Oliver v. Canada (Attorney General) (C.A.)

A-811-00

2003 FCA 98

Charlotte Oliver et al. (Applicants)

The Attorney General of Canada (Respondent)

Indexed as: Oliver v. Canada (Attorney General) (C.A.)

Court of Appeal, Létourneau, Rothstein and Malone JJ.A.--Edmonton, November 21, 2002; Ottawa, February 25, 2003.

Employment Insurance -- Judicial review of Umpire's decision certain Alberta teachers not entitled to E.I. benefits for July, August under exemption provided by Employment Insurance Regulations, s. 33(2)(a) -- Exemption applies if employment contract terminated -- All 72 teachers were re-employed for following season -- Paid for 12 months although contracts ran September to June -- No income lost -- Insurance benefits provided during summer -- Majority holding application should be dismissed -- According to F.C.A. case law, Umpire's findings of fact, could not be held those whose contracts were renewed before probationary contracts expired were unemployed -- No real employment gap for those whose contracts were renewed shortly after expiry -- Regulations, s. 36(4) inapplicable herein -- Case law, s. 33 based on premise teacher not entitled to E.I. benefits during non-teaching period absent veritable break in continuity of employment.

This was an application for the judicial review of a decision by Rouleau J., sitting as an Umpire under the Employment Insurance Act, that certain teachers were not entitled to benefits during July and August under the exemption provided by paragraph 33(2)(a) of the Employment Insurance Regulations. The exemption from disqualification applies when "the claimant's contract of employment for teaching has terminated". Applicants were teachers having fixed-term probationary contracts terminating on June 30. All of the teachers involved in this litigation--72 in number--were re-employed for the following academic year. The Commission rejected their claims to benefits for failure to fall within the exemption.

The holding of the Umpire was that all should be denied benefits. Among the Umpire's findings were: the teachers were paid for 12 months although their contracts ran from September to June; they entered into new contracts for the following year prior to, or shortly after, expiry of the contract in question; and they suffered no income loss and were in receipt of medical and other employment benefits during the summer. Upon a review of the case law and a consideration of Parliament's intention in enacting paragraph 33(2)(a), as well as the scheme of the legislation, the Umpire concluded these teachers were not unemployed and that there had been no severance of the relationship of employer and employee. His view was that the question whether a teacher fell within the exemption was not to be answered merely by looking at the purported date of a contract's termination. Rather, all of the circumstances had to be taken into account in light of the legislative scheme's purpose.

Three grounds of review were advanced before this Court. First, it was suggested that the Umpire misdirected himself as to the meaning of the paragraph. Second, it was urged that the Umpire failed to apply the plain meaning of the word "terminate" to the facts herein. The final argument was that the Umpire erred in law and exceeded jurisdiction in relying on an irrelevant fact: that these teachers received employment benefits during the summer.

Held (Malone J.A. dissenting), the application should be dismissed.

Per Létourneau J.A.: On the authority of this Court's decision in Bishop v. Canada (Employment Insurance Commission), and on the Umpire's findings of fact, it could not be concluded that those whose contracts were renewed before their probationary contracts expired were unemployed. There was continuity of employment. Nor was there any real gap in employment in the case of those whose contracts were renewed shortly thereafter. Not only were they not unemployed, they were paid for July and August. Subsection 36(4) of the Regulations was inapplicable to a case such as that at bar where there is continuity of employment resulting in ineligibility for benefits and no necessity for allocating earnings in calculating benefits. The Umpire followed the case law of this Court as well as the legislative intent behind section 33, both based on the premise that, absent a veritable break in the continuity of a teacher's employment, a teacher is not entitled to benefits for the non-teaching period. It was important that this premise be underlined in view of the large number of pending claims on this issue.

Per Rothstein J.A.: The case law of this Court has consistently held that, in cases where teachers' contracts terminate at the end of June and they are re-hired for the following school year, they are not entitled to employment insurance for July and August. Such differences in fact as existed herein were not sufficient to justify not following the dominant case law.

