Stone v. Canada (Attorney General)

Stone v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2006-01-24
Neutral citation
2006 FCA 27
File numbers
A-367-04, A-368-04
Notes
Reported Decision
Decision Content
Date: 20060124
Dockets: A-367-04
A-368-04
Citation: 2006 FCA 27
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
SHEILA STONE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on December 13, 2005.
Judgment delivered at Ottawa, Ontario, on January 24, 2006.
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: DÉCARY J.A.
DISSENTING REASONS BY: EVANS J.A.
Date: 20060124
Dockets: A-367-04
A-368-04
Citation: 2006 FCA 27
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
SHEILA STONE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
[1] This is an application for judicial review of two May 21, 2004 decisions of the Umpire, both of which denied the applicant, Sheila Stone, employment insurance benefits ("EI benefits"). Since at least 1995, the applicant has worked as a teacher for the Or Haemet Sephardic School ("the employer") from September until June of each year. She sought to collect EI benefits for the months of July and August 2001 and 2002 the summer recess periods, when she was not teaching. The Board of Referees (the "Board") denied her those benefits for the months of July and August 2001, but a differently constituted panel granted them to her for those months of 2002. The Umpire upheld the former decision and overturned the latter one on the basis that the applicant was not entitled to EI benefits during her "non-teaching period," pursuant to subsection 33(2) of the Employment Insurance Regulations (the "Regulations").
[2] In this court, the applicant argues that she falls under an exception to subsection 33(2) that allows teachers whose contracts have terminated to receive EI benefits during their non-teaching periods. That exception appears in section 33 of the Regulations. In 2001 and 2002, the relevant provisions of that section read:
33. (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.
…
33. (1) Les définitions qui suivent s'appliquent au présent article.
« enseignement » La profession d'enseignant dans une école maternelle, primaire, intermédiaire ou secondaire, y compris une école de formation technique ou professionnelle. (teaching)
« période de congé » La période qui survient annuellement, à des intervalles réguliers ou irréguliers, durant laquelle aucun travail n'est exécuté par un nombre important de personnes exerçant un emploi dans l'enseignement. (non-teaching period)
(2) Le prestataire qui exerçait un emploi dans l'enseignement pendant une partie de sa période de référence n'est pas admissible au bénéfice des prestations -- sauf celles prévues aux articles 22 et 23 de la Loi -- pour les semaines de chômage comprises dans toute période de congé de celui-ci, sauf si, selon le cas :
a) son contrat de travail dans l'enseignement a pris fin;
b) son emploi dans l'enseignement était exercé sur une base occasionnelle ou de suppléance;
c) il remplit les conditions requises pour recevoir des prestations à l'égard d'un emploi dans une profession autre que l'enseignement.
…
[3] The related regulation-making power is currently set out in paragraph 54(j) of the Employment Insurance Act, which reads:
Regulations
54. The Commission may, with the approval of the Governor in Council, make regulations
…
(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;
…
Règlements
54. La Commission peut, avec l'agrément du gouverneur en conseil, prendre des règlements :
…
j) interdisant le paiement de prestations, en tout ou en partie, et restreignant le montant des prestations payables pour les personnes, les groupes ou les catégories de personnes qui travaillent ou ont travaillé pendant une fraction quelconque d'une année dans le cadre d'une industrie ou d'une occupation dans laquelle, de l'avis de la Commission, il y a une période qui survient annuellement à des intervalles réguliers ou irréguliers durant laquelle aucun travail n'est exécuté, par un nombre important de personnes, à l'égard d'une semaine quelconque ou de toutes les semaines comprises dans cette période;
…
I. FACTUAL BACKGROUND
[4] The Or Haemet Sephardic School is a non-unionized and privately funded institution. It first employed the applicant in approximately 1995. Since then, she has taught kindergarten there from September until June of each year.
[5] At the conclusion of each school year, the employer would inform the applicant that it was pleased with her teaching and that if enrolment and funding for the age group she taught were sufficient, she would be contacted in August and work at the school again come the fall. The employer did this so that the applicant could remain available to return to the school. Indeed, there is no evidence that the applicant ever sought alternative employment, the term of which would carry into the autumn. In fact, it does not appear that the applicant has ever worked for any employer but the Or Haemet Sephardic School over the past ten years.
