Date:
20071128
Dockets: A-103-06
A-104-06
A-110-06
A-111-06
Citation: 2007 FCA 377
CORAM: LÉTOURNEAU
J.A.
NOËL J.A.
TRUDEL
J.A.
BETWEEN:
A-103-06
THE ATTORNEY GENERAL OF CANADA
Applicant
and
MARTHA BLANCHET
Respondent
- - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
A-104-06
THE ATTORNEY GENERAL OF CANADA
Applicant
and
MARTHA BLANCHET
Respondent
- - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
A-110-06
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JULIE BERNIER
Respondent
- - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
A-111-06
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ISABELLE PELLETIER
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issues
[1]
Was the Umpire
right in upholding the decision of the Board of Referees in CUBs 65235,
65192, 65193 and 65255? In doing so, the Umpire concluded that the respondents
were entitled to employment insurance benefits during non-teaching periods
under the exception in paragraph 33(2)(b) of the Employment Insurance
Regulations, SOR/96-332 (Regulations). This paragraph reads as follows:
|
33. (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
(a) the
claimant's contract of employment for teaching has terminated;
(b) the
claimant's employment in teaching was on a casual or substitute basis; or
(c) the
claimant qualifies to receive benefits in respect of employment in an
occupation other than teaching.
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33. (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 :
a) son
contrat de travail dans l’enseignement a pris fin;
b) son
emploi dans l’enseignement était exercé sur une base occasionnelle ou de
suppléance;
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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[2]
As in all
cases of this type, this issue also raises the related question of the standard
of review the Umpire must apply to the decision of the Board of Referees, as
well as the standard applicable to the Umpire’s decision, which is submitted to
us for judicial review.
[3]
The
respondents claimed their right to receive benefits, alleging that their
employment in the field of teaching was held on a casual or substitute basis.
Their claim is based on paragraph 33(2)b) of the Regulations.
[4]
The issue
of entitlement to benefits in these cases is common to all the respondents, even
though the periods and amounts in issue vary from one file to another. The
facts alleged by the applicant are not contested, except insofar as counsel for
the respondents insisted on clarifying certain points in each file.
Parties’ submissions concerning
applicable standard of review
[5]
Counsel
for the applicant submits that the error at the heart of the Umpire’s decision
is one of law, because it is based on his and the Board of Referees’ misinterpretation
of the following terms in paragraphs 33(2)(a) and (b) of the
Regulations: “the
claimant’s contract of employment for teaching has terminated” and “the
claimant’s employment in teaching was on a casual or substitute basis”. In the
view of counsel for the applicant, the applicable standard of review is
correctness. She referred the Court to the following judgments: Stone v.
Canada (Attorney General), 2006 FCA 27 (F.C.A.); Bazinet et al. v. Canada (Attorney General), 2006 FCA 174
(F.C.A.); and Canada (Attorney General) v. Robin, 2006 FCA 175
(F.C.A.).
[6]
Counsel
for the respondents relies on the judgement of this Court in Stephens v. Canada (Minister of Human Resources
Development),
2003 FCA 477, to conclude that the applicability of paragraph 33(2)(b)
is mainly a question of fact subject to the standard of patent unreasonableness:
Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraph 25.
[7]
However,
he acknowledges that the standard of correctness applies to the issue of
whether or not paragraph 33(2)(b) may apply even if a contract has
not terminated, because this is a question of law.
Parites’ submissions concerning
entitlement to benefits
[8]
According
to counsel for the applicant, the respondents are not entitled to receive
benefits, because none of the three conditions in subsection 33(2) of the
Regulations has been met.
[9]
First of
all, there has been no break in the continuity of employment, as was the case
in Bazinet, supra, in which this concept was recently reiterated.
Accordingly, they could not claim benefits, since the terms “any
non-teaching period”
in subsection 33(2) of the Regulations cover not only summer holidays but also
Christmas and Easter holidays and semester breaks: see Dupuis-Johnson v.
