Date: 20010316
Docket: 1999-3894-EI
BETWEEN:
MARJORIE DESCHAMBAULT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
and
BOARD OF EDUCATION OF THE POTASHVILLE SCHOOL DIVISION NO. 80 OF SASKATCHEWAN,
Intervenor,
AND
Docket: 1999-3895-EI
LORI SUTHERLAND,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
AND
Docket: 1999-3896-EI
VERONICA M. ULMER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Porter, D.J.T.C.C.
Introduction
[1] These appeals were heard on common evidence by consent of the parties at Regina, Saskatchewan, on July 5, 2000.
[2] The issue, which is the same in each case, is whether the Appellants, all support workers employed in schools by the Potashville School Division No. 80 of Saskatchewan (the "School Board"), are entitled to benefits under the Employment Insurance Act (the "EI Act") for the months of July and August 1998, when the schools were closed and they performed no services.
[3] Each of the Appellants was employed by the School Board throughout 1997 and 1998 as support staff; Deschambault was a secretary and teacher assistant; Sutherland was a library assistant and teacher assistant, and Ulmer was a school secretary.
[4] The Minister of National Revenue (the "Minister") on the 25th of June 1999 issued a decision that the employment of each Appellant from August 18, 1997 to August 24, 1998, that is from the commencement of the 1997/1998 school year right through to the commencement of the 1998/1999 school year and in particular, the months of July and August for 1998, was insurable employment under the provisions of the EI Act. In doing so, he sought to rely on section 2, subsection 7(2) and paragraph 5(1)(a) of the EI Act, as well as regulation 14(1) of the Employment Insurance Regulations (the "EI Regulations").
[5] The Appellants have brought their appeals from that decision to this Court on the basis that they were "laid off or separated from that employment" as at June 30, 1998 and thus suffered an "interruption of earnings", leading to an eligibility for employment insurance benefits throughout the period in question, that is to say from the 1st of July 1998 to August 24, 1998 when the school reopened.
[6] It is common ground between the parties that the Appellants provided no services during the period in question, when the schools were closed for what is described in both the Collective Agreement and the Saskatchewan Education Act as the "summer vacation period". The simple question to be answered is whether the Appellants were employed and paid over a 12-month period, "annually", or whether they were employed and paid for 10 months at a time, "the school year", and "laid off" or "separated" from their employment for the summer vacation period.
[7] The School Board has intervened in the appeals in support of the Appellants.
[8] The Canadian Union of Public Employees (the "Union"), although not officially intervening in the appeal, represented the Appellants at the hearing of the appeals and generally supports their position.
The Law
[9] The relevant statutory and regulatory provisions read as follows:
[10] Section 2 of the EI Act defines "interruptions of earnings" as follows:
""Interruption of earnings" means an interruption that occurs in the earnings of an insured person at any time and in any circumstances determined by the regulations;"
[11] Subsection 5(1) of the EI Act reads:
"Subject to subsection (2), insurable employment is
(a) employment in Canada by one or more employers under any express or implied contract of service or apprenticeship, written or oral, whether the earnings of the employed person are received from the employer or some other person and whether the earnings are calculated by time or by the piece or partly by time and partly by the piece or otherwise."
[12] Subsection 7(2) reads as follows:
"An insured person, other than a new entrant or a re-entrant to the labour force, qualifies if the person
(a) has had an interruption of earnings from employment; ..."
[13] Subsection 14(1) of the EI Regulations reads:
"Subject to subsections (2) to (7), an interruption of earnings occurs where, following a period of employment with an employer, an insured person is laid off or separated from that employment and has a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment, other than earnings described in subsection 36(13), are payable or allocated." (emphasis added)
[14] The Education Act of Saskatchewan defines "school year" as:
"the period commencing on July 1 in one calendar year and ending on June 30 in the next calendar year;"
[15] Subsections 163(2) and 163(3) of the Education Act read as follows:
"(2) A school year consists of 200 school days, but in any year the minister may, by order, determine for that year any lesser number of school days that the minister considers advisable.
(3) Subject to subsection (1) and (2), the board of Education ... shall determine:
(a) the opening and closing dates of the schools; and
(b) the general schedule of operation for the school year and for any term, semester or other period of the school year, as the case may be."
[16] The Labour Standards Act defines "lay-off" as follows:
"... the temporary termination by an employer of the services of an employee for a period exceeding six consecutive days."
[17] Section 43 of the Labour Standards Act reads as follows:
"43. Except for just cause other than shortage of work, no employer shall discharge or lay off an employee who has been in his service for at least three continuous months without giving that employee at least:
(a) one week's written notice, if his period of employment is less than one year;
(b) two weeks' written notice, if his period of employment is one year or more but less than three years;
(c) four weeks' written notice, if his period of employment is three years or more but less than five years;
(d) six weeks' written notice, if his period of employment is five years or more but less than 10 years;
(e) eight weeks' written notice, if his period of employment is 10 years or more."
[18] It can be seen that "interruption of earnings" is statutorily defined in subsection 2(1) of the EI Act as meaning an interruption that occurs in the earnings "at any time and in any circumstances determined by the Regulations". Those two propositions are conjunct, that is, an interruption in the earnings occurring "at any time and in any circumstances" as determined by the Regulations. Both the time and circumstances are to be determined by reference to the Regulations. That is imperative as if the two were disjunctive, different considerations might apply.
[19] The Regulation in question is 14(1) of the General Regulations. The issue in this case has to be resolved within the context of the following words in this Regulation:
• "Laid off or separated" and
• "in respect of which no earnings that arise in that employment are payable or allocated."
[20] Thus, the question becomes first whether the Appellants were "laid off" or "separated" and whether any of their salary or earnings is "payable" or "allocated" in respect of that lay-off or separation. At the outset, I might say that the words "laid off" or "separated" seem to me to have different connotations.
[21] I would also hasten to add that this is a different situation from that of teachers, who now have special provisions which apply to their two-month non-teaching period in the summer. I am mindful of the case of Re Petts and the Alberta Teachers Association (1975), 6 N.R. 356, which was cited with approval by McIntyre J. in Dick v. U.I.C. (1980), 32 N.R. 552. I will refer to this case later.
[22] I am also very mindful of the decision of my brother Judge O'Connor T.C.J. in the recent case of Donnawell v. M.N.R., [1999] T.C.J. 851, Court File #98-724(UI), where a similar situation presented itself before him. I am indebted to him for his comprehensive reasoning in that case and I have approached the case before me on the basis of the desirability of having consistent decisions in the same Court. Nevertheless, there are some factual differences to which I must apply my mind, not the least of which is the wording of the collective agreement in the case before me, which has significant differences from that in the case before Judge O'Connor.
