Canada (Attorney General) v. Robin, 2006 FCA 175

 

 

Date: 20060511

 

Docket: A-261-05

 

Citation: 2006 FCA 175

 

CORAM:       LÉTOURNEAU J.A.

                        NADON J.A.

                        PELLETIER J.A.

 

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

MARIE-CLAUDE ROBIN

Respondent

 

 

 

 

Hearing held at Montréal, Quebec, on January 10, 2006.

Judgment rendered at Ottawa, Ontario, on May 11, 2006.

 

 

 

REASONS FOR JUDGMENT:                                                                       NADON J.A.

CONCURRED IN BY:                                                                                    LÉTOURNEAU J.A.

                                                                                                                        PELLETIER J.A.

 

Date: 20060511

 

Docket: A-261-05

 

Citation: 2006 FCA 175

 

CORAM:       LÉTOURNEAU J.A.

                        NADON J.A.

                        PELLETIER J.A.

 

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

MARIE-CLAUDE ROBIN

Respondent

 

 

 

REASONS FOR JUDGMENT

 

NADON J.A.

[1]        This is an application for judicial review of a decision by umpire Gobeil on April 20, 2005, which affirmed the decision by the board of referees that the respondent was eligible for regular unemployment benefits in July and August 2004.

 

[2]        The issue raised by this application for judicial review, which was heard with the application for judicial review in case A‑172‑05 (Céline Bazinet et al. v. Attorney General of Canada), as in Bazinet, is one of interpretation of paragraph 33(2)(a) of the Employment Insurance Regulations (the Regulations), SOR/90-54, which governs the eligibility of teachers for regular unemployment benefits during school leave periods.

 

[3]        The respondent, a part-time teacher at the secondary level with the Commission scolaire de Sainte-Hyacinthe (the Commission scolaire) from September 3, 2003 to June 23, 2004, filed a claim for benefits on June 24, 2004 and an initial benefit period was set up for her as of June 27, 2004.

 

[4]        On her benefit claim, the applicant indicated she had received and accepted an offer of employment for a permanent position with the Commission scolaire and stated that she would begin teaching on August 25, 2004.  Indeed, on June 22, 2004, the Commission scolaire sent her an offer of employment as a full-time teacher as of August 24, 2004, and the respondent accepted that offer.

 

[5]        On June 30, 2004, the respondent signed a document entitled [translation] Full-Time Teacher Contract of Employment.  In this proceeding, clauses I(A) and III of that contract are relevant, and I set them out below:

 

[translation]

 

I.    TEACHER’S DUTIES

 

(A)              The teacher undertakes for all legal purposes to teach as a full-time teacher in the schools of the Commission for the school year beginning on July 1, 2004 or to the end of that school year.

 

. . .

 

III. GENERAL

 

(A)   This contract of employment shall take effect as of August 24, 2004 and shall terminate on June 30, 2005 inclusive.

 

(B)    The provisions of the collective agreement shall form an integral part of this contract.

 

 

[6]        On July 14, 2004, the Employment Insurance Commission (the Commission) notified the respondent that it could not pay her benefits for the period from June 28 to August 24, 2004, on the ground that she did not fall within any of the exceptions provided for in subsection 33(2) of the Regulations.

 

[7]        The respondent filed an appeal from the Commission’s decision and, in allowing her appeal, the board of referees found as follows:

 

[translation]

 

Based on the documents filed, the board of referees can only find that the contract at issue effectively ended on June 23, 2004.  The new contract came into effect on August 24, 2004.

 

From the testimony and the exhibits filed before it, the board of referees finds that the appellant was effectively finishing a contract which was not tacitly renewable for the following year.  As evidence of this, the board of referees has the collective agreement (Exhibit 12), which sets out the situation correctly.  This is exactly the case we have before us.