Canada (Canada Employment and Immigration Commission), [1996] F.C.J. No.
816 (F.C.A.); Attorney General of Canada v. St-Cœur, A-80-95, April 17, 1996.
[10]
Secondly,
the respondents did not hold their employment on a casual or substitute basis,
but rather on a regular, part-time basis.
[11]
Finally, with
regard to the third exception in subsection 33(2), counsel for the
applicant notes that there is nothing in the record showing that the
respondents met the conditions for receiving benefits because they held
employment in an occupation other than teaching.
[12]
Counsel
for the respondents submits that the three conditions in subsection 33(2)
are independent of each other. Only one condition has to be met to benefit from
the exception to disentitlement and qualify for benefits: see Oliver v. Canada (Attorney General), 2003 FCA 98, at
paragraph 16 (F.C.A.). He argues that the exception in paragraph 33(2)(b)
should apply to his clients, based on the ordinary and grammatical sense of the
words “casual” and “substitute”.
[13]
He also
relies on the interpretation given by the Minister of Human Resources
Development to these terms in the2005 edition of the Digest of Benefit
Entitlement Principles (Digest). He cites the following excerpt from
chapter 14, entitled “Teachers”:
14.3.2 The Second
Exception: Casual or Substitute
If the
disentitlement has not been relieved under the first exception, we must look to
the requirements of the second exception to see if relief is possible. This
provision provides that benefit is not payable “unless his employment in
teaching was on a casual or substitute basis”. The relief is based on the
nature of the claimant's teaching employment in the qualifying period, that is,
casual or substitute teaching. It does not apply if the teacher was neither
substitute nor casual.
The words “casual”
or “substitute” must be given their dictionary meaning that may differ from
particular definitions found in provincial legislation or labour agreements.
“On a casual
basis” refers to teaching for a short period of time and for a limited,
intermittent and temporary purpose. For the purpose of the Regulation it can be
said that casual teaching means irregular, occasional or incidental teaching.
If the employment involves filling an unexpected or temporary absence for a
short period, and if the employment can be cancelled at any time, it is of a
casual nature.
“On a
substitute basis” means the replacement of a teacher who is away. There are no
limits placed on the length of time that a teacher can replace another without
losing her or his status as a substitute. The School Board may fill a lengthy
vacancy, on a substitute basis, with the same teacher year after year or with
different teachers.
It may happen
that a teacher under a leave of absence has both regular teaching and casual or
substitute teaching in the qualifying period. A teacher whose employment in
teaching was on a casual or substitute basis for most of the employment in
teaching during the qualifying period may qualify, notwithstanding the fact
that there was full-time teaching in the qualifying period.
Standard of review applicable by Umpire
in case at bar
[14]
In my
opinion, the definition of the three exceptions mentioned in subsection 33(2)
of the Regulations and the determination of the scope of their application
raise questions of law.
[15]
For example,
determining that a “contract has terminated” on June 29, 2006, may be a mere question of
fact. However, determining that a “contract has terminated” on June 29, 2006, within
the meaning of paragraph 33(2)(a) of the Regulations involves a
determination of the legal meaning that this provision attributes to or confers
on these terms. In such a case, the scope of the legal test must be determined
and then applied to the facts of the case. Mischaracterizing this legal test is
an error of law: see Stone v. Canada, supra, at paragraph 14.
[16]
The application
of the proper legal test to the facts and circumstances of the case involves a
question of mixed fact and law: ibid, at paragraph 13. The standard
of review applicable by the Umpire to this issue is unreasonableness: Budhai
v. Canada (Attorney General), 2002 FCA 298
(F.C.A.).
[17]
The same
reasoning applies to the interpretation of paragraph 33(2)(b) of
the Regulations. The meaning to be given to the words “casual” and “substitute”
for the purposes of this paragraph involves a question of law; its subsequent
application to the facts of this case involves a question of mixed fact and
law.
