Sutton v. M.N.R.

Sutton v. M.N.R. Court (s) Database Tax Court of Canada Judgments Date 2005-02-10 Neutral citation 2005 TCC 125 File numbers 2002-3876(EI) Judges and Taxing Officers Gordon Teskey Subjects Employment Insurance Act Decision Content Docket: 2002-3876(EI) BETWEEN: DELL SUTTON, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent. ____________________________________________________________________ Appeal heard on July 16, 2003 and January 13, 2005 at Vancouver, British Columbia Before: The Honourable Justice Gordon Teskey Appearances: Counsel for the Appellant: Christopher M.A. Bungay Counsel for the Respondent: Victor Caux ____________________________________________________________________ JUDGMENT The appeal is allowed and the decision of the Minister of National Revenue is varied under paragraph 103(3)(a) of the Employment Insurance Act to provide that the number of insurable hours worked during the period in question was 714.37 hours, all in accordance with the attached Reasons for Judgment. Signed at Toronto, Ontario, this 10th day of February, 2005. "Gordon Teskey" Teskey, J. Citation: 2005TCC125 Date: 20050210 Docket: 2002-3876(EI) BETWEEN: DELL SUTTON, Appellant, and THE MINISTER OF NATIONAL REVENUE, Respondent. REASONS FOR JUDGMENT Teskey, J. [1] The Appellant appeals the decision of the Minister of National Revenue (the "Minister") wherein he confirmed the Canada Custom and Revenue Agency's (now Canada Revenue Agency) determination that the Appellant had acquired 476.25 insurable hours of employment with School District 36 during the period from June 14, 2000 to June 14, 2001 (the "Period"). Facts [2] In determining that the Appellant had 476.25 insurable hours during the Period, the Minister relied on 10 separate assumptions of fact that were set forth in the Reply to the Notice of Appeal in paragraph 3, subparagraphs a) to j). [3] The Appellant agreed with subparagraphs a) to g) inclusive, which read as follows: a) the Appellant was employed by Surrey School District 36 to teach English as a Second Language ("ESL"); b) teachers in British Columbia are covered by the Provincial Collective Agreement between the B.C. Public Schools Employers Association ("BCPSEA") and the British Columbia Teacher's Federation ("BCTF"); c) the Appellant is considered an Adult Education Teacher ("AET"); d) the Appellant taught from Monday to Thursday from 6:30 p.m. to 9:30 p.m. at Princess Margaret School; e) the Appellant did some substitute work; f) the Appellant was paid on an hourly basis at the rate of $44.40 per hour and was paid by-weekly; g) AET's are covered by the Provincial Collective Agreement; [4] The Appellant originally was represented by a solicitor who was disbarred before the conclusion of this appeal. He, on behalf of the Appellant, agreed to the assumption of fact in subparagraph h), which reads: h) under the collective agreement, AET's are not entitled to be paid for preparation time; [5] When this matter came back before me, the new solicitor representing the Appellant did not agree with this assumption. Over the objection of counsel for the Respondent, I allowed the withdrawal of agreement to accept this fact, my reasoning being that this assumption was irrelevant and misleading. The collective agreement simply fails to make provision for AETs in the same way that it does for elementary and secondary school teachers. [6] The agreement does not preclude AETs from having their preparation time recognized by the Employment Insurance Act (the "Act"). [7] The Court received testimony from the Appellant who has been a AET since 1987 and from Susan Newman, who has been a substitute AET since October of 2002, and Douglas Flemming, who, besides holding a full-time AET position for the past 20 years, is about to defend his thesis in a Phd program on adult teaching English as a second language. [8] I find that the Appellant spent a minimum of one and half hours of preparation for every three hours spent in the classroom. [9] Over the objection of counsel for the Respondent, a letter from School District 36 (Surrey) to the Appellant, dated January 20, 2003, was taken as Exhibit A-1. This letter states: ... I want to confirm that the service provided by adult education teachers in Surrey goes beyond the instructional hours for which they are paid. For example, it would include preparation and marking. The "time" taken to complete these tasks are required and considered as "paid for out of the hourly rate". [10] In light of the testimony that was adduced, I accept this letter as factual. Analysis [11] The Minister based his decision on section 9.1 of the Employment Insurance Regulations (the "Regulations"), which reads: 9.1 Where a person's earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated. [12] The Appellant was not paid by the hour in the manner contemplated by the above regulation, but rather the wage for AETs was set to reflect the additional time required in preparation outside the regular instructional hours. [13] I am satisfied that for all AETs to perform their teaching jobs properly (and that even a 17-year veteran AET such as the Appellant) has to spend at a minimum one and half hours of preparation for every three hours of teaching in the classroom. [14] My colleague Bonner J., in Franke v. M.N.R., [1999] T.C.J. No. 645 (Q.L.), as herein, found that the Appellant was expected to spend the time and effort necessary to do the teaching properly. [15] Associate Chief Justice Bowman of this Court, in Chisholm v. M.N.R., [2001] T.C.J. No. 28 (Q.L.), noted that the rules set out in the Regulations cannot prevail against the true facts. Therein, he found that the Appellant could not possibly have accomplished what was expected of her within the time set out in the terms of employment. [16] I believe there is an ambiguity in the language of Regulation 9.1 when faced with the factual situation presented herein. The words "actually worked" in the Regulation is in conflict with the words "for which the person was remunerated". [17] Iacobucci J. of the Supreme Court of Canada determined in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, that when dealing with benefit conferring legislation, that it should be interpreted in a broad and generous manner and that any doubt arising from difficulties of language should be resolved in favour of the claimant. [18] I am aware of my colleague Tardif J.'s decision in Dupuis v. Canada(Minister of National Revenue - M.N.R.), [2002] T.C.J. No. 295 (Q.L.). I agree with his decision therein, dealing with the factual background of that decision. Herein, the evidence justifies the Court's intervention. [19] For all of the above reasons, the appeal is allowed and the decision of the Minister is varied under paragraph 103(3)(a) of the Act to provide that the number of insurable hours worked during the period in question was 714.37 hours. Signed at Toronto, Ontario, this 10th day of February, 2005. "Gordon Teskey" Teskey, J. CITATION: 2005TCC125 COURT FILE NO.: 2002-3876(EI) STYLE OF CAUSE: Dell Sutton and The Minister of National Revenue PLACE OF HEARING: Vancouver, British Columbia DATES OF HEARING: July 16, 2003 and January 13, 2005 REASONS FOR JUDGMENT BY: The Hon. Justice Gordon Teskey DATE OF JUDGMENT: February 10, 2005 APPEARANCES: Counsel for the Appellant: Christopher M.A. Bungay Counsel for the Respondent: Victor Caux COUNSEL OF RECORD: For the Appellant: Name: Christopher M.A. Bungay Firm: Cowley & Company, Law Office Surrey, British Columbia For the Respondent: John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada