Stone v. Canada (Attorney General), 2006 FCA 27

• Judge: Décary, Sexton and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: December 13, 2005
• Jurisdiction: Canada (Federal)
• Citations: 2006 FCA 27;(2006), 345 N.R. 99 (FCA)

Stone v. Can. (A.G.) (2006), 345 N.R. 99 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. FE.010

Sheila Stone (applicant) v. The Attorney General of Canada (respondent)

(A-367-04; A-368-04; 2006 FCA 27)

Indexed As: Stone v. Canada (Attorney General)

Federal Court of Appeal

Décary, Sexton and Evans, JJ.A.

January 24, 2006.

Summary:

At issue on this judicial review was whether a teacher could collect employment insur­ance benefits during her summer "non-teach­ing period" under the Employ­ment In­surance Regula­tions, s. 33(2).

The Federal Court of Appeal, Evans, J.A., dissenting, dismissed the judicial review application, holding that the teacher in this case was not entitled to employment insur­ance bene­fits.

Unemployment Insurance - Topic 1628

Claims - Entitlement - Teachers - [See both Unemployment Insurance - Topic 1703 ].

Unemployment Insurance - Topic 1703

Claims - Grounds for refusal - Not unem­ployed - Under the Employment Insur­ance Regula­tions, s. 33(2), a teacher could not collect benefits during a non-teaching period unless the teacher's contract had been terminated - The Federal Court of Ap­peal stated that the test under s. 33(2) was that unless there was a veri­table break in the continu­ity of a teacher's em­ploy­ment, a teacher would not be entitled to benefits for the non-teaching period - Sec­tion 33(2) determinations were fac­tually-inten­sive - The court dis­cussed the inter­pre­ta­tion and pur­pose of s. 33(2) and re­ferred to a non-ex­haustive list of factors appli­cable in deter­min­ing whether there was a "veritable break" in a teacher's em­ploy­ment - The court stated that the teac­h­er had the burden of estab­lishing that the contract was ter­minated - The court noted that although a lack of com­pensa­tion by the employer may indi­cate that a con­tract was terminated, it did not follow that non-payment alone sufficed for a finding of con­tract termination - All the facts had to be considered - See paragraphs 1 to 50.

Unemployment Insurance - Topic 1703

Claims - Grounds for refusal - Not unem­ployed - A teacher at a non-unionized, privately funded school, taught kindergar­ten there from September to June of each year for 10 years - She was off work with­out pay in July and August and called to return to work each August - During July and August she collected employ­ment in­sur­­ance - Under the Employment Insur­ance Regu­la­tions, s. 33(2), a teacher could not collect benefits during a non-teaching period unless the teacher's contract had been terminated - The Federal Court of Ap­peal held that the teacher was not en­titled to employment insurance benefits - The lack of compensa­tion was not deter­mi­na­t­ive - All factors had to be con­sidered, including the teacher's decade long em­ploy­­ment record, the length of the non-teaching period, customs and practices in the teach­ing field, the lack of compensa­tion, con­tractual terms, the recall method, the record of employment form and other evi­dence of the employer's outward recog­nition and the under­standing and conduct of the parties - See paragraphs 51 to 93.

Unemployment Insurance - Topic 1842

Claims - Appeals - Umpire - Jurisdiction (incl. standard of review) - An employ­ment insurance board of referees and in turn, an umpire, were called upon to rule on whether a teacher who had no con­tinu­ing contract could collect employment in­sur­ance benefits during her summer "non-teach­ing period" (Employ­ment Insur­ance Regu­la­tions, s. 33(2)) - The Feder­al Court of Appeal discussed the standard of review applicable to the umpire's review of this type of decision by a board of ref­erees and the standard of review which should be ap­plied by the court respecting the um­pire's decision - See para­graphs 10 to 23.

Unemployment Insurance - Topic 1861.1

Claims - Judicial review - Scope of - [See Unemployment Insurance - Topic 1842 ].

Words and Phrases

The claimant's contract of employment for teaching has been terminated - The Fed­eral Court of Appeal discussed the mean­ing of this phrase as used in s. 33(2) of the Employment Insurance Regulations, SOR/96-332 - See paragraphs 24 to 27.

Words and Phrases

Son contract de travail dans l'enseigne­ment a pris fin - The Federal Court of Ap­­peal discussed the meaning of this phrase as used in s. 33(2) of the Employ­ment Insur­ance Regulations, SOR/96-332 -See para­graphs 24 to 27.

Cases Noticed:

Oliver et al. v. Canada (Attorney General) (2003), 301 N.R. 293; 2003 FCA 98, refd to. [para. 9].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 10].

Meechan v. Canada (Attorney General) (2003), 311 N.R. 115; 2003 FCA 368, refd to. [para. 10].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [paras. 12, 102].

Gauthier v. Employment and Immigration Commission, [1995] F.C.J. No. 1350 (F.C.A.), refd to. [para. 13].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 14].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 14].