Per Malone J.A. (dissenting): The applicants are either probationary, temporary or interim employees of school boards whose contracts terminated on June 30, 1999, in accordance with the Alberta School Act. These are fixed-term contracts, not continuing contracts under section 80 of the Act. The Supreme Court of Canada, in Dick et al. v. Deputy Attorney General of Canada, recognized that when a teacher's salary is paid in 12 monthly instalments for 10 months of teaching, the payments relate to the work performed in the ten work months and that, depending on their contracts, some will experience an annual interruption of earnings in the summer. On the authority of Dick, teachers would qualify for employment insurance benefits in the non-teaching months. It was following Dick that what is now subsection 33(2) of the Regulations was promulgated to prevent "double dipping" on the part of teachers not truly facing unemployment after a non-teaching period. The exception was where "the claimant's contract of employment for teaching has terminated". The word "terminated" was not defined in the legislation. A dictionary definition of "terminate" is "end the employment of". On a plain reading of the relevant provisions of the School Act, applicants' contracts all come to an end on June 30, 1999. Where a statute establishes a detailed, complex and comprehensive scheme, umpires and courts ought to be cautious in adopting unexpressed notions of policy or principle. If Parliament wished to preclude "double dipping", which the current legislative scheme permits, an amendment could have been made. The Umpire erred in ignoring the clear legal effect of the relevant School Act provisions and in adopting the unexpressed notion that Parliament intended "terminate" to apply only if teachers are "in the true sense of the word `unemployed' . . . which is not synonymous with `not working'." If provincial legislation assists claimants to access employment insurance benefits, it should not be ignored. None of the previous cases heard by this Court dealt with a teacher's termination triggered by provincial legislation. Subsection 40(5) of the School Act did not contain the specific language, considered by this Court in earlier cases, specifying July 1 as the date of commencement of the school year. That subsection should not be held to override the termination provisions specified in the contracts under review. Under subsection 36(4) of the Regulations, all monies paid to applicants had to be allocated to services provided by June 30. Payments could not be attributed to July and August in order to demonstrate a continuing employment relationship. Dick remains good law and the majority opinion herein denies the applicants the benefit of that decision.

The insurance benefits provided to teachers by school boards during the summer were ex gratia in nature and did not reflect a continuing relationship.

The applicants were exempt under paragraph 33(2)(a) of the Regulations on the basis that their contracts were terminated by the School Act on June 30, 1999.

statutes and regulations judicially

considered

Employment Insurance Act, S.C. 1996, c. 23.

Employment Insurance Regulations, SOR/96-332, ss. 33 (as am. by SOR/97-31, s. 17), 35 (as am. idem, s. 18), 36 (as am. idem, s. 19).

Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1.

School Act, R.S.A. 2000, c. S-3, ss. 56(5)(a), 98.

School Act, S.A. 1988, c. S-3.1, ss. 40(5)(a), 79, 80, 82(2)(b)(i), 83(3).

Unemployment Insurance Regulations, C.R.C., c. 1576, ss. 46.1 (as enacted by SOR/83-516, s. 1), 58(3).

cases judicially considered

applied:

Gauthier v. Canada (Employment and Immigration Commission), [1995] F.C.J. No. 1350 (C.A.) (QL); Canada (Attorney General) v. St-Coeur (1996), 199 N.R. 45 (F.C.A.); Canada (Attorney General) v. Hann, [1997] F.C.J. No. 974 (C.A.) (QL); Canada (Attorney General) v. Partridge (1999), 245 N.R. 163 (F.C.A.); Bishop v. Canada (Employment Insurance Commission) (2002), 292 N.R. 158 (F.C.A.).

distinguished:

Ying v. Canada (Attorney General), [1998] F.C.J. No. 1615 (C.A.) (QL).

referred to:

Giammettei et al. (In re) (2000), CUB 49704; Dick et al. v. Deputy Attorney General of Canada, [1980] 2 S.C.R. 243; (1980), 112 D.L.R. (3d) 651; [1980] 6 W.W.R. 431; 5 Man.R. (2d) 56; 80 CLLC 14,039; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998) 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Canada v. Antosko, [1994] 2 S.C.R. 312; [1994] 2 C.T.C. 25; (1994), 94 DTC 6314; 168 N.R. 16; 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804; (1999), 179 D.L.R. (4th) 577; [2000] 1 W.W.R. 195; 69 B.C.L.R. (3d) 201; [2000] 1 C.T.C. 57; 99 DTC 5799; 248 N.R. 216; Canada (Attorney-General) v. Taylor (1991), 81 D.L.R. (4th) 679; 126 N.R. 345; 91 CLLC 14,034 (F.C.A.).

authors cited

Black's Law Dictionary, 7th ed. St. Paul, Minn.: West Group, 1999. "terminate".

Concise Oxford Dictionary, 10th ed. Oxford: Oxford University Press, 2001. "terminate".

Rudner, Karen L. The 2002 Annotated Employment Insurance Statutes, Scarborough, Ont.: Carswell, 2001.

APPLICATION for judicial review of the decision of an Umpire ((2000), CUB 49724) under the Employment Insurance Act holding that teachers were not eligible for employment insurance benefits during July and August. Application dismissed.

appearances:

Garett A. Eisenbraun for applicants.

John C. O'Callaghan and Margaret McCabe for respondent.

solicitors of record:

Field Atkinson Perraton LLP, Edmonton, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

[1]Létourneau J.A.: In this application for judicial review, the applicants seek an order quashing the decision of Rouleau J., sitting as Umpire under the Employment Insurance Act, S.C. 1996, c. 23 and an order requiring the Canada Employment Insurance Commission (Commission) to pay them unemployment benefits. At issue is whether the applicants, as teachers, are entitled to receive regular unemployment benefits during the summer months of July and August 1999.

[2]Mrs. Oliver brings this application on her own behalf and on behalf of 22 other teachers, while in application A-664-01, Mr. Freddy Giammattei raises the same issue on behalf of 50 other teachers.

[3]This case is an important test case. In addition to these 72 cases mentioned, we were informed that there are more than 120 claims pending in Manitoba. We were also told that a settlement of the 2001-2002 claims is awaiting the outcome of the present instance.

[4]The applications arise from identical decisions rendered by the Umpire, dated November 3, 2000, and reported as Oliver et al. (In re) (2000), CUB 49724 (A-811-00) and Giammatei et al. (In re) (2000), CUB 49704 (A-664-01). The Umpire determined that the applicants were not entitled to benefits under the exemption provided by paragraph 33(2)(a) [as am. by SOR/97-31, s. 17] of the Employment Insurance Regulations, SOR/96-332 (Regulations). That paragraph reads as follows:

33. . . .

(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 sections 22 and 23 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. [Emphasis added.]

[5]The applicants were qualified teachers who had probationary contracts of employment which ran from September 1998 to June 30, 1999. These were fixed-term contracts under Alberta's School Act, S.A. 1988, c. S-3.1, s. 79 (School Act) (now School Act, R.S.A. 2000, c. S-3, s. 98).

[6]The applicants were all subsequently re-employed as teachers for the following school year. In most cases, the applicants had entered into new contracts for the following school year prior to the termination of 1998/1999 contracts (June 30, 1999), while others signed new contracts shortly after the termination date.

[7]The applicants applied for unemployment insurance benefits for the period commencing June 30, 1999, the date of expiry of their contracts. The Commission found that the applicants were disentitled to benefits on the ground that they did not fall within the exemption provided for in paragraph 33(2)(a) of the Regulations.

[8]On various dates after June 30, 1999, all of the applicants appealed their denial of benefits to various Boards of Referees (Board). In some of the cases, the appeals were allowed, while in most the appeals were dismissed.

[9]All cases were further appealed to the Umpire. The Commission appealed the successful appeals (the Oliver claimants--file A-811-00), and the unsuccessful claimants appealed their dismissed appeals (the Giammattei claimants--file A-664-01). It was agreed that the Umpire would hear all of these appeals together.

