Date: 20031216
Docket: A-456-02
Citation: 2003 FCA 477
CORAM: STONE J.A.
BETWEEN:
RUSSELL STEPHENS
Applicant
and
THE MINISTER OF HUMAN RESOURCES AND DEVELOPMENT CANADA
Respondent
Heard at Toronto, Ontario, on December 15th, 2003.
Judgment delivered orally from the Bench at Toronto, Ontario, on December 15th, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20031216
Docket: A-456-02
Citation: 2003 FCA 477
CORAM: STONE J.A.
BETWEEN:
RUSSELL STEPHENS
Applicant
and
THE MINISTER OF HUMAN RESOURCES AND DEVELOPMENT CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered orally from the Bench at Toronto, Ontario, on December 15th, 2003)
[1] The legal issue raised by this case is the correct interpretation of paragraph 33(2)(b) of the Employment Insurance Regulations, SOR/96-332, and in particular whether the employment of the applicant Russell Stephens during certain periods was "employment on a casual or substitute basis" so that, during those periods, he should have been relieved from losing benefits pursuant to subsection 33(2).
[2] We agree with counsel for the Crown that the application of paragraph 33(2)(b) involves primarily a question of fact, and that the characterization of a teaching arrangement as "supply teaching" is relevant, but not necessarily determinative. It is theoretically 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".
[3] However, the mere existence of a term teaching contract covering a particular period does not necessarily deprive a person of the benefit of paragraph 33(2)(b) for that period. It appears that the Crown does not take that position.
[4] The difficulty in this case is that there are no findings of fact that are sufficiently clear to enable the correct application of paragraph 33(2)(b) to be determined. In particular, it is not clear from the record whether the Umpire appreciated that, during the relevant period, Mr. Stephens had three separate employment relationships with the same school board, the first being a term contract for part-time teaching, the second being for supply teaching, and the third being a contract for non-teaching work.
[5] The Umpire stated that Mr. Stephens had conceded that he "was not employed on a casual or substitute basis", but it is not clear whether Mr. Stephens' comments to the Umpire related to his part-time contract or his supply teaching.
[6] For these reasons, we are all of the view that this application for judicial review should be allowed, the decision of the Umpire should be set aside and this matter should be referred to the Chief Umpire or his designate for referral back to the Board of Referees for redetermination in a manner consistent with these reasons.
[7] As Mr. Stephens has indicated that he is not claiming costs, none will be awarded.
"Karen R. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-456-02
STYLE OF CAUSE: RUSSELL STEPHENS
Applicant
and
THE MINISTER OF HUMAN RESOURCES AND
DEVELOPMENT CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 15, 2003
REASONS FOR JUDGMENT
OF THE COURT : STONE J.A.
SEXTON J.A.
SHARLOW J.A.
DELIVERED ORALLY FROM THE BENCH
ON DECEMBER 15, 2003 BY: SHARLOW J.A.
APPEARANCES:
Mr. Russell Stephens FOR THE APPLICANT (on his own behalf)
Ms. Sadian Campbell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Russell Stephens
Brantford, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT