Date: 20091027
Dockets: A-26-09
A-27-09
A-28-09
A-29-09
Citation: 2009 FCA 313
CORAM: BLAIS C.J.
NADON J.A.
EVANS J.A.
Docket:
A-26-09
BETWEEN:
PHILLIP
ARKINSTALL
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
Docket:
A-27-09
BETWEEN:
ANDREA DORAIS
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-28-09
BETWEEN:
KEVIN WILLS
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-29-09
BETWEEN:
SARAH HUMMEL
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Heard at Vancouver,
British Columbia, on October 27,
2009.
Judgment delivered from the Bench at Vancouver, British Columbia, on October 27, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: NADON
J.A.
Date:
20091027
Docket:
A-26-09
Citation:
2009 FCA 313
CORAM: BLAIS
C.J.
NADON
J.A.
EVANS
J.A.
Docket:
A-26-09
BETWEEN:
PHILLIP
ARKINSTALL
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-27-09
BETWEEN:
ANDREA DORAIS
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-28-09
BETWEEN:
KEVIN WILLS
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
A-29-09
BETWEEN:
SARAH HUMMEL
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on October
27, 2009)
NADON J.A.
[1]
Before
us are applications for judicial review in Court files A-26-09, A-27-09,
A-28-09 and A-29-09. These Reasons will dispose of the four applications and a
copy of the Reasons will be placed in each Court file.
[2]
These
applications seek to set aside decisions made by Umpire Guy Goulard on November
14, 2008 (in files A-26-09 and A-28-09) and November 26, 2008 (in files A-27-09
and A-29-09).
[3]
The
applicants are all teachers employed in British Columbia by School
District No. 73 on a term certain basis. However, during the period of
September 12, 2006 to January 31, 2007, the applicant Dorais (in file A-27-09)
was a teacher on call.
[4]
The
applicants applied for Employment Insurance benefits effective July 1, 2007,
for various non-teaching periods. The Employment Insurance Commission (the
“Commission”) denied their claims on the basis that they were teachers and,
hence, not entitled to benefits during non-teaching periods.
[5]
Appeals
were taken to the Board of Referees (the “Board”), which concluded that
although the applicants’ contracts of employment had not terminated, they were
nonetheless entitled to insurance benefits because they were “casual” or
“substitute” teachers within the meaning of subsection 33(2)(b) of the Employment
Regulations, SOR/96-332 (the “Regulations”).
[6]
The
Commission appealed the Board’s decisions to the Umpire. Umpire Goulard, who
heard the four appeals, set aside the Board’s decisions, concluding that the
applicants were not entitled to insurance benefits during non-teaching periods
because they were, at all times, “employed in a continuous and pre-determined
way which could not be considered casual or substitute teaching.”
[7]
We
are all agreed that in concluding as he did, the Umpire made no reviewable
error. In our view, when read as a whole, our decisions in Dupuis-Johnson v.
Canada (Employment and Insurance Commission), 1996 FCJ No. 816 (Q.L.), Canada (Attorney
General) v. Blanchet, 2007 FCA 377, Stephens v. Canada (Minister
of Human Resources and Development), 2003 FCA 477, Stone v. Canada
(Attorney General), 2006 FCA 27, Bazinet v. Canada (Attorney General),
2006 FCA 174, and Oliver v. Canada (Attorney General), 2003 FCA 98,
provide a complete answer to the issues raised in these applications.
[8]
On
the basis of the principles enunciated in those cases, we are satisfied that
the applicants, whose contracts had not terminated, were not “casual” or
“substitute” teachers within the meaning of subsection 33(2)(b) of the
Regulations.
[9]
Accordingly,
the applications for judicial review will be dismissed. The respondent shall be
entitled to its disbursements in each file, but to only one set of costs.
"M.
Nadon"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-26-09
A-27-09
A-28-09
A-29-09
STYLE OF CAUSE: Phillip
Arkinstall v. AGC
Andrea Dorais v. AGC
Kevin Wills v. AGC
Sarah Hummel v. AGC
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 27, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: (BLAIS C.J., NADON, EVANS JJ.A.)
DELIVERED FROM THE BENCH BY: NADON J.A.
APPEARANCES:
|
Steven
Rogers
|
FOR
THE APPLICANTS
|
|
Tim Timberg
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Victory Square Law Office LLP
Vancouver,
B.C.
|
FOR
THE APPLICANTS
|
|
John H Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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