The Facts
[23] The Minister, in coming to his decision, was said in the Replies to the Notices of Appeal, to have relied upon the following assumptions of fact:
"(a) the Payor is responsible for and operates all schools within its boundaries;
(b) the Appellant (Marjorie Deschambault) was hired by the Payor as a School Secretary and Teacher Assistant;
(b) the Appellant (Lori Sutherland) was hired by the Payor as a Library Assistant and Teacher Assistant;
(b) the Appellant (Veronica M. Ulmer) was hired by the Payor as a School Secretary;
(c) school years (hereinafter "the School Year") for schools operated by the Payor are usually as follows :
(i) August 25, 1997 to June 29, 1998, or
(ii) August 24, 1998 to June 30, 1999;
(d) the School Year generally consists of 200 school days;
(e) neither the Payor nor the Appellant dispute that the Appellant was employed by the Payor under a contract of service while performing services;
(f) the Appellant was a member of the Canadian Union of Public Employees;
(g) the terms and conditions of the Appellant's employment with the Payor was governed by a Collective Agreement;
(h) the Appellant worked 37.5 hours per week;
(i) the Appellant was paid an annual salary which was paid on a 10-month basis, the months excluded being July and August;
(j) the Appellant received vacation pay on each paycheque;
(k) the Appellant was covered in respect of the benefits plans provided by the Payor, including life insurance, accidental death and dismemberment insurance and long-term disability insurance during the Period;
(l) the Appellant retained her accumulated sick leave credits, seniority, and other benefits during the Period;
(m) the Appellant participated in a Municipal Employee Pension Plan during the Period;
(n) the Municipal Employee Pension Plan provides termination benefits upon termination of employment;
(o) the Appellant did not notify the Municipal Employee Pension Plan of a termination of employment during the Period or otherwise claim and entitlement to termination benefits in respect of the Period;
(p) the Payor did not notify the Appellant that her employment with them was being terminated during the Period;
(q) the Appellant did not notify the Payor that she was terminating her employment with them during the Period;
(r) the Appellant's contract of service with the Payor was not terminated during the Period;
(s) the Appellant was not laid-off or otherwise separated from employment by the Payor during the Period;
(t) the Appellant was in receipt of the usual remuneration from employment by the Payor during the Period;
(u) there was no interruption of earnings from employment during the Period;
(v) the Payor advised the Appellant that the School Year would commence on August 24, 1998;
(w) the Appellant did not have to reapply to the Payor for a job during the Period."
[24] The facts are not greatly disputed by the Appellants, save for the essential issues. Thus, they agreed with items (a) to (h), (j) to (m), (o), (v) and (w).
[25] The Appellants disagreed with items (i), (n) and (p) to (u).
[26] Evidence was given by Veronica Ulmer, a teaching assistant with the School Board. Her evidence was said to be representative of the three Appellants. The only difference in their respective situations was in the tasks they performed. Basically they worked from August 25, 1997, when school opened, to June 29, 1998 when it closed. They did not work again until August 24, 1998. They claim that they had an interruption of earnings as at June 29 which lasted until August 24, 1998 as they did not work and were not paid in respect of that period. In effect, they claimed to have been laid off or separated from their employment during that period.
[27] Veronica Ulmer entered into evidence the Collective Agreement (Exhibit A-1) between the Union and the School Board which governed the employment of the Appellants. She also entered a Seniority List showing the seniority status of the three Appellants with the School Board (Exhibit A-2), as well as a letter from Revenue Canada dated July 29, 1999 signed on behalf of K. Wolchuk, Chief of Appeals for the Minister of National Revenue (Exhibit A-4). This letter set out the basis upon which the decisions had been made by the Minister. It reads as follows:
"1. According to the union contract, the workers receive an annual salary which is paid on a ten month basis. This indicates that the workers earn income through out the year (annually) but is only paid ten times.
2. According to the union contract, an employee must be laid off in writing. The workers did not receive a written lay off notice, only ROE's.
3. According to the union contract, the workers participates [sic] in numerous benefits plans. Some of these plans are funded solely by the payor. These plans continue through the summer.
4. According to the union contract, vacation pay is paid on each pay cheque. The workers last day of work was June 27.
5. According to the union contract, recalls shall be automatic following the school vacations periods unless the Board has served a termination or indefinite lay off notice pursuant to Section 43 of The Labour Standards Act.
6. Employee benefits carry on through the summer even though the employees are not working.
7. The workers were guaranteed a job when they returned in the fall."
[28] This letter is clearly an amplification of the reasons given in the initial decision. I note in particular that it states that the Union contract specifies the worker shall receive an annual salary, which is paid on a 10-month basis. I see no such reference to this in the union contract. It contained only a vaguely worded Schedule "A" and Schedule "B" which, in my view, have no meaning of and in themselves and they have no context within the terms of the contract. Certain classification wage rates are set out. The three classified positions carried a requirement of 7.5 hours work per day throughout the year, designated as "school year". The evidence is clear that whatever the designated salary was, it was paid by 10 monthly instalments. No payments were made at the end of July or August. The question, thus, is whether it was a 12-month salary payable over 10 months, or whether it was a 10-month salary payable over 10 months in respect of those 10 months.
[29] Various Articles of the Collective Agreement are relevant to the issues.
"PREAMBLE
The purpose of this Agreement is:
a) To maintain and improve harmonious relations and settled conditions of employment between the Board and the Union;
b) To recognize the mutual value of joint discussions and negotiations;
c) To encourage efficiency in operation;
d) To promote an amicable method of settling differences or grievances which may arise with respect to matters covered by this Agreement; and
e) To identify the negotiated terms and conditions of employment.
ARTICLE 4 - SENIORITY
4.1 Definition
a) Seniority shall be determined on the basis of continuous service that an employee has accumulated, calculated on the basis of actual time worked, commencing from the first day of uninterrupted service with the Board.
b) The normal interruptions during the scheduled school vacation period shall not constitute a break in service.
ARTICLE 5 - LAY OFF, RECALL, VACANCIES AND PROBATION
5.1 Automatic Lay off
Employees who work on the basis of the school year shall be deemed to be laid off for the summer vacation period. Recall following the school vacation periods shall be automatic unless the Board has served a termination or indefinite lay off notice pursuant to Section 43 of The Labour Standards Act. This Article will service as notice of lay-off and recall for the school vacation periods during the term of this Agreement.
5.3 Recall
...
b) Pursuant to Article 4.2 entitled "Seniority Lost", during a lay off, employee shall maintain, but not accrue, all previously earned benefits and rates of pay. (emphasis added)
ARTICLE 6 - ANNUAL VACATION AND STATUTORY HOLIDAYS
6.1 Entitlement
a) Payment
It is understood and agreed that the wages of school year employees are inclusive of all monies owing with respect to vacation pay and statutory holiday pay in accordance with The Labour Standards Act.
...
ARTICLE 7 - LEAVES OF ABSENCE
7.1 General Leave
Subject to operational feasibility and where the employee has provided good and sufficient reasons for a leave, the Board shall grant a leave of absence without pay and without loss or accrual of seniority to a maximum of one (1) school year or such other period of time as maybe mutually agreed to between the employee and the Board. The request will be in writing at least fifteen (15) working days in advance of the date of the requested leave.
ARTICLE 9 - TERM OF AGREEMENT
9.1 Duration
This Agreement shall be effective January 1st, 1995, and shall remain in force until December 31, 1997, and thereafter from year to year, unless written notice is given as provided in Article 9.2 entitled "Written Notice."
