CUB 65255

GUY GOULARD, Umpire

The Commission is appealing from the decision of a Board of Referees rescinding the Commission's decision that the claimant was not entitled to benefits during the school holiday period.

The appeal was heard at Quebec City, Quebec, on January 20, 2006. The claimant was not present but was represented by counsel Gaétan Guérard.

The evidence in this case shows that the claimant worked for the Commission scolaire des Découvreurs for the 2003-04 school year under three employment contracts. The contracts (Exhibit 9-1 to 9-3) show that the claimant was hired part time as a replacement for other teachers on leave. The percentage of teaching time was based on the length of the replaced teacher's absence and varied from 12.95% to 100%. The term of the contracts was specified, but the contracts were subject to termination should the replaced teacher return. One of the contracts had been terminated to be replaced by another.

The claimant had filed a benefit claim effective June 29, 2003. She had received benefits during the period of the week of July 20 to the week of August 31, 2003, and for the period from December 22, 2003 to January 2, 2004. The Commission subsequently determined that the claimant was not entitled to employment insurance benefits during the period from December 22, 2003 to January 2, 2004, in accordance with section 33(2) of the Employment Insurance Regulations. That decision resulted in an overpayment of $826.00.

Before the Board, the claimant argued that she had taught only on a casual basis or as a substitute and could therefore benefit from the exception to disentitlement provided in section 33(2)(b) of the Employment Insurance Regulations.

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

The representative has shown that the appellant met the exceptions listed in paragraph 33(2)(b) of the Regulations.

The Board of Referees finds that the appellant was in fact working as a substitute teacher for part of her reference period, i.e., September 22, 2002, to January 26, 2003.

The Board finds that she was therefore eligible for benefits from December 22, 2003, to January 2, 2004 (A-475-89).

On appeal, the Commission argued that the Board had erred in law and in fact in deciding that the claimant was entitled to 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, in summary, is that the claimant could not benefit from the exception provided in section 33(2)(b) of the Regulations even if she had only taught as a substitute or replacement because she was still under contract with her employer.

In the decision in Stephens (A-456-02), the Federal Court of Appeal considered the precise issue raised by the Commission in this case. Sharlow J. states:

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 held that, in the absence of a sufficiently clear finding of fact to allow a determination of the nature of the claimant's employment, it was impossible to decide whether section 33(2)(b) of the Regulations could apply. The Court therefore indicated that the docket should be returned to a new Board of Referees.

As the Court indicated, the issue of the applicability of section 33(2)(b) is mainly an issue of fact. In the case before me, the Board reviewed the evidence and found that the claimant had, in fact, taught on a substitute basis. That decision was well founded on the evidence in the docket, which showed that the claimant had supply or replacement contracts. Contrary to the Commission's contention, although the claimant had a contract for a fixed term, under the collective agreement, as was explained by counsel for the claimant, she could still benefit from the exception provided in section 33(2)(b) of the Regulations.

The role of the Umpire is not to decide a case again or to substitute his discretionary authority for the Board's authority. The jurisdiction of the Umpire 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 the decision in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Létourneau J. states that the role of an Umpire 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 not able to show that the Board of Referees erred in that way. On the contrary, the Board's decision is well founded on the evidence before the Board and on the relevant legislative measures, as interpreted in the case law.

Consequently, the appeal is dismissed.

Guy Goulard

Umpire

OTTAWA, Ontario
February 3, 2006