[6] Although the applicant received no compensation from the Or Haemet Sephardic School during July and August, every summer she would apply for EI benefits. She was granted these benefits for the months of July and August of the years 1996, 1997, 1998, 1999 and 2000. However, Human Resources Development Canada ("HRDC") denied her EI benefits for the period July 1 to August 30, 2001. The Board upheld this decision, as did the Umpire whose decision is under review in this case. Likewise, HRDC refused the applicant EI benefits for the period July 1 to August 30, 2002. However, the Board reversed this decision. The Umpire, on the other hand, overturned the Board. In these reasons, I review these two decisions of the Umpire.
II. ADJUDICATIVE HISTORY
1) THE FINDINGS OF THE BOARD
[7] The first Board unanimously held that the applicant had failed to prove that she was entitled to EI benefits for July and August 2001. It rested its conclusion on the fact that she had worked for her employer for ten years and a relationship existed between them.
[8] With respect to July and August 2002, the second Board found that since the applicant did not have continuity of employment with the employer, her contract of employment had terminated and she was entitled to EI benefits. First, the Board observed that she did not have a contract or promise of a contract or any linkages with her employer because she received no payments from her employer after the termination of her contract at the end of June. Next, it commented that Ying v. Canada, CUB 40255 concerned "circumstances not unlike this case." Without further explanation, the Board concluded with the observation that in Ying, it was determined that the claimant could not have been said to have a contract of employment operating in the non-teaching period.
2) THE FINDINGS OF THE UMPIRE WITH RESPECT TO THE 2001 AND 2002 EI BENEFIT CLAIMS
[9] The Umpire relied on, inter alia, Oliver v. Canada (Attorney General), 2003 FCA 98 ["Oliver"] for the proposition that "unless there is a veritable break in the continuity of a teacher's employment, the teacher will not be entitled to EI benefits for the non-teaching period." After considering all of the evidence, the Umpire found that the applicant had been employed from year to year and there was no interruption in that employment. She did not satisfy the requirement of a veritable break in employment after the end of the school year.
III. STANDARDS OF REVIEW
1) INTRODUCTION
[10] "In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach." Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para. 21. In this case, one administrative decision maker, the Umpire, reviewed a decision of another administrative tribunal, the Board. Therefore, this court must determine whether the Umpire applied the correct standard of review to the Board's decision. Meechan v. Canada (Attorney General), 2003 FCA 368 at para. 11. If the Umpire chose the right standard, this court must determine the standard applicable to the Umpire's decision and review it on that basis.
[11] In the pragmatic and functional approach, four factors are considered to determine the appropriate standard of review. They are the nature of the question under review law, fact or mixed law and fact the expertise of the decision maker relative to that of the reviewer; the statutory mechanism of review; and the purposes of the legislation and the particular provision.
2) THE UMPIRE'S REVIEW OF THE BOARD DECISIONS
[12] The Umpire did not explicitly address the question of the standard of review. However, he seemed to rely on a correctness standard. For instance, he undertook a fresh analysis of the case. Had he been applying a standard of reasonableness simpliciter or patent unreasonableness, he would not have asked himself what the correct decision would have been, but only parsed the Board's reasons. See generally Law Society of New Brunswick v. Ryan, 2003 SCC 20 at paras. 51 and 54. Moreover, when he considered the Board's decision with respect to the 2001 EI benefits, he observed that the Board was "correct in law" in finding that there was still a continuing relationship between the applicant and the employer.
[13] The Umpire was right to hold the Board decisions to a standard of correctness. Admittedly, at first glance, the first factor in the pragmatic and functional analysis suggests that some deference was due to the Board decisions. After all, the nature of the question appears to be mixed law and fact. A paragraph 33(2)(a) determination involves the application of a legal standard "terminated" to the facts of the applicant's case. See also Gauthier v. Canada (Employment and Immigration Commission), [1995] F.C.J. No. 1350 (C.A.).
[14] However, in Housen v. Nikolaisen, 2002 SCC 33 at para. 27, the Supreme Court of Canada, invoking Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 39, explained how an error on a question of mixed law and fact can amount to a pure error of law subject to a correctness standard:
…if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.
In short, "Mischaracterizing the proper legal test results in the application of the correctness standard." Baker Petrolite Corp. v. Canwell Enviro-Industries Ltd., 2002 FCA 158 at para. 52.