SCHEDULE "A"
FULL TIME EQUIVALENT
HOURS OF WORK BY CLASSIFICATION
Classification Hours of Work per Day Year*
Library Assistant 7.5 School
Teacher Assistant 7.5 School
School Secretary 7.5 School
* includes paid leave during four (4) teacher inservice days"
[30] The provisions in Article 4.1(a) and (b) ensure that the interruptions in work service which occur during school vacations each year during the period of question (June 30th to August 24th) do not constitute a break in service for the purpose of calculating seniority. Without this clause, which is limited to the question of seniority, presumably these interruptions would create a break of service. However, it was also clear from the evidence that no hours were counted towards seniority in the course of such interruptions. In other words, it did not affect the continuity of service for the purpose of calculating the seniority, but it also did not contribute anything to the calculation of hours for seniority purposes. This is confirmed again in Article 5.3(b).
[31] Article 7.1 indicates that even during a leave of absence for a period of up to one year without pay, which would clearly be an interruption of earnings, there would be no loss of or accrual of seniority. Thus, the fact that there is no loss of seniority with respect to the summer period of non service, is not in any way conclusive of there being no interruption of earnings.
[32] Ms. Ulmer said that she considered herself laid off during the summer weeks. She received a record of employment under the EI Act from the School Board. She actively looked for other work and applied for employment insurance benefits. In cross-examination, she said the record of employment came automatically with her last pay cheque at the end of June. It was not something for which she asked. It was clearly issued in accordance with Article 5.1 of the Agreement. She also said that she received vacation pay as part of her monthly cheques. The Municipal Benefits Plan was paid by the employer and benefits already accrued thereunder remained in effect during the school breaks, including the summer period in question.
[33] Evidence was also given by Michael Keith, a national representative of the Canadian Union of Public Employees. He said he was aware that the School Board employees claimed employment insurance benefits over summer breaks. He said that he was the chief negotiator for the union when this collective agreement was established. His understanding was that the employees only work throughout the academic year. He said that with respect to the Municipal Employees Pension Plan, the employees only receive 20 months' credit over a two-year period, but that the Plan still ran and did not terminate during the summer breaks. Again, there was no accrual of benefits but no loss of benefits during that period. A copy of the plan was filed as Exhibit A-5. Quite frankly, I did not find the evidence in relation to the Municipal Plan particularly helpful as it depended upon its own specific terms. However, the witness did say that prior to the signing of the Collective Agreement, these categories of employees were paid over a 10-month period. The implication of his evidence was that the Collective Agreement did not purport to change the prior arrangement, but rather sought to support and extend it.
[34] That really was the sum total of the evidence put before me.
Appellants' Submissions
[35] The basic position of the Appellants is premised upon Article 5.1 of the Collective Agreement, which provides for the automatic lay-off of the Appellants (on the 29th of June 1998) and the automatic recall on the 24th of August 1998. The question arises as to whether that was a genuine lay-off and recall in accordance with the Labour Standards Act of Saskatchewan or whether it was just a fiction. For what it is worth, other benefits remained in existence throughout the summer break, such as seniority, insurance, sick leave and pension, although it is clear that none actually accrued during that period. Thus, they were maintained but did not accrue. They were not terminated or cancelled, but they did not increase. Further, there appears to have been some life insurance in place that was maintained over that period of time.
[36] The Union, on behalf of the Appellants, made the argument that there was no work for these people during the period in question and that the situation is thus the same as any other occupation where lay-offs occur, whether as a seasonal lay-off, on account of lack of work, or weather or for any other good reason. It likens the situation to a slow-down at General Motors. I would liken it more to a situation where a plant or factory closes down for a period annually for maintenance or retooling purposes. The Union argues that these are examples of ongoing employment where the employee suffers an interruption of earnings and that the situation at hand is the same.
[37] The Union also advanced the proposition that the wording in Article 5.1 of the Collective Agreement was an official lay-off notice and an official recall notice as agreed between the bargaining unit and the employer. They agreed to do it that way rather than encumber the employer with having to do it each time individually in accordance with the Labour Standards Act. However, they say the effect and the intent were the same.
[38] Lastly, the Appellants argued that they were free to seek other employment during the period in question before being called back and that, they say, is not consistent with being in employment throughout that period with the School Board. They could not, they say, have two employers at the same time. In point of fact, they did not find other employment during that period of time, but their submission is that they were entitled to do so if it had been available.
[39] They also rely on the fact that a record of employment was issued to each of them by the School Board prior to the 29th of June.
School Board Submissions
[40] I am indebted to counsel for the School Board who filed a comprehensive and helpful Brief on behalf of the Intervenor in support of the Appellants.
[41] The Brief traces the responsibility of school boards in the Province of Saskatchewan to the Education Act and also provided a copy of the teachers' Collective Agreement for the calendar year 1997. It is noteworthy in that agreement that the salary provisions referred to an "annual rate of basic salary". It is also noteworthy that the provisions of the Education Act relating to teachers do not relate to workers such as the Appellants. On the other hand, the Labour Standards Act does apply to these workers, but not to teachers. Thus, clearly there is a distinction to be drawn between teachers and these other workers in the provincial statutes governing terms of work.
[42] The School Board stresses that the Collective Agreement with the Appellants dealt with the "school year" as opposed to "annually" or "year round".
[43] The Board points to Article 6.1 relating to annual vacations and statutory holidays. It says that vacation and statutory holiday pay is included in the wages specified in Schedule "A" to comply with the Labour Standards Act. The Appellants, it says, received their annual holiday pay with their monthly wages because they did not work for a full calendar year. If they had done so, this would have triggered an entitlement to annual holidays. Thus, they received the pay instead of time off with pay.
[44] The Board also refers to Seniority being maintained but not calculated in respect of the period in question.
[45] The Board submitted that the length of notice of lay-off or termination to be given to employees is prescribed by section 43 of the Labour Standards Act and that the negotiated provisions in the Collective Agreement relating to notice, complies with that section of the Provincial statute.
[46] The Board argued that both it and the Union recognized the period in the summer when school was shut down as being a period where there was no work for certain employees and as being a true lay-off. They rely on the definition of "lay-off" in section 2 of the Labour Standards Act as being "the temporary termination by an employer of the services of an employee for a period exceeding six consecutive days". They urge that a temporary termination of services corresponds to a temporary termination of earnings; however this is not always so as the case law reveals.
[47] The Board submitted that there is a difference between scheduling work and shut down. It makes the point that sometimes there is no work for a day or two mid-week during the school year when the Appellants would not be required to work. An example, I suppose, would be teachers' educational development days. That is a period of time which is to be distinguished from a shut down between the last day of school in one school year and the first day of school in the following year.
[48] The Board pointed out that there is a difference in the EI Act between termination of employment and lay-off. They say:
"A permanent contract or continuing contract of employment does not preclude the fact that there may be periods of lay-off."
