CUB 60134

ROULEAU, J., Chief Umpire Designate

This is an appeal by the claimant from a decision of the Board of Referees which held that she was not entitled to benefits on the grounds that no benefits can be paid to a teacher during a non-teaching period in accordance with subsection 33(2) of the Employment Insurance Regulations. An oral hearing has not been requested and accordingly the matter will be decided on the basis of the record.

The facts leading up to this appeal are straightforward. The claimant applied for benefits on June 30, 2000, after she was laid off from her job as a continuing education instructor with a School District. After receiving the application, the Commission contacted the employer by telephone to discuss the claimant's employment situation. The record of that telephone conversation is contained in exhibit 5 and reads, in part, as follows:

I clarified that the claimant is a continuing education instructor, not an assistant.

The claimant assists teachers with the instruction of adults in upgrading who are in a self-paced program, this includes some instruction under the supervision of a teacher, they mark papers, do clerical duties, take attendance, talk to students about their progress. The teachers are responsible for organizing the curriculum, organizing the classes, responsible for grading, etc. so claimant is not a teacher per their definition, she is an assistant to the teacher and belongs to CUPE.

By letter dated July 26, 2000, the Commission advised the claimant that it could not pay her benefits from July 3, 2000, to August 18, 2000, as no benefits can be paid to teachers during a non-teaching period. The claimant appealed this decision to the Board of Referees on the grounds that she was not a teacher but rather an educational assistant working with adults in a continuing education programme. The Board of Referees dismissed the appeal stating its reasons as follows:

The Board members have examined the evidence in this appeal and are satisfied that, if the definition of "teaching" contained in Regulation 33(1) is applied to the evidence, it can only be concluded that the claimant is employed in teaching.

There is ample jurisprudence to confirm that, in these circumstances, it must be found that the claimant is disentitled from benefits for the period July 3 to August 18, 2000 (See especially CUB 49194 and the jurisprudence cited therein).

The claimant now appeals that decision to the Umpire on the grounds that the Board erred in holding that she was a teacher and therefore not entitled to benefits in the non-teaching period. In its Representations, the Commission states that "[W]hen deciding whether a claimant is a "teacher" within the context of the law, the Commission maintains that it is irrelevant whether the teaching is taking place in a school building or other place, whether the teacher is called a "teacher" or some other term such as "instructor", or whether the students are children, teenagers or adults."

In my opinion, this argument is incorrect and is not the proper interpretation to be given to the legislation. There is no compelling reason to give the term "teaching" in Regulation 33 anything but its ordinary meaning, which is an individual who is a teacher by occupation engaged in the profession of teaching. A teacher, as with any other recognized profession, refers to an individual who has undergone the required training and has the necessary qualifications which allow them to call themselves, and to hold themselves out to prospective employers as, teachers. The term does not, contrary to the Commission's submission include individuals such as the claimant, who help or assist teachers.

The Commission was unable to provide any authority for its argument that the claimant should be considered a teacher under Regulation 33(1). Although it did submit a case, CUB 43503 wherein the claimant argued that she was not a teacher because she was performing counselling duties, that case is distinguishable from the one at bar given that the claimant there was actually a qualified teacher. As stated by the Umpire "[i]t is quite evident that only a person qualified to teach would be employed to perform the duties of a counsellor."

I note also that the Commission's Employment Insurance Regulations and Digest of Benefit Entitlement Principles supports my interpretation of Regulation 33. Chapter 14.2.1 states:

Teaching is defined and restricted by Regulation 1 to pre-elementary, elementary and secondary school teachers, including teachers with technical or vocational schools. The definition applies to anyone who teaches at those levels, or schools, regardless of the time spent in teaching or the subject being taught.

Moreover, the definition is not applied only to teachers employed in schools under provincial or municipal boards. In includes teachers in independent or private schools. However, it does not include teachers at other levels, such as university professors, and college teachers, who are subject to the same rules as other claimants.

Finally, it is from the evidence on file that individuals in the claimant's position have never been previously considered to be teachers for the purpose of employment insurance benefits. In a letter to the Commission dated August 29, 2000, (exhibit 11), the Director of Student Services for the School District, explains what the claimant's job entailed and questions why she and another claimant in similar circumstances were being treated as teachers while co-workers holding the same position were not. The letter states:

It has been drawn to my attention that these two employees are being classified as "teachers" in accordance with Regulation 33 of the Employment Insurance Act and therefore disentitled to a claim.

Please be assured that these positions at our Continuing Education Department are "Teacher Assistance" or as they are called in our District "Educational Assistant". In the various postings that have been used over the years it is clearly stated that these employees are in a "coaching and supporting" role with the adult students. In all cases these employees are under the direction of the teachers in the Centre.

It should be noted that we in fact have, over the years, changed the title of the "Educational Assistant" to "instructor" for social reasons. Many of our adult students are returning to school after many years of negative feeling and perceptions about educational institutions. Often the "negative" side effects of needing the support of "Educational Assistant" reduced anxieties that we have overcome by changing the title to "Instructor".

As I am responsible for all of the Educational Assistants (Teacher Assistants) in our District I am somewhat confused that these specific two are disentitled to their claim where all others have been accepted.

(emphasis added)

For all of these reasons, I am persuaded that the Board of Referees erred in law and in fact when it held that the claimant was a teacher and not entitled to benefits in accordance with Regulation 33. The Board's decision is hereby set aside and the claimant's application for benefits is to be treated in accordance with the rules applicable to regular claimants.

Rouleau J.

UMPIRE

OTTAWA, Ontario
April 16, 2004