 

[8]        The Commission appealed from this decision to the umpire, who, as I said earlier, affirmed the board of referees’ decision.  Relying on this Court’s judgment in Ying v. Canada (Attorney General), 1998 F.C.A. No. 1615 (QL), the umpire ruled that, since no employer-employee relationship existed during the period from June 24 to August 24, 2004, the respondent was entitled to unemployment benefits under paragraph 33(2)(a) of the Regulations.  At page 2 of his reasons, he stated as follows:

 

[translation]

 

Ying clearly applies to the case under consideration.  Between June 24 and August 24, 2004, there was no employer-employee relationship between the claimant and the Commission Scolaire de Ste-Hyacinthe.  They were not bound by any contract of employment.  A promise of a contract is not a contract.  She was not entitled to any salary for this period.

 

[9]        In concluding that no employer-employee relationship existed between the respondent and the Commission scolaire during the period from June 24 to August 24, 2004, the umpire had in mind the contract signed by the respondent on June 30, 2004 for the 2004-2005 school year, reproduced in part above, and the contract signed by the latter on February 26, 2004 for the 2003‑2004 school year, entitled [translation] Part-Time Teacher Contract of Employment, which provided as follows:

 

[translation]

 

III. GENERAL

 

(A)   This contract of employment shall take effect as of September 3, 2003 and shall terminate no later than June 30, 2004 inclusive or when the following event occurs: or until the return of Ms. Préfontaine.

 

(B)    The provisions of the collective agreement shall form an integral part of this contract.

 

Relevant provisions of collective agreement

[10]      Since it seems clear from the two contracts signed by the respondent with the Commission scolaire that the provisions of the collective agreement form an integral part of these contracts, I set out certain of those provisions which, in my view, appear to be important:

 

[translation]

 

5-1.08      Subject to clause 5-8.00, the contract of employment of a teacher employed as full-time teacher shall be an annual contract of employment subject to tacit renewal.

 

. . .

 

5-1.13      The contract of employment of any teacher employed as a part-time teacher to replace an absent teacher shall terminate automatically and without notice on the return of the replaced teacher, or at the earliest on the last day of attendance by students provided for in the school calendar of the current school year.

 

                The contract of employment of any other teacher employed as a part-time teacher shall terminate automatically and without notice:

(a)                 on June 30 if the contract is for less than a full instructional day throughout the school year or for less than a full instructional week throughout the school year;

(b)                 at the earliest on the last day of attendance of students provided for in the school calendar of the current school year if the contract is to complete a school year;

(c)                 at a specific date in all other cases, whether that date is clearly stipulated or depends on the occurrence of an event expressly mentioned therein.

 

. . .

 

6-7.01      A part-time teacher shall be entitled to a salary percentage equal to the percentage of the educational duties he or she will perform as compared with the teaching duties of the full-time teacher.

 

                The same shall apply to premiums for regional disparities and special leave.

 

. . .

 

6-7.03      . . .

 

(E)                 However, after 20 consecutive working days of absence by a full-time teacher, the Commission shall pay the supply teacher replacing him or her for such 20 days the salary he or she would receive if the teacher was a full-time teacher.  The salary he or she would receive shall be based on the teacher’s category as determined by the Commission at the commencement of the year, or if applicable in the middle of the current work year (on the 101^st day) and his or her experience level established on the first working day of the current work year, and shall be paid at the rate of 1/200 of the annual salary for each day of work so performed.  In such a case, the salary shall apply from the first day of the supply duties and the supply teacher shall promptly provide documents to be used in determining his or her salary.  One or more absences by the supply teacher totalling three days or less during the accumulation of the said 20 consecutive days of replacement shall not have the effect of interrupting this accumulation.

 

6-8.01      A teacher shall receive his or her annual salary as provided for in clause 6‑5.00 and Appendix XLII, as well as the supplements provided for in clause 6-6.0 and the premiums for regional disparities provided for in chapter 12‑0.00 if applicable, in 26 payments, in the following manner:

(a)           as of the beginning of the work year the teacher shall receive every second Thursday 1/26 of the annual salary amounts, supplements and premiums applicable on the first work day of the pay period in question;

(b)                 notwithstanding paragraph (a), the 26^th payment for a work year shall be adjusted so that a teacher receives 1/200 of his or her applicable annual salary for the work year together with applicable supplements and premiums, if any, for each day of work completed by him or her;

(c)                 notwithstanding paragraph (a), a teacher who leaves the employment of the Commission shall, at the time of departure, receive the balance of salary together with applicable supplements and premiums owed to him or her.