[10]The issue before the Umpire was whether the applicants fell within the parameters of paragraph 33(2)(a) of the Regulations given that their contracts of employment for teaching had terminated on June 30, 1999. On November 3, 2000, the Umpire rendered his decision that all claimants should be denied benefits for July-August 1999. The applicants seek judicial review of this decision.

The grounds of review invoked by the applicants

[11]The applicants in essence raise three grounds of review alleging errors made by the Umpire.

[12]First, they submitted that the Umpire misdirected himself as to the meaning of paragraph 33(2)(a) and, specifically, by misinterpreting the word "terminated" found therein.

[13]Second, they argued that the Umpire failed to apply the plain meaning of the word "terminate" in subsections 79(3), 83(3) and subparagraph 82(2)(b)(i) of the School Act to the facts of these applications.

[14]Finally, it is alleged that the Umpire made a further error of law and exceeded his jurisdiction by relying on irrelevant facts, namely that the applicants received employment benefits over the non-teaching period, so as to conclude that the contracts were not terminated. A brief summary of the Umpire's decision is in order.

The decision of the Umpire

[15]The Umpire made a number of crucial findings which are not disputed:

(a) the claimants were qualified teachers who had probationary contracts of employment;

(b) the claimants were paid for 12 months although their contracts ran from September 1998 to June 30, 1999;

(c) the claimants were paid the same salary as continuous contract employees who are also paid for 12 months although they do not teach in July and August;

(d) the wage difference between probationary contract employees such as those of the claimants and continuous contract employees is that the salary payments for probationary employees for the July and August periods are paid at the end of June;

(e) the claimants entered into new contracts for the following school year prior to the expiry of their probationary contract on June 30, 1999 or shortly thereafter;

(f) in any event, at some material point in time, all of them had entered into new contracts of teaching for the following school year; and

(g) the claimants suffered no loss of income and received medical and other employment benefits during the summer non-teaching months.

[16]The learned Umpire reviewed the decisions of this Court in Ying v. Canada (Attorney General), [1998] F.C.J. No. 1615 (C.A.) (QL); Gauthier v. Canada (Employment and Immigration Commission), [1995] F.C.J. 1350 (C.A.) (QL); Canada (Attorney General) v. St-Coeur (1996), 199 N.R. 45 (F.C.A.); Canada (Attorney General) v. Hann, [1997] F.C.J. No. 974 (C.A.) (QL); Canada (Attorney General) v. Partridge (1999), 245 N.R. 163 (F.C.A.). He also considered the intention of Parliament in enacting paragraph 33(2)(a) of the Regulations as well as the object and scheme of the legislation. He concluded that the claimants were not unemployed and that there was no severance of the relationship of employer and employee. The gist of his decision is found in the following paragraphs:

The intention of Parliament is to pay employment insurance benefits to those individuals who, through no fault of their own, are truly unemployed and who are seriously engaged in an earnest effort to find work. Teachers are not considered unemployed during the annual non-teaching periods and they are therefore not entitled to benefits, unless they meet one of the following three criteria set out in regulation 33(2):

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 other than teaching.

Parliament's intention, together with the object of the legislation and its scheme, leads me to the conclusion that the exemption provided for in Regulation 33(2)(a) is meant to provide relief to those teachers whose contracts terminate on June 30th and who, as a result, suffer a genuine severance of the employer and employee relationship. In other words, the exemption provides relief to those teachers who are, in the true sense of the word "unemployed", a term which is not synonymous with "not working".

There is absolutely no evidence here to support a finding that these claimants were unemployed. They all had continuing contracts of teaching for the following school year. They suffered no loss of income. They received medical and other employment benefits during the summer non-teaching months. In short, the wages and benefits paid to them were the same as those paid to any permanent teacher. And like any permanent teacher, they were all returning to work in August. Given these factors, I fail to see how the employment reality of these claimants is at all different from those teachers who have a continuing contract of employment. Like their fellow teachers, the only reason these claimants were not working was because there were no teaching duties to perform during the non-teaching summer months.

