Grievance #: L21-2020-022 (Casual Overtime)  
IN THE MATTER OF A GRIEVANCE ARBITRATION UNDER PART VI OF THE  
SASKATCHEWAN EMPLOYMENT ACT  
BETWEEN:  
REGINA CIVIC MEMBERS’ UNION, CUPE LOCAL 21  
(Union)  
and  
CITY OF REGINA  
(Employer)  
Date of Grievance:  
Hearing Date:  
June 2, 2020  
April 6, 2022  
Hearing Location:  
Before:  
Virtual (Zoom)  
Daniel Shapiro, Q.C., C. Arb. (Chair),  
Andrew Huculak (Union Nominee), Adam Touet (Employer Nominee)  
September 6, 2022  
Decision Date:  
Appearances:  
For the Union:  
Larry Kowalchuk, Quinn Rollins  
For the Employer: Jana Linner, Allison Graham  
AWARD  
A.  
INTRODUCTION  
[1] The City provides services to the residents of Regina, Saskatchewan and surrounding areas  
through various departments and operations. The union is the collective bargaining representative for  
all employeeswhether permanent, temporary, or casualin a broad variety of departments. These  
include labourer and semi-professional occupations, but exclude various management positions.  
During the relevant period, the union and the employer were governed by a Collective Bargaining  
Agreement, with an effective date of January 1, 2019 to December 31, 2021 (the CBA).  
[2] The City’s permanent employees hold permanent positions within a department and, in many  
cases, work a regular shift schedule with set hours of work. They are guaranteed full-time hours, with  
their hours of work governed by Article 16 of the CBA, or, in some cases, by a letter of  
understanding negotiated between the employer and union.  
[3] The City’s casual employees do not hold permanent positions. Depending upon departmental  
needs, casual employees may work a variety of shift schedules and hours. Casual employees may at  
times work full-time hours but are not guaranteed them. Their shift schedules are governed by the  
provisions of Schedule “B” of the CBA (discussed in further detail below).  
[4] The City employs three types of casual employees:  
a. Part-time casual employees, referred to more commonly as spare board workers, or those  
who work in the City’s recreation department. They pick up shifts as they choose, and as they  
become available, working as much or as little as they wish. This is the roster of employees  
that the City draws upon to cover for absences of permanent employees.  
b.Seasonal casual employees are those typically employed in parks and road and construction  
work. They are hired during the City’s busy seasons and laid off at end of season or retained  
on reduced hours, based on operational needs.  
c. Casual employees who work almost year-round, based on operational needs. Their work  
may vary, based on seasonal demands, but they are typically not laid off.  
[5] There are male and female employees among both permanent and casual employee groups.  
[6] This arbitration arises from a grievance filed by Wade Zalopski, Recording Secretary on behalf  
the union, dated June 3, 2020:  
Re: Policy Grievance Article 8.1.5 Casual Employee Overtime Remuneration L21-2020-022  
The Union is lodging a policy grievance regarding the above-captioned matter.  
The Union’s position is that the practice of remunerating overtime for permanent employees at double  
(2.0) times their normal wage and casual employees at one-and-a-half (1.5) times their normal wage  
amounts to pay discrimination pursuant to Section 2-21 of The Saskatchewan Employment Act  
(“SEA”), and any other legislation and / or provisions applicable.  
The Union’s resolve to this matter would be that all affected casual employees be made whole for lost  
wages and benefits from the period of the current Collective Agreement (CBA) and any/all past CBAs  
that contain similar discriminatory language.  
In accordance with Article 8.1.5 of the CBA, we now respectfully request that a meeting be convened  
with the Director of the Department in order that this matter may be discussed and resolved  
satisfactorily to all concerned…  
[7] Each party appointed a nominee to a board of arbitration and the parties agreed to my  
appointment as chair of this board. In light of the COVID-19 pandemic, the parties agreed that the  
hearing would take place virtually. At the outset of the hearing, the parties agreed that the board was  
duly constituted and had jurisdiction to decide the grievance. The parties further agreed that the  
hearing would be bifurcated, with only the issue of liability dealt with initially, and the issue of  
remedy to await the board’s ruling on liability. Each party called one witness. The union filed four  
cases and the employer filed lengthy written submissions and supporting cases. The union reserved  
the right to respond to the employer’s submissions but did not do so. Following oral submissions, the  
board reserved its decision. The factual background of this case is straightforward, but it has  
nevertheless generated a series of complex issues. Our decision is set out below.  
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B.  
AGREED UPON DOCUMENTS  
[8] The parties agreed that the documents they tendered would be received in evidence by the board.  
We summarize these below, in some detail, given the context they provide for the dispute:  
Union Exhibits  
U1 Step 1 grievance letter: June 3, 2020, from Wade Zalopski, Union Recording Secretary (see  
above)  
U2 Step 1 response letter from employer to union: February 2, 2021, from Maria Burns, Manager,  
Client Services & Labour Relations, City of Regina  
This letter is in follow-up to the Step 1 Grievance Hearing that took place on January 27, 2021.  