 

This clause shall not have the effect of giving the teacher a right to any amount to which he or she would not be entitled under some other provision of the agreement.

 

. . .

 

6-8.03      The salary together with the supplements and premiums for regional disparities of a teacher entering the employment of the Commission after the beginning of the work year or leaving the employment of the Commission before the end of the work year shall be calculated at the rate of 1/200 of the applicable annual salary together with applicable supplements and premiums for regional disparities, if any, for each day of work completed.

 

6-8.04      The Commission shall deduct 1/200 per work day (that is, 1/400 per half work day and 1/1,000 for any period of time from 45 to 60 minutes) from the applicable annual salary, as well as from applicable supplements and premiums for regional disparities, if any, of the teacher in the following cases:

(a)           unpaid authorized absences for a period not exceeding one work year;

(b)           unauthorized absences or absences used for purposes other than those authorized.

 

. . .

 

8-4.01      A teacher’s work year shall consist of 200 working days, and unless otherwise agreed between the Commission and the union, shall be distributed from September 1 to the following June 30.

 

Relevant legislation

[11]      Before beginning my analysis, I feel the relevant legislation should now be set out.  Section 54 of the Employment Insurance Act, S.C. 1996, c. 23, which authorizes the Commission to make regulations, reads in part as follows:

 

 

[12]      The Commission has adopted a special provision applicable to teachers, the purpose of which is to govern the eligibility of the latter during periods of leave.  Section 33 of the Regulations reads as follows:

 

 

Therefore, under paragraph 33(2)(a) of the Regulations, a teacher will be ineligible for benefits in respect of weeks of unemployment falling within the leave periods, namely July and August, unless “the claimant’s contract of employment for teaching has terminated”.

 

[13]      In Sheila Stone v. Attorney General of Canada, 2006 FCA 27, January 24, 2006, Sexton J.A., speaking for the majority, stated that the purpose of section 33 of the Regulations was to avoid having a teacher receive employment insurance benefits when he or she was not actually unemployed.  At paragraph 38 of his reasons, Sexton J.A. wrote the following:

 

[38] … In short, the regulation-making power of the Act and the language of section 33 affirm that paragraph 33(2)(a) is intended to combat the mischief of teachers collecting EI benefits when they cannot be said to be truly unemployed, but nevertheless are not performing work during the non-teaching period.

 

Comments to the same effect were made in Charlotte Oliver et al. v. The Attorney General of Canada, 2003 FCA 98, where, at paragraph 27 of his reasons, Létourneau J.A. stated the following:

 

[27]          The Umpire has been duly mindful of both the line of jurisprudence in this Court and the legislative intent behind Regulation 33.  Both are based on the clear premise that, unless there is a veritable break in the continuity of a teacher’s employment, the teacher will not be entitled to benefits for the non-teaching period.  It is important that this fundamental premise be strongly underlined here because of the numerous claims that are pending on this issue and which deserve clarity from this Court on this matter.

(Emphasis added)

 

[14]      Section 13 of the Education Act, R.S.Q., c. I-13.3, is also relevant and I set out part of it below:

 

 

 

 

 

Analysis

[15]      The applicant argued that the umpire erred in his interpretation and application of paragraph 33(2)(a) of the Regulations.  He further maintained that this Court’s judgment in Ying, supra, has no application whatever in this case in view of the existence of a contract between the respondent and the Commission scolaire as of July 1, 2004.

 

[16]      For her part, the respondent contended that since she was without a contract between June 24 and August 24, 2004 there could be no continuity in her teaching employment.  Unlike the applicant, the respondent submitted that this Court’s decision in Ying, supra, is entirely applicable to the case at bar and that, therefore, she was unemployed for the period during which she was without a contract and so entitled to employment insurance benefits, as the umpire and the board of referees held.

