CUB 65235

GUY GOULARD, Umpire

The Commission appeals from a Board of Referees' decision overturning its determination that the claimant was not entitled to receive benefits during school holidays.

This appeal was heard in Quebec City, Quebec, on January 20, 2006. The claimant was present, and she was represented by counsel Gaétan Guérard.

The evidence in the docket showed that the claimant had worked for the Commission scolaire des Navigateurs for the 2003-2004 academic year under two employment contracts and that she had also worked as a supply teacher. These contracts (Exhibits 4-2 and 5-3) show that the claimant was hired part time to replace teachers while they were on leave. The percentage of teaching time was based on the length of the absence of the teacher being replaced, and it ranged from 22.22% to 44.44%. The length of the contracts was defined but the contracts could be terminated in the event that the teacher being replaced returned.

The claimant filed a claim for benefits, effective June 29, 2003, and she received benefits. The Commission subsequently determined that the claimant was not entitled to receive Employment Insurance benefits for the periods from December 22, 2003 to January 2, 2004 and from March 1, 2004 to March 5, 2004, in accordance with section 33(2) of the Employment Insurance Regulations. This determination resulted in an overpayment of $81.00.

Before the Board, the claimant submitted that she was a replacement teacher, that she worked mostly on a supply basis and that the exception to disentitlement provided in section 33(2)(b) of the Employment Insurance Regulations therefore applied to her situation.

The Board reviewed the evidence and allowed the claimant's appeal for the following reasons:

On the basis of these documents, the Board of Referees finds that although the claimant had a replacement contract, she remained a substitute teacher and was therefore entitled to benefits under section 33(2)(b) of the Employment Insurance Regulations.

However, the Commission will have to recalculate the benefit amounts to which the claimant is entitled, with due regard to the allocation of earnings under the contract.

On appeal, the Commission submitted that the Board had erred in law and in fact by deciding that the claimant was entitled to receive benefits during the school holidays.

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.

The Commission's argument basically states that the exception in section 33(2)(b) of the Regulations did not apply to the claimant's situation even though she worked only as a supply or replacement teacher because she was still under contract with her employer.

In Stephens (A-456-02), the Federal Court of Appeal assessed the very same issue raised by the Commission in this case. Sharlow J. stated:

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 had determined that in the absence of a finding of fact that was sufficiently clear to enable it to determine what kind of employment the claimant held, it was impossible to decide whether section 33(2)(b) of the Regulations could apply. The Court therefore indicated that the case had to be referred back to a new Board of Referees.

As the Court indicated, the issue of the applicability of section 33(2)(b) is mainly a question of fact. In the case before me, the Board reviewed the evidence and concluded that the claimant had indeed worked as a supply teacher. This decision was well founded on the evidence in the docket that showed that the claimant had supply teaching or replacement contracts. Contrary to the Commission's submission, even though the claimant had a contract for a set period of time, under the collective agreement, as counsel for the claimant explained, the exception in section 33(2)(b) of the Regulations could still apply to her situation.

The role of the Umpire is not to retry a case or substitute his discretionary power for that of the Board. His authority is limited by section 115(2) of the Act. Unless the Board of Referees 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 erred in this way. On the contrary, the Board's decision is well founded on the evidence presented and the relevant legislative provisions, as interpreted in the case law.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
February 3, 2006