IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of an appeal to an Umpire by the Commission from the decision of a Board of Referees given on November 28, 2007 at Saskatoon, Saskatchewan
GUY GOULARD, Umpire
The claimant worked from October 3, 2005 until June 30, 2006. She applied for employment insurance benefits and an initial claim was established effective July 2, 2006. The Commission determined that the claimant did not qualify for employment insurance benefits because, as a teacher, she was not entitled to receive benefits during a non-teaching period. The Commission imposed a disentitlement from August 10, 2006 to August 28, 2006. This decision created an overpayment of $991.00. The Commission further determined that the claimant provided false or misleading information when she failed to declare that she had a new contract with her employer. The Commission imposed a non-monetary penalty and a Notice of Violation.
The claimant appealed the Commission's decisions to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision on the issue of the disentitlement. This appeal was heard in Saskatoon, Saskatchewan on May 7, 2008. The claimant had advised that she would not be attending and provided written submissions.
The only issue under appeal is in regard to the claimant's disentitlement for the period from August 10 to August 28, 2006 as the Commission accepted that the claimant was not under a teaching contract from June 30 to August 10, 2006 but that she was under a teaching contract from the day she accepted the employer's offer of a contract for the following school term.
The uncontested evidence in this case established the following:
The claimant took the position that she had only signed an acceptance of the employer's offer of a contract, that this did not constitute a valid teaching contract and that her contract took effect only on August 22, 2006 when it was confirmed by the employer. She argued that there had been a termination of her previous teaching contract at the end of June 2006, that she was unemployed until August 28, 2006 and that she therefore should be entitled to her benefits until that date.
The Board of Referees accepted the claimant's argument that she had not been under a teaching contract from the expiration of her previous contract on June 30, 2006 until August 28, 2006 when her new contract commenced. The Board, relying on CUB 29339, allowed the claimant's appeal.
On appeal from the Board of Referees' decision on the issue of the claimant's disentitlement, the Commission submitted the Board erred in law in finding that the claimant was entitled to benefits during the non-teaching period after she had accepted the employer's offer of a contract for the following school term. The Commission noted that CUB 29339, on which the Board relied, had been overturned by the Federal Court of Appeal in A-678-95. The Commission submitted that the claimant was no longer without a contract once she had accepted a new contract for the following school term. The Commission submitted that the decision in CUB 65294 and the Federal Court of Appeal decision in A-704-97 supported its position.
The situations in CUB 65294 as well as in A-678-95 and A-704-97 (supra) differ significantly from those in the case at bar.
In CUB 65294, the claimant's status in regard to her employment with her school board was described as follows by Justice Urie:
"It is important to note, I think, that neither Exhibit 8-2 nor 8-3 say that the continuing contract of employment of the claimant was terminated. Exhibit 8-2 states that she was "laid off effective July 1, 2004." Furthermore, it states that "because this does not bring her back up to her original full-time position she is still considered laid off and on the Recall List." This must, it seems to me, mean that her contract, at least in that respect, continues to subsist and provides a protection for her as a lay off which would not be present if the contract had been "terminated"."
In A-678-95 and A-704-97 (supra) cases the claimants had accepted an offer of a new contract that took effect prior to the start of the non-teaching period in each case. In A-704-97, the Court noted:
"On July 12, 1993, the respondent accepted an employment contract which for all practical purposes was retroactive to July 1, 1993. According to the School Act of British Columbia (S.B.C. chap. 61 s. 1) the "school year" commenced on July 1, 1993, and ended on June 30, 1994. According to the respondent's collective agreement, her annual salary was paid for the entire school year. There is no evidence suggesting that the respondent was not paid for the period at issue. To allow the respondent to collect unemployment benefits from July 12, 1993 until the start of her teaching period in early September would effectively allow her to be doubly compensated for that period of time."
In the case of the claimant, she had been unemployed and without a contract until her contract for the following school term was confirmed on August 22, 2006. The Commission took the position that the claimant was entitled to her benefits until she accepted a new contract. The Commission was thereby accepting that there had been a severance of the claimant's employment pursuant to paragraph 33(2)(a) of the Regulations up to that point. This is contrary to the Commission's position in A-678-95 and A-704-97 (supra) as well as in A-811-00 and A-664-01 and A-172-05 where the Commission found that there had been no termination of the claimants' contract of employment. In A-172-05 (supra), Justice Nadon wrote:
"It is not enough simply, as the boards of referees did in this case, to look at the beginning and ending dates of the contracts in order to determine whether a claimant's contract of employment in teaching has terminated within the meaning of paragraph 33(2)(a) of the Regulations. As A-811-00, supra, indicates, it is also necessary to determine whether there was a clear cessation of the continuity of the claimant's employment, so that the latter has become "unemployed". (...) It should be borne in mind that the purpose of the exercise is not to interpret the contractual provisions so as to determine the respective rights of the employer and employee, but to decide whether a claimant is entitled to receive employment insurance benefits because he or she is in fact unemployed."
(My emphasis)
In the present case the Commission acknowledged that there had been a cessation of the continuity of the claimant's employment to paraphrase Justice Nadon's language in A-172-05 (supra) and that the claimant was entitled to her benefits from the end of her employment in June 2006. This decision was compatible with the evidence. The claimant's contract had ended without any offer of a new contract. She had looked for, and found, other employment during the summer. Had the Commission taken the position that the contract the claimant accepted in August 2006 should have been considered as creating a continuity of employment, the Board of Referees would have had to consider that possibility. That was not, and continues not to be, the Commission's position.
The issue then became whether the claimant was still unemployed after she accepted the employer's offer of employment in August 2006. The Board decided that the claimant had been entitled to her benefits until she began working and earning a salary under her new contract. This situation is analogous to the situation of an employee awaiting a recall with a recall date being fixed by a new agreement.
I therefore agree with the Board of Referees that the claimant's contract of employment had terminated on June 30, 2006 and that she could therefore entitled to her benefits during the non-teaching period pursuant to paragraph 33(2)(a) of the Regulations. The new contract the claimant accepted did not create a continuation of her previous employer/employee relationship and she did not have a resumption of earnings until she started working under her new contract.
The Commission has not established that the Board of Referees erred in law or in fact in its decision.
Accordingly, the appeal is dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
May 15, 2008