The following decision by an out-of town umpire was unfair and ruined me financially. I was working as a sessional lecturer at the University of Saskatchewan, earning less than a thousand dollars a month. I had taken a job in La Ronge which took up only one week of each month during which I looked for other work. When UI came after me and asked me to pay back the money they had paid me during that time, I appealed immediately. I won a unanimous decision before a three person panel. At the zero hour, UI appealed. A year later, Teitelbaum blew through town and overturned the decision. The university garnisheed my wages so I was left with less than $500 a month on which to live.
I grew marijuana, discreetly, and in 1993 I was busted. That is part of my sad story of how I became a victim of the War on Drugs.
IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT, 1971
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IN THE MATTER of a claim for benefit by SHEILA STEELE
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IN THE MATTER of an appeal to an Umpire by the Canada Employment and
Immigration Commission from a decision by the Board of Referees
given at Saskatoon, Saskatchewan on January 20, 1988.
This is an appeal by the Canada Employment and Immigration Commission (Commission) to an Umpire from a unanimous decision of a Board of Referees dated January 20, 1988 (Exhibit 10).
An appeal to an Umpire is made pursuant to Section 95 of the Unemployment Insurance Act, 1971 (Act).
95. An appeal lies as of right to an Umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
The Commission, in Exhibit 11-2 states
"Pursuant to subsection 95(b) of the Unemployment Insurance Act, the Commission submits that the Board of Referees erred in law in allowing the claimant's appeal."
as its reason for filing the present appeal.
The facts of the claim are not in dispute. The claimant was employed as an instructor for the La Ronge Region Community College until May 23, 1986 at which time her contract was completed and she applied for benefits on May 29, 1986 and established a claim effective May 25, 1986 (Exhibit 2). While on claim the claimant was hired as a sessional lecturer from September 1, 1986 to December 31, 1986. She was employed as a contract teacher to teach English in La Ronge. She was paid a total sum of $5,500. for the period of time. A Mr. Lefebvre, a person in charge of the Department of Education at the University of Saskatchewan, advised the Commission that due to the location of La Ronge, the claimant taught a full week at a time, that is a full week per month rather than one day per week. The claimant actually worked, in addition to preparation and marking papers, September 8 to 12, 1986, September 19 to October 3, 1986, October 27 to 31, 1986, November 17 to 21, 1986 and December 8 to 12, 1986. She was paid on the last banking day of each month (Exhibit 3).
The representative of the Commission received a letter dated November 2, 1987 from the University of Saskatchewan signed by a Michael Sander, Payroll Manager, in which the Commission is informed that the claimant was hired on a monthly salary which included, in addition to actual classroom time, salary for preparation and marking time.
"I agree with the fact that her actual classroom time involved only five weeks, however, the monthly salary includes payment for actual classroom time plus any preparation time required (marking assignments, etc.)."
Thus, in addition to whatever time was required for preparation and marking, the claimant, although hired and paid for a four month period was able to complete her teaching (classroom) into a five week period over the four month contract.
The Commission, after receiving Exhibit 4 decided to prorate the claimant's total earnings. As the representative of the Commission states in Exhibit 3-2:
"After receiving letter from ER (employer) I pro-rated total earnings of $5550.00, 4 = 1387.50 per month x 12 months = 16650., 52 = 320.19 per week, 7 = 45.74"
On November 10, 1987, a Request for Clarification of Earnings was sent to the claimant wherein she was told:
"Your employer UNIVERSITY OF SASKATCHEWAN has reported paying you gross earnings which differ from those you have reported for corresponding periods on your claimant's reports. The specific amounts and periods arc listed below.
for office use only for the week commencing you declared having earned however your employer indicates that you # were paid gross earnings in the amount of
31 August, 1986 NIL 320.19 Pro-rated
07 September, 1986 NIL 320.19 Pro-rated
14 September. 1986 Full Working Week 320.19 Pro-rated
21 September, 1986 NIL 320.19 Pro-rated
28 September. 1986 Full Working Week 320.19 Pro-rated
05 October, 1986 NIL 320.19 Pro-rated
42 October, 1986 NIL 320.19 Pro-rated
49 October, 1986 NIL 320.19 Pro-rated
26 October, 1986 Full Working Week 320.19 Pro-rated
02 November, 1986 NIL 320.19 Pro-rated
09 November, 1986 NIL 320.19 Pro-rated
16 November, 1986 Full Working Week 320.19 Pro-rated
23 November, 1986 NIL 320.19 Pro-rated
30 November, 1986 NIL 320.19 Pro-rated
07 December, 1986 Full Working Week 320.19 Pro-rated
14 December, 1986 NIL 320.19 Pro-rated
21 December, 1986 NIL 320.19 Pro-rated
28 December, 1986 NIL 182.96 Pro-rated
The claimant disagreed with the manner in which her earnings were prorated. It is her submission that the total earnings be prorated over 28 days (5 weeks and 3 days) (Exhibits 6-1 and -2). As an explanation as to how she arrived at the 5 weeks and 3 days, she states, on Exhibit 6-2:
"I did not accept this employment with the intention that it would be my principal means of livelihood.
Gross pay of $320.19 is between a half and a third of full time pay for a teacher with my experience and qualifications.
I was in La Ronge for 5 days and nights in each week that I was working, so that I had adequate time to complete marking of papers during that week. This is especially so since I did not five in La Ronge, and thus there were few things to distract me from working when I was there."
The Commission upheld its decision to prorate the earnings over the full four month period of the contract. The decision was appealed to a Board of Referees who decided, on January 20, 1988:
"The Board unanimously agree according to Regulation 58(3) that the appellant's work should be allocated to the period in which services were performed example 5 weeks and three days.
The Board feels this case differs from CUB 9822 in that the appellant in this case did not perform work each and every week of the period in question as was the case quoted in above CUB 9822.
The appeal is being allowed with the exception of the three days of services performed during the week of December 14th."
The decision of the Board of Referees was decided pursuant to Sec. 58(3) of the Regulations which states:
58.(3) Wages or salary payable to a claimant in respect of the performance of services shall be allocated to the period in which the services were performed.
This decision is now being appealed by the Commission. The issue before me as it was before the Board of Referees is the allocation of earnings. Should the earnings be allocated equally over the entire period of the contract or should the earnings be allocated to the actual time that the claimant was actually working, that is 28 days during the four month period from September 1, 1986 to December 31, 1986.
At the commencement of the hearing before me, counsel for the Commission informed me that the Commission relied on Section 58(3) of the Regulations to prorate the earnings and that this was incorrectly done. It is her submission that the appropriate subsection is 58(4) of the Regulations.
58.(4) Wages or salary payable to a claimant under a contract of employment without the performance of services and moneys payable in consideration of a claimant returning to or commencing work with an employer shall be allocated to the period for which such wages, salary or monies, as the case may be, are payable.
Counsel for the Commission submits that in the present case there exists a definite contract period "but here the contract explicitly provided for wages irrespective of service". It is her contention that the present case "is on all fours" with CUB 12601, a decision of Mr. Justice Denault wherein Richard Sullivan is the claimant. Richard Sullivan was a teacher employed by the Simon Fraser University according to a contract of service extending from January 1, 1985 to April 30, 1985, a four month period. In that case, Sullivan submitted that not having worked the whole period of the contract, having finished the course he had to teach three or four weeks before the end of his contract, the money he received for those three or four weeks should have been allocated only to the weeks in which work was performed. The Commission, as in the present case, was of the opinion that the earnings should be allocated equally over the entire period covered by the contract. As in the present case, the Board of Referees based its decision on subsection 58(3) in dismissing the appeal of Sullivan. Mr. Justice Denault, in deciding the appeal states at page 2:
"I am of the opinion that the Board reached the right decision but not for the good reasons. In this case, subsection 58(4) of the Regulations should have been applied instead of 58(3). The former stipulates clearly that:
"Wages or salary payable to a claimant under a contract of employment without the performance of services and moneys payable in consideration of a claimant returning to or commencing work with an employer shall be allocated to the period for which such wages, salary or money, as the case may be, are payable."
In the present instance, the claimant was paid according to a contract of services. Since he did not perform any services during the last three weeks of his contract, this salary has to be allocated to the period for which it is payable, that is, the period specified in the contract: January 1, 1985 to April 30, 1985."
In the present case, the claimant submits three arguments as to why the Commission's appeal should be dismissed:
a) The decision of the Board of Referees "is a determination based on the facts and the facts weren't found capriciously by the Board of Referees"
b) that the earnings should be allocated for the period actually worked
c) alternatively "and it's clearly an alternative", there should be a partial adjustment as to the allocation of the earnings.
I am satisfied that the allocation of earnings in the present circumstances is not merely a matter of interpretation of the facts presented to a Board of Referees. The issue in the present case is a legal one. It is a legal issue to decide that where a service contract exists for a specific period of time for a definite sum of money and where moneys may be paid without work, how the moneys paid are to be allocated. The situation in the present case is not merely to determine whether the claimant had a job for 3 or 4 or 5 or more or less weeks and was paid for the weeks worked and at what rate she was being paid. The issue in this case is very different from that of a regular employee working regular weeks.
I am satisfied that the claimant did not have fixed hours in which she was to perform her work but that she was hired to perform certain services over a fixed period of time, (four months) and that she was to be paid for the four months that she was employed. She was employed for four months and was to be paid for four months of employment. I agree with the submission of claimant that she was not obligated to spend every working day of the week for the four month period at her job but, nevertheless, I am satisfied, as was Mr. Justice Denault in the Sullivan case that the "salary" paid to the claimant has to be allocated to the period specified in the contract.
The present facts are very different from those found in the case of John Morgan A-1200-87, October 5, 1988. In the Morgan case, the issue was to decide what was the effective date when work commenced notwithstanding the date of the Agreement itself. In Morgan, the Board of Referees as a matter of fact determined that the date work commenced was the 17th of September and not the first of September as stipulated in the Agreement of Employment.
In the present case, the contract provided for wages to be paid to the claimant without the performance of continuous service over the four month period. The allocation of earnings made by the Commission is correct.
The appeal is allowed.
"MAX M. TEITELBAUM"
Once you get into courts like the circuses run by Revenue Canada, Workmen's Comp, Employment Insurance, and Immigration you should consider yourself a pioneer. These scary outfits have been running roughshod over people for generations and they rely on fear and terror. They have stunned so many people into silence that it is really hard to get an edge into them. Great superstition surrounds these bureaucratic monoliths and many people are afraid they will turn into pumpkins if they speak about their experience. People who have received injustices from these courts are like rape victims or battered children. We need more people like Gord McMullen who are ready to take them on, armed with facts and a burning sense of justice.
Family court? Well, the best advice there is don't get married, don't have children and better yet, don't be born. Any part of the earth populated with a lot of social workers is as dangerous as a place full of lawyers. Bitterness aside, if you want to fight injustice, you have to be willing to set aside everything you thought you knew, find the brain inside your cranium and exercise it. We hope that tucked in there somewhere is a conscience which will stay true to yourself and to others. If you elect to settle for partial justice, you are settling for a partial life. You are part of the huge majority.
If you see the sense of our strategy, then you are part of that tiny minority which has always been instrumental in effecting social change. We urge you to follow our example, to share your experiences with us and to walk beside us down the road to justice. The road is not made of yellow bricks but the walking conditions are really quite pleasant.