[49] Again, the Board referred to the difference between the situation of the Appellants and that of teachers whom it submitted are employed on a year-round basis. The teachers negotiate with the Board whether they will receive their annualsalary in 12 instalments or 10, but in either event, it is an annual salary. The implication is that the Board pays the Appellants only for 10 months rather than an annual salary in 10 monthly instalments.
[50] The Board submitted that the effect of "lay-off" in the employment relationship is generally different to the effect of "termination". The aspect they have in common is that there are no services provided by the employee and no earnings received by the employee. Any aspect of the employment relationship which continues or survives through the lay-off must be expressly provided for either by the collective agreement or the employment contract. Such provisions, and they gave examples, which preserve continuity of employment for express purposes, only affect the impact of the lay-off in those express ways.
[51] The Board made the point on several occasions that the Minister is applying the same criteria to the word "lay-off" as he would to a case of "permanent separation", which they say is not the same.
[52] The Board cited the case of Baldassi et al. v. Commission CUB 22437, a decision of Cullen J. sitting as an umpire where he said:
"... but in the context of the Unemployment Insurance Act, an employee is deemed to have suffered a loss of employment when he has suffered an interruption in earnings, whether this happens to coincide or not with a complete and final severance of the employee/employer relationship in other contexts."
[53] Finally, the Board drew a distinction between the situation which existed in this case and the case of Donnawell (above). It pointed out that many of the factors are different and argues that it should be distinguished.
Submissions of the Minister
[54] I am equally indebted to counsel for the Minister for her full and comprehensive written submission in support of the Minister. She correctly outlines the basic question to be answered by the Court as:
"Whether the Appellants experienced an interruption of earnings within the meaning of subsection14(1) of the EI Regulations."
[55] She identifies three requirements of subsection 14(1) of the EI Regulations:
(i) LAY-OFF or SEPARATIONfrom employment;
(ii) At least seven consecutive days when no work is performed ...; and
(iii) At least seven consecutive days in which no earnings arising from that employment are allocated.
[56] She argued that the Appellants have failed to meet the first and third requirements, by implication conceding the second requirement had been met. Clearly, there were more than seven consecutive days during which no work was performed.
[57] She maintained that there was no termination of the employer/employee relationship. She submitted that the Appellants therefore, were not "laid off" within the meaning of subsection 14(1) of the EI Regulations. She said that a lay-off occurs "when the employee/employer relationship is permanently severed" (my emphasis) and that Article 5.1 of the Collective Agreement is not a true lay-off within the meaning of subsection 14(1) of the EI Regulations. She cites no authority for the proposition that the employment relationship must be "permanently severed". Indeed, that proposition is not supported by the case law and I will return to this point later on in the Reasons.
[58] She referred to the Federal Court of Appeal decision in Canada (Attorney General) v. Enns (1991), 126 N.R. 393, as authority for the proposition that to establish a "lay-off" a person must prove not only that his salary was interrupted, but also that he was laid off from work. That is not an entirely accurate representation of that case which, in my reading of it, stands for the proposition that in order for there to be a lay-off there must be a cessation of payment of remuneration and a cessation of the provision of services. Whilst the former might be evidence of a lay-off, it is not necessarily conclusive. In the case in question a clergyman continued to provide the same services for little or no further remuneration. The Court held that his contract continued in effect. It said:
"... He was expected by the congregation to continue to do exactly what he had done while being paid and he, in fact, did precisely that."
I would point out that the circumstances in the Enns case (above) were somewhat unique and are not in any way the same as those in the case at bar.
[59] Counsel for the Minister also argued that "lack of salary alone was inconclusive". I have no difficulty with the submission that non-payment of salary is just one of two aspects which must be considered pursuant to the Enns case (above).
[60] She maintained that lack of services alone was inconclusive. She referred to the case of Canada (Attorney General) v. Verrault (1988), 86 N.R. 389 (F.C.A.), which is really the other side of the coin from the situation in Enns. In that case, the employees were shut out from their employment when the plant closed on July 1, 1994. They were each given a cheque for their salary and vacation pay to cover the next two months and told that they would be dismissed at the end of the two-month period. Unemployment benefits were claimed by each employee whilst they were on leave over that two-month period. Pratte J. said, in dealing with the finding of the umpire that the employment had ended when the plant closed rather than at the end of the two-month leave period:
"... the Umpire himself made an error of law as it seems quite certain that the parties to a contract of employment can legally agree to extend the contract for a period in which the employee will not be required to do any work."
The Court thus held that the employment did not end until two months after the closure. Clearly, there was payment of full remuneration during the two-month period in this case, but no requirement to work, that is, both criteria were not in place. The reasoning in this case would imply that in the same way as parties to a contract of employment can legally agree to extend it, so to they must be able to agree to interrupt it or terminate it on a temporary basis.
[61] Counsel compared the calculation at bar to Maternity and Adoption Leaves of absence. I agree with her submissions that there is a uniqueness to these situations. They do, however, stand for the proposition that a contract of employment can in certain circumstances, either statutorily or by contract, be interrupted or terminated on a temporary basis.
[62] Counsel argued that the Collective Agreement contemplated two different types of lay-offs, that is a "deemed lay-off" and an "indefinite lay-off". Without authority and support, she maintained that before an employment relationship can be terminated, the Appellants would have to be served with an indefinite lay-off notice. For the termination to be permanent or final, I would agree, but I see no need for such in the case of a temporary termination or interruption of a contract in the circumstances of the case at hand. The provisions of the Collective Agreement are said to comply with the written requirements of the Labour Standards Act and were included expressly, in order to do so.
[63] Counsel took issue with the written submission on behalf of the School Board, which pointed out the factual differences between the case at bar and those that existed in the Donnawell case (above). She submitted that the substance not the form should govern this determination and that the employment relationship is the same as that which existed in Donnawell. With respect, I disagree and will deal with the differences as I see them at a later stage in these reasons. She took issue with the parties for endeavouring to "deem" an employee to be laid off in the contract. I see no reason why the parties should not do so in order to govern the relationship between themselves. I agree with counsel that it is a question of fact, but I consider it one also of law, whether such a "deemed lay-off" amounts to a "lay-off" as the term is used in subsection 14(1) of the EI Regulations.
[64] Counsel, such as reference by the School Board to General Motors, maintained that other employment relationships were irrelevant and that no evidence was produced in the case at bar to support the arguments advanced by the School Board in this respect. The Court is entitled to take judicial notice of the many seasonal occupations which pass before it in numerous reported cases, not the least typical of which at this time would be the fishing cases from the Maritime Provinces.
[65] Counsel also submitted that in the circumstances of an industry slow-down, employees would have to receive a lay-off notice and they would have no automatic right of recall. I am not aware of any basis for such a submission, as she cited nothing in support of it. She did refer to the example of the oil industry and the fact that there is no guarantee that an individual once laid off will be rehired. She indicated that they must reapply for any open position and that they lose their benefits. I consider this nothing more than an example of a situation which would have to be weighed in light of its own particular facts in order to decide whether those employees had been laid off or suffered an interruption of earnings. These factors are all matters which would have to be weighed by a Court in any particular situation.