The claimants maintain that it would result in an absurdity to find that their teaching contracts had not terminated on June 30th given that this is the stated date of termination in the contracts themselves. I wholeheartedly disagree with this contention. No great weight can be given to the formal contractual descriptions of the nature of the employment relationship given to it by the signatories. How the parties define their relationship in the express terms of the contract may be self-serving or, as here, may be decreed by provincial legislation. The sole reason the date of termination is June 30th is because section 79 of the Alberta School Act mandates that it be so. However, that date is not an authentic reflection of the employment reality of these claimants. And it is that reality which must be considered when interpreting the Employment Insurance Act and Regulations.

Termination of a contract of employment for teaching in the context of the legislative scheme of the Employment Insurance Act and Regulations means a severance of the relationship of employer and employee. It does not mean a change in one's employment status from a probationary teacher to a teacher with a continuous contract. The provisions of the Alberta School Act and the contracts made thereunder, cannot be used to circumvent the obvious purpose of the employment insurance legislation, which is to prevent payment of benefits to teachers who are under contract but not actually working. The reality is that teachers do not work during the non-teaching period and when there is evidence that they are under contract, they are not entitled to benefits. [Emphasis added.]

[17]All of the decisions of this Court, except Ying, have denied benefits to teachers in application of paragraph 33(2)(a) of the Regulations. The Umpire distinguished Ying. He was of the view that a determination of whether a teacher fell or not within the scope of the exemption was not a determination which could be based solely on a purported date of termination stated in a contract. All the circumstances in a particular case had to be examined in light of the purpose and intention of the legislative scheme.

Analysis of the decision

[18]With respect, I believe the Umpire understood well the governing principle endorsed by this Court in all the cases he cited and properly applied it to the facts of this case.

[19]All the decisions of this Court, including Ying, sought to determine whether there was a continuity of employment for the claimants. No such continuity was found in Ying as "there was a period between June 30 and August 26, 1996 when the claimant could not have been said to have a contract of employment in operation": see Ying, supra, at paragraph 1.

[20]The legal situation is different in the case at bar. Contracts of employment were renewed prior to the expiry of the claimants' probationary contracts or very shortly thereafter. It cannot be said as in Ying that the claimants had no contract of employment in operation. The legal status of the claimants was analogous to those of the teachers in Partridge, supra, and in Bishop v. Canada (Employment Insurance Commission) (2002), 292 N.R. 158 (F.C.A.).

[21]In Partridge, at paragraph 5 of the decision, our colleague Décary J.A. found continuity in the fact that Mrs. Partridge, whose contract terminated on June 30, 1993, accepted a new teaching contract on July 12, 1993 which, for all practical purposes, was retroactive to July 1st as the "school year" commenced on July 1, 1993. The Court also found that Mrs. Partridge was paid for the entire year and that there was no loss of income for the period at issue.

[22]In Bishop, the applicant received on June 11, 1999, prior to the expiry of his contract, a letter stating that he was being rehired for the 1999-2000 school year which, in Newfoundland, commenced on July 1st in a calendar year and expired on June 30 in the following calendar year. Our colleague Desjardins J.A., for a unanimous Court, concluded that there was no interval of time between the claimant's successive contracts because "Bishop had already been hired for the second school year before the first school year had been completed": see paragraph 9 of the decision. In Bishop as well as in Partridge, this Court was of the view that payment of benefits in those circumstances would amount to double compensation during the period for which they were claimed.

[23]On the authority of the Bishop case and the findings of fact the Umpire made, I believe he was right to conclude that all those who had their contracts renewed before their probationary contracts expired were not unemployed. There was continuity of employment. As for those whose contracts were renewed shortly thereafter, the Umpire properly applied the reasoning in Partridge: there was no real gap in employment because the claimants, who were completing a school year, were hired for a new school year which obviously overlaps with or immediately follows the previous one. Under paragraph 40(5)(a) of the Alberta School Act (now paragraph 56(5)(a)), a school Board must, before May 31 in each year, "give notive to the Minister of the opening and closing dates of all schools under its jurisdiction for the 12-month period next following" (emphasis added). In these circumstances, not only were these claimants not unemployed, but they were also paid for the July and August months as the Umpire found. This ought to be contrasted with the situation of Mrs. Ying in the Ying case where she was unemployed for a period of time with no pay in respect of that period.

