Insurable Earnings  – Teachers and Eligibility of Non-Instructional Extra Work

Hedebrecht v The Queen, 2012 TCC 113

The MNR determined insurable earnings without giving credit for time spent on tasks such as setting up the classroom, meetings assigned by the principal, marking student work, report card preparation, and non-instructional extra work with students.

The Court reviewed a list of reported cases that dealt with insurable earnings (hours of employment) for teachers not employed on an hourly basis: Franke v. M.N.R,  [1999] T.C.J. No. 645. ; McKenna v. M.N.R., [1999] T.C.J. No. 816.; Furtado v. M.N.R.,  [1999] T.C.J. No. 164. ; Redvers Activity Centre Inc. v. M.N.R., [2000] T.C.J. No. 414. ; Moses v. M.N.R, [2001] T.C.J. No. 361.; Chisholm v. M.N.R., [2001] T.C.J. No. 238; Carson v. M.N.R., 2003 TCC 474, [2003] T.C.J. No. 415. ; Sutton v. M.N.R., 2005 TCC 125, [2005] T.C.J. No. 257 ;Société en commandite Le Dauphin v. M.N.R, 2006 TCC 653, [2006] T.C.J. No. 536.; Judge v. M. N.R , 2010 TCC 329, [2010] T.C.J. No. 259.; MacKenzie v. M.N.R. 2011 TCC 199, [2011] T.C.J. No. 150..

The TCC summarized the principles from the case law at paragraph 19:

[19]        This survey of the relevant reported cases to date reveals the following:

1.      The courts reject formulae as providing proof of actual hours worked.

2.       The excess hours worked provision in Regulation 10.(5) is commonly resorted to by courts as the most fair and accurate method of resolving these issues if there is credible evidence of these hours.

3.       Some courts have resorted to the minimum wage in the province where the work was performed pursuant to the deeming provisions in Regulations 10.(4) and (5).

4.       The worker’s claim for excess hours worked is more likely to be accepted as credible if it is supported by documented times and dates made contemporaneously with the events recorded.

The teacher here was paid an annual salary and per the collective agreement could be assigned work by administration. She spent assigned and unassigned time performing work outside of the class-room, and produced contemporaneous notes as to the extra time worked.  The Court expressed concern over the inclusion by the taxpayer of non-instructional work done during normal assigned times, and stated that credit for this is not appropriate.  The Court also referred to the collective agreement which stated that extra-curricular activity was to be on volunteer basis (thus did not qualify for EI purposes).  Otherwise, extra time for preparation and tasks outside regular assigned time was allowed.