[66] Counsel submitted that the purpose of the employment insurance scheme is to insure individuals against the "unforeseen" and "unknown" risks of losing their job and argues that this is not the situation at hand. That, of course, ignores the seasonal nature of many of the occupations across this country where it is well known by the parties ahead of time that there will be a lay-off period each year.
[67] Counsel dealt with the difference between the words "termination" and "lay-off" and referred to the School Board assertion that the Minister is confused between the concept of "termination of employment" and "lay-off". Counsel noted the definition of "lay-off" in Black's Law Dictionary, which she cites:
"A termination of employment at the will of the employer. Such may be temporary (e.g. caused by seasonal or adverse economic conditions) or permanent."
She said that termination of employment means termination of the employer/employee relationship and maintained that there had not been a termination of the relationship in the case at hand as there had been no lay-off. With respect, I think she overlooks other definitions of the word "lay-off" and also that a termination may be temporary, indefinite or permanent as indicated by Heald J. in the case of Attorney General of Canada v. C. Gray, [1978] 1 F.C. 808 F.C.A., a matter to which I will refer later.
[68] Counsel further submitted that the true nature of summer period is a vacation, saying that a summer period is not a lay-off period, but rather a vacation period. She relies upon subsection 161(1) of the Education Act. The difficulty she has in asserting that the period is a vacation for all persons governed by the Education Act is that the vacation entitlements of the Appellants are said to be governed by the Collective Agreement and the Labour Standards Act, not the Education Act.
[69] She also relies on the decision of O'Connor T.C.J. in the Donnawell case (above) that the summer-break period is a vacation period not a lay-off period. I will deal with that submission later on in these reasons. When counsel referred to Article 4.1(b) of the Collective Agreement, it was clear to me that this provision refers to an interruption in the employment during the "scheduled school vacation period" as not constituting a break in service for the purpose of maintaining seniority, which would otherwise be the case. In other words, without such a clause, such an interruption in the employment as occurs during the summer vacation period could have led to a loss of seniority as it would have created a lack of continuous service.
[70] Counsel submitted that the Appellants had each been paid on the basis of an annual salary. That was certainly the case in Donnawell (above) and was also the situation of the teacher in the Petts case (above). However, that is the salient issue in the case at hand. There is nothing, in my view, in the Collective Agreement which specifically supports this proposition. Counsel submitted that the Collective Agreement is silent on the point and that there is no evidence given by Veronica Ulmer specifically which would refute the assumption of fact relied upon by the Minister. With respect, there is. The wording of the Collective Agreement itself, that the employees are deemed to be laid off and recalled, following the school vacation period is evidence with which the Court must deal. Further the evidence of the record of employment issued by the School Board to the Appellants is evidence that the School Board did not consider that it was paying any salary with respect to these weeks in question. There is nothing in the contract to say that it was an "annual salary" payable over 10 months as was the case in Donnawell (above).
[71] Counsel also submitted that the continuation of seniority, sick leave credits or employee benefits plans over the summer months, which thus applies on an annual basis, lead to an implication that the term "wages" also applies on an annual basis. The difficulty with this is that those benefits did not continue to accrue during the summer period. They were not lost, but did not accrue. They were in a state of suspension pending the anticipated recall of the Appellants. It would be a huge jump to say that putting the benefits into a state of suspension when they were no longer accruing, somehow means that the remuneration was payable on an annual basis as an annual salary.
[72] In dealing with the question of vacation pay, counsel conceded that the Appellants received their holiday pay along with their regular monthly pay throughout the rest of the year, but indicated that the Collective Agreement is silent on this point. In fact, the Collective Agreement is not silent on the point as it says they are paid in accordance with the Labour Standards Act.
[73] Finally, counsel for the Minister submitted that because benefits were still available to the Appellants under section 8.2 of the Collective Agreement during the summer period, these should be considered as earnings. Again, I note that the vast majority of benefits were simply placed into a period of suspension over the period in question. This was true of both seniority and pension benefits, which did not continue to accrue. Life insurance, it would appear, remained in effect during the period in question, and it is certainly appropriate for the Court to consider whether or not this amounted to earnings within the meaning of subsection 14.1 of the EI Regulations. The maintenance of benefits, during a period of suspension of their accrual, could not, in my view, be considered as earnings. It might well be a different story if all of those benefits had continued to accrue.
[74] That is a summary of the arguments presented by counsel for the Minister.
Case Law
[75] It seems to me that in order to arrive at a proper conclusion as to whether there was an "interruption of earnings" over the summer period in this case, consideration has to be given to the meanings properly attributable to a number of different words.
[76] First, the words "interruption of earnings" has to be interpreted within the context of subsection 14.1 of the EI General Regulations. Its statutory definition is defined as "at any time and in any circumstances" determined by the Regulations. "Time" and "circumstances" are conjunct and thus for an interruption of earnings within the context of the EI Act to lead to the payment of benefits, it must be an interruption of earnings that falls within the ambit of this Regulation. Subsection 14.1 is the relevant Regulation, both as to the time and the circumstances relative to the case in question.
[77] Subsection 14.1 says that an interruption of earnings occurs where, following a period of employment with an employer, which there clearly was in this case, an insured person is:
(i) (a) laid-off; or
(b) separated
from that employment; and
(ii) there be a period of 7 or more consecutive days during which no work is performed for that employer; and
(ii) there be no earnings from that employment that are payable or allocated to that period (of 7 or more consecutive days).
[78] Thus, consideration must first be given to the meaning of the words "laid-off" and "separated" and whether or not they have the same meaning and if not, how they differ.
[79] Consideration of the word "lay-off" inevitably leads to a consideration of the word "termination of employment" as it is used in the case law.
[80] Then consideration has to be given to the meaning of the word "earnings" and whether or not they are allocated or payable in respect of the 7 or more day period following the lay-off or separation from the employment.
[81] There are many cases to which I have been referred by counsel to assist me with the meaning of these words. It might be useful to start with the words of Chief Justice Jacket in the Petts case (above) when after holding that a regulation made with respect to non-payment of unemployment insurance benefits to teachers in non-teaching periods was not valid, said:
"Any regret that I might otherwise have had because I have reached that conclusion is eliminated by the fact that I have not been able to conceive of any problem in connection with the non-teaching period of teachers that is not adequately dealt with by section 2(1)(n) and section 21(2). Whether a teacher receives 1/12 of his annual salary at the end of each month of the year, 1/10 at the end of each of ten months of year, or as in Alberta, 1/12 at the end of each of nine months and 3/12 at the end of a tenth month, if his contract of service continues throughout the year, there has been no "lay-off" or "separation from ... employment" giving rise to an "... interruption ... in ... earnings" and he is receiving his "usual remuneration"; and I do not, therefore, conceive of the circumstances in which Regulation 158, or some similar provision, is necessary to avoid payment of unemployment benefits to teachers who are not out of work in the ordinary acceptation of that expression."
I have underlined the words "annual salary" upon which this decision is clearly predicated. There is no doubt that if the salary paid to the Appellants in the case at bar is an "annual salary" payable over 10 months, as was also the case in Donnawell (above), then there is not an interruption of earnings. If, however, it is not an "annual salary", the situation may well be different.
