Date
: 20060511
Docket: A-172-05
Citation: 2006 FCA 174
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
CÉLINE BAZINET
and
CHRISTINE GUAY
and
KAREN-LAURE BÉLANGER
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[2]
This
application for judicial review, which was heard together with the application
for judicial review in case A-261-05 (A.G.C. c. Marie-Claude Robin),
raises, as in Robin, an issue of statutory interpretation as to
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]
During the
2002-2003 school year, the applicants were part-time teachers with the
Commission scolaire La Pointe-de-l’île (the Commission scolaire), and their
contracts of employment for the said school year terminated in June 2003.
Indeed, the applicant Bazinet worked from August 28, 2002 to June 20, 2003, the
applicant Bélanger worked from August 23, 2002 to June 23, 2003 and the
applicant Guay worked from August 27, 2002 to June 26, 2003.
[4]
Towards
the end of June 2003, the applicants were notified that their part-time
teaching contracts with the Commission scolaire would be renewed for the
2003-2004 school year. In the case of the applicant Bazinet, she was offered a
contract for the period from August 27, 2003 to June 25, 2004, for a full
workload, to teach at the St-Rémi school. On October 29, 2003, she signed a
contract entitled [translation]“Part-time
Teacher’s Contract of Employment”. Clauses IA and III of that contract are
relevant to this application, and I set them out hereunder:
[translation]
I.
TEACHER’S OBLIGATIONS
(A) The
teacher undertakes for all legal purposes to teach as a part-time teacher in
the Commission’s schools.
. . .
III. GENERAL
PROVISIONS
(A) This contract of employment shall
take effect on 27-08-2003 and shall terminate on 25-06-2004 or on the
occurrence of the following event: the return of the person(s) replaced, but no
later than 25-06-2004.
(B) The
provisions of the collective agreement shall form an integral part of this
contract.
[5]
The contract
of the applicant Guay for the 2003-2004 school year was orally renewed on
June 23, 2003. She was offered a contract for the period from August
27, 2003 to June 30, 2004, for 86.8% of a workload, to teach at the
Daniel-Johnson school. On November 24, 2003, as in the case of the
applicant Bazinet, she signed a [translation]
“Part-time Teacher’s Employment Contract”. As clauses IA and IIIB of the
applicant Guay’s contract are identical to those contained in the applicant
Bazinet’s contract, I will set out hereunder only clause IIIA of her contract:
[translation]
III.
General provisions
(A)
This contract of employment shall take effect on 27-08-2003 and shall terminate
on 30-06-2004 or on the occurrence of the following event: the return of the
person(s) replaced, but no later than 30-06-2004.
[6]
The
applicant Bélanger was notified on or about July 4, 2003 that her employment
for the 2003-2004 school year had been renewed for a full workload to teach at
the Adélard-Desrosiers school. On October 29, 2003, she in turn signed a [translation] “Part-time Teacher’s
Contract of Employment” for the period from August 27, 2003 to June 25, 2004. I
will only set out clause IIIA of her contract; that is relevant to this
application:
[translation]
IV.
General provisions
(A)
This contract of employment shall take effect on 27-08-2003 and shall terminate
on 25-06-2004 or on the occurrence of the following event: the return of the
person(s) replaced, but no later than 25-06-2004.
[7]
On various
dates (applicant Bazinet, November 19, 2003; applicant Guay,
July 5, 2003; and applicant Bélanger, June 30, 2003) the applicants
filed benefit claims for the period from the end of their contracts for the
2002-2003 school year to the start of their contracts for the 2003-2004 school
year.
[8]
These
benefit claims were all denied by the Commission, which notified the applicants
that it could not pay them benefits on the ground that they did not meet any of
the exceptions mentioned in subsection 33(2) of the Regulations.
[9]
The
applicants appealed from these decisions by the Commission before the Board of
referees. In decisions dated March 11 and June 30, 2004, different boards of
referees ruled that the applicants did meet the exceptions provided for in
subsection 33(2) of the Regulations.
[10]
The Commission
appealed from these decisions before umpire Marin, who on
February 18, 2005 allowed the appeals and restored the Commission’s
decisions. Relying on this Court’s doctrine propounded in Charlotte Oliver
et al. v. Attorney General of Canada, 2003 FCA 98, the umpire ruled that
the applicants did not meet the exception provided for in paragraph 33(2)(a)
of the Regulations. In particular, the umpire found that the applicants had
been unable to show that there had been a break between their contracts for the
2002-2003 and 2003-2004 school years and that they had been unemployed during
the period of school leave.