 

[17]      There can be no doubt from reading the umpire’s reasons that, like the board of referees, the only factor he regarded as relevant was the fact that the respondent’s contract with the Commission scolaire, signed on February 26, 2004, terminated on June 23, 2004, while the new contract signed by the latter on June 30, 2004 did not come into effect until August 24, 2004.  In my opinion, by confining himself to this one factor the umpire apparently misunderstood the principles laid down by this Court regarding paragraph 33(2)(a) of the Regulations.  Therefore, the intervention of this Court is warranted.

 

[18]      Since I find that there is a basis for intervention, I must necessarily discuss the standard of review applicable to the umpire’s decision.  In Sheila Stone, supra, Sexton J.A., at paragraphs 19 to 23 of his reasons, ruled that the standard applicable to the umpire’s decision was that of reasonableness simpliciter.  He reached this conclusion because, in his opinion, three of the factors to be considered in the functional and pragmatic analysis tended to favour judicial restraint.  It should be noted that, despite his dissent, Evans J.A. supported Sexton J.A.’s opinion on this point (see paragraph 101).

 

[19]      To begin with, after finding that the umpire had correctly understood the applicable principles of law, Sexton J.A. said that, in his opinion, the question was by nature a mixed one of fact and law since it involved the application of those principles to the facts of the case.  Consequently, this factor called for judicial restraint.

 

[20]      Secondly, Sexton J.A. opined that the purpose of the Act also suggested judicial restraint.  At paragraph 22, he said the following:

 

[22]   As I discussed above, the final factor in the functional and pragmatic analysis is that of legislative purpose and, in particular, inexpensive and expeditious decision-making also favours a deferential standard.

 

[21]      As to the third factor in the functional and pragmatic analysis, namely the nature of the appeal or review procedure, which in the opinion of Sexton J.A. required the exercise of judicial restraint, he relied on section 118 of the Act, which provides the following:

 

 

[22]      As to the fourth factor in the analysis, namely the relative expertise of the umpire, Sexton J.A. concluded, relying on this Court’s judgment in Canada (Attorney General) v. Sveinson, 2003 FCA 315, at paragraphs 16 and 17, that this factor did not in any way suggest judicial restraint.

 

[23]      In the case at bar the question is by nature not a mixed question of fact and law, but simply a question of law: a misunderstanding of the applicable principles of law is involved.  Therefore, in these circumstances, two of the factors in the functional and pragmatic analysis, the nature of the question and the relative expertise of the umpire, do not favour judicial restraint.  Here I consider that the applicable standard is actually that of correctness.  In any event, even if I were to hold that the applicable standard was that of reasonableness simpliciter, I am of the view that, based on paragraph 33(2)(a) of the Regulations and the precedents of this Court, the umpire’s decision is unreasonable.

 

[24]      In the past few years, this Court has repeatedly made pronouncements on paragraph 33(2)(a) and clear guidelines have resulted from this process (see Charlotte Oliver et al. v. The Attorney General of Canada, supra; Bishop v. Canada, 2002 FCA 276; Partridge v. Canada (1999), 245 N.R. 163; and more recently – a decision of January 24, 2006 – Sheila Stone v. Attorney General of Canada, supra).

 

[25]      In Oliver, supra, the applicants, qualified teachers, had probationary contracts for the period September 1998 to June 30, 1999.  After that date, they were all re-hired to teach in the next school year.  Most of the applicants concluded their new contract before the expiration of the contract ending June 30, 1999, while some of them concluded their new contract after June 30, 1999.

 

[26]      It should also be noted that the applicants were paid for 12 months, although their contract covered a period of only 10 months, from September 1998 to June 30, 1999, and that they received the same salary as employees hired under a permanent employment contract (who were paid for 12 months, even if they did not teach during July and August).  Another relevant factor was the fact that the applicants suffered no income loss and benefited from a health care plan and other fringe benefits during the period of July and August.

 

[27]      In Oliver, supra, a majority of this Court affirmed the decision of the umpire, who had ruled that the applicants were not eligible for regular unemployment benefits during July and August 1999.  At paragraph 27 of his reasons, Létourneau J.A., for the majority, stated quite clearly, as I pointed out at paragraph 13 of my reasons, that a teacher was not entitled to unemployment benefits during the months of July and August unless there was a clear interruption of the continuity of his employment.

