Federal Court of Appeal Decisions

 

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

 

 

 

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

Judgment delivered 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-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.

 

[1]               This is an application for judicial review of a decision by umpire Marin dated February 18, 2005 who ruled that the applicants were not eligible for regular unemployment benefits during July and August 2003. The umpire thereby allowed the appeals by the Employment Insurance Commission (the Commission) from two decisions by different boards of referees on March 11, 2004 (for Céline Bazinet and Christine Guay) and June 30, 2004 (for Karen-Laure Bélanger).

 

[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 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 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 26^th 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:

[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:

 

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:

 

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.

 

[20]           The applicants’ other arguments, as the respondent noted, were based on the premise that their part-time contracts for the 2002-2003 school year terminated in June 2003 and that their contracts for the 2003-2004 school year did not take effect until August 27, 2003. Therefore, in the applicants’ submission, the umpire erred in finding that there had been continuity in their employment during July and August 2003.

 

[21]           Further, in support of their argument that there was no continuity in their employment, the applicants submitted that the offers of employment they received in late June 2003 were only oral offers and were made by persons not legally authorized to hire them.

 

[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:

 

[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.

 

[40]           At paragraph 16 of his reasons, Mr. Justice Létourneau thereby 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)

[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

 

 

FEDERAL COURT OF APPEAL

 

SOLICITORS OF RECORD

 

DOCKET:                                                                              A-172-05

 

(JUDICIAL REVIEW OF DECISION BY JUDGE R.J. MARIN, UMPIRE, ON FEBRUARY 18, 2005 IN CASE CUB 60672)

 

STYLE OF CAUSE:                                                              CÉLINE BAZINET ET AL. v.

                                                                                                A.G.C.

 

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:

 

Gaétan Lévesque                                                                      For the applicants

 

Carole Bureau                                                                          For the respondent

Antoine Lippé

 

 

SOLICITORS OF RECORD:

 

Rivest, Schmidt                                                                         For the applicants

Montréal, Quebec

 

John H. Sims, Q.C.                                                                  For the respondent

Deputy Attorney General of Canada

Ottawa, Ontario