Ontario v. OSSTF

Ontario v. OSSTF Collection Decisions of the Court of Appeal Date 1998-11-19 Docket numbers C26659 Judges Brooke, John Watson; Laskin, John Ivan; Charron, Louise Vivianne Subject Civil Decision Content DATE: 19981119 DOCKET: C26659 COURT OF APPEAL FOR ONTARIO BROOKE, LASKIN AND CHARRON JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN IN RIGHT ) Leslie M. McIntosh OF ONTARIO as represented by the ) for the appellant Minister of Education ) ) Appellant ) ) and ) ) Maurice A. Green ONTARIO TEACHERS' PENSION PLAN ) for the respondent BOARD AND ONTARIO SECONDARY ) Ontario Secondary SCHOOL TEACHERS' FEDERATION ) School Teachers' ) Federation Respondents ) ) Heard: September 15, 1998 LASKIN J.A.: [1] Is a teacher who teaches half-days a part-time employee as the appellant the Minister of Education contends or on a leave of absence as the respondent the Ontario Secondary School Teachers' Federation ("OSSTF") contends? Under s.94(4) of the Ontario Teachers' Pension Plan ("the Pension Plan") teachers on a leave of absence may purchase credited service for the time they are absent; part-time teachers are credited for service only for the time they actually work. Credited service is a factor in calculating both the amount of the Minister's required pension contributions and the amount of a teacher's pension. [2] Donald Stadler, a member of the OSSTF, taught Latin for The Lincoln County Board of Education from 1959 until he retired in 1995. For all but three years of his teaching career Mr. Stadler taught full time. However, in the school years 1989-90, 1990-91 and 1991-92, with the School Board's approval, he taught only half-days. The School Board characterized his reduced workload for each of these three school years as a half time leave of absence. [3] On December 19, 1991, Mr. Stadler applied to the Pension Board to purchase credited service for the period September 1, 1989 to June 30, 1992, when he taught half- days. His application was denied by the Staff of the Pension Board, which held that "the Plan provisions do not provide for the purchase of credit for a loss of service due to a reduction in workload." The OSSTF appealed on Mr. Stadler's behalf to the Benefits Adjudication Committee of the Pension Board. The question before the Committee was "whether members who have an arrangement with their employers for a reduced workload from full-time to part-time employment have a leave of absence within the meaning of subsection 94(1) of Schedule 1 of the Teachers' Pension Act." The Committee answered this question affirmatively and therefore allowed OSSTF's appeal. Contrary to the staff's position, the Committee concluded that "the part-time work arrangement of the member can be considered to result in a leave of absence for the period when the member is not at work." On February 11, 1993, the Pension Board ratified the Committee's decision. [4] The Minister applied for judicial review of the Pension Board's decision. On September 24, 1996, the Minister's application for judicial review was dismissed by the Divisional Court (Southey, Watt and Perras JJ.) who, applying a standard of correctness, found no reason to interfere with the decision of the Pension Board. The Minister appeals with leave to this court. I would allow the Minister's appeal. In my opinion, Mr. Stadler became a part-time teacher during the three school years in question. He was not on a leave of absence and therefore he was not entitled to purchase credited service for the time he was not teaching. Discussion [5] The Pension Plan is Schedule 1 to the Teachers' Pension Act, S.O. 1989, c.92. Although local school boards employ teachers, these school boards are not required to contribute to the Pension Plan. Instead, under the Pension Plan, the Minister of Education is required to match the contributions made by teachers. A teacher's required pension contribution is a percentage of the teacher's pensionable salary. Normally, a teacher's pensionable salary is the amount paid to the teacher during the school year. However, under s.14(1) of the Pension Plan, a teacher's pensionable salary may be increased by a deemed amount if the teacher is entitled to purchase credited service for an absence or break in service. Section 14(1) provides: 14.C(1) The pensionable salary of a member who purchases credited service under section 94, 95 or 96 for an absence or break in service is the amount of remuneration that, in the opinion of the member's employer, the member would have earned had he or she not taken the absence or break. [6] By the application of this provision, credited service affects the amount of required pension contributions by both teachers and the Minister of Education. Credited service also factors into the calculation of the amount of a teacher's pension. Under s.41(3) of the Pension Plan, the amount of a teacher's retirement pension, before adjusting for inflation, is calculated using the formula (A x B) - C, in which A is 2 percent of the teacher's average salary, B is the number of years of the teacher's credited service and C is the reduction for any contribution to the Canada Pension Plan. [7] The normal rule is that teachers obtain credited service only for the number of hours or days they actually work. This rule is found in s.10(1) of the Pension Plan, which states: 10.C(1) An active member receives one year of credited service for working the number of hours or days normally worked during a school year by a full-time employee in the occupational group in which the member is employed. [8] Thus, under s.10(2) of the Pension Plan, part-time teachers only receive credited service for the part of the school year that they work. The section of the Pension