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BENEFITS AND CLAIMS - Qualification and entitlement

Wednesday, May 19, 2021 @ 6:24 AM  


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Application by the Attorney General for judicial review of a decision of the Appeal Division of the Social Security Tribunal determining that the respondent was entitled to Employment Insurance benefits during the summer break in the 2017-2018 school year. From November 2017 to February 2018, the respondent taught the same class for one hour per day replacing a teacher on sick leave. For the second semester commencing in February 2018, the respondent obtained a new employment contract. Two letters from the School Board conflicted as to the respondent’s employment. One letter indicated she was to be employed until the end of Semester 2, while the other letter indicated that she would only be engaged until the permanent teacher returned. In June 2018, she accepted a contract for a full-time permanent teaching position for the 2018-2019 school year. The respondent applied for Employment Insurance benefits for the 2018 summer break. The Employment Insurance Commission determined the respondent was not entitled to benefits during that period since her contract of employment for teaching had not terminated and her employment in teaching was on a casual or substitute basis. The Appeal Division based its decision to allow the respondent’s appeal on its finding that the General Division failed to consider the respondent’s evidence that she considered her contract to be day-to-day and that her contract could be terminated by the return of the teacher she was replacing. The Appeal Division concluded that the respondent was employed as a substitute teacher and, therefore, met the requirements of the exception in s. 33(2)(b) of the Regulations for employment in teaching on a casual or substitute basis.

HELD: Application allowed. The Appeal Division failed to establish any applicable ground of appeal that would allow the Appeal Division to overturn the decision of the General Division under s. 58(1) of the Department of Employment and Social Development Act. The General Division did not equate “on-call” with “pre-determined and continuous”, as found by the Appeal Division. There was no suggestion that the General Division made any finding of fact in a perverse or capricious manner or failed to consider the respondent’s evidence that her contract could have terminated at any time before the end of the term in June 2018. The Appeal Division had no authority to overturn a decision of the General Division simply because it would reach a different conclusion based on a different weighing of the evidence. In reaching its conclusion that the respondent’s employment in teaching was on a casual or substitute basis, the Appeal Division was simply reweighing the evidence. The Appeal Division also failed to acknowledge that there was a letter in the record which confirmed the finding of the General Division that the respondent was being employed for the duration of Semester 2.

Canada (Attorney General) v. Hanna, [2021] F.C.J. No. 257, Federal Court of Appeal, W.W. Webb, R. Boivin and G.R. Locke JJ.A., March 24, 2021. Digest No. TLD-May172021005