The Union presented that rates of overtime pay afforded to casual employees via the CBA are  
discriminatory on the basis of gender. The Union cited Section 21-1(1) of the SEA and articulated a  
possible scenario whereby a female casual employee could be working alongside a male permanent  
employee and while being paid the same hourly rate, would be earning different premium rates for  
overtime thus experiencing adverse impact. The Union conceded that the reverse situation could also  
be true (a male casual employee working alongside a female permanent employee). During the  
grievance meeting, the Union made reference to statistics that the Union wanted the Employer to  
consider. Those statistics highlighted that the City of Regina currently employs more males than  
females in our entire workforce.  
The Employer noted in the meeting that the differentiation of premium rates for overtime was on the  
basis of employment status, not gender. Further, by the Union’s own argument, all forms of gender  
are equally impacted by the various terms and conditions of employment afforded to casual and to  
permanent employees and thus, no adverse impact on the basis of gender exists. The differentiation is  
on the basis of employment status.  
Considering the information above, the Union has not presented information that any gender  
discrimination exists; therefore, the grievance is denied.  
Finally, I must note concern with the utilization of important social justice legislation intended to  
equalize the experience of women in the workplace as a means to alter the terms and conditions of  
employment for casual employees (a group which is disproportionately male). The terms and  
conditions of employment for casual employees is more properly a bargaining issue, rather than  
discriminatory in nature.  
U3 - Step 2 grievance letter from union: February 10, 2021, from Mr. Zalopski  
We do not agree with Ms. Burns’ decision (contained in her February 2, 2021 correspondence) and  
therefore appeal her decision to you as outlined in Article 8.1.6 of the CBA and any other relevant  
Article(s) or Clause(s), Legislation and/or provisions applicable.  
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In accordance with Article 8.1.6 of the CBA, we now respectfully request that a meeting be convened  
with the City Manager in order that this matter may be discussed and resolved satisfactorily to all  
concerned…  
U4 - Step 2 grievance response letter from employer: March 18, 2021, from Marlys Tafelmeyer,  
Director, People & Organizational Culture, City of Regina  
This letter is in follow-up to the Step 2 Grievance Hearing that took place on March 10, 2021.  
the Union’s position is that rates of overtime pay afforded to casual employees as per the CBA are  
discriminatory based on gender, citing adverse impact. The Union acknowledged that disparities in  
overtime rates apply to all forms of gender, no one group is specifically disadvantaged. It is equally  
feasible for a male casual employee to be working with a permanent female employee doing the same  
work at the same regular wage and earning different rates of overtime pay, as it is for the reverse  
scenario to occur. The union presented that a violation of the SEA has occurred whereby a gender  
difference exists in overtime pay based on employment status, that is casual versus permanent.  
The Employer presented that the difference in overtime rates is not gender based; that the terms and  
conditions of employment for casual and permanent employees are experienced equally by all forms  
of gender, and is therefore not a violation of the provincial statute, nor is the application of overtime a  
contravention of the CBA.  
The interest and desire from the Union to protect pay equity legislation is recognized and  
acknowledged. By the Union’s own admission, there is no one specific group being disadvantaged by  
the current application of overtime rates for casual employees. Based on the evidence, I do not see a  
violation of the CBA as submitted in the grievance, therefore the grievance is denied.  
U5 Letter requesting arbitration: May 19, 2021, from Mr. Zalopski  
please be advised that the Union is not satisfied with your decision with regard to the above-  
captioned grievance. As such, we are submitting the matter to a Board of Arbitration…  
U6 Email exchange between Quinn Rollins (union Open Space Grievance chair) and Maria Burns  
April 26, 2021 - Rollins to Burns  
Based on recent conversations we have had concerning Schedule B discussions, it would be handy  
to have the diversity statistics for Local 21 to see how the numbers pan out. I have some from January  
2020 that were supplied by Debbie Brotheridge, for both casual and permanent employees, but they  
were broken down at the corporate level by the following categories, which makes it difficult to glean  
the exact numbers for our membership: (… 12 categories of personnel listed).  
April 27, 2021 Burns to Rollins  
… I’m not exactly sure what you are looking for especially as it connects to Schedule B. We have  
some data based on forms that employees complete. These forms invite them to select if they belong  
to a diversity group. These are voluntary forms and uptake on their completion is mediocre. Are you  
looking for that type of data with Local 21 employees highlighted? Perhaps you can share a little bit  
more about what you are trying to learn about and we’ll see how we can help.  
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April 27, 2021 p.m. Rollins to Burns  
To be blunt, I am trying to get a better idea of how the compositionfrom a diversity perspectiveof  
the Local 21 casual employee pool compares to its permanent counterpart. At the moment, with some  
conservative estimates from the data that I already have and likely what any statistician would  
characterize as an unacceptable margin of error, it appears that the percentage of identifying females  
in the casual workforce is much higher than in the permanent contingent and I wanted to test the  
accuracy of this sampling, while also seeing how some of the other numbers stack up with some of the  
other traditionally marginalized demographics identified by the SHRC (aboriginal employees,  
employees with disabilities, visible minority employees). This could yield valuable insights into  
possible changes to the Schedule B language to make the casual workforce more inclusive, and from a  
legal perspective, could also prove/disprove any broad trends of adverse impact.  
April 28, 2021 a.m. Burns to Rollins  
Thank you for your candour. At this time what I have to offer is this almost all Local 21 permanent  
hires are from the casual workforce based on the principles of the CBA. Like many CBAs of its kind  
it’s intended to create a ‘train and hire from within’ philosophy preferring seniority to skill or  
attribute in most cases.  