[18]
In this
case, the Umpire concluded on the basis of Stephens, supra, that
the applicability of paragraph 33(2)(b) was mainly a question of
fact. With respect, I am of the opinion that he erred concerning the nature of
the issue and, consequently, concerning the applicable standard of review.
[19]
It is true
that in a short oral judgment delivered from the bench, our colleague Madam
Justice Sharlow accepted the Crown’s position according to which the matter of
the applicability of paragraph 33(2)(b) was mainly a question of
fact. However, this statement was made in a very specific context in which
there were no findings of fact sufficiently that were sufficiently clear “to enable the correct application of paragraph 33(2)(b) to be
determined”. In
other words, in this specific case, it was impossible to apply paragraph 33(2)(b)
to the facts, given the lack of any findings of fact. It was in this specific
and narrow sense and context that it was stated that the applicability of the
provision involved mainly a question of fact, which is not the case here.
[20]
Therefore,
our role involves applying the proper standard of administrative review which
the Umpire should have applied to the analysis of the decision of the Board of Referees:
Q. v. College of Physicians and Surgeons, [2003] 1 S.C.R. 226,
at paragraph 43.
Analysis of decisions of Board of Referees
and Umpire
[21]
Before
undertaking an analysis of the decision of the Board of Referees, it will be
necessary to briefly refer to the specific facts of each file.
A-103-06 and A-104-06: Martha Blanchet
[22]
According
to the Board of Referees, in A-103-06, Ms. Blanchet signed a part-time
teaching contract for 8.7% of a regular full-time teaching assignment. At the
same time, from August 23,
2002, to June
27, 2003, she had another part-time teaching contract, also for 8.7% of a regular
full-time teaching assignment. According to her testimony, her income varied
from $15,000 to $17,000 per year, $4,500 of which came from these two
contracts. The balance was earned from her substitute teaching.
[23]
Ms.
Blanchet is claiming benefits for the Christmas holidays (December 22,
2003, to January 2,
2004) and spring
break (March 1, 2004, to March 5,
2005): see Applicant’s
Record, at pages 19, 20 and 66 to 70.
[24]
In A-104-06,
the period of employment was from August 29, 2001, to June 21, 2002. This was a per-lesson contract
under the terms of which Ms. Blanchet was to teach a maximum of 432 minutes
per cycle of a full-time teacher at the elementary level.
[25]
She claims
benefits for part of the Christmas break (December 22, 2002, to December 28, 2002).
A-110-06: Julie Bernier
[26]
Ms.
Bernier worked as a teacher for the Navigateurs school board from August 15,
2002, to June 27,
2003; for the
Découvreurs school board from October 25, 2002, to June 12, 2003; and for the Capitale school
board from October 29, 2002, to June 19, 2003.
[27]
In
addition, she was hired by the Navigateurs school board from August 23,
2002, to June 27,
2003. She was
required to teach 22.22% of a regular full-time teaching assignment.
[28]
For the
year 2003–2004, Ms. Bernier entered into a contract with the Navigateurs school
board under the terms of which she would teach 44.44% of a regular full-time teaching
assignment from August 26, 2003, to June 29, 2004.
A-111-06: Isabelle Pelletier
[29]
Ms.
Pelletier had a benefit period established for her, effective June 29, 2003.
In support of her claim for benefits, Ms. Pelletier submitted two records of
employment.
[30]
The first
of these records concerns employment in a field other than teaching. From
August 4 to October
23, 2002, the
respondent accumulated 315 hours of insurable employment.
[31]
The second
record of employment shows that the respondent held employment as a teacher at
the Découvreurs school board. This employment lasted from September 12,
2002, to June 23,
2003.
[32]
During her
qualifying period, the respondent also signed a part-time teaching contract with
the same school board. From February 10 to June 26, 2003, she taught under
this contract for 100% of a full-time teaching assignment.
