Employment Insurance (EI)

Decision and Reasons

Decision

[1] The appeal is allowed.

[2] I have given the decision the General Division should have given.

Overview

[3] The Appellant, B. P. (Claimant), worked as a replacement teacher with a .25 position and as a substitute teacher in a term position from February 2017 to June 2017. At the end of that period, she was offered a .25 permanent position beginning in the fall, which she accepted, expecting to once again supplement her regular income with substitute teaching. She applied for Employment Insurance benefits for the summer break period between June 26, 2017, and September 4, 2017 (Summer), and she also applied for benefits for the Christmas break period between December 25, 2017, and January 5, 2018 (Christmas).

[4] In separate decisions, the Respondent, the Canada Employment Insurance Commission (Commission), denied benefits for these non-teaching periods, explaining in each case that the Claimant’s service contract had not ended, she was not a substitute or casual teacher, and she had not worked in an occupation other than teaching. The Claimant requested a reconsideration of both decisions, and, in both cases, the Commission maintained its original decision. The Claimant appealed the reconsideration decisions to the General Division of the Social Security Tribunal, and the two appeals were joined and heard together. The General Division dismissed the appeals, and the Claimant now appeals to the Appeal Division.

[5] Both appeals, filed under AD-18-417 and AD-18-418, are allowed. In each case, the General Division failed to consider evidence that the Claimant was not compensated over the non-teaching period concerned.

[6] I have made the decision that the General Division should have made. Considering all the evidence, including that evidence overlooked by the General Division, I must still find that the Claimant’s contract of employment did not terminate either before the non-teaching period in the summer of 2017 or before the 2017 Christmas non-teaching period. Therefore, the Claimant is not entitled to benefits for either period and ultimately unsuccessful in this appeal.

Preliminary matters

[7] The hearing was scheduled as a teleconference for November 1, 2018, at 12:30 p.m. Newfoundland time. The Commission joined the teleconference hearing at the scheduled time, but the Claimant did not. I adjourned the hearing and wrote the Claimant to ask why she did not attend her hearing. She explained that her work schedule had changed a few days before the hearing and conflicted with her hearing time.

[8] This explanation is unsatisfactory. This is her appeal, and it would have been reasonable for her to prioritize the appeal over her work schedule or to have someone attend on her behalf. At the very least, she could have contacted the Tribunal in advance of the hearing to discuss rescheduling or her participation by written submissions. I find that the Claimant waived her right to an oral hearing. The hearing will not be rescheduled.

[9] I will proceed to make the decision based on a review of the information on the appeal record only.

Issues

[10] Did the General Division err by finding that the Claimant’s contract of employment had not terminated prior to either the Summer or the Christmas non-teaching period, without regard for the material before it?

[11] Did the General Division err by finding that the Claimant’s teaching employment was not on a casual or substitute basis without regard for the material before it?

Analysis

General principles

[12] The Appeal Division’s task is more restricted than that of the General Division. The General Division is required to consider and weigh the evidence that is before it and to make findings of fact. In doing so, the General Division applies the law to the facts and reaches conclusions on the substantive issues raised by the appeal.

[13] However, the Appeal Division may intervene in a decision of the General Division only if it can find that the General Division has made one of the types of errors described by the “grounds of appeal” in section 58(1) of the Department of Employment and Social Development Act (DESD Act).

[14] The grounds of appeal are as follows:

1. The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material.

Issue 1: Did the General Division err in by finding that the Claimant’s contract of employment had not terminated prior to either the summer or the Christmas non-teaching period, without regard for the material before it?

[15] The Claimant argues that the General Division failed to consider all of her circumstances, including the fact that she was not compensated over the Summer or Christmas periods, when it found in each case that her teaching contract had not terminated.

[16] The General Division found that the Appellant had a teaching contract in effect as of June 26, 2017, for the fall. The General Division referred to the fact that the Claimant had held a .25 position (the equivalent of 25% of a full-time employee’s position) from January to June 2017 and returned to a .25 permanent position in September 2017. It also considered that her pension credits and sick leave were “rolled over” to the next teaching period. Having considered these factors, the General Division found that there was no “veritable break in the continuity of her employment as a teacher” and that she therefore did not qualify for the exception under section 33(2)(a) of the Employment Insurance Regulations (Regulations). In other words, the General Division found that her contract of employment had not terminated.

[17] However, it is not clear from the decision that the General Division understood that the .25 position the Claimant held up to the end of June had only been a term^{Footnote 1} and a “replacement”^{Footnote 2} position. Although there was little evidence in this case of the legal or practical effect of the change in a teacher’s status from a replacement term contract to a permanent position, I am satisfied that it is a factor whose consequence the General Division should have considered when determining whether the Claimant’s contract of employment for teaching had ended before the Summer non-teaching period.

[18] Furthermore, the Claimant argues that she was not paid during the Summer. In the Claimant’s request for reconsideration of the September 21, 2017, decision denying benefits during the Summer, she stated, “I was not receiving any income from the newly signed contract meant [sic] that I would have ZERO income during the period indicated and logic would dictate that as I was not receiving any income that I would be entitled to benefits and I was also unemployed until the new contract came into effect.”^{Footnote 3}

[19] The Claimant has the same concern in relation to the refusal to pay benefits during the Christmas non-teaching period. In her request for reconsideration of the December 29, 2017, decision to deny benefits during Christmas, the Claimant stated, “I am given a date when work stops and during that time I do not get paid and I have a recall date when I resume work and receive my regular 25% salary.”^{Footnote 4}

[20] The Claimant is correct that the General Division did not refer to or analyze the Claimant’s evidence that she would not receive any income during the non-teaching periods.  The question is whether it should be considered an error under section 53(1)(c) of the DESD Act for the General Division to have failed to do so.

[21] Stone v Canada (Attorney General)^{Footnote 5} is a decision of the Federal Court of Appeal that provides a non-exhaustive list of factors that “may be helpful” when determining whether a teacher’s contract has been terminated. The factors are as follows:

1. the length of the employment record
2. the duration of the non-teaching period
3. the customs and practices of the teaching field in issue
4. the receipt of compensation during the non-teaching period
5. the terms of the written employment contract, if any
6. the employer’s method of recalling the claimant
7. the record of employment form completed by the employer
8. other evidence of outward recognition by the employer
9. the understanding between the claimant and the employer and the respective conduct of each

[22] Stone states that “not every one of the factors on [its list of considerations] will provide insight into every case. Indeed, the courts must be extremely sensitive to the factual background underlying every paragraph 33(2)(a) case.” However, this does not allow the General Division to ignore any of the factors identified in Stone, where they exist. The “receipt of compensation during the non-teaching period” was identified by Stone as one of the helpful factors (factor iv).

[23] Furthermore, the Federal Court of Appeal has consistently held that the question of whether a teacher claimant is compensated for non-teaching periods is relevant to the determination of whether the contract of employment for teaching has terminated,^{Footnote 6} even if it is not the only factor that needs to be considered. The decisions in Stone v Canada (Attorney General), Bishop v Canada (Employment Insurance Commission), Oliver v Canada (Attorney General), and Canada (Attorney General) v Partridge^{Footnote 7} all agree that one reason that Regulations were created to restrict benefits during teaching periods is to avoid double compensation to teachers. Thus, it would appear that the question of whether a claimant teacher receives compensation in or for a non-teaching period is an important one.

[24] In my view, evidence of a lack of entitlement to compensation from the Claimant’s employment as a teacher in either the Summer or Christmas non-teaching periods “provides insight” and therefore should have been considered. The General Division’s finding that the Claimant’s contract of employment for teaching had not terminated before the Summer was erroneous in that it failed to consider the Claimant’s evidence that her contract had changed to a permanent status and that she was not being paid over the summer. The General Division’s finding that the Claimant’s contract had not terminated over Christmas failed to consider her evidence that she was not paid for that break as well.

[25] Therefore, the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the evidence before it, contrary to section 58(1)(c) of the DESD Act.

Issue 2: Did the General Division err by finding that the Claimant’s teaching employment was not on a casual or substitute basis, without regard for the material before it?

[26] When I identified the issues in my leave to appeal decision, I included the Claimant’s concern with the finding that she was not employed on a casual or substitute basis. However, the Claimant’s appeal to the Appeal Division only addressed the question of whether her contract of employment for teaching had terminated. The Claimant raised a concern about the Commission’s refusal to accept that her employment was not on a casual or substitute basis in both of her appeals to the General Division, but she did not specifically raise the issue on appeal to the Appeal Division. While I identified this as an issue in my earlier leave to appeal decision, I did not grant leave in connection with this issue or even consider it. Therefore, I will not consider it now.

Conclusion

[27] The appeal is allowed.

Remedy

[28] Section 59 of the DESD Act allows me to dismiss the appeal; give the decision that the General Division should have given; refer the matter back to the General Division for reconsideration; or confirm, rescind, or vary the General Division decision. In my view, the record is complete, and I may make the decision that the General Division should have made.

[29] The appropriate test for determining whether a claimant’s contract for teaching has terminated under section 33(2)(a) of the Regulations concerns whether there has been a “veritable break in the continuity of a teacher’s employment,” as expressed in Oliver.^{Footnote 8} When determining whether such a break has occurred, it is appropriate to look at the Stone considerations that may be relevant as well as any other considerations which may be relevant.