[15] The next factor in the pragmatic and functional analysis focuses on the administrative decision-maker's expertise. The Board is not an expert on the central question in this case—the correct legal approach to use to determine whether a teaching contract has terminated within the meaning of paragraph 33(2)(a) of the Regulations. According to Budhai v. Canada (Attorney General), 2002 FCA 298 at para. 42:
. . . the general legal expertise of umpires, as well as their knowledge of employment insurance legislation, indicate that their interpretation of the relevant statutory provisions should prevail over that of a board of referees, an adjudicative body that does not necessarily include a lawyer and sits only part-time.
Indeed, in commenting on the relative expertise of the Umpire in comparison with the Board, the Supreme Court of Canada has observed that the legislature intended "to give the power to
interpret law to the umpire and not the Board of Referees." Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22 at para. 21.
[16] The Employment Insurance Act provides further evidence that the legislature did not intend that deference be shown to Board answers to legal questions. It provides for appeals as of right from Board decisions evincing an error of law, "whether or not the error appears on the face of the record." Employment Insurance Act, section 115.
[17] The final factor in the pragmatic and functional analysis focuses on the purposes of the legislation and the particular provision. To be sure, the employment insurance ("EI") scheme is aimed at inexpensive and expeditious decision-making. However, that does not necessarily tip the balance of the pragmatic and functional factors in favour of a deferential standard of review. After all, administrative tribunals are usually set up to promote inexpensive and expeditious decision-making. That type of decision-making does not "loom so unusually large in this scheme as to trump . . . even though employment insurance claimants are often of modest means." See generally Canada (Attorney General) v. Sveinson, 2001 FCA 315 at para. 15.
[18] After reviewing the four relevant factors, it is my conclusion that Board answers to questions of law are reviewable on a correctness standard. See also Canada (Attorney General) v. Kos, 2005 FCA 319 at para. 5; Meechan v. Canada (Attorney General), 2003 FCA 368 at para.
16; Budhai v. Canada (Attorney General), 2002 FCA 298 at para. 48. The Umpire rightly applied a correctness standard to the Board decisions that he reviewed.
3) THIS COURT'S REVIEW OF THE UMPIRE'S DECISIONS
[19] In my view, the Umpire in the decisions below formulated the correct legal test. Therefore, the task of this court is to review the Umpire's application of that legal standard to the facts of the case. The nature of the question is thus one of mixed law and fact. This factor in the pragmatic and functional analysis indicates that some deference should be shown to the Umpire's findings.
[20] The factor of relative expertise, on the other hand, points to the opposite conclusion. In Canada (Attorney General) v. Sveinson, 2001 FCA 315 at paras. 16 and 17, this court commented on the legal expertise of Umpires relative to that of the courts:
¶ 16 . . . the decision-makers [the Umpires], judges of either the Trial Division of this Court, or other courts, do not bring to the task of interpreting the legislation an expertise superior to, or a perspective different from that of this Court. They are performing an adjudicative function no different in nature from that of this or of any other court: determining the legal rights of the parties on the basis of umpires' interpretation of detailed and complex legislation and its application to the facts of individual cases.
¶ 17 True, umpires may render more decisions on the legislation than members of this Court, but that is an insufficient basis for deference, especially since some members of this Court, when members of the Trial Division, may well have become familiar with employment insurance legislation. Further, judges are assigned ad hoc to sit as umpires in employment insurance cases, and, if they are serving judges, these assignments are simply part of their regular judicial duties. Hence, judicial deference to umpires' decisions cannot be justified on the ground of their unique expertise.
[21] However, the third factor in the pragmatic and functional analysis—that of a statutory right of appeal—again suggests that this court owes some deference to the Umpire's conclusions. Section 118 of the Employment Insurance Act is a privative clause:
Decision final
118. The decision of the umpire on an appeal is final and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court.
Décision definitive
118. La décision du juge-arbitre sur un appel est définitive et sans appel; elle peut cependant faire l'objet d'une demande de contrôle judiciaire aux termes de la Loi sur les Cours fédérales.
[22] As I discussed above, the final factor in the pragmatic and functional analysis—that of legislative purpose, and in particular inexpensive and expeditious decision-making—also favours a deferential standard.
