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Citation:2003TCC474
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Date:20030716
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Docket: 2002-3342(EI)
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BETWEEN:
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GERALDINE CARSON,
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Appellant,
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and
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR JUDGMENT
Porter,
D.J.
[1] This appeal was heard at Edmonton, Alberta
on the 21st of May, 2003. The Appellant was represented by her husband, Shawn
Carson.
[2] The Appellant has appealed from the
decision of the Minister of National Revenue (hereinafter called the
"Minister") dated August 6, 2002, that her insurable hours for
employment insurance purposes while employed as a teacher with the Dene Tha'
Education Authority from August 27 to December 21, 2001, had been calculated at
697 hours.
[3] The decision was said to be issued under
subsection 93(3) of the Employment Insurance Act (the "EI
Act") and was based on subsection 10(3) of the Employment Insurance
Regulations (the "Regulations").
[4] The material facts reveal that the
Appellant worked for the Dene Tha' Education Authority as a teacher during the
time in question at Assumption, Alberta, a remote area in northern Alberta. Her
husband also worked for the same Education Authority for part of the same time,
returning to Edmonton sometime in November after the unfortunate and unexpected
death of their adult son.
[5] The Appellant concluded her work on the
21st of December 2001. The total insurable hours recorded on her Record of
Employment issued by the Education Authority and signed by a clerk in their
office by the name of Debra Ahkimnachie, was 595 hours. No negotiations took
place between the Education Authority and the Appellant or her husband around
the number of hours recorded. The Appellant challenged that number of hours so
recorded and by letter dated April 4, 2002 the Edmonton Tax Services Office of
the Canada Customs and Revenue Agency issued a ruling that the Appellant had
688.50 insurable hours for the period in question. In response to her appeal
against that ruling, the Minister decided that she had 697 insurable
hours.
[6] As the Appellant had not worked for a
number of years prior to starting with this Education Authority in August 2001,
she, in order to qualify for the receipt of employment insurance benefits, had
to meet the requirements of a new entrant or re-entrant to the labour force as
set out in subsections 7(3) and (4) of the EI Act. Those subsections
read as follows:
(3) Qualification
requirement for new entrants and re‑entrants – An insured person who
is a new entrant or a re‑entrant to the labour force qualifies if the
person
(a) has had an interruption of
earnings from employment; and
(b) has had 910 or more hours of
insurable employment in their qualifying period.
(4) New entrants and re-entrants –
An insured person is a new entrant or a re-entrant to the labour force if, in
the last 52 weeks before their qualifying period, the person has had fewer than
490
(a) hours of insurable employment;
(b) hours for which benefits have
been paid or were payable to the person, calculated on the basis of 35 hours
for each week of benefits;
(c) prescribed hours that relate to
employment in the labour force; or
(d) hours comprised of any
combination of those hours.
[7] As the Appellant had no hours of insurable
employment in the prior 52 weeks, she has to be treated under the statute
as a new entrant or re-entrant. In order to qualify for benefits, the Appellant
would need to establish 910 or more hours of insurable employment in the period
in question.
[8] Both the Appellant and her husband gave
evidence. They were indignant, to say the least, that the authorities on behalf
of the Minister had not given credit for all the extra hours she felt she had
put in to her work, particularly as they expected a sympathetic hearing in view
of the loss of their son, which had caused her to resign her position. This, of
course, is a matter set by statute and neither the Minister nor his officials
have any discretion in the disbursement of public funds and can only follow the
rules set by Parliament. I find no evidence of any bad faith on the part of the
Minister or any of his officials.
[9] The evidence was clear that at the school
in question there were many aboriginal children with learning difficulties
which placed additional demands on the principal and, in turn, the teachers.
