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Date: 19981103


Docket: A-101-98

CORAM:      THE CHIEF JUSTICE

         STRAYER J.A.

         LINDEN J.A.

IN THE MATTER OF: THE UNEMPLOYMENT INSURANCE ACT, R.S.C. 1985, c.U-1

BETWEEN:

     ANNEMARIE YING,

     Applicant

     - and -

     THE ATTORNEY GENERAL OF CANADA,

     Respondent.

     REASONS FOR JUDGMENT

     (Delivered from the Bench at Winnipeg, Manitoba on November 3, 1998)

STRAYER J.A.

[1]      Mr. Justice Linden and I are of the view that the facts of this case as presented to the Board of Referees and the Umpire make it distinguishable from earlier decisions of this Court in such cases as Gauthier v. Attorney General [1995] F.C.J. 1350 and Attorney General v. Hann (A-678-95). We agree with the findings of the Board of Referees that there was no continuity of employment here. We find that the facts indicate that there was a termination of the claimant's term contract of employment on June 30, 1996 and her next contract of employment did not begin until August 26, 1996. The evidence also indicates that she was not contractually entitled to any pay in respect of this period. While she signed the new contract in June, 1996, for employment commencing in August, this in our view does not mean that she was continuously employed in the meantime. We emphasize that the language of paragraph 33(2)(a) of the Employment Insurance Regulations allows for benefits in such circumstances if "the claimant's contract of employment for teaching has terminated". We conclude that there was a period between June 30 and August 26, 1996 when the claimant could not have been said to have a contract of employment in operation.

[2]      We believe that Gauthier, and the Hann case which followed it, can be distinguished because the Court in both these cases, on the basis of the record before it, was able to conclude that by operation of law there was no interval between the claimant's successive contracts of employment.

[3]      The Chief Justice dissents from our conclusion because he does not see any distinction in principle between this case and the Gauthier and Hann cases.

[4]      The application for judicial review should be allowed with costs, the decision of the Umpire set aside, and the matter remitted to the Chief Umpire for an affirmation of the decision of the Board of Referees in accordance with these reasons.

     "B.L. Strayer"

     J.A.

WINNIPEG, MANITOBA

November 3rd, 1998


Date: 19981103


Docket: A-101-98

CORAM:      THE CHIEF JUSTICE

         STRAYER J.A.

         LINDEN J.A.

IN THE MATTER OF: THE UNEMPLOYMENT INSURANCE ACT, R.S.C. 1985, c.U-1

BETWEEN:

     ANNEMARIE YING,

     Applicant,

     - and -

     THE ATTORNEY GENERAL OF CANADA,

     Respondent.

Heard at Winnipeg, Manitoba, on November 3, 1998

Judgment delivered from the Bench at Winnipeg, Manitoba on November 3, 1998

REASONS FOR JUDGMENT BY:      STRAYER J.A.

     FEDERAL COURT OF CANADA

     APPEAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:                  A-101-98

STYLE OF CAUSE:          Annemarie Ying v. The Attorney General of Canada,

PLACE OF HEARING:              Winnipeg, Manitoba

DATE OF HEARING:              November 3, 1998

REASONS FOR JUDGMENT

OF THE COURT:                   THE CHIEF JUSTICE

                         STRAYER J.A.

                         LINDEN J.A.

DELIVERED BY:                  STRAYER J.A.

DATED:                      November 3, 1998

APPEARANCES

Mr. Elliot Leven      for the Applicant

Ms. Erika Bottcher     

Department of Justice

211 Bank of Montreal Building

10199 - 101 Street

Edmonton, Alberta

T5J 3Y4      for the Respondent

SOLICITORS OF RECORD

Myers Weinberg Kussin Weinstein Bryk

Barristers & Attorneys-at-Law

724 - 240 Graham Avenue

Winnipeg, Manitoba

R3C 0J7      for the Applicant

Morris Rosenberg

Deputy Attorney General of Canada      for the Respondent

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