CUB 76308

GERALD T.G. SENIUK, Umpire

This is an appeal by the Commission from a decision by the Board of Referees that allowed the claimant’s appeal from the determination by the Commission that the claimant was not entitled to benefits during a non-teaching period, pursuant to section 33 of the Employment Insurance Regulations (the Regulations).

L.Y., of the Department of Justice Canada, represented the Commission and A.B., a lawyer with the firm Green and Chercover, represented the claimant.

The issue is whether the claimant, who was employed as an Early Childhood Educator, was employed in teaching and thereby not entitled to benefits for any week that falls in any non-teaching period pursuant to section 33 of the Regulations.

Paragraph 54(j) of the Act gives the Commission authority to pass regulations to prohibit the payment of benefits to those in occupations in which there occur annual periods during which no work is performed by a significant number of persons engaged in that occupation.

Pursuant to that authority, section 33 of the Regulations was passed, which reads as follows:

ADDITIONAL CONDITIONS AND TERMS IN RELATION TO
TEACHERS
(1) The definitions in this subsection apply in this section.
non-teaching period means the period that occurs annually at regular or irregular intervals during which no work is performed by a significant number of people employed in teaching. (période de congé)
teaching means the occupation of teaching in a pre-elementary, an elementary or a secondary school, including a technical or vocational school. (enseignement)

(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.

(3) Where a claimant who was employed in teaching for any part of the claimant's qualifying period qualifies to receive benefits in respect of employment in an occupation other than teaching, the amount of benefits payable for a week of unemployment that falls within any non-teaching period of the claimant shall be limited to the amount that is payable in respect of the employment in that other occupation.

The claimant was employed by the Lakehead District School Board as an Early Childhood Educator from March 22, 2010 to June 25, 2010, at which time she stopped working (exhibits 2 – 5) for the reason that the record of employment termed shortage of work/end of contract (exhibit 5). In her application for benefits effective June 27, 2010, the claimant indicated she was working on a 10 month contract with the employer and had accepted a contract for a permanent position with the same employer, with the new contract taking effect on September 3, 2010 (exhibit 2). The evidence before the Board of Referees included the collective bargaining agreement between the employer and the Elementary Teachers Federation of Ontario representing the Early Childhood Bargaining Unit (exhibit 10) as well as the claimant’s job description (exhibit 11). Based on such evidence, the Commission concluded the claimant was a teacher within the meaning of section 33 of the Regulations.

The Board of Referees disagreed, concluding that the claimant was not a teacher but rather a permanent support staff employee. The Board stated its findings and reasoning as follows (exhibit 16.3 -16.4):

EVIDENCE AT THE HEARING
Appellant attended the hearing with her representative, F.S.. Additional information provided by applicant, Exhibit 10.1 to 10,28, Exhibit 11, Exhibit 12.1 to 12.2, Exhibit 13,1 to 13.2, Exhibit 14.1 to 14.5, Exhibit 15.1 to 15.5.

Appellant is "not a Teacher" she is a permanent support staff to the classroom Teacher. Appellant's representative stated that the Commission made their decision on the Appellant's EI benefits in the context as a "teacher". The Applicant is a permanent employee of the Board on layoff. The Representative also made the statement the appellant is on permanent staff. The appellant's rep stated the applicant is a member of "OMERS", not of the "Teacher Pension Plan". The appellant's rep also stated that the applicant cannot carryover sick leave. Appellant's rep stated that all the way through the docket the Commission refers to "contract". The applicant is not a contract worker she is on permanent staff.

The Rep stated that the applicant is not an Early Childhood Educator as defined under the Ontario Education Act as she does-not have an Ontario Teaching Certificate. She does not belong to the Ontario College of Teachers. She does not have the authority to move children forward in grades, instruct, plan school studies, and grade students. She works under supervision of a qualified teacher. She is paid hourly, biweekly, not on the same scale as a teacher, she receives vacation pay during the year, not in Summer. (Exhibits 10.13 to 10.25).

The Board then reviewed the law it was to apply in arriving at its decision on the facts and application of law, as follows, and unanimously allowed the appeal:

FINDINGS OF FACT, APPLICATION OF LAW

The Board of Referees finds as a fact, the Appellant is "not a Teacher" she is a permanent support staff to the classroom Teacher. Appellant's representative stated that the Commission made their decision on the Appellant's EI benefits in the context as a "teacher". The Appellant is a permanent employee of the Board on layoff. The Representative also made the statement the appellant is on permanent staff. The appellant's rep stated the appellant is a member of "OMERS", not of the "Teacher Pension Plan". The appellant's rep also stated that the applicant cannot carryover sick leave. Appellant's rep stated that all the way through the docket the Commission refers to "contract". The appellant is not a contract worker she is on permanent staff.

The Board of Referees finds that the appellant is not an Early Childhood Educator as defined under the Ontario Education Act as she does not have an Ontario Teaching Certificate. She does not belong to the Ontario College of Teachers. She does not have the authority to move children forward in grades, instruct, plan school studies and grade students. She works under supervision of a qualified teacher. She is paid hourly, biweekly, not on the same scale as a teacher, she receives vacation pay during the year, not in Summer. (Exhibits 10.13 to 10.25).

The Board of Referees finds the appellant's layoff was because of shortage of work. End of contract or season does not apply. She has an expected recall date, not new contracts. As well, Exhibit 10.15, Article 15, "lay off and recall" in the appellant's Collective Agreement provided for layoff and recall.

APPLICATION OF LAW

CUB 60134; Exhibit 13.1 and 13.2, CUB 56742; Exhibit 15.1 to 15.5, CUB 36736; Exhibit 14.1 to 14.5

The Board of Referees finds as fact that the Commission misrepresented the Appellant's status as a "Teacher". The evidence provided by the Appellant's Representative clearly demonstrates she is not a Teacher or a Contract Worker. She is a permanent support staff employee.

Our decision is unanimous that we uphold the appeal.

The Commission appealed the Board’s decision to the Umpire, disagreeing with the Board’s findings on key facts and submitted that the Board erred in law in rejecting crucial evidence without justifying its decision to do so. The Commission submitted, in part, the following in appeal:

The claimant is an Early Childhood Educator. She accepted a teaching contract for the new school year. Her unused sick leave credits and seniority are carried forward to the 2010/2011 school year. The Commission submits that the claimant was not entitled to benefits during the summer non-teaching period pursuant to s. 33(2) of the Employment Insurance Regulations (EIR)...

The Commission submits that the Board of Referees ignored evidence before it and relied solely on the testimony of the claimant's representative at the hearing. In fact, the Board rejected numerous statements originally made by the claimant, her record of employment and the statement made by the employer, all indicating that Mrs. G.P. was an Early Childhood Educator on a contract basis. The Commission submits that by rejecting crucial evidence, without justifying its decision, the Board erred in law. Bellefleur v. Canada (AG), 2008 FCA 13, A-139-07.

In addition, the Commission submitted that the CUB decisions relied upon by the Board as the applicable law were distinguishable on their facts, stating as follows:

The Commission finally submits that the Board erred when it relied on CUB 60134, CUB 56742 and CUB 56736 to support its decision. In CUB 56742 and CUB 56736, the claimants are itinerant music instructors; in CUB 60134 - an educational assistant whose duties excluded teaching. The Commission contends that these cases are different to the case at hand, as the evidence on file, including the claimant's job description, reveals that Mrs. G.P. is an Early Childhood Educator, which is considered a teacher for the purposes of the Regulation and as such, she cannot receive benefits during the summer non-teaching period.

