Date: 20010118
Docket: 1999-1342-EI
BETWEEN:
DEBBIE KUFFNER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
MacLatchy, D.J.T.C.C.
[1] This appeal commenced November 18, 1999 in Toronto, Ontario but was adjourned after a lengthy argument concerning the admissibility of what appeared to be "expert" testimony and a request by the parties for direction from this Court as to the manner in which the hearing should proceed.
[2] There were two issues to be argued. One issue concerned the interpretation of the relevant legislation while the other would be an argument concerning a possible Charter violation. This Court directed that the issue of interpretation be dealt with initially and as a result of the outcome on that matter, would then determine whether a Charter argument would be necessary.
[3] The matter then came for a resumption of the hearing on August 1st, 2000. At that time, the Court ruled that the evidence to be advanced by a witness for the Appellant was in the nature of expert testimony. The witness could not be qualified as an expert whose evidence was required by this Court. The ruling included the fact that the Court was concerned that part of that witness' testimony would include her interpretation of certain parts of teachers' employment contracts that should best be left to this Court.
[4] The hearing proceeded by argument only concerning the relevant legislation and the issue on appeal.
[5] An Agreed Statement of Partial Facts was filed with the Court as Exhibit A-2 and included the following:
"1. The Appellant, Ms. Debbie Kuffner, is an elementary school teacher (and now a vice-principal) and a member of the Ontario College of Teachers.
2. Ms. Kuffner was (sic) been continuously employed as a permanent contract teacher with the Ottawa Board of Education and its successor (the "School Board") since 1983. Ms. Kuffner was employed on a Permanent Teachers' Contract in the statutory form of contract provided for in Regulation 310 under the Education Act.
3. For the first 13 years of her employment with the School Board, Ms. Kuffner was employed on a full-time basis. Ms. Kuffner's first child was born in 1996. After completing her maternity leave, Ms. Kuffner returned to teaching on January 6, 1997 on a permanent, half-time, job-share contract. She continued to teach until October 24, 1997. Her second child was born on November 5, 1997, one month premature.
4. A collective agreement between the School Board and the Ottawa Branch Affiliates of the Federation of Women Teachers' Associations of Ontario and the Ontario Public School Teachers' Federation, for the term September 1, 1996 to August 31, 1998 deals with various terms and conditions of Ms. Kuffner's employment with the School Board at the relevant time. A copy of this collective agreement is found at Tab 7 of the Book of Documents.
5. Under a Letter of Agreement between the School Board and the elementary teachers' unions dated January 29, 1997, teachers were deemed to work 7 hours on school days. Part-time teachers were deemed to work a pro-rated number calculated in accordance with their teaching assignment. A true copy of this Letter of Agreement is found at Tab 10 of the Book of Documents.
6. In the period relevant to the number of insurable hours of employment at issue, January 6, 1997 to October 24, 1997, Ms. Kuffner worked a 0.5 teaching assignment. As a half-time teacher, Ms. Kuffner was deemed to have 3.5 hours of insurable employment for each half-time school day. Ms. Kuffner worked on a full-time basis for the 10 school days between October 10, 1997 and October 24, 1997.
7. During the period between January 6, 1997 and October 24, 1997 there were 154 school days. During the period from January 6, 1997 to October 24, 1997, the following school holidays occurred: March Break (5 days), Good Friday, Easter Monday, Labour Day and Thanksgiving Day. There were 44 weekday days in the summer period, July and August, 1997. True copies of the school calendars for the relevant periods are found at Tabs 8 and 9 of the Book of Documents.
8. By application dated November 11, 1999, Ms. Kuffner applied for pregnancy and parental employment insurance benefits. A true copy of her application is found at Tab 5 of the Book of Documents.
