(Judgment rendered in Ottawa, Ontario, Tuesday, June 11, 1996)
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
June 11, 1996
Docket:
A-511-95 / A-512-95
Umpire's Decision:
CUB 28420 / 28419
"TRANSLATION"
A-511-95 ( CUB 28420)
CORAM:
MARCEAU, J.A.
MacGUIGAN, J.A.
DÉCARY, J.A.
BETWEEN:
RENEE DUPUIS-JOHNSON,
applicant,
- and -
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION,
respondent,
- and -
THE DEPUTY ATTORNEY GENERAL OF CANADA,
mis en cause.
BETWEEN:
LOUISE GRENIER,
applicant,
- and -
CANADA EMPLOYMENT AND
IMMIGRATION COMMISSION,
respondent,
- and -
THE DEPUTY ATTORNEY GENERAL OF CANADA,
mis en cause.
Hearing held in Montréal, Quebec, Wednesday, May 29, 1996.
REASONS FOR JUDGMENT
(Judgment rendered in Ottawa, Ontario, Tuesday, June 11, 1996)
MARCEAU J.A.:
There are two motions for judicial review here, but they attack only one decision (or, if you prefer, two identical decisions issued in two different cases), rendered by an umpire acting pursuant to the Unemployment Insurance Act. The umpire's decision was rendered on an appeal from a decision of a Board of Referees which likewise was issued in both cases. The facts in these cases (and apparently in other outstanding cases) are the same, as is the issue they raise. Here is what is involved.
The two applicants work as teachers for the Commission scolaire Val-Mauricie. They are not, however, permanent employees. Their services are retained on the basis of specific fixed-term contracts. Thus, during the 1992-93 school year, they both taught under contracts that terminated on July 1, 1993. When the year ended, they asserted their right to benefits and a benefit period was established under which benefits were paid to them throughout the school summer vacation period. At the end of the summer they resumed their employment with the Commission scolaire Val-Mauricie, as both had been rehired for the 1993-94 year. One was required to provide a number of lessons under two contracts (one for music instruction, the other for French and mathematics instruction) scheduled to last the year but possibly terminating earlier if the teachers being replaced were able to resume their positions. The other teacher took on a part-time teaching position under a firm contract covering the entire year, and remained available to fill in as needed.
The issue is whether the two applicants, given their situation and conditions of employment, are excluded from benefits during the Christmas, Easter and March break vacation periods when, of course, they are not teaching, pursuant to the provisions of section 46.1 of the Unemployment Insurance Regulations, as amended in 1990, which reads as follows:
46.1 (1) In this section,"teaching" means the occupation of teaching in a pre-elementary, an elementary or a secondary school, including a technical or vocational school;
"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 engaged in teaching.
(2) A claimant who was employed in teaching for any part of the qualifying period is not entitled to receive benefits, other than those payable under sections 18 and 20 of the Act, for any week of unemployment that falls in any non-teaching period of that claimant
(a) until his contract of employment for teaching has terminated;
(b) unless his employment in teaching was on a casual or substitute basis; or
(c) unless he qualifies to receive benefits on the basis of employment in an occupation other than teaching.(3) Where a claimant who was employed in teaching for any part of his qualifying period qualifies to receive benefits on the basis of employment in an occupation other than teaching, the amount of benefit payable for a week of unemployment that falls within his non-teaching period shall be restricted to the amount that is payable in respect to the employment upon which he qualified.
The Commission, relying on section 46.1 of the Regulations, had declared the applicants ineligible for benefits during the three vacation periods, but the Board of Referees quashed its decision. In the Board's view, under section 46.1, as amended on November 18, 1990, the expression "non-teaching period" could not be given a meaning more extensive than that already provided in the cases, i.e. the summer holidays period. The explanatory notes supplied when the amendment was enacted did not refer to any such innovation, and this interpretation does not appear to have been drawn until later. There might be some doubt on the matter, the Board members conceded, but in any event such doubt should be resolved in favour of the beneficiaries. The umpire completely repudiated the Board of Referees' conclusion. In his view, there was clearly no further room for interpretation following the 1990 amendment. The words used left no doubt that all vacation periods during the year were contemplated, not only those in the summer holidays, irrespective of past practice and whether this practice had persisted after 1990. The Board's decision, in his opinion, derogated from Parliament's obvious objective, which was to avoid benefits being paid to people like the applicants who, in the first place, were not unemployed and, secondly, were receiving compensation that was calculated to reflect these days that were not worked during the year, as the applicable collective agreement explicitly required. 1
And here now is the issue that is before us. The applicants, through their counsel, argue that the Board of Referees was right, and not the umpire. And they carry their argument further, saying that if the Regulations say what the umpire says they do, they are ultra vires the powers of the Commission, for under the relevant enabling provision, section 44 of the Act, no more than one period could be contemplated. Section 44 states:
44. The Commission may, with the approval of the Governor in Council, make regulations ...
(h) 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; ...
Had the submissions by the applicants' counsel in opposition to the umpire's decision stopped there, this Court could have issued its ruling forthwith. These submissions are based on an indefensible refusal to attribute to the words used in both paragraph 44(h) of the Act and in the new Regulations (and, in fact, even in the old ones) their plain grammatical and logical meaning. And in any event this Court, in a very recent decision (Attorney General of Canada v. Aline St-Coeur, Court file A-80-95, rendered in Fredericton, New Brunswick, April 17, 1996), has already had occasion to reject such submissions.
The hesitation derived from the fact that in the course of the hearing counsel sought to advance an unexpected argument. The applicants' jobs, he submitted, were temporary and substitute jobs, and thus not permanent as appeared to be the case in St-Coeur, and they were, moreover, jobs that fell within the ambit of the exemption clause in paragraph 46.1(2)(b), which states "unless his employment in teaching was on a casual or substitute basis".
It now appears, on reflection, that the sole force of this additional, last-minute submission lay precisely in its unexpected nature, combined, perhaps, with the deficient drafting in subsection 46.1(2) of the Regulations. The permanent or temporary nature of the contract under which the beneficiary is working as a teacher has nothing to do with the problem of whether section 46.1 of the Regulations must be construed as covering more than one vacation period, and the Court's considerations in St-Coeur contain no reference to this aspect. Furthermore, while subsection 46.1(2) may be poorly drafted, a rational analysis of its provisions in light of their obvious purpose points to the conclusion that the applicants, during the vacation periods in question, were still under contract, and are covered by paragraph (a), especially because their employment as teachers, temporary and precarious as their contracts were in 1992-93 and 199394, was of course exercised in a continuous and predetermined way and not on an occasional or substitute basis within the meaning of paragraph (b).
I therefore have no hesitation now in thinking that there is no merit in these applications for review, and that they can only be dismissed.
"Louis Marceau"
J.C.A.
1 See the text of the collective agreement, at p. 115:
2011-01-10[TRANSLATION]
Article 6-7.02 (B) ...Although these rates are paid only when work is performed, they include payment for work performed and for the, same statutory holidays and non-working days as those of the regular teachers.