Oliver v. Canada (Attorney General) (C.A.) [2003] 4 F.C. 47
Date: 20030225
Docket: A-811-00
Neutral citation: 2003 FCA 98
CORAM: LÉTOURNEAU J.A.
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
S.C. 1996 C23
AND IN THE MATTER OF THE DECISION OF THE HONOURABLE
P. ROULEAU, UMPIRE, DATED THE 3RD DAY OF NOVEMBER, 2000, AFFIRMING
THE DECISION OF THE BOARD OF REFEREES OF OCTOBER 20TH, 1999, AND
BROUGHT TO THE ATTENTION OF THE APPLICANT ON NOVEMBER 29TH, 2000
BETWEEN:
CHARLOTTE OLIVER et al
(see annexed)
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Edmonton, Alberta, on November 21, 2002.
Judgment delivered at Ottawa, Ontario, on February 25, 2003.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRING REASONS BY: ROTHSTEIN J.A.
DISSENTING REASONS BY: MALONE J.A.
Date: 20030225
Docket: A-811-00
Neutral citation: 2003 FCA 98
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
MALONE J.A.
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
S.C. 1996 C23
AND IN THE MATTER OF THE DECISION OF THE HONOURABLE
P. ROULEAU, UMPIRE, DATED THE 3RD DAY OF NOVEMBER, 2000, AFFIRMING
THE DECISION OF THE BOARD OF REFEREES OF OCTOBER 20TH, 1999, AND
BROUGHT TO THE ATTENTION OF THE APPLICANT ON NOVEMBER 29TH, 2000
BETWEEN:
CHARLOTTE OLIVER et al
(see annexed)
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] 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 twenty-two other teachers, while in application A-664-01, Mr. Freddy Giammattei raises the same issue on behalf of fifty 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 CUB 49724 (A-811-00) and 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) 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. |
33. (3) Le prestataire qui exerçait un emploi dans l'enseignement pendant une partie de sa période de référence n'est pas admissible au bénéfice des prestations - sauf celles payables aux termes des articles 22 et 23 de la Loi - pour les semaines de chômage comprises dans toute période de congé de celui-ci, sauf si, selon le cas :
a) son contrat de travail dans l'enseignement a pris fin;
b) son emploi dans l'enseignement était exercé sur une base occasionnelle ou de suppléance;
c) il remplit les conditions requises pour recevoir des prestations à l'égard d'un emploi dans une profession autre que l'enseignement. |
(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 twelve 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), A-101-98, November 3, 1998; Gauthier v. Canada, A-128-95, October 6, 1995; Attorney General of Canada v. St. Coeur, A-80-95, April 17, 1996; Canada (Attorney General v. Hann, A-678-95, July 2, 1997; Canada (Attorney General) v. Partridge, A-704-97, June 4, 1999. 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 cannot 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. 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, 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 (2002), FCA 276.
[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 Regulation 36(4) of the Employment Insurance Regulations, SOR/96-332 (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. |
36. (4) La rémunération payable au prestataire aux termes d'un contrat de travail en échange des services rendus est répartie sur la période pendant laquelle ces services ont été fournis. |
[25] With respect, I do not think Regulation 36(4) is of any assistance in deciding the issue before us. Regulation 36 deals with the allocation of earnings for benefit purposes. The allocation rules, of which Regulation 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, Carswell, Ontario, page 688 and the jurisprudence of this Court cited therein. Indeed, Regulation 36(4) has no application in a situation like ours where there is continuity of employment, ineligibility to benefits as a result and, therefore, no need to allocate earnings for the purpose of calculating benefits.
[26] Regulations 35 and 36 are general rules determining what constitutes earnings and how these earnings should be allocated. Regulation 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 Regulation 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.
"Gilles Létourneau"
J.A.
ROTHSTEIN J.A. (concurring)
[29] 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 ten months, while teachers are usually paid in instalments over twelve 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 re-hired 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 FCA 276; Canada (Attorney General) v. Partidge (1999), 245 N.R. 163 (F.C.A.); Gauthier v. Canada (Employment and Immigration Commission), [1995] F.C.J. No. 1350 (C.A.); and Canada (Attorney General) v. Hann, [1997] F.C.J. No. 1641 (C.A.). The only exception is Ying v. Canada (Attorney General), [1998] F.C.J. No. 1615 (C.A.).
[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 re-hired 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.
"Marshall Rothstein"
J.A.
MALONE J.A. (dissenting)
[34] 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 (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 |
33 (2) Le prestataire qui exerçait un emploi dans l'enseignement pendant une partie de sa période de référence n'est pas admissible au bénéfice des prestations - sauf celles payables aux termes des articles 22 et 23 de la Loi - pour les semaines de chômage comprises dans toute période de congé de celui-ci, sauf si, selon le cas: |
|
(a) the claimant's contract of employment for teaching has terminated; (emphasis added) |
(a) son contrat de travail dans l'enseignement a pris fin; [je souligne]
|
[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 v. Canada (Unemployment Insurance Commission), [1980] 2 S.C.R. 243 (Dick), the Supreme Court of Canada acknowledged that when a teacher's salary is paid in twelve monthly installments for ten months of teaching, the payments relate to the work performed in the ten 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, 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:
Probationary Contract:
79(3) A probationary contract of employment shall terminate on the June 30
next following the commencement date specified in the contract.
Temporary 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.
Interim Contract:
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 harmonious 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, 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 para. 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'" (Reasons for Judgment at 9). Past decisions of this Court have readily applied provincial legislation so as to deny employment insurance benefits to claimants (See Taylor v. Minister of Employment and Immigration (1991), 126 N.R. 345 (F.C.A.), Gauthier v. Canada, [1995] F.C.J. No. 1350 (C.A.) (Gauthier), Canada v. Partridge (1999), 245 N.R. 163 (F.C.A.) (Partridge), Bishop v. Canada, 2002 FCA 276 (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. |
36 (4) La rémunération payable au prestataire aux termes d'un contrat de travail en échange des services rendus est répartie sur la période pendant laquelle ces services ont été fournis. |
[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 relied on former subsection 58(3) [now subsection 36(4)] in reaching its conclusion that when a teacher's salary is paid in twelve monthly instalments for ten months of teaching, the payments relate only to work performed in the ten 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.
"B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-811-00
STYLE OF CAUSE: CHARLOTTE OLIVER ET AL v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: November 21, 2002
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRING REASONS BY: ROTHSTEIN J.A.
DISSENTING REASONS BY: MALONE J.A.
DATED: February 25, 2003
APPEARANCES:
Mr. Garrett Eisenbraun FOR THE APPLICANTS
Mr. John O'Callaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Field Atkinson Perraton LLP FOR THE APPLICANTS
Edmonton, Alberta
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada