CUB 65192

GUY GOULARD, Umpire

An initial benefit period effective June 29, 2003 was established for the claimant. The Commission determined that the claimant was not entitled to receive benefits during the non-teaching period. It imposed a disentitlement for the periods from December 22, 2003 to January 2, 2004, and March 1 to 5, 2004. That decision resulted in a $613.00 overpayment.

The claimant appealed from the Commission's decision to the Board of Referees, which, in a majority decision, allowed his appeal. The Commission appealed from the Board's decision. This appeal was heard on January 20, 2006 in Quebec City, Quebec. The claimant was not present but was represented by counsel Gaétan Guérard.

The evidence in this case indicated that the claimant had worked for the Commission scolaire des Navigateurs for the 2003-2004 school year under a part-time teaching contract as a replacement for other teachers on leave. The percentage of teaching time was set at 8.70%, based on the length of absence of the teacher being replaced. The claimant had a similar contract for 2002-2003. The length of the contract was set, but the contract was subject to termination if the teacher being replaced returned.

Before the Board, the claimant submitted that she had taught as a replacement teacher on a substitute basis, and that the exception to disentitlement provided for in section 33(2)(b) of the Employment Insurance Regulations therefore applied to her.

The Board reviewed the evidence and, in a majority decision, found that most of the claimant's earnings came from her employment as a substitute teacher, and that her contract could be terminated upon the return of the teacher being replaced. The majority of the Board allowed the claimant's appeal.

The minority member would have dismissed the claimant's appeal because, even though she was teaching only part time and on a substitute basis, she had a contract for a specified period and could therefore not benefit from the exception provided for in section 33(2)(b) of the Regulations.

On appeal, the Commission submitted that the majority of the Board had erred in fact and in law in deciding that the claimant was entitled to receive benefits during the non-teaching periods.

Section 33(2) of the Employment Insurance Regulations reads as follows:

33. (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 section 22, 23 or 23.1 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.

In sum, the Commission argued that the claimant could not benefit from the exception provided for in section 33(2)(b) of the Regulations even though she had taught only as a substitute or replacement teacher because she still had a contract with her employer.

In Stephens (A-456-02), the Federal Court of Appeal ruled on the exact issue raised by the Commission in this case. Sharlow J. wrote:

The legal issue raised by this case is the correct interpretation of paragraph 33(2)(b) of the Employment Insurance Regulations, SOR/96-332, and in particular whether the employment of the applicant Russell Stephens during certain periods was "employment on a casual or substitute basis" so that, during those periods, he should have been relieved from losing benefits pursuant to subsection 33(2).

We agree with counsel for the Crown that the application of paragraph 33(2)(b) involves primarily a question of fact, and that the characterization of a teaching arrangement as "supply teaching" is relevant, but not necessarily determinative. It is theoretically possible that a teacher may have a period of employment as a supply teacher that is sufficiently regular that it cannot be said to be "employment on a casual or substitute basis".

However, the mere existence of a term teaching contract covering a particular period does not necessarily deprive a person of the benefit of paragraph 33(2)(b) for that period. It appears that the Crown does not take that position.

The Court determined that, in the absence of a finding of fact sufficiently clear to determine the nature of the claimant's employment, it was impossible to decide whether section 33(2)(b) of the Regulations could apply. The Court thus stated that the case had to be referred back to a new Board of Referees.

As the Court indicated, the application of section 33(2)(b) involves primarily a question of fact. In the case before me, the Board reviewed the evidence and found that the claimant had indeed taught on a substitute basis. That decision was well founded on the evidence in the docket, which indicated that the claimant had contracts on a substitute or replacement basis. Contrary to the Commission's argument, although the claimant had a contract for a specified period, she could nevertheless, under the collective agreement, benefit from the exception provided for in section 33(2)(b) of the Regulations, as counsel for the claimant explained.

The Umpire's role is not to retry a case or to substitute his or her discretion for that of the Board. The Umpire's jurisdiction is limited by section 115(2) of the Act. Unless the Board failed to observe a principle of natural justice, erred in law, or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, the Umpire must dismiss the appeal.

In Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Létourneau J. indicated that an Umpire's role is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record."

The Commission was unable to show that the Board of Referees so erred. On the contrary, the Board's decision was well founded on the evidence before it and on the relevant legislative provisions, as interpreted in the case law.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
February 3, 2006