[23] In conclusion, then, three of the four factors in the pragmatic and functional analysis indicate that this court should be wary of interfering with Umpire findings of mixed law and fact. Adopting a standard of reasonableness simpliciter when reviewing an Umpire's answer to a question of mixed law and fact is consistent with the prior jurisprudence of this court. See e.g. Canada (Attorney General) v. Peace, 2004 FCA 56 at para. 19 (citing Budhai v. Canada (Attorney General), 2002 FCA 298; Canada (Attorney General) v. Sacrey, 2003 FCA 377); Meechan v. Canada (Attorney General), 2003 FCA 368 at para. 16). In my view, it cannot be said that the Umpire's decisions were unreasonable.
IV. ANALYSIS
1) THE LAW
a) WHAT APPROACH IS USED TO DETERMINE WHETHER A TEACHING CONTRACT HAS TERMINATED?
i) THE LAW AND THE UMPIRE'S DECISION
[24] The fundamental legal issue in this case is the meaning of the words "the claimant's contract of employment for teaching has terminated" or, in French, "son contract de travail dans l'enseignement a pris fin." In my view, these phrases are intended to mean the same thing. Most recently, Létourneau J.A., in very thoughtful reasoning, has equated the words in issue with the absence of "continuity of employment." Oliver at para. 19. "[U]nless there is a veritable break in the continuity of a teacher's employment, the teacher will not be entitled to benefits for the non-teaching period." Ibid. at para. 27.
[25] In the decision below, the Umpire correctly pinpointed this as the applicable legal standard. The central question to which the Umpire directed his attention was whether the non-teaching period represented a veritable break in the claimant's employment:
I have considered the arguments of the claimant and I have considered the jurisprudence. It is my view that the decision of the majority in the Giammattei case and the Oliver case is determinative of the issue. At par. 27 it is stated: 'Both [the line of jurisprudence in this Court and the legislative intent behind section 33] are based on the clear premise that, unless there is a veritable break in the continuity of a teacher's employment, the teacher will not be entitled to benefits for the non-teaching period. It is important that this fundamental premise be strongly underlined here because of the numerous claims that are pending on this issue and which deserve clarity from this Court on this matter.'
Having considered the evidence before the Board of Referees, I am satisfied that it has been shown that this claimant has been employed from year to year and there is no interruption in her employment. I do not believe that because she works in a private school it makes any difference as the legislation does not differentiate between a private school and a public school. It also does not make any statement concerning the annual pay being spread over 12 months or ten months. The jurisprudence places a burden on the teacher to show on the balance of probabilities that they will not be returning to their job following the non-teaching period [sic.]. That, in my opinion, would satisfy the requirement that there be a veritable break in employment after the end of the school year. [emphasis added]
Thus, the Umpire correctly excerpted the passage from Oliver that articulates the governing legal standard in paragraph 33(2)(a) cases. Moreover, he stated that, in light of all of the evidence, there had been "no interruption" in the claimant's employment. While the Umpire also considered whether it is more likely than not that the claimant would be returning to her job following the non-teaching period, it is clear that he did not view this question as the determinative inquiry. Instead, in this particular case, the answer to it assisted him in disposing of the key issue of whether there was a veritable break in the continuity of the applicant's employment. Indeed, in conclusion, he even reiterated that "the requirement" is "that there be a veritable break in employment." Ultimately, in my view, the Umpire's analysis was governed by the correct legal test.
[26] That the likelihood of the claimant's returning to her position was only one factor in the Umpire's analysis is evident from his statement that he considered all of the evidence before the Board. Indeed, the Umpire was right to take all of the facts of the case into account. This approach is well grounded in the jurisprudence, which emphasizes the factually-intensive nature of paragraph 33(2)(a) determinations. In Oliver at paras. 17 and 18, for instance, Létourneau J.A. upheld the decision of the Umpire, who was of the view that:
. . . a determination of whether a teacher fell or not within the scope of the exemption was not a determination which could be based solely on a purported date of termination stated in a contract. All the circumstances in a particular case had to be examined in light of the purpose and intention of the legislative scheme. [emphasis added]
The Umpire was right to reproduce this passage in his decision.