[33]
For the
2003–2004 school year, the respondent was offered new part-time teaching
assignments. From September
2, 2003, to
January 23, 2004, she taught 20.43% of the teaching time of the person she
replaced. From January 26 to June 28, 2004, she took on 100% of the workload
of another teacher she replaced.
[34]
The
respondent claimed benefits from December 22, 2003, to January 2, 2004.
Interpretation and scope of subsection 33(2)
and paragraph 33(2)(b) of the Regulations
[35]
Under
subsection 33(2), a teacher who holds employment in teaching during part
of his or her qualifying period is not entitled to receive any benefits for the
weeks of unemployment which are included in any non-teaching period. As our
Court has already decided, the expression “any non-teaching period” is not
restricted to the summer holidays. It includes any breaks during the school
year, such as Christmas, Easter and semester breaks: see Dupuis-Johnson v. Canada (Employment and Immigration Commission) and Attorney General of
Canada v. St-Cœur, supra.
[36]
However, subsection 33(2)
also contains three exceptions to this disentitlement. These are three distinct
exceptions and not one exception with three conditions to be met for it to
apply. In Oliver v. Canada (Attorney General), supra, at paragraph 16
of this judgment, our Court upheld the position taken by the Umpire on this
issue.
[37]
In fact,
the use of the word “or” in English at the end of paragraph 33(2)(b)
and the drafting technique used in the French version of this paragraph show
that these paragraphs do not apply cumulatively, but rather separately and independently
of each other.
[38]
The
exception at the end of paragraph 33(2)(b) emphasizes the performance
of the employment and not the status of the teacher who holds it. In other
words, a teacher may, for example, have substitute teacher status but, during
the qualifying period, be called up and enter into a contract to hold
employment not on a casual or substitute basis but on a regular full-time or part-time
basis. Even if the teacher retains his or her status as a substitute under the
collective agreement governing the school board and the teachers’ union, he or
she is not a substitute teacher for the purposes of the part-time employment he
or she contracted. In such a case, the teacher does not meet the conditions of
the exception under paragraph 33(2)(b). As was stated by our
colleague Madam Justice Sharlow at paragraph 2 of Stephens v. Canada (Minister
of Human Resources Development), supra, it is possible “that a teacher may have a period of employment as a supply teacher that
is sufficiently regular that it cannot be said to be ‘employment on a casual or
substitute basis’”.
[39]
However, in
spite of a commendable effort to clarify the matter of entitlement to benefits
during non-teaching periods, the 2005 version of the Digest, to which the
respondents refer, contained some ambiguities. They result from the emphasis
put on the teacher’s substitute status, such that the Digest could lead one to
believe that, for the purposes of the exception, the teacher’s status prevails
over the employment held.
[40]
Some
corrections were made to the 2007 version of the Digest, but I am not satisfied
that the new edition has met the objective of clarifying this point. For
example, at paragraph 14.3.2, entitled Teaching on a Casual or
Substitute Basis, the Digest defines the concept of substitute teaching. However,
at page 3 of Chapter 14, it repeats the following excerpt found in
the 2005 version, which still seems to emphasize the status of the teacher:
There are no
limits placed on the length of time that a teacher can replace another without
losing her or his status as a substitute. The School Board may fill a lengthy
vacancy, on a substitute basis, with the same teacher year after year, or with various
teachers.
[Emphasis added]
Again, the benefit of the exception is not obtained through the
teacher’s status with the school board, but through the employment held during
the qualifying period. If employment is held on a casual or substitute basis,
the exception may be invoked regardless of whether or not the teacher loses or
maintains his or her substitute status.
[41]
The
Regulations do not define the terms “casual or substitute basis”. The
respondents submit that these terms must be given the ordinary and grammatical sense
specified in the dictionary.
[42]
At page
746, the 2007 edition of the Petit Larousse, defines the word “occaisonnel”
(casual) as follows:
[translation]
Happening
or occurring occasionally, by chance; accidental, irregular.