[24]Counsel for the applicants referred us to subsection 36(4) of the Employment Insurance Regulations, which reads:

36. . . .

(4) Earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.

[25]With respect, I do not think subsection 36(4) is of any assistance in deciding the issue before us. Section 36 deals with the allocation of earnings for benefit purposes. The allocation rules, of which subsection 36(4) is a part, exist for the purpose of determining if an interruption of earnings has occurred, calculating the amount to be deducted from the benefits payable and determining the amount of repayment owed by a claimant: see K. L. Rudner, The 2002 Annotated Employment Insurance Statutes, Scarborough: Carswell, 2001, at page 688 and the jurisprudence of this Court cited therein. Indeed, subsection 36(4) has no application in a situation like ours where there is continuity of employment, ineligibility for benefits as a result and, therefore, no need to allocate earnings for the purpose of calculating benefits.

[26]Sections 35 and 36 of the Regulations are general rules determining what constitutes earnings and how these earnings should be allocated. Section 33 is a specific provision applicable to teachers. It was intended to and does regulate the particular conditions of teachers under the employment insurance scheme which, as the Umpire pointed out, grants benefits to workers who are unemployed, not to workers who are employed and paid, although not providing services.

[27]The Umpire has been duly mindful of both the line of jurisprudence in this Court and the legislative intent behind section 33. Both are based on the clear premise that, unless there is a veritable break in the continuity of a teacher's employment, the teacher will not be entitled to benefits for the non-teaching period. It is important that this fundamental premise be strongly underlined here because of the numerous claims that are pending on this issue and which deserve clarity from this Court on this matter.

Conclusion

[28]In conclusion, I see no error in the Umpire's decision which would warrant or justify our intervention. I would dismiss the application for judicial review with costs. I would insert a copy of these reasons in file A-664-01 in support of the judgment rendered therein.

* * *

The following are the reasons for judgment rendered in English by

[29]Rothstein J.A. (concurring): I am in agreement with Létourneau J.A. as to the disposition of this application. The availability of employment insurance benefits for teachers poses a difficulty because the teaching year covers 10 months, while teachers are usually paid in instalments over 12 months. Sometimes, as in this case, the instalments for July and August are paid out at the end of June.

[30]The jurisprudence of this Court has consistently held that, in cases where teachers' contracts terminate at the end of June and they are rehired for the following school year, they are not entitled to employment insurance for the months of July and August. See Bishop v. Canada (Employment Insurance Commission) (2002), 292 N.R. 158 (F.C.A.); Canada (Attorney General) v. Partridge (1999), 245 N.R. 163 (F.C.A.); Gauthier v. Canada (Employment and Immigration Commission), [1995] F.C.J. No. 1350 (C.A.) (QL); and Canada (Attorney General) v. Hann, [1997] F.C.J. No. 974 (C.A.) (QL). The only exception is Ying v. Canada (Attorney General), [1998] F.C.J. No. 1615 (C.A.) (QL).

[31]In the present case, the applicants are paid exactly the same amount as equivalent permanent teachers. Yet they also claim to be entitled to employment insurance benefits for the months of July and August. They were all rehired before or shortly after the end of June for the subsequent school year. The dominant jurisprudence of this Court would deny their claims to employment insurance benefits.

[32]The applicants do not say the dominant prior jurisprudence was wrongly decided. They claim the facts in this case are different. I am not satisfied that such differences in facts as there are, justify not following the dominant prior jurisprudence of this Court.

[33]I would dispose of the application as proposed by Létourneau J.A.