As regards the fact finding issues, the Board of Referees was incorrect or misstated itself in concluding that the claimant was not an Early Childhood Educator. The claimant describes herself as such in the documentation on the record, and herself brings that error to the attention of the Umpire through her counsel, A.B.. The Board’s statement on this point reads as follows:

The Board of Referees finds that the appellant is not an Early Childhood Educator as defined under the Ontario Education Act as she does not have an Ontario Teaching Certificate. She does not belong to the Ontario College of Teachers. She does not have the authority to move children forward in grades, instruct, plan school studies; grade students. She works under supervision of a qualified teacher. She is paid hourly, biweekly, not on the same scale as a teacher, she receives vacation pay during the year, not in Summer. (Exhibits 10.13 to 10.25).

Giving the Board’s decision a full and fair reading, the error is most likely the result of an error in composition rather than a misunderstanding by the Board of the relevant evidence. The complete decision reveals the Board had a strong grasp of the evidence before it. Elsewhere in the decision, the Board points to the documentary evidence that the claimant was an Early Childhood Educator. The issue the Board clearly was grappling with was not whether Ms. G.P. was an Early Childhood Educator, but rather whether she was a teacher within the meaning of section 33. The only fair and reasonable way to read the above paragraph is as a misstatement and that where the Board wrote the appellant is not an Early Childhood Educator the intention of the Board was that the appellant is not a teacher.

Most of the material findings of fact made by the Board were in accordance with the evidence before it. For example, the Board considered the employer’s evidence that the claimant could not carry over sick leave (exhibit 8) and other such material facts in the claimant’s contractual arrangements. The Board also considered such relevant matters as the reason for the discontinuation of employment (exhibit 3), the vocational/professional status of the claimant, the duties of teachers as compared to Early Childhood Educators, and the benefits provided.

The Board did not ignore or misrepresent material evidence. Given the time limitations and volume of appeals heard by a Board of Referees, their decisions are not to be read microscopically (McKinnon v. Canada 2010 FCA 250, A-16-10. The requirement is that the Board explain how it reached its decision, and, as Mr. A.B. outlined in his written submission as follows, the Board did so:

The central requirement is that the Board explains how it reached its decision. In this case, it is clear that the Board reached the decision because Ms. G.P. lacked the certification of a teacher, did not belong to the College of Teachers, did not have the authority of a teacher, did not belong to the College of Teachers, did not have the authority of a teacher, did not fulfil the core responsibilities of a teacher and was not remunerated in the same fashion as a teacher.

The Commission submits that the cases relied upon by the Board are not the governing law. However, according to Ms. G.P. (and this is the only evidence on this point), up until this year in question, the Commission had always allowed her claim for benefits. As she wrote in her appeal to the Board of Referees (exhibit 7.1):

I disagree with this decision because I am not a teacher. A teacher is paid by salary and receives payment 12 months out of the year. I am an Early Childhood Educator. I am an hourly paid employee and I have been laid off as of June 25, 2010...It is to the best of my knowledge that other support staff who work for the Board of Education are not having difficulty obtaining EI benefits. As an Early Childhood Educator I have received EI benefits every summer over the past nine years of working for the Lakehead Board of Education without any difficulty. I do not feel it is right to inform an applicant that they are unable to collect benefits a week prior to filing their first report. When changes are being made to the qualifications for entitlement to collect EI benefits I feel an applicant should be informed within an adequate time period. This would be so they can prepare themselves financially for the months that they will be laid off.

Although it is not material to the issue that is at the heart of this case, it does appear from Ms. G.P.’s experience that the Commission changed its application of section 33, essentially purporting to change the law in doing so. In its submissions to the Umpire, there is no explanation or legal precedent offered to explain this other than the Commission’s concluding statement that Mrs. G.P. is an Early Childhood Educator, which is considered a teacher for the purposes of the Regulation and as such, she cannot receive benefits during the summer non-teaching period. However, the actions of the Commission either past or present are not determinative of the legal issue to be determined.