9. The Record of Employment prepared by the School Board credits Ms. Kuffner with 577.5 hours of insurable employment in the period between January 6, 1997 and October 24, 1997. The 577.5 hours figure represents 3.5 hours multiplied by the 154 school days, plus an additional 38.5 hours for the 10 days between October 10, 1997 and October 24, 1997. The School Board did not credit Ms. Kuffner with hours of insurable employment for the school holidays or the summer period in the period in issue. A true copy of Ms. Kuffner's Record of Employment is found at Tab 5 of the Book of Documents.
10. Between October 27, 1997 and November 4, 1997, teachers in Ontario were engaged in a political protest which involved, among other things, their withdrawal of services during that period. The School Board did not credit Ms. Kuffner with insurable hours of employment for the period of the political protest, nor did the Respondent.
11. Ms. Kuffner's claim for pregnancy and parental benefits was denied on the grounds that she did not have at least 700 hours of insurable employment during her qualifying period. A true copy of the letter dated January 12, 1998 is found at Tab 1 of the Book of Documents. This decision is on appeal to a Board of Referees.
12. By letter dated June 5, 1998, an officer of the Department of National Revenue, authorized by the Respondent, ruled that Ms. Kuffner had 577.5 hours of insurable employment in the period January 6, 1997 to October 24, 1997. A true copy of this ruling is found at Tab 2 of the Book of Documents. Ms. Kuffner appealed the ruling by letter dated July 6, 1998.
13. By letters dated December 4 and December 15, 1998, the Respondent decided that Ms. Kuffner had 591.5 hours of insurable employment in period January 6, 1997 to October 24, 1997. True copies of these letters are found at Tabs 3 and 4 of the Book of Documents.
14. In deciding Ms. Kuffner's hours of insurable employment, the Respondent multiplied her 3.5 deemed hours of employment by the 154 school days in the period between January 6, 1997 and October 24, 1997, plus the additional 38.5 hours. The Respondent also credited Ms. Kuffner with 3.5 hours for four statutory holidays which fell during this period. The Respondent credited Ms. Kuffner with 3.5 hours for each of the four statutory holidays on the basis that the Employment Standards Act granted all employees in Ontario a holiday and pay for statutory holidays."
[6] The Appellant appealed a ruling to the Minister of National Revenue (the "Minister") to determine her hours of insurable employment while she was employed by the Ottawa Board of Education, the Payor, during the period of January 6, 1997 to October 24, 1997, within the meaning of the Employment Insurance Act (the "E.I. Act").
[7] By letter dated December 4, 1998, the Minister informed the Appellant that it had been determined that she had 591.5 hours of insurable employment during the period in question, pursuant to subsection 10(1) of the Employment Insurance Regulations (the "Regulations").
[8] In making his decision, the Minister relied on the following assumptions of facts:
"a) the Appellant was employed by the Employer as a part-time teacher for the last two years;
b) based on the document "New Records for Employment for Ontario Teachers": -
- only 194 teaching days can be recognized
- one day is 7 hours or 35 hours per week
- the hours must be hours that are worked and hours that are paid
c) part-time teachers are considered to work 3.5 hours per day;
d) the Appellant was not paid on an hourly basis;
e) the Appellant was paid based on her experience and the number of teaching days;
f) the Appellant worked 154 days, and in addition she did 38.5 hours of replacement work;
g) the Employer determined the Appellant's hours of insurable employment to be 577.5 hours ((154 days x 3.5 hours) + 38.5 hours);
h) in addition to the 577.5 hours mentioned in paragraph (g), it was determined that the Appellant had 14 hours of insurable employment in regards to Statutory Holidays (3.5 x 4 days); and
i) based on the 577.5 hours determined in paragraph (g) plus the 14 hours determined in paragraph (h), the Appellant had 591.5 hours of insurable employment."
[9] The question before this Court is whether the Appellant should be credited with insurable hours of employment, during the period in question, for the March Break, summer vacation and statutory holidays.
[10] The qualification for entitlement to pregnancy leave under the Unemployment Insurance Act was a minimum requirement of a number of weeks employment. The EI Act changed the terms of entitlement are based on total earning and total hours worked. The minimum requirement to qualify for benefits is expressed in hours based on the national average work week of 35 hours. This arrangement was an attempt to modernize the system "by better accommodating the variety of work arrangements in today's labour market and to symplify the reporting requirements for employees and of premium collection which is from the first dollar earned up to an annual maximum".