[27] Indeed, were I to express any concerns about the Umpire's reasons, I might highlight the way in which he addressed the evidence. Certainly, he "considered the arguments of the claimant." He also "considered the evidence before the Board of Referees." Furthermore, he referred to the fact that the applicant's annual compensation was spread over only ten months. It might have been preferable to specify what pieces of evidence led him to conclude that the applicant's contract had not terminated.
ii) RELEVANT CONSIDERATIONS
[28] Conceivably, more often than not, certain factors will assist the courts in determining whether there was a veritable break in the continuity of the claimant's employment. The comments in Oliver suggest that in constructing such a list, the court should look to "the purpose and intention of the legislative scheme." Oliver at para. 17.
[29] There is no question that the legislative scheme is a useful guide. However, since Oliver was decided, Binnie J., writing for the majority of the Supreme Court of Canada in Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, has reviewed the proper approach to regulatory interpretation. In construing the regulation in that case, he drew on five sources. They were the mischief sought to be cured by the regulation, the regulatory scheme, the grammatical and ordinary sense of the words of the regulation, the regulation-making power of the Act pursuant to which the regulation was enacted and the general context of the regulation. See Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26 at paras. 37-68. For Binnie J., the general context included the purpose of the related legislation and the Regulatory Impact Analysis Statement accompanying the regulation. Ibid. at paras. 45 and 46. In my view, Binnie J.'s five interpretive aids also assist in constructing a list of the types of facts that are legally relevant to a finding of whether a contract of employment for teaching has terminated within the meaning of paragraph 33(2)(a) of the Regulations.
[30] I begin, then, with the mischief sought to be cured by paragraph 33(2)(a). The purpose of the regulation has been considered in previous decisions of this court. In Canada (Attorney General) v. Donachey, [1997] F.C.J. No. 579 (C.A.) at para. 5, it was said that:
. . . The purpose of par. 46.1(2)(a) is clearly to avoid "double dipping," as was indicated in the passage from Stone J.A. [writing in Re Attorney General of Canada and Taylor (1991), 81 D.L.R. (4th) 679 at 687] quoted above. Desjardins J.A. put it this way in St. Coeur [Attorney General of Canada v. St. Coeur, [1996] F.C.J. No. 514 (C.A.)]:
The object of section 46.1 of the Regulations is to prevent teachers, whose salary is spread over a twelve-month period but who do not provide services every day, from being able to receive monies which come from two separate sources but which fulfil the same role.
…
[31] I have no doubt that the prevention of double dipping is one of the purposes of paragraph 33(2)(a) of the Regulations. The regulatory scheme affirms this position. The only other reference to contract termination in the Regulations links the notion of an earnings interruption with that of contract termination. According to subparagraph 14(5)(b)(i) of the Regulations:
Interruption of Earnings
…
(5) An interruption of earnings in respect of an insured person occurs
…
(b) in the case of an insured person who is employed under a contract of employment and whose earnings from that employment consist mainly of commissions, when
(i) the insured person's contract of employment is terminated, or
…
Arrêt de rémunération
[…]
5) Un arrêt de rémunération se produit :
[…]
b) dans le cas d'un assuré employé aux termes d'un contrat de travail et dont la rémunération provenant de cet emploi est constituée principalement de commissions :
(i) soit lorsque son contrat de travail prend fin,
[…]
[32] With the greatest of respect, though, I am reluctant to conclude that double dipping is the only mischief at which the regulator was aiming with this provision. The grammatical and ordinary sense of the words of paragraph 33(2)(a) indicates that it is intended to combat more than this abuse of the EI scheme. After all, "The paragraph does not provide that a teacher whose services and remuneration have temporarily ceased is eligible for benefits notwithstanding that the contract of employment continues to subsist." Canada (Attorney General) v. Taylor, [1991] F.C.J. No. 508 (C.A.).
[33] Indeed, I believe that the Umpire whose decision this court upheld in Oliver correctly articulated the purpose of paragraph 33(2)(a). In Oliver at para. 16, Létourneau J.A. reproduced the following comments of that Umpire:
The intention of Parliament is to pay employment insurance benefits to those individuals who, through no fault of their own, are truly unemployed and who are seriously engaged in an earnest effort to find work. Teachers are not considered unemployed during the annual non-teaching periods and they are therefore not entitled to benefits, unless they meet one of the following three criteria set out in regulation 33(2):
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 other than teaching.
Parliament's intention, together with the object of the legislation and its scheme, leads me to the conclusion that the exemption provided for in Regulation 33(2)(a) is meant to provide relief to those teachers whose contracts terminate on June 30th and who, as a result, suffer a genuine severance of the employer and employee relationship. In other words, the exemption provides relief to those teachers who are, in the true sense of the word "unemployed", a term which is not synonymous with "not working".
…
[emphasis added]
Although the Oliver Umpire referred to Parliament's intention and the purpose of the legislation, in my view, the underlined passages above describe the objectives of paragraph 33(2)(a) of the Regulations.
[34] The regulation-making power of the Act, the grammatical and ordinary sense of the words of the regulation and the general context confirm that the comments in Oliver accurately describe the mischief targeted by paragraph 33(2)(a).
[35] The provision in issue is traceable to a similarly-worded, 1983 amendment to section 46.1 of the Unemployment Insurance Regulations. It was enacted pursuant to paragraph 58(h.1) of the Unemployment Insurance Act. That paragraph reads:
Regulations
58. The Commission may, with the approval of the Governor in Council, make regulations
…
(h.1) prohibiting the payment of benefit, in whole or in part, and restricting the amount of benefit 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;
…
Règlements
La Commission peut, avec l'agrément du gouverneur en conseil, prendre des règlements :
[…]
h.1)interdisant le paiement de prestations, en tout ou en partie, et restreignant le montant des prestations payables pour les personnes, les groupes ou les catégories de personnes qui travaillent ou ont travaillé pendant une fraction quelconque d'une année dans le cadre d'une industrie ou d'une occupation dans laquelle, de l'avis de la Commission, il y a une période qui survient annuellement à des intervalles réguliers ou irréguliers durant laquelle aucun travail n'est exécuté, par un nombre important de personnes, à l'égard d'une semaine quelconque ou de toutes les semaines comprises dans cette période;
[…]
[36] In the current Employment Insurance Act, the equivalent provision states:
Regulations
54. The Commission may, with the approval of the Governor in Council, make regulations
…
(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;
…
Règlements
La Commission peut, avec l'agrément du gouverneur en conseil, prendre des règlements :
[…]
j) interdisant le paiement de prestations, en tout ou en partie, et restreignant le montant des prestations payables pour les personnes, les groupes ou les catégories de personnes qui travaillent ou ont travaillé pendant une fraction quelconque d'une année dans le cadre d'une industrie ou d'une occupation dans laquelle, de l'avis de la Commission, il y a une période qui survient annuellement à des intervalles réguliers ou irréguliers durant laquelle aucun travail n'est exécuté, par un nombre important de personnes, à l'égard d'une semaine quelconque ou de toutes les semaines comprises dans cette période;
[…]
[37] Paragraph 58(h.1) of the Unemployment Insurance Act and paragraph 54(j) of the Employment Insurance Act highlight that, in certain industries and occupations, there are periods "during which no work is performed." They thus support the position in Oliver that the word "unemployed" cannot be equated with the phrase "not working" or, to paraphrase paragraph 58(h.1), "not performing work."
[38] Likewise, the plain wording of section 33 acknowledges that teaching is an industry in which de facto contractual relationships are based on a twelve-month period, even though, predictably, no work will be performed during some period of the year. According to subsection 33(1):
33. (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)
33. (1) Les définitions qui suivent s'appliquent au présent article.
« période de congé » La période qui survient annuellement, à des intervalles réguliers ou irréguliers, durant laquelle aucun travail n'est exécuté par un nombre important de personnes exerçant un emploi dans l'enseignement. (non-teaching period)
In short, the regulation-making power of the Act and the language of section 33 affirm that paragraph 33(2)(a) is intended to combat the mischief of teachers collecting EI benefits when they cannot be said to be truly unemployed, but nevertheless are not performing work during the non-teaching period.
[39] The Explanatory Note that accompanied the 1983 amendment to section 46.1 of the Unemployment Insurance Regulations also indicates that paragraph 33(2)(a) is intended to prevent the collection of benefits by teachers in permanent positions during the non-teaching period. It stated:
This amendment prohibits the payment of benefits, other than maternity benefits, to teachers, during their annual non-teaching period unless their contract has been terminated, their employment was on a casual or substitute basis or they qualified to receive benefits on the basis of other employment. When a teacher does qualify for benefits on the basis of other employment, benefits are payable only on the basis of the other employment.