AD-18-417

[30] In relation to the Christmas non-teaching period, there is no suggestion that the Claimant’s teaching hours, remuneration, benefits, security, or any other term of her employment had changed over the Christmas non-teaching period. She was employed as a permanent .25 teacher both before and after Christmas under the same contract. Although I acknowledge the Claimant’s evidence that she was not paid over Christmas, I find that there had not been a “veritable break” in her employment.

[31] On appeal AD-18-417, I find that the Claimant’s contract of employment had not terminated as would be required under section 33(2)(a) of the Regulations and that she is therefore disentitled to benefits during the Christmas non-teaching period.

AD-18-418

[32] Turning to the Summer non-teaching period, I consider the fact that the Claimant entered into a contract of employment for the fall—before she completed her contract in the spring—to be the most significant factor in support of a finding that the Claimant’s teaching employment had not terminated.

[33] The General Division had also found it significant that the Claimant could roll over her pension credits and sick leave from her employment ending in June 2017 to her new term of employment in September 2017. I am concerned that the relevance of these facts has not been established. It may be possible to infer that the ability to carry forward sick leave from one period of employment to another supports a finding that the first employment had not terminated, but I do not accept that the ability to carry forward pension credits is relevant.

[34] There is little evidence on the claim file related to the significance of the Claimant’s ability to roll over pension credits. It is doubtful that each employer school district in Newfoundland maintains a pension plan that is independent of the other districts, and there was no evidence before the General Division that a termination of the Claimant’s contract would mean that she could not have kept her contributions or “credits” in the pension plan, even if she was not hired by her particular school district again or as a teacher at a different school district in her province, or even if she never taught again.

[35] If a termination of a teaching contract necessarily meant that a teacher could not carry over their pension credits when that teacher eventually returns to teaching, then the ability to roll over pension credits would be relevant to the General Division’s determination that the contract had not terminated. However, if a school district in Newfoundland could terminate a teacher’s contract while the teacher could carry over pension credits to a future teaching position in the same or some other school district, or to the fall or some later teaching term, then the Claimant’s ability in this instance to carry forward pension credits to her new contract in the fall would say nothing about whether her contract with school district was or was not terminated in June 2017.

[36] I am not satisfied that the simple fact that her pension credits would “roll over” is relevant to whether the Claimant’s contract of employment had terminated. However, sick leave stands on a different basis. A teacher is paid by their employer, which in this case is the school district for which the Claimant works. There is no evidence on the transferability of sick leave, but I have no reason to believe that one employer school district would pay a benefit (credit sick leave) to a teacher when that leave is actually owed to the teacher by a different employer. Furthermore, the sick leave represents an actual burden to the new contract because it would presumably allow the Claimant to take additional time off from the new contact with pay. The fact that the school district is willing to credit a benefit that the Claimant earned under her old contract to her new contract in the fall suggests a continuing contractual employment relationship between the Claimant and the school district.

[37] Conversely, the fact that the Claimant was not paid over the Summer and the fact that the new contract in the fall has the security of being a permanent position are more supportive of a finding that the employment contract terminated before the Summer and a new one began in the fall.

[38] The courts have clearly acknowledged that one of the policy objectives of section 33 of the Regulations is to avoid the situation where teachers may be compensated for non-teaching periods through their employment and receive benefits at the same time. However, the fact that a claimant may not be paid by the employer over the non-teaching period is not the only factor to consider. The Employment Insurance Act also requires claimants to be actively looking for work, and claimants are not permitted to unduly limit their employment prospects. A teacher with a position in his or own profession confirmed and waiting at the end of the non-teaching period is unlikely to seek alternate employment over the non-teaching period in good faith, at least not without limiting the term of the employment sought.

[39] In this case, the position the Claimant held before the Summer was .25 of a full-time teaching position with the same employer. The position she was offered at the end of the Summer to begin in September was .25 of a full-time teaching position. I appreciate that the new contract was “permanent,” but there was no evidence of whether this otherwise affected the terms and conditions of her employment or how. It would seem that, even with her new permanent status, the school district did not compensate her over the Christmas non-teaching period. As a result, I am persuaded by the existence of a confirmed position with the same employer in the fall, accepted by the Claimant within five days of the end of her term contract and which involved a roll-over of her sick benefits to the new contract.

[40] On appeal AD-18-418, I find that the Claimant’s contract of employment did not terminate before the Summer non-teaching period, as would be required under section 33(2)(a) of the Regulations. The Claimant is therefore disentitled to benefits during the Summer non-teaching period.