As above explained, I do not find that the Board of Referees committed an error of fact that contravened paragraph 115(2)(c) of the Act. Nor was there any breach of natural law requirements, and none was argued as grounds for this appeal. The issue is whether the Board committed a reviewable error in finding on the facts that Ms. G.P. was not subject to section 33 of the Regulations. In reviewing that question, the meaning given to the term teaching for the purposes of section 33 is a question of law (correctness being the standard of review), but its subsequent application to the facts of this case involves a question of mixed fact and law (reasonableness being the standard); (Canada (AG) v Blanchet 2007 FCA 377, A-103-06).

The decision under review in this case is primarily one of mixed fact and law. The standard of review is reasonableness with deference afforded to the Board of Referees. The Commission submits the standard is reasonableness with little deference while the claimant formulates the standard as reasonableness, with a considerable level of deference. In applying the standard of reasonableness, I would apply a simple standard of deference, without shadings of little or high level of deference. The Supreme Court of Canada held in Dunsmuir v. New Brunswick, 2008 SCC 9, that there should be a single form of reasonableness review, stating in part as follows:

[45] We therefore conclude that the two variants of reasonableness review should be collapsed into a single form of reasonableness review. The result is a system of judicial review comprising two standards — correctness and reasonableness. But the revised system cannot be expected to be simpler and more workable unless the concepts it employs are clearly defined.

[46] What does this revised reasonableness standard mean? Reasonableness is one of the most widely used and yet most complex legal concepts. In any area of the law we turn our attention to, we find ourselves dealing with the reasonable, reasonableness or rationality. But what is a reasonable decision? How are reviewing courts to identify an unreasonable decision in the context of administrative law and, especially, of judicial review?

[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[48] The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers ...

[50] As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

(2) Determining the Appropriate Standard of Review

[51] Having dealt with the nature of the standards of review, we now turn our attention to the method for selecting the appropriate standard in individual cases. As we will now demonstrate, questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness.

However, in arriving at its decision, the Board of Referees must be guided by legal precedent. In formulating its decision, the Board was guided by CUBs 56736 (incorrectly cited by the Board as 36736), 56742 and 60134. The Commission argues that these decisions can be distinguished by the occupational differences of the individuals who were either itinerant music teachers or teaching assistants. However, those precedents also engaged in a principled analysis of underlying factors, such as whether the individual held teaching certificates, belonged to the College of Teachers or whether they exercised the authority and core responsibilities of a teacher. In addition, Mr. A.B. drew to the Commission and Umpire’s attention the decisions in CUBs 68744 and 73025. Although those two CUBs held that Early Childhood Educators were teaching within the meaning of section 33(2) of the Regulations, those cases could be distinguished as they reflected factual situations in Saskatchewan (68744) and P.E.I. (73025) where the factual context may differ from Ontario. In addition, I have considered CUB decisions 69640, 66936A, 43503 and 28456.

In reviewing these various decisions, I am satisfied that the Board in this case relied upon the proper Ontario decisions of CUBs 56736 and 56742. Although these cases do not deal with the position of Early Childhood Educator, the decisions provide the principled criteria upon which to judge whether a particular occupation is one captured by the terms of subsection 33(2) of the Regulations. For example, Krindle J. held in CUB 56736, in part, the following:

The claimant in this case was employed as a music instructor by the Toronto District School Board. He had been employed by the Board on a close to full-time basis for twelve consecutive teaching years, instructing in instrumental music. For each of those years, his employment with the School Board coincided with the normal teaching year, for the obvious reason that the students who wished instrumental instruction were present during the normal teaching year and not during the summer months. At the end of each teaching year, he was laid off by the Board and went on employment insurance benefits until the subsequent fall when he returned to the instruction of music.

The evidence before the board of referees supports the conclusion that the claimant did not possess the qualifications of a teacher in Ontario, did not belong to the organizations to which teachers in Ontario were required to belong and did not exercise the responsibilities of a teacher in Ontario. Frankly, the board of referees could not reasonably have come to any other conclusion. The entire employment regime of the claimant is quite different from the regime that relates to those individuals who are, for Ontario purposes, considered to be "teachers".