[40] The notion that paragraph 33(2)(a) of the Regulations is intended to ensure that only "truly unemployed" teachers are entitled to EI benefits is not inconsistent with the purpose of the Employment Insurance Act. In Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56 at para. 18, the Supreme Court of Canada reviewed the jurisprudence on the object of the legislation:
. . . In Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22 at p. 41, La Forest J., quoting the words of Lacombe J., who was on the panel of the Federal Court of Appeal in that case, described the purpose of the Unemployment Act, 1971, which seems no different from the purpose of the current Act, as follows:
... to create a social insurance plan to compensate unemployed workers for loss of income from their employment and to provide them with economic and social security for a time, thus assisting them in returning to the labour market.
In Williams v. Canada, [1992] 1 S.C.R. 877, Gonthier J. added that the purpose behind unemployment insurance benefits:
... looks to the past, present and future. Benefits are contingent on qualifying employment in the past. They are meant to provide income and security for the present, in lieu of the employment income which has been lost. However, the benefits also look to the future, enabling the recipient to find a new job without hardship and with a sense of security. (at p. 895)
[emphasis added]
The majority in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22 at para. 55 also warned that:
One must not . . . lose sight of the fact that the overall objective of this particular Act is to provide a temporary sanctuary for those wishing to remain in the active labour force, but who are unable for the moment, to find employment.
[emphasis added]
[41] Finally, the Oliver view of the purpose of paragraph 33(2)(a) accords with the Digest of Entitlement Principles (the "Digest"). The Digest is a reference tool that contains the principles applied by HRDC when deciding EI benefit claims. According to "Chapter 14 – Teachers," "14.5.0 – Availability":
Claimants engaged in the occupation of teaching, like any other claimants, must prove they are capable of and available for work and unable to obtain suitable employment for any working day of a benefit period. . . .
. . . teachers need to demonstrate that, during the non-teaching period, they are willing and able to accept immediately any offer of suitable employment and that no restrictions exist that would limit their employment opportunities.
The concept of a reasonable period of time to find teaching employment will not be applied during the non-teaching periods. The availability of the claimant must be supported by actions and evidence as would be required of any claimant. A teacher must, during the non-teaching periods, seek work in other occupations in which there is employment opportunities if there are little or no teaching opportunities during the non-teaching period [sic.].
[internal citations omitted]
The "truly unemployed" will be able "to demonstrate that, during the non-teaching period, they are . . . able to accept immediately any offer of suitable employment and that no restrictions exist that would limit their employment opportunities." The requirement of seeking "work in other occupations in which there is employment opportunities if there are little or no teaching opportunities during the non-teaching period [sic.]" is also revealing. As was suggested in Oliver, teachers whose contracts have terminated, and who are thus entitled to EI benefits, must be "seriously engaged in an earnest effort to find work."
[42] In light of this understanding of the purpose of paragraph 33(2)(a), logic suggests the types of considerations that should be considered relevant to determining whether there had been a veritable break in the continuity of the applicant's employment. It is only reasonable that, when determining whether a case falls within the purview of paragraph 33(2)(a) of the Regulations, it may be helpful to take into account factors such as:
i. The length of the employment record;
ii. The duration of the non-teaching period;
iii. The customs and practices of the teaching field in issue;
iv. The receipt of compensation during the non-teaching period;
v. The terms of the written employment contract, if any;
vi. The employer's method of recalling the claimant;
vii. The record of employment form completed by the employer;
viii. Other evidence of outward recognition by the employer; and
ix. The understanding between the claimant and the employer and the respective conduct of each.
[43] Several cautionary notes must be sounded about this list of considerations. First, it is not exhaustive. Moreover, not every one of the factors on it will provide insight into every case. Indeed, the courts must be extremely sensitive to the factual background underlying every paragraph 33(2)(a) case. These factors are not to be weighed mechanistically. It is entirely inappropriate to simply count the number of factors suggesting a finding of contract termination and the number militating against that conclusion and then endorse the conclusion favoured by the greater number of factors. Instead, to determine whether a teaching contract has terminated within the meaning of paragraph 33(2)(a), all of the circumstances of every case must be examined in light of the purpose of the regulation.
iii) RELATED JURISPRUDENCE
[44] In considering the light that these factors shed on particular paragraph 33(2)(a) cases, it may be beneficial to examine two lines o