Currently, both groups are disproportionately male but I would 100% agree with you that we have an  
opportunity organizationally to enhance representation of diversity groups. If the casual workforce  
had more females (yet still disproportionately male) it would actually be a positive thing since the  
casual workforce feeds the permanent one and ultimately we would like to see an increase in the  
female complement of our workforce organizationally. Part of Nancy’s work on our diversity strategy  
is to look for ways to get more diversity candidates into our entry points in the organization as well as  
look for ways to enhance representation more broadly. Although we know that seniority is an  
allowable method of distinguishing rights and entitlements, it can serve to disadvantage us through the  
lens of increasing representation of diversity groups.  
I applaud you for your advocacy efforts and dedication to supporting underrepresented groups. I invite  
you to meet with Nancy and I to discuss whether there are opportunities for us to set aside seniority  
and prefer diversity candidates in targeted areas instead of just at our entry points.  
April 28, 2021 p.m. Rollins to Burns  
I feel like it would be putting the cart before the horse to have wider discussions before the  
numbers as they currently are can be assessed, as this will be the ultimate metric for success or failure  
of these types of initiatives. Without a baseline to measure from and to draw initial conclusions, I am  
not sure how we could ascertain a concentrated strategy or determine whether that strategy was  
moving the needle. On that note, I must reiterate my request for the statistical information I had  
previously mentioned.  
On the subject of seniority, I am certainly familiar with the impediments it can create with respect to  
targeted hires; however, it is a universal commodity that accrues naturally over time, and if the  
percentage of female casual employees does not correlate to the percentage of permanent female  
employees, I think one must examine the issues of retention related to casual status if lack of seniority  
is deemed to be the primary prohibitive characteristic.  
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May 10, 2021 Burns to Rollins  
We don’t actually carry all the statistics you are referencing by bargaining unit and Nancy is very  
busy with other pressing issues like advancing our D&I plan. If you want to see a gender breakdown  
for L21 I happen to have some stats from earlier this year. You’ll note that both groups are  
disproportionately male.  
Employee Group  
Union Casual  
Union Permanent  
Percentage Female  
39%  
16%  
Percentage Male  
61%  
84%  
[emphasis added given union’s heavy reliance on these data]  
May 10, 2021 Rollins to Burns  
Thank you for those numbers: it at least provides a jumping off point. I appreciate everyone’s time  
constraints at the moment, so I will not try to concoct some flimsy argument for why the rest of the  
statistics are urgently needed, but it would be helpful to have them made available for perusal at  
leisure before they had to be requested by way of duces tecum.  
Employer Exhibits  
E1 - CBA between the parties, January 1, 2019 to December 31, 2021  
E2 - 1975 Agreement between City of Regina and CUPE Local 21  
E3 - Undated webpage extract, Pay Discrimination Payment of Wages and Payroll Administration,  
Employment Standards. Government of Saskatchewan  
Pay Discrimination  
Employers cannot discriminate against their employees by paying them differently for  
performing similar work based solely on the employee's sex, or on the basis of any of the  
prohibited grounds in The Saskatchewan Human Rights Code.  
"Similar work" means:  
work for the employer that is done in the same workplace;  
under similar working conditions; and  
work that requires similar skill, effort, and responsibility to perform.  
Acceptable Grounds for Paying Employees Differently  
Employers can pay their employees differently if the difference is based on:  
seniority; or  
a merit system.  
Employers should ensure that wages paid to employees are based on objective criteria such as  
an employee's seniority, performance, skill requirements, and responsibility levels.  
If Employment Standards investigates a complaint of pay discrimination and it is found to be  
valid, the employer cannot reduce the wages of the higher paid employee(s) to match the  
lower paid employee(s). Instead, the employees' wages must be increased to match the higher  
paid employees' wages.  
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C.  
ISSUES  
[9] We summarize the issues in this arbitration as follows:  
1. What is the scope of the grievance?  
2. Does the arbitration board have jurisdiction to adjudicate upon the complaint of pay  
discrimination under the SEA?  
3. Which party, if either, bears the onus of proof?  
4. Has the employer committed pay discrimination on the basis of sex? Specifically: Does the  
overtime payment differential between permanent and casual employees contravene s. 2-  
21(1) of the SEA?  
5. If the employer has prima facie contravened s. 2-21(1) of the SEA, was this payment  
differential between made pursuant to a seniority or merit system, per s. 2-21(2) of the SEA?  
D.  
SUMMARY OF DECISION  
[10] The above questions are answered as follows:  
1. The scope of the grievance is limited to allegations of pay discrimination under s. 2-21(1)  
of the SEA.  
2. Yes, the board has jurisdiction to adjudicate upon the complaint of pay discrimination  
under the SEA.  
3. The union bears the onus of proof.  
4. No, the employer has not committed pay discrimination on the basis of sex. The overtime  
differential between permanent and casual employees does not contravene s. 2-21(1) of the  
SEA.  
5. The employer concedes that the payment differential is not made pursuant to a merit system.  
But in light of our conclusion regarding issue 4 above, it is not necessary for us to decide  
whether this differential is made pursuant to a seniority system per s. 2-21(2) of the SEA.  
E.  
