A-564-76
Attorney General of Canada (Applicant)
v.
The Umpire constituted under section 92 of the
Unemployment Insurance Act, 1971 (Respondent)
Court of Appeal, Pratte, Urie and Ryan JJ.—
Fredericton, April 29; Ottawa, May 6, 1977.
Judicial review — Entitlement to unemployment insurance
benefits — Payment period 2 months after contract began to 2
months after contract expired — Umpire declared individual
eligible — Whether Umpire erred in law — Unemployment
Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 21(1),(2) —
Federal Court Act, s. 28 — Schools Act, R.S.N.B. 1973, c.
S-5, ss. 1 and 41.
A teacher signed a contract for one year, beginning July 1,
1975, but was not to receive any salary for July and August. He
would continue to receive his salary in July and August 1976,
after the expiry of his contract. The teacher claimed to be
entitled to unemployment insurance benefits for a week in July
1975. An Umpire declared him entitled. The application is to
determine whether the Umpire erred in law in so deciding.
Held, the application is allowed. Section 21(2) of the Unem
ployment Insurance Act, 1971 expressly provides that remuner
ation may be paid, or payable, under a contract of employment
in respect of a week during which the employee does not do any
work. It cannot be said therefore that, within the meaning of
section 21(2), the remuneration payable to the teacher under
his contract of employment was entirely payable in respect of
the "teaching year" because it was during that year that he was
to perform his duties. Nor can it be said that the teacher's
salary was to be paid to him in respect of the "pay year", from
September to August. The teacher was hired for the school
year, as contemplated by the Schools Act of New Brunswick, at
a fixed annual salary, payable in 24 instalments. When a
person is hired for a fixed term of one year at an annual fixed
salary, his salary is payable in respect of the year that consti
tutes the term of the contract, irrespective of the fact that it
may be stipulated to be payable in whole or in part after the
expiry of that term.
APPLICATION for judicial review.
COUNSEL:
E. A. Bowie for applicant.
Brian R. Warnock and Eugene J. Mockler for
W. G. Kingston and the New Brunswick
Teachers' Federation.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Hoyt, Mockler, Allen & Dixon, Fredericton,
for W. G. Kingston and the New Brunswick
Teachers' Federation.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application, under
section 28 of the Federal Court Act to review and
set aside a decision of an Umpire under Part V of
the Unemployment Insurance Act, 1971, S.C.
1970-71-72, c. 48, allowing an appeal from a
decision of a Board of Referees. By that decision
the Board of Referees had held that a Mr. William
G. Kingston was not entitled to receive the benefits
that he had claimed in July 1975 because he had
not proved that he was then unemployed.
Mr. Kingston is a school teacher. On June 20,
1975, he was hired by the Board of School Trus
tees of District No. 15 in New Brunswick for a
period of one year commencing on July 1, 1975.
However, like, all school teachers, it was under
stood that Mr. Kingston was not to perform any
services during the months of July and August.
His contract of employment contained the follow
ing stipulations:
1. The Teacher, for the consideration expressed in
paragraph 2, agrees with the School Board to teach diligently
and faithfully and to perform the duties related thereto in
accordance with the SCHOOLS ACT of New Brunswick during
the school year ending June 30, 1976, and from school year to
school year thereafter until this contract is terminated as herein
provided.
2. The School Board agrees to pay the Teacher in accordance
with the salary scale and, where applicable, the responsibility
allowance for such supervisory position as that Teacher holds,
as set forth in -the current Collective Agreement between the
New Brunswick Teachers' Federation—La Fédération des
Enseignants du Nouveau-Brunswick and Treasury Board.
3. The School Board agrees to pay the Teacher in accordance
with the Article "Method of Payment" as set forth in the
current Collective Agreement between the New Brunswick
Teachers' Federation—La Fédération des Enseignants du Nou-
veau-Brunswick and Treasury Board.
' The Schools Act, R.S.N.B. 1973, c. S-5, of New Brunswick
defines as follows the expression "school year":
"school year" means a year beginning on the first day of
July and ending on the 30th day of June and consisting of
two terms; the first to begin July 1 and end December 31, the
second to begin January 1 and end June 30;
4. Where lost-time pay deductions are required, they will be
deducted at the rate of 1/195 of the Teacher's annual rate of
salary for each such day lost.