[82] In the case of Canada (Attorney General) v. Hartmann, F.C.A. (1989) 102 N.R. 386, Stone, J.A. dealt with the question of the meaning to be attributed to "interruption of earnings". In that case, the umpire had held a reduction of hours of work amounted to a constructive lay-off. Stone, J.A. said this:
"The second question is whether the respondent, in any event, suffered a "lay-off" or was "separated from .... employment" within the meaning of the Act. In my opinion, she did not."
and
"Section 2(1)(n) differentiates between the three different possibilities for the occurrence of an "interruption of earnings" that I have above enumerated. In my opinion, in order for the present situation to fall within that definition the Commission would have had to treat a reduction of hours of work of the magnitude here involved as a "prescribed reduction in earnings", a step it has not taken.
While dictionary definitions and the interpretations of courts, arbitrators and text-writers might be most helpful in assisting in the construction of the word "layoff" at large or in more limited circumstances, I do not think they can assist in the circumstances of this case where we are faced with the task of constructing that word in a particular statutory context. When that context is fully appreciated it may be seen that by utilizing the word "layoff" and the phrase "separation from ... employment" in the definition of "interruption of earnings", Parliament did not intend that either should embrace a reduction in working hours such as here occurred. Such an eventuality was specifically foreseen and provided for when Parliament, within the framework of that definition, expressly clothed the Commission with authority of prescribing the extent of a reduction of earnings, resulting from a reduction of hours of work, sufficient to constitute an "interruption of earnings". In providing the same definition for an "interruption of earnings" brought about by a "layoff" or by a "separation from ... employment", it is evident that Parliament did not intend that a reduction of hours of work and consequent reduction of earnings should also amount to either a "layoff" or a "separation from ... employment", whether actual or constructive."
I note, also, the footnote to that decision where the learned Justice refers to the Concise Oxford Dictionary of the term "layoff" as being, inter alia:
"discharge (temporarily) owing to shortage of work ... (period of) such temporary discharge, time of reduced activity."
[83] The Supreme Court of Canada dealt with a similar situation in the case of Dick and Others v. The Unemployment Insurance Commission (1980), 32 N.R. 552. The issue was whether a teacher who took maternity leave in March 1976 could claim maternity benefits under the Unemployment Insurance Act for the months of July and August following her cessation of work. McIntyre, J. cited the Petts case (above) with approval. The question in issue was whether the employment contract of the Applicant had come to an end in March 1976. The Minister in that case argued that the employment continued to exist after March and that the lump sum the Appellant received was attributable to July and August. The Court agreed with the Court of Appeal that if the contract of employment had "terminated" when she left work in March 1976, the payment made in the adjustment of her salary could not have been applied to the following months of July and August. The Court of Appeal, however, had decided that the contract of employment was not "terminated", even though it was clear that there was a separation from employment. It was this proposition that the Supreme Court went on to examine. McIntyre, J. said this:
"As the Court of Appeal said, if the contract of employment had terminated when she left work in March of 1976, the payment made in the adjustment of her salary could not have been applied to the months of July and August. It would have been applied as provided in the employment agreement to the part of the year already taught. The court also was of the view, however, that since the contract of employment was not terminated - even though it is clear that there was a separation from employment - the adjustment monies were properly attributable to July and August. It is this last proposition which must be examined.
Article 2 of the employment agreement deals with this point. It provides that the teacher's salary will be paid in twelve equal monthly installments. It provides, as well, that 200 teaching days shall be the total number of days taught and it is a matter of common knowledge of which courts can take notice, that those days fall within the months of September to June, so that no teaching duties are imposed upon teachers during the months of July and August. While the contract of employment was not brought to an end when the appellant left her work on the 26th of March 1976, she having sought only a leave of absence, there was a separation from employment and, in my view, there was within the meaning of Article 2 of the employment contract a withdrawal by the appellant from the service during her year of service and before its completion.Therefore the adjustment provisions of Article 2 were brought into play and the appellant was paid a sum of money which had the effect of paying her in full for services rendered up to the date of her withdrawal of service. She received, when the sum of $1,878.07 was added to what she had already received, that portion only of her annual salary which equalled the portion of the school year which she had taught. This is in complete accordance with the agreement which provides that these monies will be applied to the part of the year taught and this provision is also in accordance with Regulation 173(3) which provides: (emphasis added)
Wages or salary payable to a claim in respect of the performance of services shall be allocated to the period in which the services were performed.
I cannot find that in receiving this sum she received anything in respect of July and August.
The appellant contended that the teachers' salary was an annual salary, paid in twelve equal monthly installments. The salary, however, was earned by the performance of 200 days teaching during the months of September to June inclusive. It was said that the payment of the salary in twelve monthly installments, providing for the receipt of funds in July and August was merely a device whereby teachers, who earned their annual salary by the performance of services in the other ten months of the year, would receive monthly payments in July and August for convenience in their personal budgeting. Whatever the reason for the division into twelve installments, in the case of a teacher terminating employment before the completion of the year, the application of the adjustment provisions of the employment contract will do no more than pay the teacher in full for the period taught, whether the salary for a full year's services is paid in ten or twelve installments and whether the contract of employment is abrogated or preserved in existence for future years." (emphasis added)
[84] I note from this case, first, that the Court might take judicial notice that the 200 teaching days provided for in the contract fall within the period of September to June so that there are no duties imposed upon teachers in the months of July and August.
[85] Secondly, I note the major point made by McIntyre, J. of the fact of the contract of employment not being brought to an end in March but there still being a "separation from employment". This indicates to me that the bar over which one must go to reach a "separation from employment" is considerably lower than that required for a "lay-off" and can be in existence despite the continued existence of the contract of employment. McIntyre, J. went on in the same Judgment to say:
"... Even though the contract had not been terminated, the appellant had clearly been separated from her employment and this fact was recognized by her employer in making the adjustment payment." (emphasis mine)
Again, McIntyre, J. makes the point that there is a distinction to be drawn between the "ongoing contract of employment", the "termination of services" and "separation from employment".
[86] The Federal Court of Appeal dealt with the subject of "interruption of earnings" in the case of Enns above. As has already been seen, this case dealt with the clergyman who whilst not continuing to be paid, was continuing to provide the same services to his congregation. The Court was of the view that for there to be a "lay-off", the Applicant would have to both not be paid and to have ceased to provide his services. Thus it follows in the case before me, and this is clear, if (and I emphasize "if"), despite there being no services being provided over the summer period, the salary is an annual salary payable simply over 10 months, there can be no lay-off and thus no interruption of earnings.
[87] The Verrault case (above) clearly stands for the proposition that the parties can extend their contract of employment despite there being no services provided. Any remuneration attributable to such extended period would clearly lead to a decision that there was no "lay-off" and thus no "interruption of earnings" until the end of that period. By implication, the parties are free to agree that there are no earnings attributable to a period when there are no services being provided.