[11] The relevant subsections 10(1) and (2) of the Regulations read as follows:
"(1) Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment.
(2) Except where subsection (1) and section 9.1 apply, where there is doubt or lack of specific knowledge on the part of the employer as to the actual hours of work performed by a worker or by a group of workers, the employer and the worker or group of workers may, subject to subsection (3) and as is reasonable in the circumstances, agree on the number of hours of work that would normally be required to gain the earnings referred to in subsection (1), and, where they do so, each worker is deemed to have worked that number of hours in insurable employment."
[12] The School Board - for whom the Appellant worked - and the Teachers Union agreed that a full-time teacher should be credited with seven hours of insurable employment per school day. The Appellant, as a half-time teacher, should be credited with 3.5 hours per day of insurable employment for each half-time day worked. This would appear to be fairly straightforward except for the fact that the teaching profession is treated somewhat differently from the employment by reason of the very nature of how teaching is performed. A school day is a day on which teaching and teaching related activities are performed and the Appellant was not given credit with hours of insurable employment for nine school holidays or the 44 summer vacation week days. The Education Act, Part X, and particularly subsection 260(1) provides:
"Unless otherwise expressly agreed and subject to subsections (3) to (6), a teacher is entitled to be paid his or her salary in the proportion that the total number of school days for which the teacher performs his or her duties in the school year bears to the total number of school days in the school year."
The Education Act provides that regulations can be made thereunder in subsection 11(7) as follows:
"Subject to the approval of the Lieutenant Governor in Council, the Minister may make regulations,
(a) prescribing and governing the school year, school terms and school holidays;
(b) authorizing a board to vary one or more school terms or school holidays as designated by the regulations; and
(c) permitting a board to designate, and to implement with the prior approval of the Minister, a school year, school terms and school holidays for one or more schools under its jurisdiction that are different from those prescribed by the regulations."
The form of a teacher's contract is set by regulation, as well, subject to certain variations that may be agreed to by the Board and the teacher. The payment to the teacher of his/her annual salary is prescribed in the form to ensure that there is regularity of payment and provision for payment for the summer period of the balance of the annual salary.
[13] Teachers' contracts are for a year from September 1st to August 31st of the following year and continue until either party terminates the contract. The Appellant's contract was not filed with the Court but the parties agreed that it complied with the statutory or regulated form. The Appellant applied for benefits as a major attachment claimant but was denied benefits as she did not qualify with 700 hours of insurable employment in the qualifying period. The Minister determined that the Appellant should be credited only for hours of insurable employment for the 154 teaching days during the period in question.
[14] Section 54 of the E.I. Act reads in part as follows:
"(j) prohibiting the payment of benefits, in whole or in part, and restricting the amount of benefits payable, in relation to persons or to groups or classes of persons who work or have worked for any part of a year 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;"
Subsections 33(1) and (2) of the Regulations provide:
"(1) The definitions in this subsection apply in this section.
"non-teaching period" means the period that occurs annually at regular or irregular intervals during which no work is performed by a significant number of people employed in teaching. (période de congé)
"teaching" means the occupation of teaching in a pre-elementary, an elementary or a secondary school, including a technical or vocational school. (enseignement)
(2) A claimant who was employed in teaching for any part of the claimant's qualifying period is not entitled to receive benefits, other than those payable under sections 22 and 23 of the Act, for any week of unemployment that falls in any non-teaching period of the claimant unless
(a) the claimant's contract of employment for teaching has terminated;
(b) the claimant's employment in teaching was on a casual or substitute basis; or
(c) the claimant qualifies to receive benefits in respect of employment in an occupation other than teaching."
The Appellant's contract of employment for teaching had not terminated and she is entitled to receive benefits for the reasons in this section. Similar provisions were contained in the Unemployment Insurance Act.
[15] This Court was referred to several cases decided under the provisions of the Unemployment Insurance Act including Abrahams v. Canada (1983), 142 D.L.R. (3d) 1 (S.C.C.) by Wilson, J. of the Supreme Court of Canada.
"Since the overall purpose of the Act is to make benefits available to the unemployed. I would favour a liberal interpretation of the reentitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant".
It is accepted jurisprudence that such interpretation be given to social legislation. The same interpretation was given to the intent for pregnancy leave by Justice Austin of the Ontario Court of Appeal in Schafer v. Canada (Attorney General) (1997) 149 D.L.R. 732 (4th) when he stated:
"... but the purpose of the pregnancy leave benefit is not to provide income support to parents who care for their children. It is to provide a flexible system of income support to women who need time away from work because of pregnancy and childbirth."
The question of leave implies permission to be absent from employment and be entitled to hours of insurable employment if the Appellant was provided with remuneration during such leave. The Respondent argued that the insurable hours of employment agreed to by the School Board and the Teachers' Union was for school days only. March Break and summer holidays were periods when no work was performed.
[16] The Appellant, in argument, asks this Court to allow her appeal on the grounds that designated school holidays should be considered as days for which she should be credited with hours of insurable employment as should the weekdays in July and August and the five days during the March Break. These days should be considered as paid leave days, paid holidays or vacation days or non-working for which remuneration is paid. The basis for such a conclusion should be drawn from the fact that through legislation and agreements between the School Board and Teachers' Union her salary is an annual salary and is paid for the whole year. She should be credited with hours of insurable employment because the days in question are days on which she is employed and in respect of which she receives remuneration. These days should be either "paid holidays" or "vacation days" within the meaning of section 10.1(1) or "non-working" days for which teachers are remunerated within the meaning of section 10.1(3)(b) of the Regulations which reads:
"... does not work on that day, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked on that day."
[17] Annual salary should be seen as remuneration for an annual period of employment. Teachers' contracts are to be in the form as set forth in the legislation and express the contract period will be from September 1 through to August 31, a year. Salary will be paid in accordance with the legislation or as may be agreed between School Board and the Teachers' Union known as the Collective Agreement (tab 7 of Exhibit A-1).
[18] The agreement provided ten instalments of 8% each and one instalment of 20% to be paid at a particular time during the year. This is supposed to indicate that it is an annual salary.
[19] Human Resources Development Canada (H.R.D.C.) issued a publication to assist School Boards in the preparation of Records of Employment under the E.I. Act to commence January 1, 1997. Included in the information directive is:
"... the hours must be hours that are worked and hours that are paid."
Insurable hours can only be counted for days recognized and reimbursed by the employer which for teachers in Ontario can only include the 194 teaching days in the school year. In the Appellant's situation only 154 teaching days would be counted. The Appellant states this is an arbitrary direction and does not represent the true reality of her situation based on an understanding of what an annual salary represents.
[20] This Court was referred to many cases including Abrahams (supra), Petts v. Umpire under s. 52 of the Unemployment Insurance Act (1974), 53 D.L.R. (3d) 126 (F.C.A.), Dick v. Canada (Deputy A.G.) (1980), 112 D.L.R. (3d) 654 (S.C.C.) and Moyer v. Canada (Minister of Employment and Immigration) (1981), 128 D.L.R. (3d) 378 (F.C.A.) and the major decisions dealt with entitlement to unemployment insurance or employment insurance benefits during the non-teaching periods including those in the spring or March Break and the months of July and August. The interpretation was that there was no termination of the teachers' contract of employment and the teachers were effectively remunerated for the non-teaching periods. These cases should clearly indicate that the Appellant operated pursuant to a yearly contract, on a yearly salary and the salary not only was referable to working days but included remuneration for school holidays and summer vacation. As stated in Petts, supra, at page 134:
"... 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 s. 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."