The Education Act of Ontario, R.S.O. 1990 c. E.2 distinguishes between teachers and instructors. Teachers are permitted to teach courses for which membership in the Ontario College of Teachers is required by the regulations, courses which give credits leading toward graduation. Instructors are entitled to provide instruction only in courses other than those credit-granting courses. The claimant, pursuant to the Education Act of Ontario, fell into the category of instructor and was not entitled to provide instruction in credit-granting courses. School boards are required to appoint for each school a principal and an adequate number of teachers, all of whom shall be members of the Ontario College of Teachers pursuant to s. 12 of the Education Act. The hiring of the claimant as an itinerant instructor of music did not go toward the school board's fulfilling its legislated responsibility to provide an adequate number of teachers.

The decision continues on with other distinguishing features, for example which unions can represent teachers, self-regulations of the profession, qualifications, and other such details. All of which indicates that on a principled approach, one cannot simply distinguish one precedent from another on the basis of simple occupation, such as itinerant teacher as opposed to Early Childhood Educator. Applying the same principles to this case as Krindle J. did in CUB 56736, one can see the relevance of the precedent. It was a most appropriate source of law from which the Board of Referees in this case drew guidance in making its decision on mixed fact and law. Similar factual criteria as applied in CUB 56736 was applied by the Board in this case. The application of that criteria resulted in the following disposition by the Umpire in CUB 56736, as follows:

There was evidence before the board of referees as to the duties and responsibilities of teachers and as to the duties and responsibilities of the claimant. There was evidence before the board of referees that the claimant was paid differently from the manner and amount that teachers were paid. There was evidence before the board of referees that the claimant belonged to a trade union that represented support staff and was legally precluded from representing teachers. There was evidence before the board of referees that the claimant was ineligible for membership in the organization that represented teachers.

It was reasonably open to the board of referees, on the information both factual and legal that was before it, to conclude that the claimant was not a teacher within the meaning of the Employment Insurance Act and Regulations and was therefore not disentitled to benefits during the non-teaching period from July 1, 2002 to August 31, 2002.

The decision of Krindle J. is essentially to show deference to the Board of Referee’s decision, consistent with the admonish of the Supreme Court of Canada in Dunsmuir. It is noteworthy that, unlike the other CUB decisions, this decision of Krindle J. (as well as her decision in CUB 56742) was appealed to the Federal Court of Appeal, which dismissed the appeal as follows:

[1] Notwithstanding counsel's argument, we have not been persuaded that the Umpire's decision was unreasonable when she found that the findings of fact made by the Board of Referees were reasonably open to it and dismissed the appeal on that basis.

Another reason why it is appropriate to show deference to the decision of a Board of Referees in cases such this under subsection 33(2) of the Regulations is that the regulation in question is a restriction on what is otherwise benefits-conferring legislation. There is ample authority under paragraph 54(j) of the Act to pass regulations removing any ambiguity as to the status of Early Childhood Educators as regards subsection 33(2) of the Regulations. Barring that, it is appropriate to defer to the decision of the Board of Referees if it applies the legal precedents correctly to its primary function of fact finding. The Board of Referees in this case concluded that:

The Board of Referees finds as fact that the Commission misrepresented the Appellant's status as a "Teacher". The evidence provided by the Appellant's Representative clearly demonstrates she is not a Teacher or a Contract Worker. She is a permanent support staff employee.

It was reasonably open to the Board of Referees, on the information both factual and legal that was before it, to conclude that the claimant was not a teacher within the meaning of the Employment Insurance Act and Regulations and was therefore not disentitled to benefits during the non-teaching period from June 28, 2010 to September 6, 2010.

That was a finding of fact which was reasonably open to the Board on the evidence before it.

The appeal is accordingly dismissed.

Gerald T.G. Seniuk

UMPIRE

Saskatoon, Saskatchewan
January 21, 2011