Citation: 2013 TCC 113
Date: 20130412
Docket: 2012-3793(EI)
BETWEEN:
GINA HEIDEBRECHT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Weisman D.J.
[1]
The appellant is a
part-time music teacher. The respondent, the Minister of National Revenue (the
“Minister”) determined her insurable hours while employed by Edmonton School District #7 during the 2010-2011 academic year to be 509. She now appeals
against the respondent’s calculations.
[2]
Specifically, she
contends that the Minister has improperly declined to give her credit for 61
hours and 10 minutes of time that she spent setting up her classroom at the beginning
of the year, attending meetings assigned by her principal, general preparation
and planning of her courses, marking student work and recording student
achievements including the preparation of report cards, and extra-curricular
activities such as rehearsals, performance preparation and other such
non-instructional extra work with her students.
The Legislative Provisions
[3]
The
relevant legislative scheme is set out in sections 6.(3) and 55.(1) of the Employment
Insurance Act
(the “Act”) and section 10 of the Employment Insurance Regulations (the “Regulations”). They are
reproduced below.
Employment Insurance Act
6. (3) Hours of insurable employment - For the
purposes of this Part, the number of hours of insurable employment that a
claimant has in any period shall be established as provided under section 55,
subject to any regulations made under paragraph 54(z.1) allocating the hours to
the claimant’s qualifying period.
55. (1) Hours of insurable employment - The
Commission may, with the approval of the Governor in Council, make regulations
for establishing how many hours of insurable employment a person has, including
regulations providing that persons whose earnings are not paid on an hourly
basis are deemed to have hours of insurable employment as established in
accordance with the regulations.
Employment Insurance 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.
(2) Except where subsection (1) and
section 9.1 apply, if the employer cannot establish with certainty the actual
number of hours of work performed by a worker or by a group of workers and for
which they were remunerated, the employer and the worker or group of workers
may, subject to subsection (3) and as is reasonable in the circumstances, agree
on the number of hours of work that would normally be required to gain the
earnings referred to in subsection (1), and, where they do so, each worker 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.
(4) Except where subsection (1) and
section 9.1 apply, where a person's actual hours of insurable employment in the
period of employment are not known or ascertainable by the employer, the
person, subject to subsection (5), is deemed to have worked, during the period
of employment, the number of hours in insurable employment obtained by dividing
the total earnings for the period of employment by the minimum wage applicable,
on January 1 of the year in which the earnings were payable, in the province
where the work was performed.
(5) In the absence of evidence
indicating that overtime or excess hours were worked, the maximum number of
hours of insurable employment which a person is deemed to have worked where the
number of hours is calculated in accordance with subsection (4) is seven hours
per day up to an overall maximum of 35 hours per week.
(6) Subsections (1) to (5) are subject
to section 10.1.
[4]
The above provisions
have been judicially considered in the following reported cases to ascertain
which of the above paragraphs are best applied to school teachers and those
whose earnings are not paid on an hourly basis.
[5]
In Franke v. M.N.R. Bonner
J. rejected the University’s formula-based calculation of hours entered on the
record of employment issued to the appellant lecturer as any evidence of hours
actually worked by him. He found the appellant credible and accepted his evidence
of excess hours worked in non-instructional duties connected to his course as
provided for in subsection 10.(5) of the Regulations. In view of this
determination, the deeming provision in 10.(5) was found to be inapplicable.
[6]
McKenna v. M.N.R. involved a writing instructor at York University in Toronto. I found
her estimate of actual hours worked to be credible, in view of her 12 years of
experience teaching the same course, notwithstanding the absence of any
detailed docket to support her evidence. I rejected the University’s formulaic
approach to the determination of actual hours worked. In the result, the excess
hours worked provision in Regulation 10.(5) was applied rather than the deeming
provisions contained in subsections 10.(4) and (5).
[7]
In Furtado v. M.N.R. a
building superintendent who was responsible for management, rent collection and
cleaning the premises claimed that she worked 7 to 10 hours per day, 7
days per week. The Minister resorted to the deeming provisions in Regulation 10.(4),
and used the minimum wage applicable in Ontario to calculate her insurable
hours. This approach was approved of by Somers J., who dismissed the worker’s appeal.
[8]
Redvers Activity
Centre Inc. v. M.N.R. concerned the operator of a group home for
residents with high care physical and medical needs. She had a set daily wage
and worked three-day shifts of 24 hours per day. Her employer had knowledge of
these actual hours worked and agreed with her calculation of 72 insurable
hours per shift. Beaubier J. therefore found subsections 10.(1) and (2)
applicable, and her appeal was granted.
[9]
In Moses v. M.N.R. the appellant
was a sessional instructor at the University of Windsor. At trial, I found subsection
10.(5) applicable. However, the appellant had no documentation to support his
claim, for extra hours worked on non‑instructional duties. Any notes he
did have were made ex part facto in support of his application for
benefits under the Act, and he was found to be lacking in credibility. I
rejected his estimate of excess hours worked. Upon judicial review by the
Federal Court of Appeal ,
no issue was taken with respect to my resort to Regulation 10.(5) in this fact
situation. The Court, however, sent the matter back to the Tax Court on the
grounds that I ought to have determined a figure for the hours spent in
preparatory time and other time not relating to face-to-face hours with the applicant’s
students.
[10]
Chisholm v. M.N.R. involved the Director of the Grimsby Public Art Gallery who was paid
an annual salary. She catalogued some 19 different duties inherent in her
position, which Bowman J. described as “onerous and gruelling.” The appellant
filed her daily appointment book as an exhibit in the proceedings. It
documented 98.75 overtime hours, which the court found credible. In applying
Regulation 10.(5) the court concluded: “… where there is evidence of the number
of hours actually worked there is no need to have recourse to any other
method.”
[11]
In Carson v.
M.N.R.
Porter J. dealt with a school teacher who claimed credit for extra time. She
produced her daily class work notes in which she recorded the time she left
school each afternoon. She usually departed after the students did and was
occupied doing preparation work till then. This evidence was accepted, as was
her testimony that she almost always returned to school to work for 7 hours
each weekend.
[12]
She also produced a
calendar on which she had typed the number of hours worked at home on weekends.
This evidence, however, was rejected since there was no indication where the
numbers came from and no working sheets or notes made at the time to
substantiate them. The numbers were apparently put together after the fact when
the appellant applied for benefits under the Act. Also rejected as not
credible were amounts for duties such as professional development, report card
preparation and marking tests. These lacked specific evidence in support and
were found to be double-counted.
[13]
In the result, the
appellant was found to lack the excess insurable hours necessary to qualify for
benefits. An appeal to the Federal Court of Appeal was dismissed. No issue was
taken with the trial judge’s apparent application of Regulation 10.(5) to
resolve the matter.
[14]
Sutton v. M.N.R. concerned an adult education teacher’s appeal involving insurable
hours. The appellant had 17 years of experience in the field. Teskey J. adopted
the reasoning in Franke and Chisholm and credited the appellant
with insurable hours for extra time spent in preparation for his classes.
[15]
In Société en
commandite Le Dauphin v. M.N.R.
Savoie J. found that a residential building
superintendent who was remunerated on a weekly basis and who was on-call 24
hours per day, 7 days per week failed to discharge the onus of disproving the
respondent Minister’s assumptions, and dismissed the appeal. The Minister was
found to have properly resorted to the minimum wage deeming provision found in
subsection 10.(4) of the Regulations.
[16]
Judge v. M. N.R. dealt with a secondary school teacher who claimed
insurable hours for extra time spent in preparing for his classes. The employer
school board adduced evidence as to the number of insurable hours its payroll
department historically entered on teachers’ records of employment, but did not
know where the figure came from. This evidence was accordingly rejected by
Woods J. as being any proof of the actual hours worked by the appellant and for
which she was remunerated. The excess hours worked provision in Regulation 10.(5)
was applied and the appeal was allowed. In doing so, the court found the
appellant’s estimate of time spent in preparation and extra duties much more
accurate than that of the Minister.
[17]
MacKenzie v. M.N.R. involved a part-time college instructor with over two
decades of teaching experience. His evidence of preparation and other non‑classroom
teaching time, however, was only unsupported after the fact estimates which
Boyle J. found to be “somewhat high”. The Ontario College of Regents’ formulaic
approach was also rejected as proof of actual hours worked by the appellant.
[18]
The court decided the issue by
applying the minimum wage deeming provisions found in subsection 10.(4) of the Regulations.
The result was many more insurable hours than even the appellant estimated. The
court concludes: “This deemed result is certainly an odd result which clearly
bears no resemblance to the number I would have determined to be
Mr. MacKenzie’s actual hours worked…”.
[19]
This survey of the relevant
reported cases to date reveals the following:
1. The courts reject formulae as
providing proof of actual hours worked.
2. The excess hours worked
provision in Regulation 10.(5) is commonly resorted to by courts as the most
fair and accurate method of resolving these issues if there is credible
evidence of these hours.
3. Some courts have resorted to the
minimum wage in the province where the work was performed pursuant to the
deeming provisions in Regulations 10.(4) and (5).
4. The worker’s claim for excess
hours worked is more likely to be accepted as credible if it is supported by
documented times and dates made contemporaneously with the events recorded.
The
Facts:
[20]
The appellant was paid an annual
salary. Pursuant to the Collective Agreement between her teachers’ association
and the district board of trustees, for this salary, either her principal or
the board could assign duties to her, which included instruction, supervision
of students and professional activities such as staff meetings and
parent/teacher conferences. She also spent unassigned time both at school and
at home on professional duties such as preparing for her music classes and
completing report cards. Her employer was therefore unable to provide evidence
of the hours she actually worked and for which she was remunerated.