[88] In the case of A.G. v. Gray (above), the Federal Court of Appeal visited the term "lay-off" in the context of severance pay within the Public and Service Employment Act, not the EI Act. The case was somewhat unique and came to be decided on its own particular circumstances. The worker in that case worked for the Post Office Department and was informed as a result of a strike by other employees that there was no work for him and he would not be paid. He collected unemployment insurance benefits for some five weeks, but also claimed severance pay. The Court dealt with the meaning of the word "lay-off" within the context of the collective agreement, which fell under the heading "Severance Pay". In the circumstances that existed in that case, the Court found that the words were clearly used in a context of the permanent ending of the employment. The Court, however, was open to the proposition that lay-off had several meanings and could involve a temporary, prolonged or permanent separation from employment. Pratte, J. said this:
"The expression ‘lay-off', in common parlance, does not necessarily imply a termination of employment. However, what is here in issue is not the usual or even the dictionary meaning of the expression but its meaning as used in the collective agreement." (emphasis mine)
and
"Therefore, in my opinion, when they used the expression ‘lay-off' in the collective agreement, one is entitled to presume, in the absence of any indication of a contrary intention, that they intended to refer to a termination of employment."
[89] Heald, J. in the same case said this:
"The generally accepted definition of "lay-off" when used as a labour term is: "Temporary, prolonged, or final separation from employment as a result of a lack of work".
and
"Lay-off" as used in article 30, must be considered in the context of the collective agreement as a whole, and more particularly having regard to the context of the article in the agreement of which it forms part."
[90] It was decided on the facts of that particular case, that the word "lay-off", as it was used in Article 30 of the collective agreement, referred to a final separation from employment. However, it was made perfectly clear by the Court that such was not necessarily the general meaning to be attached to that word.
[91] Lastly, I come to the case of Donnawell (above). I am mindful of the need for consistency in decisions in the same Court. However, it strikes me that although the question was the same in that case as the one before me, in the case at bar, the facts were significantly different. The question was again whether the employee, a member of the support staff employed by the Regina School District, was employed during the same summer period. The collective agreement between the Board and the Union was, however, a different one. The contract in that case provided for an "annual salary" (in many places) and "gross earnings" being for the period beginning on July 1st of each year to the end of June in the next year. The case is quite the contrary in the matter before me. Annual holidays under the Labour Standards Act were to be taken during periods of school closure and vacation pay was paid on the 30th of June in that case. All these things were dealt with totally differently in the case before me. It was also perfectly clear in that case, in the words of O'Connor, T.C.J.:
"... Also, it is clear from the Collective Agreement that the Appellant was paid on an annual (12 month) basis, notwithstanding that the instalments were paid during the 10 months of the normal School Year."
[92] It was clear from the evidence in the Donnawell case, that the collective agreement called for an annual salary to be paid over 12 months. In the case before me, the situation is quite different. The Appellants are said to be employees who work on the basis of the school year in scheduling. Such employees are said, in Clause 5.1 of the Agreement, to be deemed to be laid off and recalled automatically. It is probably beyond question that this contract is most poorly worded. Nonetheless, it is clear that the Appellants worked and were paid on the basis of the school year, not annually. In the Donnawell case, it is clear that "the contract of employment continued during the summer break, notwithstanding that no services were rendered nor income received during that break". However, in the case at bar, it is clear that the contract itself purports to interrupt the employment throughout the summer break, or at the very least, cause a separation from the employment, something it did not do in the Donnawell case.
[93] The provisions of the Education Act of Saskatchewan are, of course, a factor in each case. O'Connor J. says:
"... section 166 of The Education Act makes it clear that the summer break is a vacation period, i.e., not a lay-off period."
However, with respect, as I read it, The Education Act is not dealing with the vacations of employees. That is dealt with either in the Collective Agreement or the Labour Standards Act. The vacation period referred to in The Education Act is clearly the vacation taken by the students. One can take judicial notice of the summer holidays taken by students universally. This does not make it vacation for others who might either continue to work or to be laid off for lack of work, as in the case here. I am fortified in that approach by the fact that section 166 comes under the heading "Operation of Schools", which in turn comes under Part 4 of The Education Act which deals with "pupils, programs and services". Part 5, for example, goes on to deal with the qualifications and employment of teachers. Terms and conditions of employment are not dealt with under this Part.
[94] In summary, it seems to me that there is a distinction to be drawn between the words "lay-off" and "separation from" employment. Lay-off has variously been interpreted in the case law to be temporary, prolonged or permanent. "Separation from employment" would seem to me to generally imply a more temporary state of affairs and may well come about despite the continued existence of a contract of employment. In either case, it is not beyond the contemplation of the EI Act that either may involve something other than final or permanent termination of the contract of employment. The EI Act requires that it be at least seven consecutive days. The Labour Standards Act of Saskatchewan, in the light of which the Union contract was negotiated and drafted, and must be interpreted, uses the word to mean a period of six consecutive days or more and thus, again, appears to look at something that may be temporary or may be more permanent.
[95] Neither the words "lay-off" nor "separation from" in subsection 14(1) of the EI Regulations in my opinion automatically and necessarily mean a permanent termination or ending of the employment. They may have that meaning in a certain context (see A.G. v. Gray (above)), but in the case of subsection 14(1) of the EI Regulations, they do not. Nor does the word "lay-off" necessarily have the meaning attributed to it in the Saskatchewan Labour Standards Act. Clearly, the words "lay-off" as they are used in the Collective Agreement have the meaning attributed to them by the Labour Standards Act as that Agreement is clearly defined within the context of and governed by that Act, several references being made therein to that Statute. However, the meaning of the word "lay-off" in subsection 14(1) of the EI Regulations encompasses any of "temporary, prolonged or final separation from employment as a result of lack of work". That was a definition approved by Heald, J. in the Gray case, above, and I see no reason to derogate from that definition. If the lay-off is temporary, then the situation is covered by the requirement of the Regulation itself that there be no work done for at least seven consecutive days and that no earnings are attributable to the period in question. If the words "lay-off" in the EI Act were intended to be restricted to only permanent separation or terminations, I would doubt the need for the second and third requirements. Also, of course the Commission could have used the words "permanent separation or termination" if it had so chosen, but it did not.
[96] In order for an employer to lay-off or discharge an employee in Saskatchewan, some written notice is required depending on the length of service, pursuant to section 43 of the Labour Standards Act. Thus, in order to lay-off the Appellants each year, the School Board would have been required to give written notice. The Union contract short-circuited this process by making provision for termination, and automatic recall in the contract itself. This wording was used with the specific intent, according to the Union, of complying with the provisions of the Labour Standards Act.
