CUB 14246A
JUDGMENT OF THE FEDERAL COURT OF APPEAL
Date:
June 7, 1991
Docket:
A-681-90
Umpire's Decision:
CUB 14246A
CORAM :
PRATTE J.A.
STONE J.A.
DESJARDINS J.A.
BETWEEN :
ATTORNEY GENERAL OF CANADA,
applicant,
-and-
EFFIE TAYLOR,
respondent.
Heard at Halifax, Wednesday, May 22, 1991.
REASONS FOR JUDGMENT OF THE COURT
(Judgment rendered at Ottawa,
on Friday, June 7, 1991)
STONE, JUDGE:
This application under section 28 of the Federal Court Act attacks a decision of an Umpire to the effect that the respondent, a teacher residing in the County of Antigonish, Nova Scotia, is entitled to be paid benefits under the Unemployment Insurance Act, 1971, R.S.C. 1970-71, c. 48, as amended.
The issues raised are two-fold. The first is whether the learned Umpire was right in finding that the respondent's contract of employment for teaching had "terminated" within the meaning of paragraph 46.1(2)(a) of the Unemployment Insurance Regulations. At the relevant time, that paragraph read:
46.1(2) A claimant who was employed in teaching for any part of his qualifying period is not entitled to receive benefits, other than those payable pursuant to section 30 or 32 of the Act, for any week that falls in his non-teaching period.
(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. 1
If the Umpire was wrong in determining that the contract had "terminated" (with the result that the respondent is not eligible for unemployment insurance benefits), we must go on to consider the respondent's contention that paragraph 46.1(2)(a) is unconstitutional on the basis that it infringes a right enshrined in section 15(1) of the Canadian Chapter of Rights and Freedoms.
BACKGROUND
At all material times the respondent was employed by the Antigonish District School Board under a "Permanent Contract" dated August 1, 1974. In December 1985, she was diagnosed as having a serious illness requiring immediate surgery, after which her physician advised that she not resume teaching duties in the then-current teaching period expiring on June 28, 1986. A substitute teacher was appointed to assume her teaching responsibilities for the balance of that period. In the meantime, the school board replaced the respondent on paid sick leave which expired on May 7, 1986, when her accumulated sick leave benefits ran out.
On May 13, 1986, the respondent submitted an application for benefits under the Act, in which she stated that she then had "a permanent teaching position". On June 3, 1986, this application was accepted by the Commission for the period expiring on June 28, 1986, but was otherwise rejected for the following reasons:
A study of your unemployment insurance claim has revealed that you are not entitled to benefit during the period June 29 to Sept. 1, 1986 which falls in the annual non-teaching period.
As she resumed her teaching position as of August 1, 1986, only her claim for benefits in respect of the month of July 1986 are in issue.
The respondent's appeal to a Board of Referees was allowed on August 1, 1986. However, on September 24, 1987, that decision was set aside by an Umpire who returned the matter to the Board of Referees for a rehearing and redetermination with directions to determine "whether the claimant's contract of ragraph 46.1(2)(a) of the Regulations. On December 23, 1987, the Board of Referees determined that the respondent's contract of employment for teaching had not "terminated". That decision was, in turn, appealed to a second Umpire whose decision of July 5, 1990, reversing it, is the subject of this application.
The following articles of the respondent's employment contract of August 1, 1974, are relevant to the issue of whether it had "terminated" within the meaning of paragraph 46.1(2)(a):
1.02 The term of this Agreement shall be during the school year commencing on the first day of August, 1974, and ending on the thirty-first day of August, 1974, and ending on the thirty-first day of July, 1975, both dates inclusive and so on from year to year until such time as the Agreement is cancelled or terminated by one or both of the parties hereto in the manner set out in Article Three hereof.
2.02 The Board and the Teacher mutually agree that for remuneration or salary for teaching for any part of the school year the teacher shall receive such proportion of the yearly salary as the number of days taught by the Teacher bears to the total number of teaching days in the school year.
3.03 The Board may, by notice in writing given to the Teacher, prior to the thirtieth day of April, cancel this Agreement is accordance with the provisions of the Education Act.
4.01 The Board and the Teacher mutually agree that the parties to this Agreement and the Agreement shall be in all respects subject to the provisions of the Education Act and to regulations made under authority of the Education Act.
Further, the Education Act, R.S.N.S., 1967, c. 81, as amended, contains a number of relevant provisions. By subsection 73(1), the form of contract to be utilized by a school board in engaging a teacher such as the respondent must be as approved by the Minister of Education. Subsection 73(4) 2 and paragraphs 76(1)(a) and (b) 3 and 76(5)(b) 4 are also relevant and deserve to be recited in full:
73(4) Notwithstanding any provisions of this Act or any contract or agreement between or governing a school board and a teacher,
(a) the date for a teacher giving notice of termination of his teacher's contract shall be deemed to be the fifteenth day of April in the year in which the contract will be terminated after the school year 1980-81;
(b) the date for a school board giving notice of termination of a teacher's contract shall be deemed to be the fifteenth day of May in the year in which the contract will be terminated after the school year 1980-81.
76(1) In this section,
(a) "employer" means the board or school board as defined in subsection (a) of Section 1...;
(b) "permanent contract" means a written contract between a school board and a teacher in a form approved under section 73 that has been entered into after the teacher has served under a probationary contract, or has been employed by the school board for two or more years immediately preceding the year in which the board entered into probationary and permanent contracts with the teacher for the first time;
...
76(5) The employer may
...
(b) by notice in writing given to the teacher not later than the fifteenth day of May, terminate a permanent contract at the end of the school year for
(i) just cause, or
(ii) if, in the system under the jurisdiction of the employer, the estimated enrolment of courses the teacher is qualified and willing to teach is insufficient to justify the employment of the teacher.
The Umpire accepted the respondent's submission that her contract had "terminated". In so doing, he clearly found as a persuasive factor the contents of a letter of February 25, 1988, from the Superintendent of Schools for the Antigonish District School Board for, at pages 5-6 of this decision, he stated:
On the basis of the additional evidence presented by the claimant's school board and in light of the purpose of the Act, I am satisfied that the Board of Referees erred in law when it considered that the claimant did not fall within the exception in paragraph 46.1(2)(a) of the regulations. The Board failed to recognize that the purpose of the regulation is to prevent teachers from becoming entitled to benefits, or from being doubly indemnified for alleged loss of earnings in the non-teaching period when in fact earnings are payable in relation to that period. The overall purpose of the Act is to indemnify qualified persons for temporary loss of employment income, even when that loss results from the onset of illness or from an injury. In that sense a contract of employment is terminated within the meaning of section 46.1 of the Regulation when the teacher in question is unable because of illness to perform her or his duties and is removed from the school board payroll.
This purposive interpretation of the Regulations is consistent with Madam Justice Wilson's comment in Abrahams v. A.G. of Canada [1983] 1 S.C.R. 2 at page 10, where she states:
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.
Moreover it is also consistent with recent comment of the Federal Court of Appeal in Claude Bérubé v. C.E.I.C., (Unreported, Court File No. A-986-88, March 1, 1900) that "the only type of work relevant for the purposes of the Unemployment Insurance Act, ...is work done for one's own account, or for another's for the purpose of financial gain". (unofficial translation) The Court was dealing there with the issue of whether a claimant was employed within the meaning of subsection 10(1) of the Act, and held that the claimant could not be deemed employed as long as there was no remuneration offered or paid for his services. In my view the same reasoning applies to the determination of whether or not a contract of employment currently exists within the meaning of paragraph 46.1(2)(a) of the regulations. Where the teacher is unable to teach and the school board ceases to pay salary or sickness benefits the contract of employment is clearly suspended, and in my view it is "terminated" within the meaning of the regulation under the Act, even though it not be legally terminated for other purposes under provincial legislation and collective agreements.
(Emphasis added)
Despite the views earlier expressed by the school board, the Superintendent of Schools suggested what was, in effect, a characterization of the respondent's contractual position as a teacher after her sick time ran out on May 7, 1986, on the basis of what he termed "the usual rules of employer and employee" relationship rather than the specific provisions of the Education Act of Nova Scotia. By looking at the matter in that way, he was able to advance the view that there was "no employment relationship after May 7, 1985 [sic] and the contract between the parties was ended after the entitlement to sick pay was exhausted". This, in fact, was a conclusion of law and was the very question the learned Umpire was called upon to answer. To the contrary is an earlier communication of July 2, 1986, in which the school board stated emphatically, that the respondent's
...contract is permanent and has not been terminated, as she anticipates returning to her teaching position for the 1986-87 school year and will be reinstated on our payroll effective August 1, 1986.
It is necessary to determine as a preliminary matter whether the Umpire erred in receiving and considering the February 25, 1988, letter in arriving at his decision. In my opinion, given the statutory scheme which governed the proceedings before him, the Umpire was not entitled to do so. Those proceedings were not de novo. They were by way of an "appeal" under section 80 of the Act 80 5 (R.S.C. 1985, c. U-1) which requires that the decision of a board of referees reveal an error of law of the kind therein stated before an umpire is authorized to intervene. Whenever an umpire determines in accordance with section 80 that an error was committed by a board of referees the remedial powers conferred under section 81 of the Act (R.S.C. 1985, c. U-1) may be exercised. They are:
81. An umpire may decide any question of law or fact that is necessary for the disposition of any appeal taken pursuant to section 80 and may dismiss the appeal, give the decision that the board of referees should have given, refer the matter back to the board of referees for rehearing or re-determination in accordance with such directions as he considers appropriate or confirm, rescind or vary the decision of the board of referees in whole or in part.
This mandate, as I understand it, did not empower the Umpire in the circumstances to receive new evidence going to the merits of the claim for unemployment insurance benefits. The sole matter referred back to the Board of Referees by the first Umpire in his decision of September 24, 1987, was whether the respondent's contract had terminated. The Board of Referees decided that it had not. The only allegation of error in that decision was that the Board of Referees had misconstrued paragraph 46.1(2)(a) of the Regulations and particularly the word "terminated". The Umpire's function, in my view, was to determine whether the Board of Referees' interpretation was correct in light of the record at the time, and that was clearly a matter of law. It was not suggested that this new evidence was sought to be adduced before the Board of Referees but was improperly excluded. With respect, therefore, it is my view that the learned Umpire erred by receiving and considering the letter of February 25, 1988 in disposing of the appeal from the decision of the Board of Referees dated December 23, 1987.
Was the learned Umpire nevertheless correct in his construction of the word "terminated"? I do not think so. No doubt that word might embrace different circumstances, one of which would be that a contract was brought to an end in accordance with its terms upon the happening of a specified event. So too might discharge of a contract by affluxion of time or by deliberate breach amounting to a repudiation of the whole contract. It is not necessary to determine the full scope of the disputed word because, in any event, I am persuaded that the respondent's contract of employment for teaching had not "terminated" within the meaning of paragraph 46.1(2)(a) of the Regulations.
The only events and method for terminating the employment contract were as set forth therein and in the provincial statute by which it was authorized and governed. The respondent was engaged to teach from school year to school year under a contract that could not be terminated or cancelled by the school board except in narrowly defined circumstances. No action to terminate of the kind authorized was taken pursuant to either the contract or the statute. In fact, neither of the events specified in paragraph 76(5)(b) of the Education Act for termination or cancellation of the contract by the school board was shown to have occurred. It is evident that both the contract and the statute were intended to protect the position of the respondent as a teacher serving on an on-going basis under a permanent contract, for her employment was to continue from school year to school year without the need for new employment contracts. If, as was argued, the respondent's illness and consequent loss of pay brought about the termination of her contract, that would have stripped the respondent of her contractual right to resume the teaching position as of August 1, 1986, and would have relieved the school board of its contractual duty to restore her to that position. I have no doubt from their conduct that the parties to it treated the contract as subsisting throughout the respondent's period of disability and afterward. Indeed, as the school board itself noted on July 2, 1986, the respondent's "...contract is, permanent and has not been terminated...". That being so, the Umpire's interpretation of the word "terminated" cannot be sustained.
