Employment Insurance (EI)

Decision

[1] The appeal is allowed. I find the Claimant is not a teacher within the meaning of the Employment Insurance Regulations (Regulations).

Overview

[2] The Claimant is employed as an early childhood educator (ECE) on a continuing ten-month contract with a regional centre for education. At the end of the school year, her contract term ended and she made an initial claim for employment insurance benefits. The Canada Employment Insurance Commission (Commission) determined the Claimant was a teacher and therefore disentitled from receiving regular benefits during a non-teaching period. The Claimant requested a reconsideration of this decision because she is not considered a teacher under the provincial legislation nor is she classified as a teacher by her employer. The Commission maintained its decision and the Claimant appeals to the Social Security Tribunal (Tribunal).

Issues

1. Was the Claimant employed in teaching?
2. If so, is the Claimant entitled to receive benefits during the non-teaching period?

Analysis

[3] A teacher is someone who is employed in the occupation of teaching in a pre-elementary, an elementary or a secondary school, including technical or vocation school (subsection 33(1) of the Regulations).

[4] Teachers are not entitled to receive regular employment insurance benefits during the summer, winter, and spring non-teaching periods unless they meet certain conditions (subsection 33(2) of the Regulations). The purpose of the employment insurance scheme is to pay benefits to those who are truly unemployed. Teachers are not truly unemployed during school breaks and so they are not entitled to benefits (Oliver v. Canada (Attorney General), 2003 FCA 98).

[5] The Claimant has the burden of demonstrating that she meets the requirements for receiving employment insurance benefits and that no circumstances exist that will disentitle or disqualify her from receiving benefits (subsection 49(1) of the Employment Insurance Act; Canada (Attorney General) v. Falardeau, A-396-85).

Was the Claimant employed in teaching?

[6] No. I find the Claimant was not employed in teaching within the meaning of the Regulations.

[7] The Claimant is employed as an ECE with a regional centre for education. She submits that she is not a teacher and that her certification and duties as an ECE are separate and distinct from teachers in the province of Nova Scotia.

[8] The Claimant submitted that she does not meet the definition of a teacher within the provincial legislation, and that she is not a member of the teacher’s union and does not hold the necessary certification to be employed as a teacher within the province.

[9] At the hearing, the Claimant testified that she does not follow a learning curriculum and does not instruct the children in any way. She stated that she is there to provide support to the children using play-based activities such as creative arts, sand and water play areas, books, puzzles, and outdoor time.

[10] The Claimant had two witnesses give testimony at the hearing: the Human Resources (HR) manager for the regional centre for education and the Claimant’s immediate supervisor, the manager of the pre-primary program with the regional centre for education. The HR manager testified that the Claimant’s contract as an ECE differs from a teacher’s contract in several ways, namely that a teacher’s contract extends for 12 months of the year and a teacher receives pay throughout that period time; whereas an ECE’s contract extends from September to June, starting and terminating on the specific dates of the actual school year, and an ECE is paid only for that period of time. The HR manager further stated that the terms of an ECE’s contract are more similar to the contracts of other 10-month employees, such as educational assistants and support workers, than to the contracts of teachers, as they are not paid for winter or spring breaks from school but are expected to take vacation time during that period. Further, while ECEs and other employees on a 10 month contract receive medical benefits throughout the year, it is only because they pay for the full year of benefits during their 10 months of employment.

[11] The manager of the pre-primary program provided testimony about the program’s administration, stating that the pre-primary program follows the curriculum framework of other child care centres in Nova Scotia with the goal of supporting children’s development through play-based activities. She stated that although the pre-primary program is located within schools, the program is not a part of the public school system but is more akin to a day care.

[12] The Claimant also provided a letter dated November 16, 2018, from the acting executive director of the Early Childhood Development branch of the provincial Department of Education. This letter states the provincial government chose to house the pre-primary programs within public schools to take advantage of the cost-effectiveness of the existing public infrastructure that met the health and safety requirements of the new program. It was also intended to support the families and children in the program with their convenient locations as well as assist the children with their subsequent transition into the public school system. The acting executive director further states that the ECEs do not teach children in their pre-primary groups and that the ECEs employed in the program do not hold the provincial certifications necessary to be occupied as teachers within the province.