CBA PROVISIONS  
[11] The following CBA provisions are relevant:  
PREAMBLE:  
It is the desire of both parties of this agreement to maintain the existing harmonious relations between  
the City and the Members of the Union, to promote cooperation and understanding between the City  
and its employees, to recognize the mutual value of joint discussions and negotiations in all matters  
pertaining to working conditions, hours of work and scale of wages, to encourage economy of  
operation and elimination of waste, and to promote the morale, well being and security of all the  
employees included in the bargaining unit represented by the Union.  
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The City and the Union, jointly affirm that every employee shall be entitled to a respectful workplace,  
and encourage and promote the principle of a work environment free of discrimination, harassment,  
conflict and violence through awareness and education for all employees.  
To effectuate the foregoing, the Parties hereto, hereby mutually covenant and agree as follows: …  
ARTICLE 1 DEFINITIONS  
In this Agreement, unless the context otherwise requires, the expression:  
1.2 “Casual Employee” shall mean an employee who has not been appointed a permanent position. …  
1.13. "Permanent Employee" shall mean an employee appointed to a permanent position by the  
director of the department. All employees appointed to the permanent staff shall be subject to a 12-  
month probationary period.  
ARTICLE 2 SCOPE  
2.1 This agreement shall apply to all employees (whether temporary, casual or otherwise whatsoever)  
employed by the City of Regina, except as excluded pursuant to the current effective order of the  
Saskatchewan Labour Relations Board  
2.2.1 Management Rights  
The Union recognizes that it is the function of the City to exercise the regular and customary function  
of management and to direct the working forces of the City, subject to the terms of this Collective  
Agreement.  
4.1 Paid Leave  
4.1.2. Special Leave  
4.1.2.1. "Special Leave of Absence" with pay shall be granted to permanent employees at the  
discretion and with the approval of the Branch Manager for reasons such as pressing emergency,  
bereavement in excess of three (3) days or compassionate cause. One-half (½) day leave of absence  
shall be granted to a permanent employee to act as pallbearer at a funeral and additional leave, if  
required, may be granted at the discretion of the Branch Manager. All leaves of absence granted under  
this clause shall be deducted from the employee's accumulated "Sick Leave" credits. An employee  
absence report shall be required when sick leave credits are used for the foregoing reasons.  
4.1.2.2. Permanent employees with less than 75 days accumulated sick leave to their credit must  
protect 12 days per year for personal illness, and such 12 days are not available for use as 'special  
leave' as defined above.  
4.1.2.3. Should such employees, having no accumulated sick leave to their credit, be required to use  
such special sick leave of absence, they shall be paid for same and the time[?] so utilized shall be  
deducted from any future sick leave accumulation as they become entitled to same. In these instances  
Pressing Emergency and Compassionate Cause shall not be deemed to include sickness and injury to  
the applicant.  
ARTICLE 5 - SICK LEAVE  
5.1. All permanent employees shall accumulate sick leave credits on a bi-weekly basis at the rate  
of 0.061602 hours per hour of service as a permanent employee up to a maximum of 1,828 hours.  
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ARTICLE 6-ANNUAL VACATION  
6.1. All permanent employees shall accumulate vacation credits with pay on an hourly basis at a  
rate determined in accordance with the employees "service" as defined in Article 1 of the collective  
agreement. ….  
ARTICLE 8 GRIEVANCES AND DISPUTE RESOLUTION  
8.1 Grievances  
8.1.1. Grievance Defined  
A grievance for purposes of this agreement is defined to be a dispute, difference or disagreement  
between the City, on the one hand, and the Union or an employee or employees on the other hand;  
which dispute, difference or disagreement pertains to the following:  
8.1.1.1. Any matter relating to the terms and conditions of employment or rates of pay, hours  
of work of any employee or employees.  
8.1.1.2 Any matter involving the interpretation of any provision of this agreement,  
8.1.1.3 Any matter involving the alleged violation of any provision of this agreement.  
8.1.3 Initiating a Grievance  
When an employee has a grievance, they shall, within 10 calendar days following the act or omission  
giving rise to such grievance, state their grievance in writing addressed to the Union…  
8.1.5. Step 1: The Union shall, within 10 calendar days after receipt of the grievance, have the right to  
make a submission to the Director of the Department concerned and the Director of Human  
Resources. In making application for a hearing the Union, shall outline, in writing, the matter  
complained of and the settlement sought…  
8.1.6 Step 2: The Union shall have the right to appeal the decision of the Director of the Department  
to the City Manager, or their designate. In so doing, the Union shall file with the City Manager or  
their designate, a written statement of the claim along with the reasons for lodging the appeal… The  
appeal shall be filed within 10 calendar days following receipt of the decision of the Director of the  
Department…  
8.1.7 The City Manager, or their designate, shall hear the appeal within 10 calendar days after it has  
been filed with them…  
8.1.8 Step 3: Any grievance which is not settled by the procedures set forth may be referred to a Board  
of Arbitration by either party.  
8.1.12 …The decision of the Board shall be final and binding and enforceable on all parties, but in no  
event shall the Board have the power to change this agreement or to alter, modify of amend its  
provisions….  
ARTICLE 9 - SENIORITY  
9.1. After having completed three (3) months of employment, employees' seniority shall date from  
the time they last entered the employ of the City of Regina in the jurisdiction of CUPE Local 21,  
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CUPE Local 7, Regina Civic Middle Management Association or Out of Scope. Service in any  
other jurisdiction shall not be considered seniority within the jurisdiction of CUPE Local 21.  