Plan in issue in this case, s.94(4), is an exception to the normal rule that teachers are credited only for days or hours worked. Section 94(4) states: (4) An active member may purchase credited service for all or part of an absence or a break in service. [9] The word "absence" is broadly defined in s.94 to mean "a leave of absence, with or without pay, to which a member's employer consents". The School Board consented to Mr. Stadler going on a leave of absence for each of the three school years between September 1, 1989 and June 30, 1992. The crux of this appeal then is whether for those three school years Mr. Stadler was a full-time teacher on a leave of absence for half of each day or whether he was a part-time teacher. On this question, the parties agree that the decision of the Pension Board is not entitled to deference. The Pension Board is not protected by a privative clause and its members have no special expertise in pension law. The standard of review, therefore, is correctness. [10] Although the School Board granted Mr. Stadler a "leave of absence" for the three school years in question neither its characterization of nor its consent to his reduced teaching load is determinative. The School Board has no financial stake in this dispute because it is not required to contribute to the Pension Plan. Although the School Board must consent to a "leave of absence" to permit the teacher to purchase credited service, the School Board cannot by simply calling a teacher's reduced teaching load a "leave of absence" turn it into a leave of absence under the Pension Plan. Otherwise, the Minister would be required to match contributions made by all teachers classified by their school boards as being on a leave of absence regardless of the validity of that classification. [11] Similarly, the type of contract under which a teacher is hired is not determinative. Both the OSSTF and the Divisional Court appeared to rely on the fact that Mr. Stadler was hired to teach full-time to support their position that he was on a leave of absence. In my view, it is irrelevant that Mr. Stadler was originally hired to teach full-time. Whether a teacher is a full- time or a part-time employee and whether a teacher is on a leave of absence must be determined by interpreting the relevant legislation, not by the teacher's contract. See: Hugh v. Ontario Teachers' Pension Plan Board, [1993] O.J. No.1083(C.A.), leave to appeal to the S.C.C. refused February 3, 1994. [12] The Pension Plan distinguishes between part-time employees and employees on a leave of absence. Mr. Stadler must have been one or the other during the three years in question; he could not have been both. Both the definition of part-time teacher under the Education Act, R.S.O. 1990, c.E.2, and the definition of part- time and full-time employees under the Pension Plan support the Minister's position that Mr. Stadler became a part-time employee during the three school years in question. Section 1(1) of the Education Act, defines a "part-time teacher" as a "teacher employed by a board on a regular basis for other than full-time duty". This definition fits a teacher like Mr. Stadler who teaches half-days everyday of the school year. [13] The Pension Plan similarly defines full-time and part-time employees. Section 1(3) of the Plan states: (3) A person is considered to be employed, (a) full-time, if the person is required to work throughout each work day of a year or of a session; and (b) part-time, if the person is required to work on a regular but not full-time basis. [14] For the three school years in question Mr. Stadler was required to teach regularly C every day C but not on a full-time basis. Under the Pension Plan he was therefore a part-time teacher. And under the Pension Plan part-time teachers are not permitted to purchase credited service for time not worked. The Plan contains express provisions for the calculation of contributions by part-time teachers. These express provisions show that part-time teachers are not permitted to purchase credited service under s.94 of the Plan. [15] Admittedly, "absence" under s.94 is broadly defined to include "leave of absence" and is not further defined. There are at least three reasons however, why a part-time teacher cannot be considered to be on a leave of absence under s.94. [16] First, the ordinary meaning of being on a leave of absence is being temporarily absent from work with the intention of returning to work. See: Black's Law Dictionary, 6th ed. (1990) at 891. Ordinarily being on a leave of absence does not mean working regularly but only for part of a work day. A person on a leave of absence is away from the workplace with the employer's permission, for any one of a variety of reasons C for example, study, pregnancy or illness. A person who works mornings and takes afternoons off is not absent from the workplace. The decision of the British Columbia Labour Arbitration Board in Re Crane Canada Inc. and U.A., Loc. 170 (1993), 33 L.A.C. (4th) 236 at 239, captures the ordinary meaning of a leave of absence. Although it is unnecessary to give a comprehensive definition of a "leave of absence" it typically represents a period during which the employee is not at work where the employee has sought and obtained the permission of the employer. Generally, the absence is because of needs and wishes of the employee and has the approval or permission of the employer. [17] I see no reason to reject the ordinary meaning of leave of absence for some other interpretation. Neither the context in which s.94 is found nor the purpose of the Pension Plan suggests a different interpretation. The OSSTF's position blurs the clear distinction made in the Pension Plan between