[21] The Court was referred to the Gauthier v. Board of Referees, September 12, 1994, CUB 26838, Côté v. Board of Referees, March 25, 1998, CUB 41000, and Canada (A.G.) v. Partridge, [1999] F.C.J. No. 974 (C.A.) (Quicklaw) cases as well as Bruneau v. Canada (Employment Insurance Commission) (1998), 171 D.L.R. (4th) 127 (F.C.A.) and Canada (Attorney General) v. Tuomi, [2000] F.C.J. No. 1570 to indicate that the courts have concluded a teacher's salary should be allocated to both the teaching and non-teaching periods. The Appellant draws the conclusion that this Court should credit her with hours of insurable employment for the school holidays and other non-teaching periods, during the period in question, as paid leaves or as non-working days for which she was remunerated in accordance with her annual salary.
[22] The Respondent argued that the Appellant was not paid for the school holidays or for the summer vacation. The employment insurance regime did not envision such a circumstance. The only way the Appellant could qualify for benefits as a claimant major attachment would be if she had the required number of hours of insurable employment pursuant to sections 9.1, 9.2, 10 and 10.1 which read as follows:
"9.1 Where a person's earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated.
Subject to section 10, where a person's earnings or a portion of a person's earnings for a period of insurable employment remains unpaid for the reasons described in subsection 2(2) of the Insurable Earnings and Collection of Premiums Regulations, the person is deemed to have worked in insurable employment for the number of hours that the person actually worked in the period, whether or not the person was remunerated.
10. (1) Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hours in insurable employment.
(2) Except where subsection (1) and section 9.1 apply, where there is doubt or lack of specific knowledge on the part of the employer as to the actual hours of work performed by a worker or by a group of workers, the employer and the worker or group of workers may, subject to subsection (3) and as is reasonable in the circumstances, agree on the number of hours of work that would normally be required to gain the earnings referred to in subsection (1), and, where they do so, each worker is deemed to have worked that number of hours in insurable employment.
(3) Where the number of hours agreed to by the employer and the worker or group of workers under subsection (2) is not reasonable or no agreement can be reached, each worker is deemed to have worked the number of hours in insurable employment established by the Minister of National Revenue, based on an examination of the terms and conditions of the employment and a comparison with the number of hours normally worked by workers performing similar tasks or functions in similar occupations and industries.
(4) Except where subsection (1) and section 9.1 apply, where a person's actual hours of insurable employment in the period of employment are not known or ascertainable by the employer, the person, subject to subsection (5), is deemed to have worked, during the period of employment, the number of hours in insurable employment obtained by dividing the total earnings for the period of employment by the minimum wage applicable, on January 1 of the year in which the earnings were payable, in the province where the work was performed.
(5) In the absence of evidence indicating that overtime or excess hours were worked, the maximum number of hours of insurable employment which a person is deemed to have worked where the number of hours is calculated in accordance with subsection (4) is seven hours per day up to an overall maximum of 35 hours per week.
(6) Subsections (1) to (5) are subject to section 10.1.
10.1 (1) Where an insured person is remunerated by the employer for a period of paid leave, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked and for which the person would normally have been remunerated during that period.
(2) Where an insured person is remunerated by the employer for a period of leave in the form of a lump sum payment calculated without regard to the length of the period of leave, the person is deemed to have worked in insurable employment for the lesser of
(a) the number of hours that the person would normally have worked and for which the person would normally have been remunerated during the period, and
(b) the number of hours obtained by dividing the lump sum amount by the normal hourly rate of pay.
(3) Where an insured person is remunerated by the employer for a non-working day and
(a) works on that day, the person is deemed to have worked in insurable employment for the greater of the number of hours that the person actually worked and the number of hours that the person would normally have worked on that day; and
(b) does not work on that day, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked on that day."