* * *

The following are the reasons for judgment rendered in English by

[34]Malone J.A. (dissenting): I respectfully dissent from the reasons of my colleagues Létourneau J.A. and Rothstein J.A. My reasons follow.

[35]This application for judicial review, A-811-00, addresses whether certain teachers in Alberta are entitled to employment insurance benefits for the non-teaching summer months. Specifically, it concerns the applicability of paragraph 33(2)(a) of the Employment Insurance Regulations, SOR/96-332, (the Regulations) to Charlotte Oliver and other Alberta teachers whose contracts of employment were not continued by their employers beyond the end of the June 1999 school year. Paragraph 33(2)(a) reads as follows:

33. . . .

(a) the claimant's contract of employment for teaching has terminated; [Emphasis added.]

[36]The applicants are either probationary, temporary or interim employees of school boards whose contracts terminated on June 30, 1999, in accordance with subsections 79(3), subparagraph 82(2)(b)(i), and subsection 83(3), respectively, of the Alberta School Act, S.A. 1988, c. S-3.1, as amended (the School Act). These are fixed-term contracts, rather than continuing contracts under section 80 of the School Act. All were rehired under new contracts for the following school year; in most cases prior to their June 30, 1999, termination. These new contracts expressly commenced on dates after the summer months, usually August 31, 1999. Their salary was paid in monthly installments; the payments for July and August being included with the June installment.

[37]In Dick et al. v. Deputy Attorney General of Canada, [1980] 2 S.C.R. 243 (Dick), the Supreme Court of Canada acknowledged that when a teacher's salary is paid in 12 monthly instalments for 10 months of teaching, the payments relate to the work performed in the 10 work months and not to the vacation months of July and August. This decision recognized that, depending on their contracts, some teachers will experience an annual interruption of their earnings in the non-teaching period of the school year. Therefore, because of Dick, school teachers would qualify for employment insurance benefits in the non-teaching summer months.

[38]Following Dick, section 46.1 [Unemployment Insurance Regulations, C.R.C., c. 1576 (as enacted by SOR/83-516, s. 1)], now subsection 33(2) of the Regulations, was promulgated to prevent "double dipping" by teachers who were not truly facing the prospect of unemployment after their non-teaching period. The only exception, relevant to these applications, is found at paragraph 33(2)(a), which provides that a teacher will be entitled to benefits during a non-teaching period if "the claimant's contract of employment for teaching has terminated." The word "terminated" is not defined in either the Act or the Regulations.

[39]In Black's Law Dictionary, 7th ed., the word "terminate" means "to put an end to; to conclude." In the Concise Oxford Dictionary, 10th ed., "terminate" is defined as "bring to an end; end the employment of." In the present case, the applicants' terms of employment are all governed by the following unambiguous termination provisions in the School Act:

79. . . .

(3) A probationary contract of employment shall terminate on the June 30 next following the commencement date specified in the contract.

. . .

82. . . .

(2) A temporary contract of employment entered into under subsection (1) shall

(a) specify the date on which the teacher commences employment with the board, and

(b) terminate

(i) on the June 30 next following the commencement date specified in the contract, or

(ii) on a date provided for in the contract,

whichever is earlier.

. . .

83. . . .

(3) An interim contract of employment terminates on the June 30 next following the commencement date specified in the contract unless otherwise specified in the contract. [Emphasis added.]

On a plain reading of these provisions, the applicants' contracts all came to an end on June 30, 1999. The question then becomes, how these sections of the School Act affect the applicants' entitlement to employment insurance benefits under paragraph 33(2)(a) of the Regulations.

[40]In his search for the true intention of Parliament in using the word "terminated" in paragraph 33(2)(a), the Umpire applied the well-established principle of interpretation that the words of a statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27). While this principle is important, such analysis cannot alter the result where the words of a statute are clear and plain. (See Canada v. Antosko, [1994] 2 S.C.R. 312; 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804 (65302 British Columbia Ltd.).) Like the Income Tax Act [R.S.C., 1985 (5th Supp.), c. 1], employment insurance legislation is detailed, complex and comprehensive, and accordingly, umpires and this Court must be cautious in adopting unexpressed notions of policy or principle under the modern rules of statutory interpretation (65302 British Columbia Ltd., at paragraph 51).