They were clearly expected to put in extra time in order to be properly
prepared to instruct their classes. In addition, as this was her first year at
this school and she had been out of teaching for some time, the Appellant
herself had a lot of preparation time to put in. I have no doubt that she was
most conscientious and diligent in going about her duties. There were many
hours needed to be put into the school work over and above the actual teaching
time in the classroom. The challenge has always been to clearly identify the
amount of hours that time represented.
[10] The Appellant produced her daily class work
notes in which, on an almost daily basis, she has recorded the time she left
the school each afternoon. Her evidence was that she was there after the
children left doing additional preparation work, amongst other things. I accept
her evidence in this respect, confirmed as it is by her class notes. She was
clearly working at the school doing a greater amount of preparation work than
the one hour per day for which the Minister has given her credit. He allowed
her until 5:00 p.m. each day and it is clear that she often worked until 5:30
p.m. I calculate from her notes that there were 65 days where she worked until
5:30 p.m., i.e. an additional 32.5 hours.
[11] The Appellant also produced a calendar for
the period in question in which there is typed a number of hours worked on
Saturdays and Sundays during the period in question. It was hard to ascertain
from where these numbers were obtained as there are no working sheets or notes
made at the time to substantiate them, such as the class notes above. I gather
from her evidence that these numbers were put together by her after her return
to Edmonton, sometime most likely in January 2002, when making her application
for benefits. It was not a concern of hers to track those hours prior to that time.
Thus, I do not find the calendar per se supports her verbal evidence. The
calendars were clearly created after the fact.
[12] Nonetheless, she gave very clear evidence
that almost always she returned to the school and worked between 1:00 and 5:00
p.m. each Saturday. It was her regular routine with some exceptions that she
has noted. She also said that after she returned from church on Sundays, it was
again almost her regular practice to return to the school on Sunday afternoons
for 3 hours again to do preparation work. I accept her evidence in respect of
the work she did on these Saturday and Sunday afternoons. Her evidence had a
sufficient ring of credibility about it that I believe her when she says she
worked these times.
[13] In addition to that, she says that she
worked on November 12, the statutory holiday, and on October 2 and November 7
and 8 during evening meetings with parents and the Elders. Again, I accept her
evidence in this respect.
[14] Her funeral and bereavement time has
already been counted in by the Minister and she had been given credit for this
time.
[15] The Appellant has also lumped into the
total hours she is claiming, amounts for professional development, extras,
award presentations, report card preparation, ordering supplies, balancing her
register and marking. No specific evidence was given concerning these items. I
have the greatest difficulty, in the absence of specific evidence, in believing
that all these things were not covered in the late afternoons or weekend times
for which she has already been given credit. I have to agree with the agent for
the Minister that these have the appearance of being double-counted. I do allow
her the evening time for the Christmas concert, 5 hours on December 19. This
appears in her notes.
[16] Lastly, the Appellant said that she did
much work at home in the evenings. Again, no specifics were given and I have
nothing on which to base any credit for time she says she spent working during
the evenings.
[17] Taking the above into account, and in
particular reviewing her daily class notes in detail, I now calculate her
insurable hours as follows:
Hours calculated by the Minister
8.5 hours for 82 days (8:30 to 4:00 p.m.) 697
hours
½ hour x 65 days for work during afternoons
after school from class notes 32.5
hours
Remembrance Day
8.5 hours
Elders and parent meetings October 2
evening 5 hours
Parent-teacher interviews November 7 and 8
5 hours x 2
10 hours
Christmas concert December 19 evening
5 hours
Saturdays 11 days x 4 hours
44 hours
2 days x 5 hours
10 hours
Sundays 12 days x 3 hours
36 hours
Computer in service work on November 4
5 hours
TOTAL 853
hours
[18] In the event, I find that the Appellant
worked 853 insurable hours during the period in question. That is unfortunately
still less time than the number of hours required for her to qualify under the
statute for employment insurance benefits. The appeal is allowed accordingly.
Signed at Calgary, Alberta, this 16th day of
July 2003.
Porter,
D.J.
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