In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
and
In the Matter of a claim for unemployment benefits by
Joseph Di Girolamo
and
In the Matter of an Appeal by the Commission from the decision of a Board of Referees given at Richmond Hill, Ontario on August 28, 2001
Appeal heard at Toronto, Ontario on May 27, 2003
DECISION
R. C. STEVENSON, UMPIRE:
The Commission appeals from the decision of a Board of Referees allowing Mr. Digirolamo's appeal from a ruling of the Commission that it could not pay him unemployment benefits from July 1 to August 31, 2001 as no benefits can be paid to teachers during a non-teaching period.
This is yet another case in which the provisions of section 33 of the Employment Insurance Regulations come into play:
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.
"teaching" means the occupation of teaching in a pre-elementary, an elementary or a secondary school, including a technical or vocational school.
(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.
(3) Where a claimant who was employed in teaching for any part of the claimant's qualifying period qualifies to receive benefits in respect of employment in an occupation other than teaching, the amount of benefits payable for a week of unemployment that falls within any non-teaching period of the claimant shall be limited to the amount that is payable in respect of the employment in that other occupation.
Mr. Digirolamo is employed by the Toronto District Catholic School Board as a teacher of music. His employment is covered by a collective agreement between the School Board and the Association of Catholic Music Instructors. Article 7 of the agreement provides for remuneration at specified hourly rates for each hour of assigned instruction time.
The Board of Referees allowed Mr. Digirolamo's appeal on the ground that he was not a qualified teacher and was under a different agreement than a regular teacher.
In my view the Board of Referees erred in fact and in law in finding that Mr. Digirolamo was not a qualified teacher. While he may not fall within the definition of "teacher" in provincial legislation and may not be eligible for membership in a provincial teachers' association, the fact is he teaches and is therefore employed in teaching within the meaning of the Employment Insurance Regulations.
In a similar case heard by the same Board of Referees a few days earlier the Board had allowed the claimant's appeal because he was not a qualified teacher and because he was paid hourly and not on salary.
Under the different agreement referred to by the Board in Mr. Digirolamo's case, he is paid hourly. While he may only work during ten months of the year, he does not work under a contract that provides for an annual salary. The purpose of section 33 of the Regulations is to prevent teachers from collecting unemployment benefits during non-teaching periods when earnings are payable to them pursuant to their contracts. Section 33 has been the subject of many appeals to umpires and several decisions of umpires have been subjected to judicial review by the Federal Court of Appeal. In a recent decision that Court said:
All the decisions of this Court ... sought to determine whether there was a continuity of employment for the claimants.
. . .
The Umpire has been duly mindful of both the line of jurisprudence in this Court and the legislative intent behind Regulation 33. Both 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. 1
Mr. Digirolamo did not enjoy continuity of employment and there was a break in the continuity of his employment at the end of the school year.
The Commission's appeal is dismissed.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
June 16, 2003