I fully realize that this result is unfortunate for the respondent who appears to have been otherwise eligible to receive benefits under the Act in respect of the month of July 1986. The receipt of such benefits would not have resulted in so-called "double dipping", for the respondent received no earnings from her employment in respect of that month. What is important in light of paragraph 46.1(2)(a) of the Regulations as it now stands, however, is not so much that remuneration was not received by the respondent for July 1986, but that throughout the month she remained employed under a "contract...for teaching" which had not been "terminated". It is the language requiring that a contract of employment for teaching has terminated which creates the barrier to benefits being paid. 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. The barrier can be removed, if advisable, only by suitable amendment. In the meantime, this Court must base its judgment on the plain fact that the respondent's contract had not terminated.
Being of this opinion, it now becomes necessary to consider the respondent's contention that paragraph 46.1(2)(a) of the Regulations is unconstitutional on the basis that it infringes a right enshrined in section 15(1) of the Charter. That section reads:
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
This issue was not raised before the Umpire and, as the Court ruled in the course of the hearing, it is to be determined on the basis of the original record in the section 28 application.
The contention is based on the assertion that paragraph 46.1(2)(a) of the Regulations treats ill and disabled teacher differently than other ill or disabled employees are treated by the Act. Those falling in the former group are ineligible to receive benefits. Those falling in the latter group are not. This difference, according to the respondent, "is neither rational nor defensible".
The respondent relied upon the following passage from the judgment of McIntyre J. in Andrews v. Society of British Columbia, [1989] 1 S.C.R. 143 with respect to the concept of equality in section 15 of the Charter. The learned judge stated, at page 165:
To approach the ideal of full equality before and under the law - and in human affairs an approach is all that can be expected - the main consideration must be the impact of the law on the individual or the group concerned. Recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideals should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.
The right invoked by the respondent is the right to "equal protection and equal benefit of the law without discrimination". It is clear now, from what was decided in Andrews, supra, that this discrimination refers to distinctions based on grounds relating to personal characteristics. That was made clear by McIntyre J., at pages 174-175:
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
See also Nova Scotia Nurses Union, Devco Local v. Cape Breton Development Corporation (1989), 98 N.R. 119 (F.C.A.).
I am not persuaded that paragraph 46.1(2)(a) infringes a right protected by section 15(1) of the Charter. The distinction in question, as the applicant submitted, relates to employment rather than to a personal characteristic of the respondent. The respondent may well suffer a disadvantage as compared with ill or disabled non-teacher employees, but that disadvantage relates to her employment. It is not the kind of "discrimination" this Court can do anything about pursuant to section 15(1).
The decided cases in this Court bear this out. In The Attorney General of Canada v. George (Court File No. A-507-89), judgment rendered October 29, 1990, Heald J.A., speaking for this Court, stated at page 7:
In the case at bar, the distinction also relates to employment. As noted by counsel for the applicant, the "clauses" here are classes of employment not classes of people. Since this respondent is not linked with a contractor's employees by any personal characteristics as individuals or as members of a group, it follows that the respondent is not entitled to Charter protection under subsection 15(1).
I refer as well to Clarke v. Minister of Employment and Immigration (Court File No. A-295-89), judgment rendered May 9, 1990, wherein a section 15(1) attack was made on the omission in section 130 of the Act to provide for extending the claimant's qualifying period because of disability. In rejecting the Charter argument, Mahoney J.A. stated on behalf of the Court, at page 2:
In our opinion there is no merit to this submission. This distinction between the schemes for providing unemployment insurance benefits to self-employed fishermen and other claimants has not been shown to be discriminatory. It does not meet the criteria of Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143.
I would allow this application, set aside the decision of the Umpire dated July 5, 1990 and refer the matter back to the Umpire for redetermination on the basis that the espondent's contract of employment for teaching was not "terminated" within the meaning of paragraph 46.1(2)(a) of the Unemployment Insurance Regulations.
"A.J Stone"
J.A.
"I agree.
Louis Pratte"
"I concur.
Alice Desjardins, J. A."
1 The text of subsection 46.1(2) was subsequently amended by SOR/87-614 and SOR/88-277
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.