ARTICLE 10 VACANCIES AND NEW POSITIONS  
10.1.2 Filling Vacancies  
10.1.2.1 In filling vacancies or new positions within the scope of this agreement, the City shall  
follow the principle of seniority, in accordance with Article 9, and Schedule B4.1, together with  
the qualifications necessary to perform the duties required for the position to be filled.  
ARTICLE 12 DEATH AND DISABLEMENT BENEFITS  
12.1. Death Benefits in case of death of an employee occurring after December 31, 1982.  
12.1.1. In the event of the death of a permanent employee, the City shall guarantee to the spouse and  
dependent children an amount equal to 95% of the amount of the monthly salary such employee  
would have received if living and continuing in the employ of the City in the same or equivalent  
classification and step in the pay range in which they were employed at the time of their death. .  
12.1.3. In the event of the death of a permanent employee leaving no spouse, but a dependent  
child or children, the benefit shall be payable effective immediately at the rate of 80% of the gross  
applicable salary, to be divided equally among the dependent children.  
12.2. Consideration for disability benefits shall be given to applications received by the City after  
January 1, 2017, as per the following:  
12.2.1. In the event a permanent employee becomes disabled, upon application by the employee or  
spouse of the employee or department head, the employee shall be entitled to full salary for the first  
two (2) years of such disability and thereafter 90% of full salary subject to the provisions of 12.2.6. of  
this section. .…  
ARTICLE 13 - WORKERS' COMPENSATION SUPPLEMENT  
13.1. When a probationary or permanent employee, or a casual employee with seniority, is  
injured in the course of their employment with the City and it is deemed Workers' Compensation  
Benefits are payable under The Workers' Compensation Act, the City shall pay to such an employee an  
amount per day based on 65% of their regular basic wage rate at the date of injury for a period of 14  
calendar days (qualifying period). …  
ARTICLE 15 BENEFITS PLANS  
15.1. Group Life Insurance  
15.1.1. The City agrees to maintain a Group Life Insurance Plan for the protection of permanent  
employees and the terms and conditions of which shall be agreed by the parties hereto.  
15.1.2. All permanent employees who now or hereafter participate as members of the Group Life  
Insurance Plan shall, as a condition of their continuing in the employ of the City, maintain their  
membership in the plan during their entire employ with the City.  
15.1.3. All new employees who are appointed to permanent positions shall upon entering the City  
employ, as a condition of their employment, make application for Group Life Insurance. .…  
15.3. Dental Plan  
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15.3.1. The City of Regina shall provide a 50/50 cost shared dental plan for all permanent employees  
and all casual employees who have attained 2,069 hours of service set out in Article 1.14.1.  
Participation in the plan shall be optional for all existing eligible employees and mandatory for all  
employees who become permanent after January 1, 1999.  
15.3.2. For permanent employees, a premium will be deducted in each bi-weekly pay period. For  
eligible casual employees who chose to join the plan, the premium for the period from attainment of  
2,069 hours and following June 1 will be deducted in the four (4) pay periods following application to  
join the plan. Subsequently, the following 12 months premiums are deducted in the first four (4) pay  
periods following June 1.  
15.3.3. All new permanent employees must become members of the plan. Casual employees who are  
eligible may elect to join the plan at any time. Having joined the plan, an employee may not withdraw  
from the plan.  
(Underlining in original; bolding added)  
[12] Benefits for casual employees are provided for in Schedule “B”:  
SCHEDULE “B”  
All casual staff shall be covered by the working conditions outlined in this schedule.  
Where specific provisions are not mentioned, the provisions of the permanent agreement shall apply.  
B2. Hours of Work  
Hours of work shall be governed by the laws of the Province of Saskatchewan and Regulations  
thereunder except where by agreement, such hours of work respecting certain classes of employees  
may be less than are prescribed by the said Statues of Regulations. However, if an employee is  
required to work in any one day, they shall receive a minimum of three (3) hours pay at their regular  
rate of pay.  
B.3 Statutory Holidays ….  
B4.1 Seniority  
Seniority shall be acquired by an employee after 2,069 hours of accumulated service, as set  
out in Article 1.14.1. It being understood and agreed, seniority will not accumulate during any  
period of lay-off.  
B8. Annual Vacation  
Annual vacation shall be provided to employees who are covered by this agreement in  
accordance with the provisions of The Saskatchewan Employment Act and any subsequent  
amendments. Effective January 1, 2020, all earned vacation pay will be placed in a  
vacation money bank at the rate that the vacation is earned. The employee can access  
this money, on request, by indicating on their timesheet prior to the cutoff date, the  
dollar amount requested. This money will be included with any current earnings on the  
applicable pay period. Any monies in the vacation money bank will be paid out to the  
employee on the last pay period following their last day of work or December 31  
annually, whichever period comes first. (emphasis in CBA)  
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B9. Pay for Work Performed  
Employees shall be paid for [the?] particular class or classes of work they perform in accordance with  
the rates of pay set forth in the Schedules of this Agreement.  
B11. Pension Plan …  
B12. Sick Leave  
B12.1. All casual employees with 4,160 regular hours worked shall accumulate sick leave credits.  
Such credits shall accumulate at the rate of 0.061602 hours credit for each regular hour. A maximum  
of 240 hours may be accumulated. "Regular hours" for the purpose of this clause shall mean all hours  
worked for which overtime is not payable.  