 

[28]      In doing this Létourneau J.A., at paragraph 16 of his reasons, approved the following comments by the umpire:

The intention of Parliament is to pay employment insurance benefits to those individuals who, through no fault of their own, are truly unemployed and who are seriously engaged in an earnest effort to find work.  Teachers are not considered unemployed during the annual non-teaching periods and they are therefore not entitled to benefits, unless they meet one of the following three criteria set out in regulation 33(2) . . .

 

Parliament’s intention, together with the object of the legislation and its scheme, leads me to the conclusion that the exemption provided for in Regulation 33(2)(a) is meant to provide relief to those teachers whose contracts terminate on June 30^th and who, as a result, suffer a genuine severance of the employer and employee relationship.  In other words, the exemption provides relief to those teachers who are, in the true sense of the word, “unemployed”, a term which is not synonymous with “not working”.

 

. . .

 

Termination of a contract of employment for teaching in the context of the legislative scheme of the Employment Insurance Act and Regulations means a severance of the relationship of employer and employee.  It does not mean a change in one’s employment status from a probationary teacher to a teacher with a continuous contract . . .

 

                                                                                                                                                (Emphasis added)

 

[29]      In Oliver, supra, Rothstein J.A. stated he concurred with the way in which Létourneau J.A. disposed of the case, and at paragraphs 29 to 32 of his reasons explained his approach as follows:

 

[29]          I am in agreement with Létourneau J.A. as to the disposition of this application.  The availability of employment insurance benefits for teachers poses a difficulty because the teaching year covers 10 months, while teachers are usually paid in instalments over 12 months.  Sometimes, as in this case, the instalments for July and August are paid out at the end of June.

 

[30]          The jurisprudence of this Court has consistently held that, in cases where teachers’ contracts terminate at the end of June and they are re-hired for the following school year, they are not entitled to employment insurance for the months of July and August.  See Bishop v. Canada (Employment Insurance Commission), 2002 FCA 276; Canada (Attorney General) v. Partridge (1999), 245 N.R. 163 (F.C.A.); Gauthier v. Canada (Employment and Immigration Commission), [1995] F.C.J. No. 1350 (C.A.); and Canada (Attorney General) v. Hann, [1997] F.C.J. No. 1641 (C.A.).  The only exception is Ying v. Canada (Attorney General), [1998] F.C.J. No. 1615 (C.A.).

 

[31]          In the present case, the applicants are paid exactly the same amount as equivalent permanent teachers.  Yet they also claim to be entitled to employment insurance benefits for the months of July and August.  They were all re-hired before or shortly after the end of June for the subsequent school year.  The dominant jurisprudence of this Court would deny their claims to employment insurance benefits.

 

[32]          The applicants do not say the dominant prior jurisprudence was wrongly decided.  They claim the facts in this case are different.  I am not satisfied that such differences in facts as there are justify not following the dominant prior jurisprudence of this Court.

 

                                                                                                                (Emphasis added)

 

[30]      Accordingly, it follows from Oliver, supra, that a teacher will be entitled to receive unemployment benefits if she establishes that the termination of her employment, here on June 23, 2004, results in a “genuine severance” of the relationship with her employer.  In other words, the teacher will have to satisfactorily establish that, as a result of such severance, she was really unemployed.

 

[31]      Having limited his analysis to a single factor, the umpire concluded that Ying, supra, applied to the facts of this case and therefore that the respondent was entitled to unemployment benefits.  With respect, the umpire erred in relying on Ying, supra, as he did, since clearly the scope of Ying, supra, cannot be extended beyond the particular facts of that case, in view of the subsequent case law of this Court.

 

[32]      It is not enough simply to look, as the umpire did, at the commencement and termination dates of the contract in order to determine whether a claimant’s contract of employment for teaching has terminated within the meaning of paragraph 33(2)(a) of the Regulations.  In addition, as we can see from Oliver, supra, it is necessary to determine whether there has been a clear severance of the continuity of the claimant’s employment so that the latter has become “unemployed”.  The fact that an interval may exist between two contracts, during which the teacher is not under contract, does not in my opinion mean that there has been a genuine severance of the relationship between the teacher and his or her employer.  It should be borne in mind that the purpose of the exercise is not to interpret contractual provisions so as to determine the respective rights of the employer and employee, but to decide whether a claimant is entitled to receive employment insurance benefits because he or she is in fact unemployed.