[13] The Commission submits that the Claimant is considered a teacher under the Regulations because she is employed in teaching pre-elementary in a school that is operated by the provincial government and is under a school board. The Commission further argues that the Claimant’s classification as a teacher under provincial legislation is irrelevant to a finding that she is a teacher within the meaning of the Regulations; namely, that the provincial legislation requires a teacher to hold a teaching license, but the Regulations do not have that same requirement.

[14] In support of its position, the Commission refers to a document the Claimant provided to the Tribunal which is titled “Choosing a Career as an Early Childhood Educator” and published by the Early Years Branch of the provincial Department of Education and Early Childhood development. This document has a list of job duties typical of an ECE working in a child-care centre, family home day care agency, or pre-primary program and includes the following:

1. Plan, implement, and assess developmentally appropriate indoor and outdoor learning environments for young children.
2. Design programs based on the observed competencies, interests and needs of children using an in-depth knowledge of child development
3. Establish and carry out a daily program that incorporates child-directed play-based activity, care routines, and transition times.
4. Participate in short-term and long-term program planning and authentic assessment.

[15] The Commission argues that the list of job duties provided by the Claimant in the document referenced above clearly indicates that the Claimant is teaching the children and therefore meets the definition of a teacher under the Regulations.

[16] I consider that Canadian Umpire Benefits (CUB) decision 76308 states that a principled analysis of the underlying factors of a claimant’s occupation must be undertaken to determine whether that occupation is one captured by the terms of subsection 33(2) of the Regulations. While I am not bound by CUB decisions, I rely on this principle to determine whether the Claimant is a teacher for benefit purposes. As such, I must consider the underlying factors of what constitutes the occupation of teaching, including whether the Claimant holds a teaching certificate, belongs to a professional body that regulates teachers, or whether she exercises the core responsibilities of a teacher.

[17] The Claimant’s witnesses attested that the pre-primary program is not part of the school and the children attending the program are not enrolled in the school, additionally, the principal of the school has no authority over the ECEs and has no involvement in the program. I also note that the document titled “Choosing a Career as an Early Childhood Educator” lists several career paths for a person holding an ECE certificate, including working in a licensed child care centre or family home day care, but does not state than an ECE could be employed as a teacher in any capacity.

[18] The Claimant and her witnesses also submitted evidence that she does not hold the necessary certifications to hold a position as a teacher within the province of Nova Scotia. The Commission submits that this certification is not a requirement to be considered a teacher under the Regulations; however, as the Claimant’s qualifications prohibited her from working as a teacher within a provincial school, I consider that it is a relevant factor to be considered when making the determination whether the Claimant was occupied in teaching.

[19] Additionally, I find that the Claimant’s place of employment being located within a school is not determinative that she was engaged in teaching. I consider that the letter from the acting executive director of early childhood development, as well as the testimony from the manager of the pre-primary program offered a reasonable explanation that the pre-primary program groups were purposefully located in schools to avail the program of the existing public infrastructure and for the convenience and developmental support of the children in the groups. Therefore, I find the setting of the Claimant’s place of employment within a public school does not support a finding that she was engaged in teaching.

[20] From the Claimant’s submissions, I consider that she does not instruct the children within her pre-primary group, she does not develop lesson plans, and does not give homework or evaluate the children’s progress on an outcome or subject-basis. Rather, the Claimant testified that she engages in play-based activities such as creative arts, the use of water and sand play areas, and outdoor activities. She states that the only assessment activity she performs involves speaking with, or providing a written note to, the children’s parents regarding their child’s activities that day. Based on the foregoing, I am not satisfied that the Claimant’s job duties support the finding that the Claimant is teaching the children.

[21] The Claimant also confirmed in her submissions and at the hearing that she is not a member of the teacher’s union. In considering the Claimant’s qualifications and the understanding between the employer and herself, it is clear that she was not considered a teacher and, as such, did not have the same duties and responsibilities as a teacher.

[22] I rely on the above factors to determine that the Claimant was not engaged in the occupation of teaching and does not meet the definition of a teacher within the meaning of subsection 33(1) of the Regulations.

As a teacher, is the Claimant entitled to receive benefits during the non-teaching period?

[23] Having determined the Claimant was not engaged in teaching within the meaning of the Regulations, it is not necessary to decide this issue.

Conclusion

[24] The appeal is allowed. The Claimant was not employed in teaching and is therefore not disentitled from receiving benefits in accordance with subsection 33(2) of the Regulations.