Employees are entitled to payment for absence from work due to sickness, to the extent sick leave  
credits have been earned. Rate of pay shall be the last rate paid to the employee prior to the sickness.  
B12.9 Casual employees who are appointed to a permanent position shall retain one half (1/2) of their  
sick leave accumulation, or, the total number of sick days accumulated at last date of recall, whichever  
is greater. …  
B14. Group Life Insurance  
B14.1. The City shall maintain a Group Life Insurance Plan which is cost-shared on a 50/50 basis with  
employees. The level of insurance provided shall be as follows:  
Employees with 2,069-10,000 hours of service as set out in Article 1.14.1. - $15,000 coverage.  
Employees with over 10,000 hours of service as set out in Article 1.14.1. - $40,000 coverage.  
(Bolding and underlining in original)  
[13] As can be seen, while it applies to all employees, the CBA distinguishes between permanent and  
casual employees with respect to certain benefits. These include special leaves of absence, sick leave,  
annual vacation, death and disability benefits, life insurance and dental benefits.  
[14] The CBA contains provisions specific to overtime. For permanent employees, the overtime  
provisions1 are found in Article 17:  
ARTICLE 17 - OVERTIME  
17.1.  
17.1.1. Employees who are required to work in excess of eight (8) hours in one day or 40  
hours in one (1) week, shall be paid at the rate of double time for all hours so worked.  
17.1.2. Notwithstanding 17.1.1., employees working the 5/5/4 work week, who are required  
to work in excess of eight (8) hours and 30 minutes in one (1) day or 42 hours and 30 minutes  
in one (1) week, shall be paid at the rate of double time for all hours worked.  
17.2. Employees who are required to work on their weekly day off, day of rest or designated  
day off shall be paid at the rate of double time for all hours so worked.  
1 Permanent employees have been entitled to overtime at a rate of double time since the July 1975 CBA between the  
parties.  
12  
17.3. All employees called out to work overtime and having left the job before being so  
called out, shall be paid at the rate of double their regular rate of pay for each hour or portion  
thereof they are required to work overtime on such call out. It is further provided, they shall  
be paid a minimum of four (4) hours at their regular rate of pay for each call out provided  
for in this clause. …  
17.5. All overtime shall be paid on the basis of the classified salary paid to the employee at  
the time they are working such overtime.  
17.6. For greater certainly, but not so as to restrict the interpretation of any other Article, the  
provisions of this Article are herewith stated specifically to apply to permanent employees.  
[15] Schedule B, which governs terms and conditions of casual employees, provides:  
B1. Overtime  
B1.1. Overtime shall have the meaning given in the Statutes of the Province of Saskatchewan  
and Regulations thereunder and it shall be the responsibility of the official in charge to  
promptly report all overtime worked.  
B1.2. Notwithstanding B1.1. hereof, casual employees under the 5/5/4 work week who are  
required to work in excess of eight (8) hours and 30 minutes in one (1) day or 42 hours and  
30 minutes in one week, shall be paid at the rate of time and one-half for all hours so worked.  
….  
F.  
RELEVANT STATUTORY PROVISIONS  
[16] The SEA provides:  
Subdivision 4  
Discrimination in Pay Prohibited  
No discrimination in pay  
2-21(1) No employer shall pay an employee of one sex at a rate of pay less than the rate paid to an  
employee of another sex if:  
(a) they are employed by the employer for similar work that is performed in the same  
workplace under similar working conditions; and  
(b) the performance of the work requires similar skill, effort and responsibility.  
(2) Subsection (1) does not apply if a payment differential is made pursuant to a seniority system or  
merit system.  
(3) No employer shall reduce the rate of pay of any employee in order to comply with this section.  
(4) If an employer has contravened subsection (1), the employer is not, after that contravention,  
entitled to reduce the rate of pay to which an employee is entitled on the grounds that the work is  
subsequently performed only by employees of the same sex.  
13  
(5) No employer shall pay an employee a different rate of pay on the basis of any prohibited ground,  
as defined in The Saskatchewan Human Rights Code, 2018, unless The Saskatchewan Human Rights  
Code, 2018 permits the different rate of pay.  
2013, c.S-15.1, s.2-21; 2018, c35, s.2  
[17] The Saskatchewan Human Rights Code, 2018, (“the Code”) provides:  
Definitions  
2(1) In this Act:  
“prohibited ground” means one of the following prohibited grounds of discrimination: …  
(e) sex …  
Discrimination in employment prohibited  
16(1) No employer shall refuse to employ, refuse to continue to employ or otherwise discriminate  
against a person or class of persons with respect to employment, or a term or condition of  
employment, on the basis of a prohibited ground.  
(2) No employee shall discriminate against another employee on the basis of a prohibited ground.  
G.  
TESTIMONY  
[18] We summarize here the testimony that is relevant to our decision.  
Union Witness: Laird Williamson  
[19] Mr. Williamson has worked for the City since 2011, in various operating areas including parks,  
pest control, and forestry. He began as a casual labourer in the parks department and moved into a  
permanent position in about 2018. He has served with the union since 2016, starting as Open Space  
Grievance Chair, then Vice President and since 2019, as President.  
[20] He testified that this policy grievance was filed in order to improve the standards of their sisters  
in the unionized environment, and to remedy a problem of disproportion as between casual and  
permanent employees.  