Relevant provisions of collective
agreement
[11]
Since it
seems clear from the contracts signed by the applicants with the Commission
scolaire that the provisions of the collective agreement formed an integral
part of these contracts, I set out some of those provisions which appear
important to me:
[translation]
5-1.08 Subject
to clause 5-8.00, the contract of employment of a teacher employed as a 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 upon
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 to 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 substitute 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 101st 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 substitution duties and the substitute teacher shall promptly
provide documents to be used in determining his or her salary. One or more
absences by the substitute 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 contemplated by
clause 6-5.00 and Appendix XLII, as well as the supplements contemplated
by clause 6-6.0 and the premiums for regional disparities contemplated by
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 26th payment for a work year shall be
adjusted so that a teacher shall receive 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 a 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 1/1000 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
[12]
Before
undertaking my analysis, I feel the relevant legislation should be set out at
the outset. Section 54 of the Employment Insurance Act, S.C. 1996, c. 23
(the Act), which authorizes the Commission to make regulations, reads in part
as follows:
|
54. The
Commission may, with the approval of the Governor in Council make regulations
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54. La
Commission peut avec l’agrément du gouverneur en conseil, prendre des
règlements
|
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. . .
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[…]
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(j) prohibiting
the payment of benefits, in whole or in part, and restricting the
amount of benefits payable, in relation to persons or to groups
or classes of persons who work or have worked for any
part of a year in any industry or occupation in which, in the opinion
of the Commission, there is a period that occurs annually, at regular
or irregular intervals, during which no work is performed by a significant
number of persons engaged in that industry or occupation, for any or
all weeks in that period.
|
j) interdisant
le paiement de prestations, en tout ou en partie, et restreignant le
montant des prestations payables pour les personnes, groupes ou
classes de personnes qui travaillent ou ont travaillé pendant
une fraction quelconque d’une année dans le cadre d’une industrie ou d’une
occupation dans laquelle, de l’avis de la Commission, il y a
une période qui survient annuellement à des intervalles réguliers ou
irréguliers durant laquelle aucun travail n’est exécuté, par un nombre
important de personnes, à l’égard d’une semaine quelconque ou de
toutes les semaines comprises dans cette période.
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(Emphasis
added)
|
(Je
souligne)
|
[13]
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:
|
33. (1) The definitions in this subsection apply
in this section.
|
33. (1) Les définitions qui suivent s’appliquent
au présent article.
|
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“non-teaching
period” means the period that occurs annually at regular or irregular
intervals during which no work is performed by a significant number of people
employed in teaching (période de congé)
|
« période
de congé ». La période qui survient annuellement, à des intervalles
réguliers ou irréguliers, durant laquelle aucun travail n’est exécuté par un
nombre important de personnes exerçant un emploi dans l’enseignement
(non-teaching period)
|
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“teaching”
means the occupation of teaching in a pre-elementary, an elementary or a
secondary school, including a technical or vocational school. (enseignement)
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« enseignement »
La profession d’enseignant dans une école maternelle, primaire, intermédiaire
ou secondaire, y compris une école de formation technique ou professionnelle
(teaching)
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(2)
A claimant who was employed in teaching for any part of the claimant's
qualifying period is not entitled to receive benefits, other than those
payable under section 22, 23 or 23.1 of the Act, for any week of
unemployment that falls in any non-teaching period of the claimant unless
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(2)
Le prestataire qui exerçait un emploi dans l'enseignement pendant une partie
de sa période de référence n’est pas admissible au bénéfice des prestations —
sauf celles prévues aux articles 22, 23 ou 23.1 de la Loi — pour les
semaines de chômage comprises dans toute période de congé de celui-ci, sauf
si, selon le cas :
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(a) the claimant's contract of employment
for teaching has terminated;
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a) son contrat de travail dans
l’enseignement a pris fin;
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(b) the claimant's employment in teaching was on
a casual or substitute basis; or
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b) son emploi dans l’enseignement était exercé
sur une base occasionnelle ou de suppléance;
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(c) the claimant qualifies to receive benefits in
respect of employment in an occupation other than teaching.