These regulations are explained by Judge Bonner in Franke v. M.N.R., [1999] T.C.J. No. 645 (Quicklaw):
"[3] ... Section 55 of the Act authorizes the enactment of subordinate legislation for the establishment of hours of insurable employment. The Employment Insurance Regulations ("Regulations") are intended for use in determining the number of hours of insurable employment where unconventional arrangements such as those now under consideration are present. The statutory scheme cannot work as intended unless the Regulations are construed and applied as attempts to measure in hours the time that the employee "actually worked" and for which the employee was compensated by the employer. ..."
[23] The issue was once again restated that the core in this appeal is a question of paid leave and/or a remunerated non-working day. There is no presumption that the teachers are paid for those days in issue. The history behind section 33 was outlined and stated to have been passed as a result of decisions of the courts that had concluded that teachers were not paid for those periods of non-teaching otherwise they could qualify for benefits during those periods.
[24] On examination of section 33 it disentitles teachers to benefits unless their contract of employment is terminated. Many cases were referred to but in the final analysis the argument was that each case depended on its own facts and that a conclusion can only be reached by examining both the legislation and the collective agreement and the contract under which the Appellant was employed. On examination of these items the school year was from September 1 to June 30 in each year and would include 194 school days. School days by agreement would not include school holidays which were, according to a lengthy list, including 14-day Christmas break, 5-day March Break and other specific days such as Good Friday, Easter Monday, Victoria Day, every Saturday and Sunday and Labour Day. The Appellant was a permanent half-time teacher and was paid a "yearly salary" in a defined fashion but did not provide for pay in respect of school holidays or summer vacation nor set out the days in respect of which the salary was payable. Subsection 260(1) of the Education Act did set the days of which a teacher's salary was payable.
"Unless otherwise expressly agreed and subject to subsections (3) to (6), a teacher is entitled to be paid his or her salary in the proportion that the total number of school days for which the teacher performs his or her duties in the school year bears to the total number of school days in the school year."
The exceptions in subsection 260(3) to (6) provided that where a teacher is absent from work for certain reasons listed she was entitled to be paid for sickness, quarantine or jury duty. The collective agreement also provided for other paid leave such as bereavement, court leave, family care, serious illness of a dependant and could have gone further and provided for other paid leave days but did not.
[25] Further argument was given in regard to the changes in the E.I. Act concerning qualifications for benefits from weeks of employment to hours of employment. The reasons were to recognize changing work patterns, make all work insurable, coverage to multiple-job holders and to provide disincentive to employers to provide less than 15 hours of work to an employee's week. It is a different system from that under the Unemployment Insurance Act. Employees who might not have received benefits under the old system might receive benefits under the new system. It is true that there may be some persons who qualified under the Unemployment Insurance Act who now will not qualify for benefits under the E.I. Act.
[26] This Court has reached the conclusion that the Appellant should not be credited with insurable hours for non-working days or for summer or other holidays in the period in question.
[27] The Appellant was a permanent half-time teacher working pursuant to a yearly contract in a form as directed by legislation including any altered terms made between the School Board and the Teachers' Union. It was a continuing employment contract so long as it was not terminated by either party. The contract would renew itself each year unless terminated. The contract commenced each September 1 and remained in force until the following August 31 in each year. The teaching profession is unique in that there are considerable periods during the contract year when teachers are away from their schools and not required to perform any work. Communication between the School Board and teacher would be minimal during these periods. For purposes of proper continuation of the operation of the school system and the orderly recall of teachers it would seem prudent to have a contract that would continue unless terminated. This uniqueness was obviously recognized in the legislation and regulations made under the Ontario Education Act. The provision for a general form of contract with terms for payment of the annual salary suited to teachers requirements during that contract year. Each school board would set the calendars for the year dealing with its expectations from the teachers for the number of school days in the school year.
