CUB 77188

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim by
H.R.

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IN THE MATTER of an appeal to an Umpire by the Commission
from the decision of a Board of Referees given on
September 16, 2010 at Ottawa, Ontario

DECISION

The claimant worked for the Carleton Preschool as an early childhood educator from August 17, 2009 until June 25, 2010. She applied for employment insurance benefits and an initial claim was established effective June 27, 2010, 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 June 28, 2010 to August 20, 2010.

The claimant appealed the Commission’s decision to a Board of Referees which allowed the appeal. The Commission appealed the Board’s decision. This appeal was heard in Ottawa, Ontario on May 25, 2011. The claimant was present.

At exhibit 5, the claimant stated that she worked in a daycare centre in a school but that she did not work as a teacher. She described her duties as watching children after they leave the kindergarten and until they move on to the after school program at the end of the afternoon. She explained that the children in the daycare centre play and do crafts. She watches the children and gets involved in interacting with them and showing them how to do crafts.

In her letter of appeal to the Board of Referees, the claimant stated that she did not fall in the category of a teacher and that she did not work in the school system during the school day. She explained that she worked as a childcare worker in a childcare centre providing after school care for children after their regular school day. She stated that she was paid on an hourly basis for her work and not on an annual basis as teachers are paid. She compared herself to educational assistants who are entitled to their employment insurance benefits during the summer vacation. She provided a copy of her contract with the Ottawa Preschool Rainbow Kidschool. The claimant also provided copies of Human Resources and Skills Development Canada documents describing the duties of elementary school and kindergarten teachers and those of early childhood educators and assistants.

The claimant appeared before the Board of Referees and was accompanied by Ms. G.T., the Director of the Rainbow Kidschool. She had provided several documents, including a letter from Ms. G.T. explaining that the claimant was employed as an early childhood educator in the childcare centre. The letter explains that the Carleton Preschool / Rainbow Kidschool operates as a childcare centre under a licence with the Ministry of Children and Youth Services. The centre closes for the months of July and August each year and the employees have been entitled to employment insurance benefits during the summer months.

At the hearing before the Board of Referees, the claimant and Ms. G.T. reiterated that the claimant had not been employed as a teacher but as a childcare worker working in a daycare centre. The claimant added that she was not required to hold a teaching certificate to do her job.

The Board of Referees finds based on the evidence before it that the claimant was not a teacher and as such is entitled to Employment Insurance benefits for the non-school term months of July and August.

The claimant does not work for a school, but for a daycare centre. She is not paid according to the annual salary system of teachers but is paid an hourly rate of pay for a 44-week period. The claimant does not receive a lump sum payment at the end of June as teachers do (Exhibit 4-3 paragraph Teachers’ Final Pay for 2009-2010 School Year). The claimant is not required to hold a provincial teaching certificate to do her job and is not entitled to membership in the Ontario College of Teachers. As well, the claimant is not unionized and does not belong to the unions that are required by law to represent teachers in that province.

The Board refers to CUB 57975 and CUB 56736 as well as A-215-03 in support of its findings. As well, the Board noted that the Commission has very recently conceded in an identical case that can be found in Exhibit 12.

On appeal from the Board of Referees’ decision, the Commission submitted that the Board had erred in law and in fact in deciding that the claimant had not been employed as a teacher and that she was entitled to her employment insurance benefits during the non-teaching summer months. The Commission submitted that the claimant’s employment as an early childhood educator was paramount to working in teaching for the purposes of section 33 of the Employment Insurance Regulations. The Commission referred to CUBs 28456 and 68744. The Commission also submitted that the claimant had not had a break in her teaching employment as she had accepted a contract for the following school year prior to the termination of her previous contract.

The claimant maintained that she had not worked as a teacher and had not been involved in teaching in any way. She simply worked as a childcare worker in a daycare centre that was renting space in a school. She added that she had looked for other employments during the summer months as she needed the money.

I find that the situation of the claimant in the case at hand can be differentiated from the situation in the two CUB decisions referred to by the Commission.

In CUB 28456, the claimant had worked in a position that involved working as a teacher and which required a teacher’s certificate. She was described as a very competent and versatile teacher. The Umpire had arrived at the conclusion that working as an early childhood educator involved an element of teaching and that, in that case, the claimant could not be considered as not having worked in teaching for the purpose of what is now section 33 of the Regulations.

In CUB 68744, the claimant’s specific duties are not precisely described, but the Umpire’s decision indicates that the claimant had a contract as a teacher which had been renewed from time to time. She had been employed in preschool programs. She was compelled, pursuant to her contract, to attend parent-teacher interviews. Justice Marin wrote: She is a teacher, she plans, develops and executes an age-intellectually appropriate curriculum and provides feedback to parents on the progress of the children to whom she teaches.

In the case at bar, the claimant was not required to hold a teaching certificate. The claimant, as well as the director of the daycare centre where she worked, stated that the claimant had not worked as a teacher but as a daycare centre worker. There was no evidence that the claimant’s duties involved any teaching or teaching-related duties and obligations. I find that the Board of Referees could arrive at the conclusion that the claimant had not worked as a teacher and that she was therefore not subject to a disqualification pursuant to section 33 of the Regulations.

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance 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 made in a perverse manner or without regard for the material before it, an Umpire is required to dismiss an appeal. (Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03)).

The Commission has not shown that the Board of Referees erred in its decision. To the contrary, the Board arrived at a decision that is entirely compatible with the evidence before the Board and the applicable legislative provisions.