Attorney General of Canada (Applicant)
v.
Brian O. Paulsen, Paul Woodrow, Orysia L.
Prokopiw and A. Virginia Wilson (Respondents)
Court of Appeal, Jackett C.J., Sheppard and
Bastin D.JJ.—Calgary, March 13 and April 12;
Vancouver, April 13; Winnipeg, April 18, 1973.
Unemployment insurance—Decision of Umpire set aside—
Term instructors at University of Calgary— Whether interval
between terms an "interruption of earnings"—Unemploy-
ment Insurance Act, s. 58(h),(r); Regulation 158.
Respondents were employed as term instructors by the
University of Calgary for the academic sessions September
1, 197'1 to April 30, 1972 and September 1, 1972 to April
30, 1973.
Held, they were qualified for unemployment insurance
benefits under the Unemployment Insurance Act. There had
been an "interruption of earnings" within the meaning of
section 2(1)(n) of the Act on April 300 of each year.
Regulation 158 which would postpone the "interruption of
earnings" until September 1 of each year and deprive
respondents of the right to benefits was neither valid nor
applicable. It was not valid because the Commission's power
under section 58(h) of the Act to restrict the amount or
period of benefit was conditional upon an overt determina
tion by the Commission that there was a repetitive annual
period during which no work was performed [by the appli
cant], and it had made no such determination. Moreover,
Regulation 158 did not apply in the circumstances; it did not
come within the language of section 58(h) of the Act. Also,
section 58(r) is not wide enough to support the validity of
Regulation 158 i.e., to make arbitrary changes in the statuto
ry rules established by the Act itself to govern payments of
benefits.
JUDICIAL review.
COUNSEL:
Barry D. Collins for applicant.
N. R. Hess for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Barron, McBain, Green and Park, Calgary,
for respondents.
JACKETT C.J.—This is an application under
section 28 of the Federal Court Act, R.S.C.
1970, c. 10 (2nd Supp.), to set aside a decision
of an Umpire under the Unemployment Insur
ance Act, 1971, (S.C. 1970-71-72, c. 48).
The only question that has to be decided on
this application is whether, in the case of the
applicants, who were employed as university
instructors on term contracts for the period
commencing on September 1, 1971, and ending
on April 30, 1972, there was an "interruption of
earnings" from employment immediately after
April 30, 1972, so as to satisfy as of that time
one of the conditions to becoming qualified for
unemployment insurance benefits, which condi
tion is contained in section 17(2) of the Unem
ployment Insurance Act, 1971. 1
The expression "interruption of earnings" is
defined in section 2(1) of the Unemployment
Insurance Act, 1971 as follows:
(n) "interruption of earnings" means that interruption that
occurs in the earnings of an insured person when after a
period of employment with an employer the insured
person has a lay-off or separation from that employment;
Each of the applicants had been employed to
teach at the University of Calgary from Septem-
ber 1, 1971, to April 30, 1972, and had ceased
to be employed or entitled to receive earnings
immediately after April 30, 1973; and it is
common ground that, at that time, each of them
would have had an "interruption of earnings"
from employment if it were not for the possible
application of Regulation 158, which reads as
follows:
158. (1) For the purposes of this section
(a) "annual work period" with respect to a person, means
the annual academic term or teaching period at the univer
sity, school or other institution where that person is
employed; and
(b) "annual off period" with respect to a person, means
the annual period when that person is normally not teach
ing or instructing at the university or school or other
institution where he is employed.
(2) Where a person is employed in teaching and would
normally perform all of the services required under his
contract of employment and receive the remuneration pay
able under that contract during an annual work period of
less than fifty-two weeks, an interruption of earnings occurs
when a number of weeks have elapsed following his lay-off
or separation from employment that bears the same ratio to
the number of weeks in his annual off period that
(a) the number of weeks he is employed during the annual
work period bears to the total number of weeks in the
annual work period, or
(b) the amount of remuneration actually paid or payable
in respect of his employment during the annual work
period bears to the amount of remuneration that would be
payble under his contract of employment if he were
employed the whole of the annual work period
whichever is the greater.
Full-time employment of teachers at the Uni
versity of Calgary is described by the President
of the University as follows:
Regular Full-Time Faculty
1. All appointments to the full-time faculty are on a twelve
month basis of which one month shall be the vacation
period. Salary will not be paid in lieu of vacation to contin
uing faculty members.
2. Unless special arrangements are made, all full-time facul
ty members are expected to remain on campus during the
academic session, that is, from early September until spring
convocation. Arrangements to be absent during this period
shall be made with the Head of the Department. The balance
of the year is expected to be used for the advancement of
knowledge and for the betterment of the individual in rela
tion to his University contribution.