part-time employees and employees on a leave of absence and would treat adversely and unfairly teachers on part-time contracts working the identical hours and days as Mr. Stadler. [18] Second, the way contributions are calculated for an "absence" under s.94 shows that teaching half-days cannot be classified as a leave of absence. Under s.94(6) and (7) of the Pension Plan, the amount of and due date for contributions by teachers who elect to purchase credited service are calculated by reference to the teacher's "return date". Section 94(8) of the Pension Plan provides that "a member's return date following an absence or break in service is the member's twenty-first day of employment in education in the first school year during which the member works more than twenty days following the absence or break." This subsection cannot apply to Mr. Stadler because, although he did not teach in the afternoons, he never ceased to be employed in education. For the OSSTF's position to be correct, Mr. Stadler's "return date" would have to be his twenty-first day of employment after he returned to full-time teaching. This cannot be the case. A "return date" ordinarily implies that a person is returning to something the person has left. Yet throughout the time frame Mr. Stadler claims he was on a leave of absence, he remained employed in education. He cannot be said to have returned to employment in education when he never left that employment. In other words, although he may returned to full-time teaching, he did not return to employment in education. [19] The third reason favouring the Minister's position flows from comparing the provisions of the current Pension Plan with its predecessor in O.Reg. 423/84 promulgated under the previous legislation, the Teachers' Superannuation Act, 1983, S.O. 1983, c.84. The previous pension plan also allowed teachers credit in the Teachers' Superannuation Fund for a leave of absence or break in service. Section 7 of the 1984 regulation listed specific kinds of leaves of absence C for example, travel, study, ill health or pregnancy. Admittedly, s.94 of the current Pension Plan has adopted a broad definition of absence instead of listing specific kinds of leaves. To that extent s.94 is more flexible than its predecessor, s. 7 of the 1984 regulation. [20] But the significance of the 1984 regulation lies in its treatment of credited service for position sharing. When Mr. Stadler first began teaching half time he was position sharing, that is, sharing a full teaching load with another teacher. Under s.14 of the 1984 regulation C not s.7 C a teacher was entitled to credit in the Fund for "a period of leave of absence because of participation in a position-sharing scheme". Under s.14.1(iii) of the regulation if the person's employer confirmed that the "person would have been employed in education on a full-time basis but for participating in the position-sharing scheme", that person was entitled to credit for being on a leave of absence. Thus, under the 1984 regulation Mr. Stadler would have been entitled to full credited service when he taught part-time because he was position sharing. However, this special provision for credited service because of position sharing had a limited life span. Under s.14.6 of the regulation, no person was entitled to credit in the Fund for a leave of absence because of participation in a position sharing arrangement before September 1, 1982 and after August 31, 1989. Provision for credited service for position sharing was not expressly retained in the 1989 statute or in the current Pension Plan. [21] The OSSTF argues that the current Pension Plan uses a broad definition of absence instead of itemizing specific kinds of absences and therefore that credited service for position sharing is incorporated in this broad definition in s.94. I do not agree. The itemized leaves of absence in s.7 of the 1984 regulation are undoubtedly included in the definition of absence under s.94 of the current Pension Plan. But credited service for position sharing was treated separately and was limited in duration under the 1984 regulation. Therefore, I do not think that s.94 can reasonably be interpreted to embrace leaves of absence for position sharing. [22] Although courts should use legislative history cautiously when interpreting a statute or a regulation, comparing two successive versions of a provision can demonstrate that a substantive change was intended. In my view, comparing s.94 of the Pension Plan with sections 7 and 14 of the 1984 regulation demonstrates a legislative intent to change the law by eliminating leaves of absence for position sharing. [23] The Minister's position does, seemingly, produce some anomalous results. For example, a teacher in a semestered program who teaches full time for the first half of the school year and then takes the second half of the year off may teach the same number of hours as Mr. Stadler and yet may properly be considered to be on a leave of absence for the second half of the school year. This result, however, flows from the provisions of the Pension Plan. Moreover, teachers who leave the workplace for an entire semester ordinarily do so for one of the usual reasons for a leave of absence. And the number of teachers permitted to take these leaves will likely be limited. Thus, I do not think that this example detracts from the Minister's position. Conclusion [24] I would allow the appeal, set aside the order of the Divisional Court, grant the application for judicial review and set aside the decision of the Pension Board. Because this issue has not been litigated before, I would make no order for costs either in this court or in the Divisional Court. Released: November 19, 1998