[28] It would be in the best interest of the teacher that the contract continue for the preservation and continuation of the benefits provided to teachers through their collective agreement for dental, medical, long term disability and group life insurance and other benefits. The salary is based on a yearly figure settled between the parties. The method of paying that salary is negotiated and settled in the contract. The fact that it is paid at irregular intervals is peculiar to the teaching profession and was agreed to by the parties. It provides regularity of income to the teacher and a lump of income before the summer when the teacher is not required to be in attendance. It cannot be presumed that the salary is allocated to each day of the contract period for there are those periods when no work is required. For this reason, the negotiated annual salary must be looked at as being paid for the days actually worked by the teacher which are described in the school calendar as school days. These days are set by the School Board and during the relevant Appellant's period there were 154 school days. Such days are working days when the teacher is required to use her teaching talents and educational training for which she was hired. The remaining days during the school year and the contract year are non-working days when no work is required to be performed.
[29] The non-working days cannot be considered for purposes of insurability as they are not days when work is performed and for which remuneration is paid. The new scheme for calculating eligibility would bring into coverage many persons unable to previously claim for benefits. It may also prevent others from coverage who previously may have qualified for benefits under the Unemployment Insurance Act.
[30] The concept that days in the period in issue are paid leave days is not supported by the working of the E.I. Act or in its Regulations or in other relevant legislation. The jurisprudence reviewed seems to indicate that for leave to be granted with pay the worker would be excused from the requirement of performing work for that period when, otherwise, the worker would be so required to perform. The periods in question were not work days nor were they stated to be such in any legislation or by agreement.
[31] The Education Act contemplates leave with pay from work for sickness, quarantine and jury duty. It could well have included leave with pay for school holidays and the summer months but it did not. The Collective Agreement contained other kinds of leave such as bereavement, illness of a dependant, etc. but did not provide for the periods in question to be periods of leave.
[32] Section 33 of the Regulations is particularly to avoid teachers from receiving benefits during non-teaching periods. The Federal Court of Appeal in the case of Canada (Attorney General) v. Donachey, [1997] F.C.J. No. 579 (C.A.) (Quicklaw) at paragraph 5 described the object of the provision as follows:
"The object of section 46.1 (now s. 33) 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."
This section deals with the prohibiting of payment of benefits to persons who work in occupations in which 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 occupation, for any or all weeks in that period. The Regulation deals with the payment of benefits not whether a person's employment is insurable. Many decisions may have indicated that teachers were not paid for the non-teaching periods and might be entitled to benefits thus the Regulation was issued to prevent such a flow of benefits.
[33] This Court has been persuaded that the Appellant should not be credited with insurable hours of employment for the days in issue which included those in the March Break, summer or statutory holidays. The Minister was correct and he cannot credit her with hours of insurable employment for those days. The appeal is dismissed and the decision of the Minister is confirmed.
[34] This Court has not considered any of the submissions made concerning a possible Charter violation. If either of the parties wish to continue argument in that regard they should contact the Registrar of this Court to obtain a time for such continuation.
Signed at Toronto, Ontario, this 18th day of January 2001.
"W.E. MacLatchy"
D.J.T.C.C.
COURT FILE NO.: 1999-1342(EI)
STYLE OF CAUSE: Debbie Kuffner and M.N.R.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 1, 2000
REASONS FOR JUDGMENT BY: The Honourable Deputy Judge
W.E. MacLatchy
DATE OF JUDGMENT: January 18, 2001
APPEARANCES:
Counsel for the Appellant: Karen Schucher
Counsel for the Respondent: Arnold H. Bornstein
Kimberly Moldaver
COUNSEL OF RECORD:
For the Appellant:
Name: Karen Schucher
Firm: Cavalluzzo Hayes Shilton McIntyre & Cornish
Toronto, Ontario
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-1342(EI)
BETWEEN:
DEBBIE KUFFNER,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on August 1st, 2000 at Toronto, Ontario, by
the Honourable Deputy Judge W.E. MacLatchy
Appearances
Counsel for the Appellant: Karen Schucher
Counsel for the Respondent: Arnold H. Bornstein
Kimberly Moldaver
JUDGMENT
The appeal is dismissed and the decision of the Minister is confirmed in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 18th day of January 2001.
|
"W.E. MacLatchy" |
D.J.T.C.C.