[21] A permanent and casual worker may both be doing the same work and being paid the same  
hourly rate, but as soon as overtime kicks in, there is a $15/hour difference in what employees are  
being paid.  
[22] In cross-examination, Williamson acknowledged that the City and union have agreed to treat  
permanent and casual employees differently in different parts of the agreement, with respect to  
various entitlements. For example, permanent employees accumulate sick-leave on a bi-weekly basis  
whereas casuals do not; and casuals, unlike permanent employees, have their death and disablement  
benefits capped. These differences in entitlement, and the parts of the CBA that govern those  
entitlements, are based on employment status.  
[23] Williamson acknowledged that Article 17, which provides for overtime payment based on  
double time, applies to permanent employees, whereas Schedule B1 outlines how overtime operates  
14  
for casual employees. The difference in overtime rates of pay is based on whether the person is a  
permanent or casual worker: i.e., on their employment status.  
[24] He agreed that the City employs both male and female permanent employees and that male and  
female permanent employees are paid overtime at the same rate (2X their normal wage).  
[25] He agreed that the City employs both male and female casual employees and that male and  
female casual employees are paid overtime at the same rate (1.5X their normal wage).  
[26] It is possible for permanent and casual female employees to be on the same shift, at the same  
hourly rate, but be paid overtime at different rates. There is no difference in pay based on sex in that  
circumstancethe difference is based on employment status.  
[27] On re-examination, Williamson clarified that hourly rates of pay do not differ as between  
permanent and casual employees. (Article B9, which does not specifically exclude overtime).  
[28] Article 16 refers to normal hours of work for employees and does not specifically differentiate  
between permanent and casual employees in terms of rates of pay, types of work performed and  
hours of work.  
[29] As to sick-leave, employer counsel referenced Article B12.1, which contains identical  
accumulation of sick leave credits for casual employees as the rate of accumulation for permanent  
employees set out in Article 5.  
Employer Witness: Maria Burns  
[30] Ms. Burns has worked for the City for approximately 10 years. She has been Manager of Client  
Services and Labour Relations since September 2020. She started as an organizational development  
consultant, then worked as senior Human Relations consultant for a number of years, before taking  
on a managerial role. Her duties and responsibilities relate to all client facing services, labour  
relations, recruitment, organizational development, diversity inclusion, compensation and  
performance management. The City provides a wide range of services and operations to the  
communityfrom parks to transit. There is an administrative component to her work (Human  
Relations and Finance). There are 10-11 City departments. The City has CBAs with five unions  
(including two units of CUPE).  
[31] The scope of employees that fall within the Local 21 bargaining unit is wide, including people  
working at recreation centres, technologists, tradespeople and others. There are about 1500 in-scope  
members of Local 21. The City has about 220 out of scope employees.  
[32] Burns testified to certain differences between casual and permanent employees under the CBA.  
Permanent employees are guaranteed full time hours and work year-round. Part-time employees can  
work seasonally, are not guaranteed full-time hours, and generally have some differences in their  
working conditions, which are governed by Schedule B of the CBA. These include overtime,  
statutory holidays and other terms.  
[33] Working conditions for permanent employees are governed by the main body of CBA Schedule  
A, starting at p. 37, which sets out permanent positions and pay schedules.  
15  
[34] When casual workers do a Schedule A job, they are paid a Schedule A rate, but they are not  
considered permanent. They retain their casual employment designation as per Schedule B.  
[35] Hours can vary between casual employees, based on work available to them. They are not  
guaranteed hours. Schedule B2 (dealing with hours of work for casuals) states that this is governed  
by the SEA.  
[36] The CBA applies differently to terms and conditions of employment, depending on the  
employee’s status as permanent or casual. Some examples are:  
a. Overtime for casual employees is governed by Schedule B, which states that the SEA  
applies (1.5X), whereas under Article 17, permanent employees are paid double time .  
b. Sick time: under Article 12, permanent employees get sick time right away, whereas  
casuals must attain a certain number of hours before being eligible for paid sick time (Art 5 v  
B12).  
c. Dental plan: permanent employees have access to the dental plan on Day 1, whereas casual  
employees must first achieve seniority.  
d. Permanent employeeseligibility for maternity, paternity and parental leave is based on  
different criteria than those that apply to casual employees.  
e. Vacation pay: permanent employees accrue vacation entitlements that are more generous  
than those available to casual employees, which follow the SEA.  
[37] Burns testified that in each of the above examples, there is no difference between male and  
female employees. The difference is between casual and permanent employees and is based on their  
terms and conditions of employment.  
[38] The CBA has always distinguished between permanent and casuals, going back as far as she can  
determine, to the 1960s. Both casual and permanent categories include females and males. Among  
CUPE Local 21 permanent employees, 84% are male and 16% are female; among casual employees,  
61% are male and 39% are female.  
[39] Casual employees can become permanent by exercising their seniority and applying for a  
permanent position. Almost all permanent positions in Local 21 are given to bargaining unit  
members, apart from some exceptions in difficult-to-recruit positions, such as journey-people, where  
nobody is qualified within the area in question. (Exceptions account for about 5% of the workforce).  
[40] Casual employees work for a set number of hours before they attain seniority. Once attained,  
seniority reverts to their start date. They are not guaranteed hours or overtime but are offered  
overtime when work is available. Overtime is put to people in branch, whether permanent or casual.  