 

[33]      In the case at bar, it is clear from reading the umpire’s decision that the latter did not examine the issue of whether there had been a clear severance of the continuity of the respondent’s employment so that the latter had become “unemployed”.  In my view, if the umpire had raised that issue and had examined the respondent’s situation in light of this Court’s pronouncements, he would have ruled that the respondent did not meet the exception provided for in paragraph 33(2)(a) of the Regulations.

 

[34]      The respondent’s contract for the 2003-2004 school year terminated on June 23, 2004, the last day when students were in attendance.  Under clause 5-1.13 of the collective agreement, the respondent’s contract, as a part-time teacher during the said school year, was not subject to tacit renewal, as in the case of a full-time teacher (clause 5-1.08 of the collective agreement), but terminated without notice either when the replaced teacher returned or, at latest, on the last day of attendance by students provided for in the school calendar of the current school year.

 

[35]      On June 30, 2004, the respondent signed a contract undertaking to teach full time in the schools of the Commission scolaire for the 2004-2005 school year.  It is quite clear from the first contract of employment, signed on February 24, 2004 for the period from September 3, 2003 to June 23, 2004, and from this second contract, that there was no severance in the employer-employee relationship for the period at issue, namely from June 24 to August 25, 2004.

 

[36]      Whereas the respondent had worked as a teacher for the Commission scolaire from September 3, 2003 to June 23, 2004; whereas on June 22, 2004, the Commission scolaire made her an offer of employment for the 2004-2005 school year, an offer which the respondent accepted in the next few days; and whereas the respondent, like all the other teachers of the Commission scolaire, did not have to work during July and August 2004, I cannot see how it may be found that there was a severance in the employment relationship between the respondent and the Commission scolaire.

 

[37]      Accordingly, the reality is that the respondent taught in the schools of the Commission scolaire without interruption during the 2003-2004 and 2004-2005 school years.  The facts establish beyond any doubt that the respondent’s relationship with her employer did not terminate.  Therefore, there was no interruption in the continuity of her employment with the Commission scolaire.

 

 

[38]      For these reasons, I am of the view that the application for judicial review should be allowed with costs, the decision of the umpire quashed and the matter referred back to the chief umpire or to an umpire appointed by him to be again decided on the basis that the respondent cannot take advantage of the exception contained in paragraph 33(2)(a) of the Regulations.

 

 

 

“M. Nadon”

 

I concur.

       Gilles Létourneau J.A.

 

I concur.

       J.D. Denis Pelletier J.A.

 

 

 

 

 

Certified true translation

François Brunet, LLB, BCL

FEDERAL COURT OF APPEAL

 

SOLICITORS OF RECORD

 

 

DOCKET:                                                                  A-261-05

 

(JUDICIAL REVIEW OF DECISION BY JUDGE GOBEIL, UMPIRE, ON MAY 18, 2005 PURSUANT TO EMPLOYMENT INSURANCE ACT, CASE No. CUB63467.)

 

STYLE OF CAUSE:                                                  AGC v. MARIE-CLAUDE ROBIN

 

PLACE OF HEARING:                                            Montréal, Quebec

 

DATE OF HEARING:                                              January 10, 2006

 

REASONS FOR JUDGMENT BY:                         Nadon J.A.

 

CONCURRED IN BY:                                             Létourneau J.A.

                                                                                    Pelletier J.A.

 

DATED:                                                                     May 11, 2006

 

 

APPEARANCES:

 

CAROLE BUREAU                                                    for the applicant

ANTOINE LIPPÉ

 

GEORGES MARCEAU                                              for the respondent

FINN MAKELLA

 

 

SOLICITORS OF RECORD:

 

John H. Sims, Q.C.                                                         for the applicant

Deputy Attorney General of Canada

Ottawa, Ontario

 

MELANÇON, MARCEAU, GRENIER                         for the respondent

AND SCIORTINO s.e.n.c.

Montréal, Quebec