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c) il remplit les conditions requises pour
recevoir des prestations à l’égard d’un emploi dans une profession autre que
l’enseignement.
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(3)
Where a claimant who was employed in teaching for any part of the claimant’s
qualifying period qualifies to receive benefits in respect of employment in
an occupation other than teaching, the amount of benefits payable for a week
of unemployment that falls within any non-teaching period of the claimant
shall be limited to the amount that is payable in respect of the employment
in that other occupation.
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(3)
Lorsque le prestataire qui exerçait un emploi dans l’enseignement pendant une
partie de sa période de référence remplit les conditions requises pour
recevoir des prestations à l’égard d’un emploi autre que l’enseignement, les
prestations payables pour une semaine de chômage comprise dans toute période
de congé de celui-ci se limitent au montant payable à l’égard de l’emploi
dans cette profession.
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(Emphasis added)
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(Je souligne)
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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”.
[14]
In Sheila
Stone v. Attorney General of Canada, 2006 FCA 27, January 24, 2006,
Mr. Justice Sexton, 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 really unemployed. At
paragraph 38 of his reasons, Mr. Justice Sexton made the following
comments:
[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.
There are the comments to the same effect of
Mr. Justice Létourneau in Charlotte Oliver et al. v. The Attorney
General of Canada, 2003 FCA 98, at paragraph 27 of his reasons:
[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)
[15]
Section 13
of the Education Act, R.S.Q., c. I-13.3, is also relevant and I set out
a portion thereof hereunder:
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13. In this Act,
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13. Dans la présente loi on entend par :
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1)
the words “school year” mean the period commencing on 1 July in a year and
ending on 30 June in the year following . . .
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1.
« année scolaire » : la période débutant le 1er
juillet d’une année et se terminant le 30 juin de l’année suivante.
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Umpire’s decision
[16]
After a
review of the relevant facts, the umpire directed his attention to the
decisions by the boards of referees. He noted that the boards of referees had
overturned the Commission’s decision because when the applicants filed their
claims for benefits their contracts of employment for the 2003-2004 school year
had not been signed, the oral promises of employment that had been made to them
did not constitute valid contracts, and further, the applicants had no legal
guarantee of a teaching position for the 2003-2004 school year. The relevant
paragraphs from the boards of referees’ decisions read as follows:
[translation]
For the
applicants Bazinet and Guay (decision dated March 11, 2004)
The board of
referees is of the view that this oral promise was not a valid contract and the
appellant had no legal guarantee of a position at the school for the following
year.
Counsel for
the appellant cited the relevant precedents which are similar to the instant
case, namely Ying (A-101-98) and Oliver (A-811-02) as well as
CUB 44150.
The board of
referees concludes that the appellant’s employment was in fact terminated on
June 20, 2003 (Exhibit 5.4). She had signed no contract for the following year,
and as a part-time teacher she could be replaced by another teacher with
greater seniority.
Decision
After having
examined the various documents submitted by counsel for the appellant and heard
the appellant’s testimony, the board of referees is of the view that the
appellant meets the exemption described in subsection 33(2) of the Regulations
and it consequently allows the appeal UNANIMOUSLY.
. . .
For the
applicant Bélanger (decision dated June 30, 2004)
In the
instant case, the appellant had to sign a contract annually. Her representative
considered she was eligible for benefits for the school leave period and met
section 33 of the Regulations. The appellant signed her new contract in
September 2003. Before that date, she had no complete guarantee of
employment. The letter received by the appellant on July 4, 2003
(Exhibit 4.2) is only a recommendation from the school management and was
signed by the human resources coordinator, who did not have authority to hire
teachers. This notice confirmed that the appellant had been placed on the list
of teachers, but did not in any way confirm a position for the next school
year.
Having
examined all submissions made by the appellant and her representative, the
board of referees finds that the appellant’s contract terminated in June 2003.
She meets paragraph (a) of subsection 2 of section 33 of
the Employment Insurance Regulations. Therefore, the board of referees
allows the appeal regarding the appellant’s eligibility for benefits and this
decision is BY A MAJORITY.
[17]
The umpire
went on to examine the parties’ arguments in the light of Oliver and Ying,
supra (decisions of this Court). At paragraph 20 of his reasons, the
umpire indicated that counsel for the applicants had invited him to distinguish
the facts of the case from those in Oliver, supra, and to follow this
Court’s approach in Ying, supra.