[41]In my opinion, the learned Umpire committed an error of law in ignoring the clear legal effect of the above-quoted sections of the School Act and in adopting the unexpressed notion that Parliament intended the word "terminate" to only apply to situations where teachers are "in the true sense of the word `unemployed", . . . which is not synonymous with `not working' (Umpire's reasons for judgment). Past decisions of this Court have readily applied provincial legislation so as to deny employment insurance benefits to claimants (see Canada (Attorney-General) v. Taylor (1991), 81 D.L.R. (4th) 679 (F.C.A.); Gauthier v. Canada (Employment and Immigration Commission), [1995] F.C.J. No. 1350 (C.A.) (QL) (Gauthier); Canada (Attorney General) v. Partridge (1999), 245 N.R. 163 (F.C.A.) (Partridge); Bishop v. Canada (Employment Insurance Commission) (2002), 292 N.R. 158 (F.C.A.) (Bishop)). In turn, where, as here, the provincial legislation assists claimants in accessing such benefits, the applicability of that legislation should not be ignored.

[42]It is noteworthy that none of the cases considered thus far by this Court in connection with paragraph 33(2)(a) have dealt with a teacher's termination expressly triggered by provincial legislation. I do not read subsection 40(5) of the School Act, which deals generally with opening and closing dates, vacation dates, and hours of instruction for Alberta schools, as overriding the express termination provisions and commencement dates in the new contracts now under review. The language of this Alberta subsection falls short of the specific language in the provincial legislation applicable in Gauthier, Partridge, and Bishop, which all articulate the specific commencement of the school year as July 1.

[43]Apparently, the Umpire was not referred to subsection 36(4) of the Regulations, which reads as follows:

36. . . .

(4) Earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.

[44]Based on subsection 36(4), all monies paid to the applicants could only be allocated to services performed up to June 30, 1999. Such payment cannot be used to demonstrate a continuing employment relationship by applying the amount received in June to the months of July and August. It must be remembered that the Supreme Court of Canada in Dick, supra, relied on former subsection 58(3) (now subsection 36(4)) in reaching its conclusion that when a teacher's salary is paid in 12 monthly instalments for 10 months of teaching, the payments relate only to work performed in the 10 months, and not to the vacation months of July and August. In my analysis, Dick, remains good law, and the majority reasons herein deny the applicants the benefit of this long standing decision.

[45]Over the non-teaching summer months the applicants received employment benefits, which included health care insurance, dental insurance, group life insurance, and long-term disability insurance paid for by the various school boards. A close review of the evidence reveals that benefit payments by school boards on behalf of the applicants in the non-teaching period were ex gratia in nature and were also not reflective of a continuing relationship. The provision of benefits for the summer months was not a term or condition of any of the contracts, and was in fact provided for any teacher who had fulfilled a contract in the prior year regardless of any future employment arrangement.

[46]The result flowing from my analysis is indeed anomalous. Temporary teachers working the equivalent of full-time teachers and who are rehired for a subsequent teaching term receive employment insurance benefits, while full-time teachers do not. It is difficult to believe that this was Parliament's intent. Nonetheless, this Court must apply the Act and Regulations as it finds them, and avoid the temptation to apply an interpretation that circumvents the obvious meaning of the word "terminate" in paragraph 33(2)(a). If Parliament or the Governor in Council had wished to preclude the "double dipping" which the current legislative scheme permits, an amendment could easily have been made.

[47]In summary, in my analysis, all of the applicants are exempt under paragraph 33(2)(a) of the Regulations on the basis that their contracts were terminated by the School Act on June 30, 1999. I would allow both applications for judicial review, set aside the decisions of the Umpire dated November 30, 2000, and remit the matters to the Chief Umpire or his designate for determination in accordance with these reasons.

[48]A copy of these dissenting reasons will also be placed in file A-664-01.