3. Faculty members shall notify the Head of the Depart
ment of their summer programs and arrange with him the
time of their vacations.
4. The University is a year-round operation. During the
period May 1 - September 1', which some people incorrectly
refer to as an "off period", the University continues to be
an active place. The time of full-time faculty is spent in the
supervision of graduate students, research projects, course
preparation, committee work. As indicated in point B. 1,
above, regular full-time faculty are required to perform
services to the University for eleven months of the year.
This is a contractual obligation.
He describes the employment of "Sessional
Lecturers" as follows:
Sessional Lecturers
1. Appointment is normally for the eight month period,
September 1 - April 30.
2. There is no obligation on the University to extend the
appointment beyond the termination date.
3. Duties of the sessional lecturer begin on the effective
date of the appointment and end on the termination date.
4. Salary of a sessional lecturer is not an annual salary
compressed into the eight months of the contract. The
amount of the salary is normally about 70% of the salary
which Would be paid on an annual basis to a regular full-time
faculty member.
5. Sessional lecturers are not eligible to participate in the
fringe benefit programs of full-time faculty nor are they
eligible to be full members of the Association of Academic
Staff of the University of Alberta (AASUA).
The position of sessional instructors is also
dealt with in a letter written by a university
official on October 10, 1972. That letter reads
in part as follows:
... the exact dates of the teaching period for 1971-72 were
as follows: lectures began on September 7 in all undergradu
ate courses, and ended on April 8 in all faculties except.
Medicine. I must emphasize that these dates cover the
lecture period only, and that staff have other duties outside
of those dates. Since the case up for appeal refers to a
sessional instructor, it might be helpful to give some exam
ples of our work expectations from sessional instructors.
Three examples follow:
1. A sessional instructor may be hired for the period Sep-
tember 1 to April 301. He would be expected to begin
preparation for his teaching duties by September I and
lecture until April 8, and spend the remainder of April
marking exams, recording and verifying grades, etc. He
would be paid for the 8-month period, not for twelve
months.
2. A sessional instructor might, on the other hand, be hired
for a 12-month period, say from September 1 to August 30.
He would be expected to teach for the teaching period
outlined above, and during the summer he would be expect
ed to perform other duties, usually related to research within
the faculty or to work with graduate students. He would be
paid on a 12-month basis.
3. Some sessionals may be hired for one term only, so that
the contract might run from September 1 to December 31,
for example. In such a case, the person would have teaching
responsibilities during that period, and would be paid for
four months only.
As you can see from the above, sessionals are hired under a
number of different conditions. From our point of view, the
definition of the "academic year" is not as critical a factor
as the length of time for which their services are contracted.
If they are hired for four months, they are paid for four
months only, and so on.
Putting it briefly, a full-time member of facul
ty was employed and paid for twelve months
each year, he was on holiday for one month, he
taught during the academic year of eight months
and he had related duties during the other three
months, while the respondents, as term instruc
tors, were employed for an academic session of
eight months, during which they taught, and
they had no further relationship, at least legally,
with the University, unless and until they got a
similar contract for the next academic term four
months later.
While these term instructors had no legal rela
tionship with the University, and no legal right
to be employed for succeeding academic terms,
I think that it is a fair inference from the materi
al that was before the Umpire 2 that a proportion
(probably about 10 per cent.) of the faculty
body of the University consisted of a group of
term instructors and other term employees who
had no legal security of re-employment from
academic year to academic year but who had a
reasonable expectation, as a practical matter,
that they would continue in the particular slot
that they had occupied in the past unless cir
cumstances arose that made one party or the
other desire a change, and that the applicants
were a part of that group.
In these circumstances, I am of opinion that
Regulation 158 operated, if it were valid and
applicable to teaching in the University of Cal-
gary, to defer an "interruption of earnings" in
the case of one of these term instructors for a
number of weeks determined in accordance
therewith being a period of approximately four
months.
I think it is clear that, commencing with the
time such a person embarked on his first eight
months' contract,
(a) he was a "person ... employed in
teaching",
(b) his annual work period was from Septem-
ber 1 to April 30, being the "annual academic
term or teaching period" at the University of
Calgary, the university where he was
employed, and
(c) he normally performed all the services
required under his contracts of employment
and received the remuneration payable under
such contracts during that annual work
period,
as long as he either had such a contract or
continued in the expectation that he would be
having such a contract for the next academic
period. In reaching this conclusion, I read sec
tion 158 as referring to situations as they are
over a period of time and not as of specified
moments. In this sense, a particular individual is
"a person employed in teaching" at the Univer
sity of Calgary over a period of years even
though there are gaps of four months each cal
endar year when the legal relationship of
employer and employee does not exist.