[18]
Having
examined our decisions in Oliver and Ying, supra, the
umpire at paragraph 22 of his reasons indicated that he would follow Oliver,
supra. Based on that decision, the umpire came to the finding that there
was no clear break in the continuity of the applicants’ employment. The
umpire’s reasoning on the continuity of the applicants’ employment appears
clearly from paragraphs 23 to 26 of his reasons:
[23] There was already a foundation and a
relationship between the claimants and the school board. It cannot be said that
the relationship was precarious or completely interrupted. The claimants were
not newcomers, as one arrived in 1999 and the two others had at least
two years of experience with the same school board. The school board made
a verbal offer to each claimant and asked her to accept. It is true that they
are not paid during the summer holidays, but their salary is allocated
over 10 months, rather than 12. They suffer no financial loss.
Their earnings are paid to them in the usual fashion, rather than according to
the practice established between teachers and schools to allocate earnings over
12 months. Therefore, they are not deprived of earnings to which they are
entitled.
[24] In any event, if their contracts had
not been renewed in August, they could have asked the Commission to
reconsider its decision and, in light of their lack of earnings, the Commission
would, without a doubt, have reconsidered its decision and paid them benefits.
[25] In this representative case, I am in effect
asked to give back to the claimants an amount that they did not lose. They had
already received an amount for their teaching. The total amount of the contract
had already been paid to the claimants over a 10-month period. If the contract
had not been renewed in writing to confirm the verbal agreement, they would
still have been free to apply for benefits. However, by being paid benefits
notwithstanding the verbal offer and the invitation to continue teaching, they
would have received benefits to which they were not entitled and which they
would have had to repay.
[26] That was the reason for the amendment of
the Employment Insurance Act.
In the instant case, each claimant retained certain employee benefits, even if
she did not have all the benefits available to full-time teachers. The
claimants retained the benefits available to part-time teachers. In my opinion,
in accordance with the Act and in light of the case law, the claimants cannot
prove that there was a break between the two teaching contracts and that
they were unemployed.
Parties’ arguments
[19]
The
applicants’ first argument was that the umpire should not have intervened since
the boards of referees’ decisions were not unreasonable. In the applicants’
submission, since the issue before the boards of referees was whether the
contract of employment had terminated within the meaning of paragraph 33(2)(a)
of the Regulations, which was thus a mixed question of fact and law, the
applicable standard was that of reasonableness.
[22]
Finally,
the applicants argued that the umpire erred in disregarding the differences
between part-time teachers’ contracts and those of full-time teachers.
[23]
The
respondent did not agree with the applicants’ arguments. As to the standard of
review applicable to reviewing boards of referees’ decisions, the respondent
contended that the applicable standard was that of correctness, since the
umpire had to decide whether the board of referees had erred in law in failing
to take into account the legally correct interpretation of the phrase “the
claimant’s contract of employment has terminated” found in paragraph 33(2)(a)
of the Regulations.
[24]
As to the
applicants’ other arguments, the respondent, relying on Oliver, supra,
argued that the boards of referees erred in their interpretation of paragraph
33(2)(a) and that the umpire thus rightly intervened and overturned its
decisions.
Analysis
[25]
The
applicants’ first argument related to the standard of review applicable to the
boards of referees’ decisions. In the applicants’ submission, if the boards of
referees’ decisions were not unreasonable the umpire was wrong to intervene.
[26]
In Sheila
Stone, supra, this Court ruled on the standards applicable to
decisions by boards of referees and by an umpire. As to the standard applicable
to boards of referees’ decisions, Mr. Justice Sexton, after having
reviewed the four factors of the functional and pragmatic analysis, ruled that
the standard was that of correctness. Since the facts of this case and the
nature of the issue for decision do not, in accordance with the applicable standard,
allow this Court to distinguish this case from that of Sheila Stone, supra,
it can only rule that the umpire correctly substituted his opinion for that of
the boards of referees to the extent that he was of the view that those
decisions were wrong.
[27]
As to the
standard applicable to the umpire’s decision, Mr. Justice Sexton
ruled that the applicable standard was that of reasonableness simpliciter.
He so ruled because he was of the view that three of the factors to be taken
into account in the functional and pragmatic analysis led him to lean in favour
of judicial restraint.
[28]
To begin
with, after having ruled that the umpire had correctly understood the
applicable principles of law, Mr. Justice Sexton stated that in his
opinion the case raised a mixed issue of fact and law, since it involved the
application of principles of law to the facts of the case. Therefore, this
factor favoured judicial restraint.
[29]
Secondly,
Mr. Justice Sexton was of the view that the object of the statute also
favoured 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.
[30]
On the
third factor in the functional and pragmatic analysis, namely the nature of the
appeal or review procedure that in the opinion of Mr. Justice Sexton
favoured judicial restraint, he relied on section 118 of the Act, which
provided as follows:
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118. The decision of the umpire on an appeal is
final and, except for judicial review under the Federal Courts Act, is
not subject to appeal to or review by any court.
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118. La décision du juge-arbitre sur un appel est
définitive et sans appel; elle peut cependant faire l’objet d’une demande de
contrôle judiciaire aux termes de la Loi sur les Cours fédérales.
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[31]
On the
fourth factor in the analysis, namely the relative expertise of the umpire,
Mr. Justice Sexton ruled, on the basis of Canada (Attorney
General) v. Sveinson, 2003 FCA 315 (a decision of this Court) at paragraphs
16 and 17, that this factor did not in any way favour judicial restraint.
[32]
In this
case, as in Sheila Stone, supra, the issue is a mixed one of fact and
law since it is clear from the umpire’s decision that he properly understood
the applicable legal principles. Accordingly, I see nothing in this case that
could provide a basis for ruling that the applicable standard is anything but
that of reasonableness simpliciter.
[33]
For the reasons
that follow, I am of the view that the umpire did not err in intervening and
quashing the boards of referees’ decisions. I hold that the umpire’s decision,
based on the evidence and the applicable legal principles, was not in any way
unreasonable. Accordingly, there is no basis warranting the intervention of
this Court.
[34]
The
applicants submitted that the umpire erred in his interpretation and
application of paragraph 33(2)(a) of the Regulations. Further, they
submitted that, in view of the evidence and the applicable legislation, the
umpire had no choice but to apply the reasoning adopted by this Court in Ying,
supra. They submitted that, since they were without a contract between the
end of June and the end of August 2003, there could not have been any
continuity in their teaching employment. Therefore, they were unemployed during
the period in which they were without a contract and were thus entitled to
employment insurance benefits, as the boards of referees held.
[35]
There can
be no doubt from reading the reasons of the board of referees that the only
factor which they really regarded as relevant was the fact that the applicants’
contracts with the Commission scolaire terminated at the end of June 2003,
whereas the new contracts signed by them did not take effect until August 27,
2003. In my opinion, by limiting themselves to this sole factor, the boards of
referees apparently misunderstood the doctrine of this Court on paragraph
33(2)(a) of the Regulations.
[36]
For some
years this Court has made numerous pronouncements on paragraph 33(2)(a)
and this has led to clear guidelines (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).
[37]
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 entered into
their new contracts before the expiry of the one terminating on June 30, 1999,
but some of them entered into their new contracts after
June 30, 1999.
[38]
It should
also be noted that the applicants were paid for 12 months, although their
contract covered a period of only ten months, namely September 1998 to June 30,
1999, and they received the same salary as the employees hired under a
permanent contract of employment (who were paid for twelve months, even though
they did not teach during July and August). Another relevant factor was the
fact that the applicants had suffered no income loss and benefited from a
health care plan and other fringe benefits during the period of July and
August.
[39]
In Oliver,
supra, a majority of this Court upheld the umpire’s decision, who had
ruled that the applicants were not eligible for regular unemployment benefits
during the months of July and August 1999. At paragraph 27 of his reasons for
the majority, Mr. Justice Létourneau, as I indicated at paragraph 14
of my reasons, stated categorically that a teacher was not entitled to
unemployment benefits during July and August unless there was a clear break in
the continuity of his or her employment.
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 30th
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)
[41]
In Oliver,
supra, Mr. Justice Rothstein said he agreed with the manner in
which Mr. Justice Létourneau decided 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 ten months, while teachers are usually paid in instalments over twelve
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)
[42]
It
accordingly follows from Oliver, supra, that a teacher will be entitled
to receive unemployment benefits if he or she can show that the termination of
his or her employment, here on June 20, 2003 for the applicant Bazinet, on June
23, 2003 for the applicant Bélanger and June 26, 2003 for the applicant
Guay, resulted in a “genuine severance” of the relationship with the employer.