Baker Petrolite Corp. et al. v. Canwell Enviro-Industries Ltd. et al., [2003] 1 F.C. 49; 288 N.R. 201; 2002 FCA 158, refd to. [para. 14].

Budhai et al. v. Canada (Attorney General) (2002), 292 N.R. 379; 216 D.L.R.(4th) 594; 2002 FCA 298, refd to. [para. 15].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1; 81 D.L.R.(4th) 358, refd to. [para. 15].

Canada (Attorney General) v. Sveinson (2001), 281 N.R. 341; 2001 FCA 315, refd to. [para. 17].

Canada (Attorney General) v. Kos (2005), 343 N.R. 228; 2005 FCA 319, refd to. [para. 18].

Canada (Attorney General) v. Peace (2004), 317 N.R. 47; 2004 FCA 56, refd to. [para. 23].

Canada (Attorney General) v. Sacrey (2003), 311 N.R. 107; 2003 FCA 377, refd to. [para. 23].

Bristol-Myers Squibb Co. et al. v. Canada (Attorney General) et al. (2005), 334 N.R. 55; 2005 SCC 26, refd to. [para. 29].

Donachey v. Canada (Attorney General) (1997), 213 N.R. 78 (F.C.A.), refd to. [para. 30].

Taylor v. Minister of Employment and Im­mi­gration (1991), 126 N.R. 345; 81 D.L.R.(4th) 679 (F.C.A.), refd to. [para. 32].

Reference Re Employment Insurance Act (2005), 339 N.R. 279; 2005 SCC 56, refd to. [para. 40].

Beothuk Data Systems Ltd., Seawatch Division v. Dean et al., [1998] 1 F.C. 433; 218 N.R. 321 (F.C.A.), refd to. [para. 48].

Minister of National Revenue v. Canada Trustco Mortgage Co. (2005), 340 N.R. 1; 2005 SCC 54, refd to. [para. 50].

Ying v. Canada (Attorney General), [1998] N.R. Uned. 195 (F.C.A.), refd to. [para. 52].

Bishop v. Canada Employment Insurance Commission (2002), 292 N.R. 198; 2002 FCA 276, refd to. [para. 53].

Canada (Procureur général) v. St-Coeur (1996), 199 N.R. 45 (F.C.A.), refd to. [para. 54].

Ceccol v. Ontario Gymnastic Federation (2001), 149 O.A.C. 315 (C.A.), refd to. [para. 59].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200; 91 D.L.R.(4th) 491; 40 C.C.E.L. 1, refd to. [para. 69].

Jordison v. Caledonian Curling Co-operat­ive Ltd. (2005), 190 Sask.R. 32; 2000 SKQB 55, refd to. [para. 71].

Gray v. Manvers (Township), [1992] O.J. No. 2898 (Gen. Div.), refd to. [para. 71].

Hildebrandt v. Wakaw Lake Regional Park Authority et al. (1999), 175 Sask.R. 207 (Q.B.), refd to. [para. 71].

Ross v. Paterson (N.M.) & Sons Ltd., [1996] O.J. No. 1194 (Gen. Div.), appeal allowed on the length of notice only, [1998] O.A.C. Uned. 351, refd to. [para. 71].

Saunders v. Fredericton Golf & Curling Club Inc. (1994), 151 N.B.R.(2d) 184; 387 A.P.R. 184 (C.A.), refd to. [para. 74].

MacDonald v. Dykeview Farms Ltd. (1998), 177 N.S.R.(2d) 310; 542 A.P.R. 310 (S.C.), refd to. [para. 81].

Statutes Noticed:

Canada Labour Code - see Labour Code.

Employment Insurance Act, S.C. 1996, c. 23, sect. 54(j) [para. 3]; sect. 118 [para. 21].

Employment Insurance Act (Can.), Employment Insurance Regulations, SOR/96-332, sect. 14(5)(b)(i) [para. 31]; sect. 33(1), sect. 33(2) [para. 2]; sect. 33(2)(a) [para. 39].

Employment Insurance Regulations - see Employment Insurance Act Regulations (Can.).

Labour Code, R.S.C. 1985, c. L-2, sect. 240(1)(a) [para. 47].

Unemployment Insurance Act, R.S.C. 1985, c. U-1, sect. 58(h.1) [para. 35].

Counsel:

Harvey Stone, for the applicant;

Derek Edwards, for the respondent.

Solicitors of Record:

Harvey Stone, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Attorney General of Canada, Ottawa, Ontario, for the respon­dent.

These applications were heard in Toronto, Ontario, on December 13, 2005, before Dé­cary, Sexton and Evans, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered in Ottawa, Ontario, on January 24, 2006, including the follow­ing opinions:

Sexton, J.A. (Décary, J.A., concurring) - see paragraphs 1 to 93;

Evans, J.A., dissenting - see paragraphs 94 to 117.