The result is that, even though, on April 30 of
each year, when an instructor's employment
contract expires, there is a "separation" from
employment and therefore an interruption of
earnings within the meaning of section 2(1)(n)
of the Unemployment Insurance Act, 1971, if
Regulation 158 is valid and applicable, there is
no separation of employment until September 1,
and the regulation will have had the effect of
taking away a potential right, otherwise existing,
to benefits during a period of four months. The
further question therefore arises, and we are
assured that this was raised before the Umpire,
as to whether Regulation 158, which so substan
tially changes a right to benefits under the Act,
was validly made so as to apply in the circum
stances in question here.
The only authority suggested for the making
of Regulation 158 is that part of section 58 of
the Act, the English version of which reads as
follows:
58. The Commission may, with the approval of the Gov
ernor in Council, make regulations
(h) imposing additional conditions and terms with respect
to the payment and receipt of benefit and restricting the
amount or period of benefit, in relation to persons
(i) who work or have worked for any part of a year in
an industry or occupation in which the Commission
determines that there is by custom or pursuant to a
relevant contract of employment a repetitive annual
period during which no work is performed in that
industry or occupation, or
(ii) who by custom of their occupation, trade or indus
try or pursuant to their agreement with an employer are
paid in whole or in part by the piece or on a basis other
than time;
(r) defining and determining when an interruption of earn
ings occurs;
and the French version of which reads as
follows:
58. La Commission peut, avec l'approbation du gouver-
neur en conseil, établir des règlements
h) imposant des modalités supplémentaires en matière de
service et de bénéfice des prestations et restreignant le
montant ou la période de service des prestations, pour les
personnes
(i) qui travaillent ou ont travaillé pendant une fraction
quelconque d'une année dans le cadre d'une industrie
ou d'une occupation au sujet de laquelle la Commission
constate qu'il y a chaque année, d'après un usage ou un
contrat de travail pertinent, une période durant laquelle
aucun travail n'est exécuté, ou
(ii) qui, selon l'usage en vigueur dans leur occupation,
branche d'activité ou industrie ou conformément à la
convention intervenue entre elles et un employeur, sont
payées en tout ou partie aux pièces ou en fonction d'un
autre critère que le temps;
r) précisant dans quels cas et à quel moment se produit un
arrêt de rémunération;
Paragraph (h) of section 58 authorizes the
Commission, with the approval of the Governor
in Council, to make regulations restricting the
"amount or period of benefit" but only in rela
tion to persons who work or have worked for
any part of a year in an industry or occupation
"in which the Commission determines that there
is ... a repetitive annual period during which
no work is performed in that industry or
occupation" . 3 We are informed by counsel for
the Attorney General of Canada that the Com
mission has made no declaration of such a fact
in respect of an industry or occupation to which
Regulation 158 applies. Having regard to the
fact that section 58(h) authorizes regulations
changing the benefit system as established by
the statute, I am of opinion that the better view
is that the words "in which the Commission
determines, that there is a repetitive annual
period during which no work is performed"
make it a condition precedent to the exercise of
that power that there be some overt determina
tion of such fact by the Commission. I am
inclined to the view, therefore, that, in the
absence of any such determination, Regulation
158 cannot be supported under section 58 (h).
However, in this case, there is a narrower
ground upon which I can base my conclusion
and I, accordingly, do so. In my view, even if it
may otherwise have some operative effect,
Regulation 158 cannot apply to teaching in the
University of Calgary.
The reasons for my conclusion that Regula
tion 158 cannot apply here are as follows:
Assuming, without deciding, that, in an appro
priate case, it might be permissible to imply,
from the fact that the Commission had made a
regulation under section 58(h), that it had made
the determination that was a condition prece
dent to its exercise of the power to make such a
regulation, that cannot be implied here. In the
first place Regulation 158 is not, in terms, a
regulation "imposing additional conditions and
terms" with respect to the payment and receipt
of benefit or a regulation "restricting the
amount or period of benefit" but is rather a
regulation that arbitrarily alters the moment
when "interruption of earnings" occurs from
the time when it in fact occurs. In the second
place, whether the Court bases itself on the
evidence that was before the Umpire or upon
facts of which it can take judicial knowledge, it
would not seem probable or possible for any
Commission to have determined that the Uni
versity of Calgary, or that university teaching, is
an "industry or occupation" where there is "a
repetitive annual period during which no work is
performed in that industry or occupation".
Finally, Regulation 158 is not expressed to have
been made under section 58(h).
My conclusion is, therefore, that Regulation
158 has no operative effect in respect of per
sons employed in teaching at the University of
Calgary by virtue of section 58(h). I turn, there
fore, to section 58(r).
