Federal Court of Appeal Decisions

     A-411-96

CORAM:      THE HONOURABLE MR. JUSTICE MacGUIGAN

         THE HONOURABLE MR. JUSTICE LINDEN

         THE HONOURABLE MR. JUSTICE ROBERTSON

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Applicant

     - and -

     ALICE DONACHEY

     Respondent

REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Ottawa, Ontario, on Thursday, May 8, 1997.)

MacGUIGAN J.A.

We have regretfully come to the conclusion that the decision of the learned Umpire must be reversed. The decisions of this Court in Attorney General of Canada v. St. Coeur, 17 April 1996, A-80-95, and Hempel v. Attorney General of Canada, 15 May 1996, A-368-95, were handed down after the Umpire's decision in the case at bar, but that in Re Attorney General of Canada and Taylor (1991), 81 D.L.R. (4th) 679 was unaccountably not drawn to the Umpire's attention by the applicant.

     In our view this case is governed by Taylor, which held that unemployment insurance benefits for a teacher absent from work through illness should not be paid for non-teaching vacation periods because of the provisions of paragraph 46.1 (2)(a) of the Unemployment Insurance Regulations. That provision reads as follows:

46.1 (2) A claimant who was employed in teaching for any part of the qualifying period is not entitled to receive benefits, other than those payable under sections 18 and 20 of the Act, for any week of unemployment that falls in any non-teaching period of that claimant

(a)      until his contract of employment for teaching has terminated;

     Stone J.A. for the Court held as follows (687):

I fully realize that this result is unfortunate for the respondent who appears to have been otherwise eligible to receive benefits under the Act in respect of the month of July, 1986. The receipt of such benefits would not have resulted in so-called "double dipping", for the respondent received no earnings from her employment in respect of that month. What is important in light of s. 46.1(2)(a) of the regulations as it now stands, however, is not so much that remuneration was not received by the respondent for July, 1986, but that throughout the month she remained employed under a "contract . . . for teaching" which had not been "terminated". It is the language requiring that a contract of employment for teaching has terminated which creates the barrier to benefits being paid. The paragraph does not provide that a teacher whose services and remuneration have temporarily ceased is eligible for benefits notwithstanding that the contract of employment continues to subsist. The barrier can be removed, if advisable, only by suitable amendment. In the meantime, this court must base its judgment on the plain fact that the respondent's contract had not terminated.

In other words, the only exception allowed for a teacher by the provision is where the contract of employment for teaching has terminated. The claimant in the case at bar, who was on a one-year leave of absence from the Ottawa Board of Education, clearly continued to be employed by the Board and had the right to return at the end of the year, and so does not qualify for the exception.

     Her claim for benefits for one of the periods in question, the spring vacation week, was based on attendance at a training program to which she had been referred by the Commission under the authority of s. 26(1) of the Unemployment Insurance Act. However, par 46.1 (2)(a) of the Regulations, as the more specific provision of the legislation, takes precedence over the more general provision. That provision, incidentally, is fully authorized by s. 44 (h) of the Act, which allows the Commission to restrict the benefits payable to groups or classes of persons "who work . . . in an 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."

     That being said, we cannot leave the issue without commenting on the illogical state of the law. The purpose of par. 46.1 (2)(a) is clearly to avoid "double dipping," as was indicated in the passage from Stone J.A. quoted above. Desjardins J.A. put it this way in St. Coeur:

The object of section 46.1 of the Regulations is to prevent teachers, whose salary is spread over a twelve-month period but who do not provide services every day, from being able to receive monies which come from two separate sources but which fulfil the same role.

It makes no sense to deny a teacher, who is, as here, on a year's unpaid leave of absence, unemployment insurance benefits only for the usual teachers' vacation weeks while allowing benefits for every other week in the year, as here. We express the hope that par. 46.1 (2)(a) will be amended before it comes before this Court again.

     The application will be allowed, the decision of the Umpire dated 29 March 1996 set aside, and the matter referred back to the Chief Umpire or his designate for redetermination on the basis that the appeal to the Umpire be dismissed.

    

     J.A.

     A-411-96

CORAM:      THE HONOURABLE MR. JUSTICE MacGUIGAN

     THE HONOURABLE MR. JUSTICE LINDEN

     THE HONOURABLE MR. JUSTICE ROBERTSON

BETWEEN:

     THE ATTORNEY GENERAL OF CANADA

     Applicant

     - and -

     ALICE DONACHEY

     Respondent

Heard at Ottawa, Ontario, on Thursday, May 8, 1997.

Judgment rendered from the Bench at Ottawa, Ontario, on Thursday, May 8, 1997.

REASONS FOR JUDGMENT OF THE COURT BY:      MacGUIGAN J.A