The definition of “suppléance” at page 1020 of this
dictionary refers to [translation]
“the state of being a substitute”. “Suppléant” is defined by reference to a
person who replaces someone in his or her duties without becoming the incumbent
of that position. Finally, the verb “suppléer” means to replace someone in his or
her duties.
[43]
At page 3
of Chapter 14 of the 2007 version of the Digest, it is specified that for the
purposes of the Regulation, “casual teaching means irregular, occasional or
on-call teaching”. For these purposes, “on a substitute basis” refers to “a
person who is available on call or used to perform the duties of another
teacher, temporarily, during leaves of absence, holidays or illness”: ibid.
[44]
I agree
that these terms must be given the usual dictionary meaning and not a literary,
philosophical or figurative meaning. However, the analysis does not stop there.
The contract signed by the teacher must be studied to determine whether or not employment
is held on such a basis within the meaning of paragraph 33(2)(b). This
brings me to the application of this analysis to the facts of this case.
Application of paragraph 33(2)(b) to
facts of case at bar
[45]
The
respondents are not claiming the exceptions under paragraphs 33(2)(a)
and 33(2)(c) of the Regulations. There is no evidence showing that
paragraph 33(2)(c) might apply. As far as paragraph 33(2)(a)
is concerned, I agree with counsel for the applicant that there was no break in
employment as defined by case law: see Bazinet, supra.
[46]
The
respondents held their employment under contracts for part-time or per-lesson
teaching or both: see contracts in Applicant’s Record in A-103-06, at pages 19
and 20; in Applicant’s Record in A-104-06, at page 19; in Applicant’s
Record in A-110-06, at pages 23 to 31, 40 and 43; and in Applicant’s Record
in A-111-06, at pages 16 and 25 to 28.
[47]
Under the
agreement between the Comité patronal de négociation pour les commissions
francophones (management negotiating committee for French-language school
boards) and the Centrale de l’enseignement du Québec (Quebec association of
teachers’ unions) on behalf of the teachers’ unions it represents, a school
board is required to offer [translation]
“a part-time contract to the substitute teacher it hires to replace a
full-time or part-time teacher when it is has been determined beforehand that
this teacher will be absent for more than two (2) consecutive months”: see
clause 5-1.11 of the agreement.
[48]
This is
precisely the situation in this case. In these circumstances, I do not believe
that it could be said that the employment was held on a casual or substitute
basis. To cite Marceau J.A. in Dupuis-Johnson, supra,
at paragraph 8, the respondents were bound by a contract during the
holiday periods in question and “their employment as teachers, temporary and
precarious as their contracts were [for the periods in question] was of course
exercised in a continuous and predetermined way and not on an occasional or
substitute basis within the meaning of paragraph 33(2)(b)”.
[49]
In my
opinion, the Board of Referees erred with regard to the interpretation and
scope of paragraph 33(2)(b) of the Regulations. The Umpire should
have intervened to correct this error of law and apply the proper
interpretation of paragraph 33(2)(b) to the facts of the case. If
he had done so, he could only have concluded that the Commission’s appeal had
to be allowed.
Conclusion
[50]
For these
reasons, I would allow the applications for judicial review in A-103-06,
A-104-06, A-110-06 and A-111-06 with costs, but I would limit the costs for the
hearing to a single set of costs, as the four files were heard jointly. I would
set aside the decision of the Umpire in each of the files and refer the matters
back to the Chief Umpire or to an Umpire designated by him for redetermination on the basis that the Commission’s appeal
must be upheld in each of the files and that each of the respondents has failed
to establish that she could qualify for the exception under paragraph 33(2)(b) of
the Regulations, since her employment was not held on a casual or substitute
basis.
[51]
A copy of
these reasons will be filed in each of the files in support of the judgment
rendered therein.
“Gilles
Létourneau”
“I
concur
Marc Noël J.A.”
“I
concur
Johanne
Trudel J.A.”
Certified
true translation
Michael
Palles
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