In other words, the teacher will have to satisfactorily establish that, as a
result of that severance, he or she was really unemployed.
[43]
As I
indicated earlier, the applicants submitted inter alia that the umpire
should have applied the solution adopted in Ying, supra. With respect, I
cannot accept this argument. Clearly the scope of Ying, supra, cannot be
extended beyond the special facts of that case, in view of the subsequent case
law of this Court.
[44]
It is not
enough simply, as the boards of referees did in this case, to look at the
beginning and ending dates of the contracts in order to determine whether a
claimant’s contract of employment in teaching has terminated within the meaning
of paragraph 33(2)(a) of the Regulations. As Oliver, supra,
indicates, it is also necessary to determine whether there was a clear
cessation of the continuity of the claimant’s employment, so that the latter
has become “unemployed”. The fact there may be an interval between two
contracts during which time the teacher was not under contract does not, in my
opinion, mean that there has been a genuine termination 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 the 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.
[45]
In this
case, the board of referees’ decisions make it clear that they did not in any
way consider the question of whether there had been a clear cessation of the
continuity of the applicants’ employment so that the latter had become
“unemployed”. In my view, if the board of referees had raised that question and
had considered the applicants’ situation in the light of this Court’s case law,
they would have ruled that the applicants did not meet the exception provided
for in paragraph 33(2)(a) of the Regulations.
[46]
The
applicants’ contracts for the 2002-2003 school year terminated on June 20, 23
and 26, 2003 respectively, the last day when students were in attendance.
Under clause 5-1.13 of the collective agreement the applicants’ contracts, as
part-time teachers during the said school year, were 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.
[47]
As regards
the applicants’ situation for the 2003-2004 school year, they signed contracts
undertaking to teach in the schools of the Commission scolaire as of August 27,
2003. In particular, under clause IIIA of the contracts signed by the
applicants, their undertaking took effect on August 27, 2003 and
ended either when the person(s) replaced returned, but no later than, in the
case of the applicants Bazinet and Bélanger, June 25, 2004, and in the case of
the applicant Guay, June 30, 2004. It is worth bearing in mind that the
applicants received their offers of employment for the 2003-2004 school year
from the Commission scolaire towards the end of June 2003 and that they
accepted those offers.
[48]
In my
view, there was no genuine cessation of the continuity of the applicants’
employment with the Commission scolaire, and consequently I am quite unable to
find that their contracts of employment in teaching terminated. I thus hold
that the applicants did not meet the exception provided for in paragraph 33(2)(a)
of the Regulations.
[49]
Whereas
the applicants worked as part-time teachers for the Commission scolaire from
the end of August 2002 to the end of June 2003; whereas in late June 2003 the
Commission scolaire made them offers of employment for the 2003-2004 school
year, offers which they accepted a few days later; and as the applicants, like
all the other teachers of the Commission scolaire, did not have to work during
July and August 2003, I do not see how it is possible to conclude that there
was any termination in the employment relationship between the applicants and
the Commission scolaire.
[50]
Accordingly,
the fact of the matter is that the applicants taught in the schools of the
Commission scolaire without interruption during 2002-2003 and 2003-2004. The
factual situation establishes beyond any doubt that the applicants’
relationship with their employer did not terminate. Therefore, there was no
cessation of the continuity of their employment with the Commission scolaire.
[51]
As to the
applicants’ argument that there could be no continuity of their employment
since the offers of employment which they received from the Commission scolaire
at the end of June 2003 were only oral offers and were made by persons not
legally authorized to hire them, I am of the view that this argument is without
merit. Firstly, as I mentioned earlier at paragraph 44 of my reasons, it should
be borne in mind that the purpose of the exercise is not to interpret the
contractual provisions so as to determine the respective rights of the employer
and employees, but to decide whether a claimant is entitled to receive
employment insurance benefits because he or she is in fact unemployed.
Secondly, I agree with the respondent that this argument is entirely academic,
in view of the fact that the applicants accepted offers made by the Commission
scolaire and resumed their work on August 27, 2004, even though their contracts
were not signed until fall 2004.
[52]
For these
reasons, I would dismiss the application for judicial review with costs.
“M.
Nadon”
I
concur.
Gilles
Létourneau J.A.
I
concur.
J.D.
Denis Pelletier J.A.
Certified
true translation
François
Brunet, LLB, BCL
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