth to her son three weeks early on September 20, 2008.
[6]
The TDSB issued two
Records of Employment (ROE) to the Appellant to inform her that she had earned
a total of 301 insurable hours for the period September 2, 2008 to October 31,
2008.
[7]
The Minister also
determined that the Appellant had accumulated 301 insurable hours for the
period September 1, 2007 to October 31, 2008.
[8]
In making the
determination, the Minister relied on the following provisions of the Employment
Insurance Regulations (the “Regulations”):
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.
…
(3) Where the number of hours agreed
to by the employer and the worker or group of workers under subsection (2) is
not reasonable or no agreement can be reached, each worker is deemed to have
worked the number of hours in insurable employment established by the Minister
of National Revenue, based on an examination of the terms and conditions of the
employment and a comparison with the number of hours normally worked by workers
performing similar tasks or functions in similar occupations and industries.
…
10.1 (1) Where an insured person is remunerated by the
employer for a period of paid leave, the person is deemed to have worked in
insurable employment for the number of hours that the person would normally
have worked and for which the person would normally have been remunerated
during that period.
[9]
The Minister also
determined that the Appellant did not qualify to receive employment insurance
benefits during her pregnancy and parental leave as she did not have the
required 600 insurable hours.
[10]
Craig Duncan, the
payroll manager for the TDSB, testified that the salary which the Appellant
received during her leave period was self-funded as it was earned over the
first four years of the Agreement. The Appellant did not work during the leave
period and she was on personal time during this period. He stated that the
Appellant applied to take part in the deferred salary leave plan offered by the
TDSB; her application was accepted; and she signed the Agreement on May 8,
2003.
[11]
Teachers are not salaried
employees over a 12 month period. They are only remunerated for a school year
which consists of 194 days. Teachers receive their salary evenly over 26 pay
periods. The TDSB and the OSSTF have agreed that a teacher should be credited
with seven insurable hours for each school day worked. A teacher does not
accumulate insurable hours nor does she get paid for July, August, Christmas
break, March break and statutory holidays[1].
[12]
It is the Respondent’s
position that the Appellant did not earn any insurable hours during the leave
period as she was not remunerated by her employer and the Appellant was not on
paid leave.
[13]
The facts in this
appeal are similar to those in the case of Huard v. Canada[2].
In that case Ms. Huard had signed an agreement with her employer which provided
for a deferred salary leave averaged over five years. In each of the first four
years, Ms. Huard worked and the employer withheld 20% of her pay. Ms. Huard was
paid the amount held back during the fifth year when she was on leave. Létourneau
J., speaking for the court, stated:
[10] It is
also incorrect to conclude, as the judge did, that the reward or benefit
received by the respondent had the same attributes as vacation pay. What the
respondent received during the period in question was not vacation pay or
compensation for work performed during that period. Rather, it was an amount
that, as the agreement states, is salary earned for periods of work prior to
the period in dispute, but the payment of which to the respondent has been
deferred in part. The postponement of a part of the salary thus earned by the
respondent during the first four years of the agreement, during which work was
provided, did not have the effect of transforming the leave without pay in the
fifth year into a year of remunerated work or, as the judge seemed to think, a
paid leave.
[14]
In the present appeal,
the Appellant did not receive remuneration from the TDSB during the leave
period. She was not on paid leave but was on leave without pay. The monies she
received from the TDSB during the leave period had been earned by her during
the previous four years and payment was deferred until the fifth year.
[15]
Unfortunately, I must
dismiss the appeal.
Signed at Ottawa, Canada, this 3rd day of May 2010.
“V.A. Miller”
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