Paragraph (r) of section 58 authorizes a regu
lation "defining and determining" when an inter
ruption of earnings occurs. Having in mind that
an "interruption of earnings" has been defined
by section 2(1)(n) of the Act as that interruption
that occurs in an insured person's earnings when
he has a lay-off or separation from employment,
it is not immediately clear what authority is
conferred by a power to define and determine
"when" an interruption of earnings occurs. One
possible view is that a regulation "defining or
determining" "when an interruption of earnings
occurs" is a regulation by which one defines or
determines the moment of "interruption of earn
ings" in circumstances where there is no clear-
cut point of interruption or where it is difficult
to determine when, in fact, it occurred. Another
possible view is that section 58(r) confers an
arbitrary power to define or determine the time
of the "interruption of earnings" as being some
time other than the time when the interruption
of earnings as defined by section 2(1)(n) actual
ly occurred. On the latter view, section 58(r)
would impliedly confer a power inter alia to
postpone the time when an insured person
would be qualified to receive benefits, and thus
take away a right to benefits, just as section
58(h) expressly confers a power to restrict "the
amount or period of benefit".
Section 58(r) is not wide enough to support
the validity of Regulation 158, unless it is con
strued as impliedly authorizing a regulation that
has the effect of making a person not "quali-
fied" for benefits during a period when, other
wise, he would be "qualified" for benefits.
I am of opinion that, even if the enabling
words were prima facie broad enough, a regula-
tion-making power in section 58 should not be
read as authorizing a change in the rules laid
down by the statute itself for determining what
benefits are payable except where modifications
in the statutory rules are authorized expressly
or by necessary implication. On that ground
alone, I would conclude that Regulation 158 is
not authorized by section 58(r) of the Act.
In any event, I am of the view that the words
of section 58(r) are not broad enough to author
ize regulations that make arbitrary changes in
the statutory rules established by the Act itself
to govern payment of benefits. What the Eng-
lish version of the rule authorizes is a regulation
"defining" or "determining" when an interrup
tion of earnings occurs. In this context, "de-
fine" means, according to the Concise Oxford
Dictionary: "Settle limits of; make clear, esp. in
outline ... Set forth essence of, declare exact
meaning of ..."; and "determine", in this con
text, means "limit in scope, define;". The
French version of section 58(r) authorizes a
regulation "précisant" in what cases and at what
point of time an interruption of earnings occurs.
According to Le Petit Robert, the first meaning
of "préciser" is "Exprimer, présenter de façon
précise, plus precise", and the second is "Rendre
plus net, plus sûr". In my view, section 58(r)
authorizes a regulation laying down rules for
determining the precise time when an interrup
tion of earnings is to be taken to have occurred
for the purpose of section 17(2) as long as those
rules are designed to establish "when" the "in-
terruption of earnings" as defined by section
2(1)(n) did occur. In my view, on the other
hand, section 58(r) does not authorize a regula
tion that, on the face of it, lays down a rule for
determining a time that is to be deemed to be
the time when the "interruption of earnings"
occurred even though it is, on the face of it, a
time quite remote from the time when the inter
ruption of earnings really occurred.' Regulation
158 is in this latter class and is not, therefore, in
my view, authorized by section 58(r) of the Act.
My conclusion is, therefore, that this section
28 application should be dismissed.
* *
SHEPPARD D.J.—I concur.
* * *
BASTIN D.J.—I concur.
17. (1) Unemployment insurance benefits are payable
as provided in this Part to an insured person who qualifies to
receive such benefits.
(2) An insured person qualifies to receive benefits under
this Act if he
(a) has had eight or more weeks of insurable employment
in his qualifying period, and
(b) has had an interruption of earnings from employment.
2 In this case, the parties were in agreement that the
question as to whether there was an error in law under
section 28(1) of the Federal Court Act should be determined
having regard to undisputed facts appearing from the materi
al that was before the Umpire, whether or not those facts
were set out in the Umpire's Reasons for Judgment.
3 There is an alternative case in paragraph (h)(ii) but it has
no application here.
° As, for example, when salary is paid two weeks or a
month in arrears. In such a case, there might be a question
whether earnings are interrupted when the insured person's
work stops or when he receives his last salary cheque.
5 Lawyers are , so accustomed, in this country, to the
unfortunate practice followed by legislative draughtsmen of
using so-called "definitions" to give expressions arbitrary
meanings that are quite remote from the real sense of the
words used that they tend to think of such "definitions" as
performing a "defining" function. On reflection, with the aid
of the dictionaries, my conclusion is that such a use of a
"definition" section is not an act of "defining" at all.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.