[21]
The appellant’s extra hours were
contemporaneously documented by her on 65 pages of daily notes which detail the
times she spent on professional duties, both in school and out, before, during
and after the school year. She also produced a summary of these docket entries
which breaks down her 61 hour and 10 minute claim as follows:
|
Classroom
set up:
|
11.5
hours (19%)
|
|
Meetings:
|
5.0 hours (8%)
|
|
General
preparation and planning:
|
22.0
hours (36%)
|
|
Rehearsals,
performance preparation, other
extra
work with students:
|
6.5 hours (11%)
|
|
Report
cards/Achievement (marking,
comment
writing and report cards themselves):
|
16.0
hours (26%)
|
[22]
She testified that she made these
records because she had just returned from a maternity leave, her next child
would be born only 19 months after the first, and she knew she would have to
keep track of her hours.
[23]
The Minister calculated her total
insurable hours to be 509. The question is how many more insurable hours she is
entitled to for extra time spent in carrying out her responsibilities under Alberta’s School Act
and the Collective Agreement.
Analysis:
[24]
I note that the appellant’s
dockets contain a significant error. The Minister points out that the 11.5
hours she claims for classroom set up on the weekend of April 6 had already
been allowed by the Minister who, in fact, included a full 12 hours for
this activity in the 509 hours total. The appellant acknowledged this error on
her part on cross-examination by counsel for the Minister.
[25]
A further concern with the appellant’s
dockets is that some of the activities and meetings for which she claims extra
time were done wholly on assigned time prior to 3:30 p.m. and some partly on
assigned time and partly thereafter.
[26]
While the appellant acknowledges
this concern, she nevertheless claims extra time for all these activities and
meetings on the dubious ground that they all resulted in her having to stay
after 3:30 p.m. to do tasks that could have been done earlier. There are
several problems with this position.
[27]
Firstly, if such were indeed the
case, in each instance there should be docket entries after assignable school
hours matching the time spent on activities that purportedly usurped her
preparation time. There are none.
[28]
Secondly, staff meetings are
expressly included in assignable time for which she was remunerated under
section 13.21 of the Collective Agreement. In my view, this applies even if
these meetings continued past 3:30 p.m. Otherwise, there would be no need to
specifically designate staff meetings as assignable time in the Collective Agreement.
[29]
Next, it seems inequitable to
allow her excess insurable hours for non‑instructional activities done
during paid assignable time.
[30]
Finally, extra-curricular
activities are expected to be done on a voluntary basis, if at all, pursuant to
page 27 of the Collective Agreement.
[31]
Adverting to the appellant’s
specific docket entries, she has claimed that her preparation and report card
time was usurped by staff meetings on Thursday, April 7 from 2:10 ‑ 4:15
p.m. (2 hours, 5 minutes) and on Thursday, June 2 from 2:30 ‑ 4:15
p.m. (1 hour, 45 minutes). These are disallowed because they took place on paid
assignable time as defined in the Collective Agreement.
[32]
She similarly claimed credit for
writing report card comments on Friday, June 3 from 2:30 ‑ 4:30
p.m. (2 hours). Since half of this took place on paid assignable time, 1 hour only
will be allowed.
[33]
She also claimed credit on April
25 for “planning performance” from 7:30 ‑ 9:15 p.m. (1 hour, 45
minutes); on Thursday, May 12 for “teacher practice” from 2:30 ‑ 3:15
p.m. (45 minutes); on Monday, May 16 for “boys song practice” from 2:30 ‑ 3:15
p.m. (45 minutes); Tuesday, May 17 for “boys rehearsal” from 2:30 to 3:15 p.m.
(45 minutes); and on Wednesday, May 18 for 45 minutes for “last boys practice”
with no time designations in support.
[34]
The April 25 time is not allocated
between planning and performance. The former is justifiable, the latter is not
since it is extra-curricular. I will give the appellant the benefit of the
doubt and disallow 45 minutes only. I must disallow the May 12, 16, 17 and 18
claims since I am satisfied that they all occurred during paid assignable time.
[35]
She claimed credit on Thursday,
June 9 from 3:00 – 3:45 p.m. (45 minutes) and on Friday, June 10
from 2:15 – 5:35 p.m. (3 hours, 20 minutes) where, in neither case,
is there any indication of what task was undertaken. They could be all
extra-curricular activities, all preparation, or some combination of the two. I
am again prepared to give the appellant the benefit of the doubt and allow the
part of these claims that took place after 3:30 p.m. as excess hours for
preparation. Finally, she claimed credit on Tuesday, June 28 from 9:00 to 10:10
a.m. (1 hour, 10 minutes) for attending a movie with her students. This must be
disallowed since it occurred on assignable time.
[36]
The above deductions total 11
hours and 30 minutes. When added to the 11.5 hour mistaken claim for the
April 4 weekend, a total of 23 hours must be deducted, leaving a balance of 38
hours and 10 minutes of excess time which can be added to the Minister’s
conceded 509 hour figure. I conclude that the appellant worked and was
remunerated for 547 hours and 10 minutes while employed by Edmonton School District #7 during the period under review.
[37]
The appeal will be allowed and the
Minister’s decision varied under subparagraph 103(3)(a) of the Act
to provide that the number of insurable hours worked and for which the appellant
was remunerated was 547 hours and 10 minutes.
Signed at Toronto, Ontario, this 12th day of April 2013.
"N. Weisman"
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