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A-803-80
Mrs. Marlyne Falardeau (Appellant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Pratte and Heald JJ. and Lalande D.J.—Montreal, June 4, 1981.
Judicial review — Unemployment insurance — Application to set aside the Umpire's decision that the appellant was not entitled to unemployment insurance benefits paid to her for July and August 1978 — Appellant was hired in September 1978 and worked as a teacher from September 1978 to June 1979 — Whether part of the salary earned as a teacher from September 1978 to July 1979 constituted pay for July and August 1978 — Application is allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.). c. 10, s. 28 — Education Act, R.S.Q. 1964, c. 235, ss. 1(26), 212.
APPLICATION for judicial review. COUNSEL:
Jean-Pierre Boileau for appellant. Guy Leblanc for respondent.
SOLICITORS:
Locas, Boileau & Boucher, St. Hyacinthe, for appellant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: Appellant is asking the Court, under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to set aside a decision of an Umpire pursuant to the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48. This decision held that appellant was not entitled to the unem ployment insurance benefits paid to her for July and August 1978.
Appellant worked as a nurse until the middle of August 1977. It was common ground that she was still unemployed during July and August 1978, and the unemployment insurance benefits to which she was then entitled were paid to her at that time. In September 1978, she found work as a teacher. On September 25, 1978 she signed a contract with
the regional school commission of Yamaska under which she was hired to teach part time from September 1, 1978 to June 30, 1979. In January 1980, the Unemployment Insurance Commission claimed payment from her of the benefits she had received in July and August 1978. This claim was based on the contention that part of the salary appellant had earned as a teacher from September 1, 1978 to July 1, 1979 constituted pay for July and August 1978.
The Umpire found this claim to be justified. His decision was based on section 212 of the Educa tion Act of Quebec, R.S.Q. 1964, c. 235, and on the definition of the expression "school year" con tained in subsection 1(26) of that Act:
212. The engagement of a teacher shall be for a school year, or to complete a year already begun, or for more than one school year in special cases approved by the Minister.
1....
(26) The words "school year" mean the twelve months from the 1st of July of one year to and including the 30th of June of the next year;
In the opinion of the Umpire the appellant is deemed, despite the terms of her contract of employment, to have been hired for a period of twelve months from July 1, 1978.
This decision appears to me to be incorrect. Under the terms of section 212 itself, the rule that a teacher must be hired for the school year does not apply when a teacher is hired to complete "a year already begun". I interpret this provision as meaning that the rule in question does not apply when a teacher is hired after the start of the school year, that is after July 1, for the remainder of the school year. The record does not show that appel lant was hired as a teacher before September 1, 1978. It follows, therefore, that she was hired at that time to complete the year already begun on the preceding July 1. That being the case, nothing of what was paid to her as salary for the period of her employment, September 1, 1978 to June 30, 1979, can fictitiously be regarded as having been paid to her for the period from July 1 to Septem- ber 1, 1978.
For these reasons, the decision a quo should, in my view, be set aside and the matter referred back to the Umpire to be decided by him on the assumption that the rule enacted by section 212 of the Education Act, namely that the hiring of a teacher shall be for a school year, from July 1 of one year to June 30 of the next year, does not apply to a teacher who is hired after July 1 to complete a school year already begun.
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HEALD J. concurred.
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LALANDE D.J. concurred.
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