[97] With respect to whether or not there was an interruption of earnings, in this case under the EI Act, I am of the view that clearly the first requirement was met in that the Appellants were laid off. There was, temporarily, no work for them to do during the school closure for the summer vacation period. The Collective Agreement contained a clause whereby the Appellants were deemed to be laid off during the period in question by the words of the Agreement itself. Article 5.1 has a heading "Automatic Lay-off". It specifies that the Article itself will serve as a notice of lay-off and recall. Obviously, this is done to comply with the provisions of the notice requirements contained in the Labour Standards Act and it saved the School Board from having to issue a series of notices of lay-off and recall each year. It was said to be an administratively convenient way of dealing with the situation. I see no reason why notices of lay-off and recall should not be done in this manner. The Agreement could not be clearer in saying that they are laid off for the school vacation periods which included the summer vacation periods. Similarly, recall was automatic unless a termination or indefinite lay-off notice was issued pursuant to section 43 of the Labour Standards Act. Clearly, the word "termination" in that context refers to a "permanent ending of the employment". The word "indefinite" would undoubtedly refer to a prolonged lay-off. The lay-off in question was clearly a temporary lay-off for the period of the school summer vacation. The School Board, I note, issued the appropriate records of employment.
[98] The second requirement of subsection 14(1) is not in dispute by the Minster, that is that no work was performed for a minimum of seven consecutive days, and I have no need to dwell on that further.
[99] The third requirement that there be no earnings attributable to the period in question would also appear to me to be met. The Minister contends that it was an annual salary which was paid, payable over 10 months. That comes up again as the first reason given by K. Wolchuk, Chief of Appeals, in her letter of July 29, 1999. I see nowhere in the contract where such is so clearly expressed. Indeed, the contract seems to be expressly to the contrary, purporting to exclude the summer period from the employment. One might argue that the Union contract, in providing for a lay-off and automatic recall, is a fiction. If so, what was its purpose. The Union argues that it was worded in this fashion in order to save the administration from having to formally write letters of lay-off and recall with respect to each employee each year, and that the contract by itself served that purpose, the lay-offs being temporary in such circumstances. This is certainly a much more logical argument than to hold the clause to be a fiction and to be of no effect. The Board might just as easily have issued lay-off notices and recall notices, but to what end. They endeavoured to do so, in the contract itself and I am satisfied that such complied with the Labour Standards Act and was effective to achieve the result, which they sought, lay-off and recall over a set and predetermined period of time.
[100] I am unable to accept artificial arguments that the summer period is vacation time for the Appellants. They received their vacation pay monthly as a percentage of their salary. Such pay had no correspondence with the seven weeks during which they did no work during the summer period. The school was on vacation in the sense commonly understood of the students having a summer holiday. That cannot, in my opinion, be mixed up with the question of whether or not the same period was vacation under the Labour Standards Act or under the Collective Union Agreement for employees. Vacation periods for students, under the Education Act, are not the same as legal vacation time for employees under the Labour Standards Act, or under the Collective Agreement. The question, then, arises as to whether any of their earnings were attributable to the summer period. No benefits accrued, but some were left in a state of suspension under the contract.
[101] I am satisfied on the evidence that their salaries and benefits were attributable only to the period up to June 30th. Benefits were maintained but did not accrue during the period in question and thus, cannot be said to be payable or allocated with respect to the summer period. Thus, in my view, the third requirement is also met in this case.
Conclusion
[102] In conclusion, I am mindful of the words of Madam Justice Wilson of the Supreme Court of Canada who, in dealing with a case involving benefits under the former Unemployment Insurance Act, said in Abrahams v. AG Canada, [1983] 1 S.C.R. 2 at page 10:
"... Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant."
[103] I am satisfied that there was an interruption of earnings under the EI Act. There was no provision of services for a minimum seven days. There was a lay-off for the period in question set out in the contract of employment itself. At the very least, this amounted to a separation from employment. I am more inclined to the view that it was a lay-off, temporary in nature, brought about by a lack of work as occurs routinely at certain times of the year in many other industries across the country. No earnings in the enlarged sense of that word, as benefits or emoluments, under the Regulations, arising from the employment were payable or allocated to the period in question. Any doubt in the difficulties of the language are to be resolved in favour of the Appellants.
[104] For the above reasons, I hold that there was an "interruption of earnings" under the EI Act with respect to each of the Appellants throughout the period in question. None of them were in insurable employment during the time in question. Each of the appeals is allowed and the decisions of the Minister in this respect are vacated.
Signed at Calgary, Alberta, this 16th day of March 2001.
"Michael H. Porter"
D.J.T.C.C.
COURT FILE NO.: 1999-3894(EI)
STYLE OF CAUSE: Marjorie D. Deschambault and M.R.N. and
Board of Education of the Potashville School
Division No. 80 of Saskatchewan
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: July 5, 2000
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge M.H. Porter
DATE OF JUDGMENT: March 16, 2001
APPEARANCES:
Agent for the Appellant: Don Moran
Counsel for the Respondent: Stacy Cawley
For the Intervenor: No one appeared
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor:
Name:
Firm: COURT FILE NO.: 1999-3895(EI)
STYLE OF CAUSE: Lori Sutherland and M.R.N
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: July 5, 2000
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge M.H. Porter
DATE OF JUDGMENT: March 16, 2001
APPEARANCES:
Agent for the Appellant: Don Moran
Counsel for the Respondent: Stacy Cawley
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
COURT FILE NO.: 1999-3896(EI)
STYLE OF CAUSE: Veronica M. Ulmer and M.R.N.
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: July 5, 2000
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge M.H. Porter
DATE OF JUDGMENT: March 16, 2001
APPEARANCES:
Agent for the Appellant: Don Moran
Counsel for the Respondent: Stacy Cawley
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-3894(EI)
BETWEEN:
MARJORIE DESCHAMBAULT,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent,
and
BOARD OF EDUCATION OF THE POTASHVILLE
SCHOOL DIVISION NO. 80 OF SASKATCHEWAN,
Intervenor.
Appeal heard on common evidence with the appeals of Lori Sutherland (1999-3895(EI)) and Veronica M. Ulmer (1999-3896(EI)), on July 5, 2000 at
Regina, Saskatchewan, by
the Honourable Deputy Judge Michael H. Porter
Appearances
Agent for the Appellant: Don Moran
Counsel for the Respondent: Stacy Cawley
For the Intervenor: No one appeared
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Calgary, Alberta, this 16th day of March 2001.
|
"Michael H. Porter" |
D.J.T.C.C.
1999-3895(EI)
BETWEEN:
LORI SUTHERLAND,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Marjorie Deschambault (1999-3894(EI)) and Veronica M. Ulmer (1999-3896(EI)), on July 5, 2000 at
Regina, Saskatchewan, by
the Honourable Deputy Judge Michael H. Porter
Appearances
Agent for the Appellant: Don Moran
Counsel for the Respondent: Stacy Cawley
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Calgary, Alberta, this 16th day of March 2001.
|
"Michael H. Porter" |
D.J.T.C.C.
1999-3896(EI)
BETWEEN:
VERONICA M. ULMER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on common evidence with the appeals of Marjorie Deschambault (1999-3894(EI)) and Lori Sutherland (1999-3895(EI)), on July 5, 2000 at
Regina, Saskatchewan, by
the Honourable Deputy Judge Michael H. Porter
Appearances
Agent for the Appellant: Don Moran
Counsel for the Respondent: Stacy Cawley
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Calgary, Alberta, this 16th day of March 2001.
|
"Michael H. Porter" |
D.J.T.C.C.