5. This contract shall continue in force from school year to
school year unless terminated in accordance with the provisions
of the Collective Agreement between the New Brunswick
Teachers' Federation—La Fédération des Enseignants du Nou-
veau-Brunswick and Treasury Board.
6. Both parties to this contract shall be in all respects subject
to the provisions of the current Collective Agreement between
the New Brunswick Teachers' Federation—La Fédération des
Enseignants du Nouveau-Brunswick and Treasury Board, and
the SCHOOLS ACT and Regulations.
The record does not disclose the terms of the
collective agreement referred to in the contract of
employment. However, we were told at the hearing
that it had been agreed before the Umpire that the
school teachers were entitled, under the collective
agreement to an annual salary payable in 24 semi
monthly instalments spread over a period of 12
months commencing on the first day of September
of every year. Therefore, Mr. Kingston, under his
contract of employment, was not to receive any
salary during the months of July and August,
1975, the first two months of the term of his
employment; however he was to continue to receive
his salary during the months of July and August
1976, after the expiry of the term of his
employment.
In July 1975, at a time when he had not yet
received his salary, Mr. Kingston claimed to be
entitled to receive benefits under the Unemploy
ment Insurance Act, 1971. His application for
benefits was first rejected on the ground that he
had not proved that he was unemployed at that
time. The Umpire held otherwise and the sole
question raised by this application is whether he
erred in law in so deciding.
Section 21 of the Unemployment Insurance Act,
1971 reads as follows:
21. (1) A week of unemployment for a claimant is a week in
which he does not work a full working week.
(2) A week during which a claimant's contract of service
continues and in respect of which he receives or will receive his
usual remuneration for a full working week, is not a week of
unemployment, notwithstanding that the claimant may be
excused from the performance of his normal duties or does not
in fact have any duties to perform at that time.
It is common ground that Mr. Kingston did not
work during the week, in July 1975, for which he
claimed benefits; it is also common ground that
during that week his contract of employment as a
teacher "continued"; lastly, it is common ground
that he did not, during that week, receive his usual
remuneration. What is in issue is whether he was,
when he presented his claim, entitled to receive, at
some time in the future, his usual remuneration in
respect of that week.
Counsel for Mr. Kingston argued that the remu
neration paid under the contract was paid either in
respect of the teaching year (which extended from
the commencement of September 1975 to the end
of June 1976) or in respect of what he called the
"pay year" (which extended from September 1,
1975, to August 31, 1976). In either case, said he,
no remuneration was to be paid to Mr. Kingston in
respect of the months of July and August 1975.
This contention is, in my view, unfounded.
In a certain sense, it may be true that the
remuneration payable under an employment con
tract is entirely payable in respect of the time
during which the employee will perform his duties.
However, section 21(2) expressly provides that,
within the meaning of that section, remuneration
may be paid, or payable, under a contract of
employment in respect of a week during which the
employee does not do any work. It cannot be said
therefore that, within the meaning of section
21(2), the remuneration payable to Mr. Kingston
under his contract of employment was entirely
payable in respect of the "teaching year" because
it was during that period that he was to perform
his duties. Nor can it be said, in my view, that Mr.
Kingston's salary was to be paid to him in respect
of what counsel called the "pay year", from Sep-
tember 1975 to the end of August 1976. Mr.
Kingston had been hired for the school year, as
contemplated by the Schools Act 2 , at a fixed
annual salary, payable in 24 instalments. When a
person is thus hired for a fixed term of one year at
an annual fixed salary, his salary, in my view, is
2 Section 41 of the Act provides that:
41 Any contract for the employment of a teacher, to which
this Act extends, shall continue in force from school year
to school year ... .
payable in respect of the year that constitutes the
term of the contract, irrespective of the fact that it
may be stipulated to be payable in whole or in part
after the expiry of that term.
I am therefore of the view that when Mr. Kings-
ton submitted his claim in July 1975, he claimed
benefits for a week which was not, for him, a week
of unemployment because it could not be said that
he would not receive his usual remuneration for
that week.
For these reasons, I would set aside the
Umpire's decision and refer the matter back to
him for determination without any further hear
ing, on the basis that Mr. Kingston did not prove
that the week for which he claimed benefit, was,
for him, a week of unemployment.
* * *
URIE J.: I concur.
* * *
RYAN J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.