If casuals sign up and are selected, their overtime premium is based on 1.5X rate their rate of pay, as  
established in Schedule B (B1). The payment of overtime does not change the employee’s hourly  
rate.  
[41] Male and female casual employees are paid overtime at the same premium rate of 1.5X their  
hourly rate.  
16  
[42] Male and female permanent employees are paid overtime at the same premium rate of 2X their  
hourly rate. The double overtime rate for permanent employees was established in the 1975 CBA.  
Article 17.1.1.- 17.6 makes it clear that this applies only to permanent employees.  
[43] In preparing for this case, Burns reviewed the Saskatchewan Employment Standards website2  
regarding pay discrimination, which makes it clear that employers cannot differentiate based on sex,  
but may do so, based on different working terms and conditions.  
[44] In cross-examination, Burns acknowledged that the SEA does not say “acceptable grounds for  
paying employees differently can be based on working conditions,but it refers to “similar working  
conditions,for work requiring “similar skill, effort, and responsibility to perform.” In her  
interpretation, permanent and casual employees do not have similar working conditions.The SEA  
also refers to seniority and merit systems as being bases for paying people differently.  
[45] Article 2.1 of the CBA says the agreement applies to all employees, but specifically mentions  
only “temporary, casual, or otherwise.Nevertheless, it applies to permanent employees as well.  
[46] Article 14 Health & Safety protections are a significant working condition, which applies to all  
employees, including casual employees, even though it doesn’t say that.  
[47] Hours of work in Article 16.1.1 does not differentiate between permanent, temporary or casual  
employees; but the CBA does say otherwise in Schedule B.  
[48] There was debate about whether overtime pay in Article 17 is a “premium.” Burns used the  
word “premium,although it does not appear in Article 17. The CBA does use the word “premium”  
pay in Article 19. She did not dispute that double overtime is actually a higher rate of pay than  
regular (1.5X) overtime.  
[49] Article 17.5 states that all overtime shall be paid “on the basis of the classified salary paid to the  
employee.It does not spell out whether this applies to casual, or permanent. Viewed on its own,  
employees are paid based on the salary for the job they are working.  
[50] There are letters of understanding for people working other than Monday to Friday, 8 hours per  
day. There is a different letter of understanding for some spare-board employees.  
[51] She had nothing to do with negotiations for any CBAs from the 60s through the 90s. She cannot  
speak to the intent of the parties except for what she sees in the CBA. She has no knowledge of how  
many women were working as casual employees before 2018.  
[52] She does not withdraw or disagree with anything in the City’s grievance response letters.  
[53] Having listened to Williamson’s testimony, she was asked about Article B9, “pay for work  
performed” – it says employees shall be paid for a particular class or classes of work. She explained  
that employees can work more than one “class”. A “class of work” does not refer to whether one is  
characterized as permanent, temporary, casual or otherwise. Classifications appear in 4 different  
parts of CBA Schedules 1, 2, 3, and 4. The classification has to do with rates of pay. “Casual”,  
“permanent” and “temporary” are not classifications of work those refer to employment status.  
[54] Burns responded to a series of hypothetical questions as follows:  
2 Exhibit E3  
17  
Can the City pay women in a Schedule B classification who work only on weekends less than  
men who do the same job during weekdays? Hours of work can be similar working  
conditions.She explained that they should be paid the same hourly rate for doing the same  
job, but if they experience different working conditions, they can be paid differently,  
including premium pay. Permanent employees also work on weekends and when they do the  
same job, receive the same hourly rate.  
If a male works Monday to Friday in a Schedule A classification, and a woman works the  
same classification with the same duties and responsibilities, but only on weekends, is that a  
difference in working conditions that allows the City to pay women differently from men for  
doing the same work? There are no differences in pay based on sex. The differences are based  
on different working conditions. Men and women doing the same job under the same working  
conditions should be paid the same.  
If everyone working summer shifts in job A is female but everyone working the same job in  
winter shifts is male, can the City pay the men more for exactly the same job, because they  
work a different shift? No. if they are doing the same work, they are paid the same.  
Given that hours of work are a working condition, if workers on one shift are all female and  
on another shift are all male can the City pay the women different rates because of different  
shifts? No, they get paid the same rate of pay regardless of which hours they work unless  
the shift differential applies, as per the CBA.  
Five years from now, if 100% of casual employees are women and 100% of permanent  
employees are men, could the City still pay overtime differently?3 In that hypothetical  
situation, careful analysis would have to be done to check whether this is justified under the  
terms and conditions of employment.  
H.  
ANALYSIS  
1. What is the scope of the grievance?  
Union’s Position  
[55] The union maintains that the language of the grievance is broad, seeking redress for “pay  
discrimination pursuant to Section 2-21(1) of the SEA and any other legislation and/or provisions  
applicable.Therefore, it is not restricted to relying only on contraventions of the SEA. In oral  
argument, it relies specifically on s. 16 (1) and (2) of the Code, and more broadly on discrimination  
based on sex,which it asserts led to adverse impacts on female casual employees.  
[56] Through the grievance, the union asks the arbitration board to find that casual employees should  
receive the same higher overtime rate as permanent employees do under the CBA.  
3 The union sought to justify this type of evidence based on the Fraser case, infra where the court speaks to the future  
in protection on equal pay issues this decision will deal with future too. The board allowed the question, subject to a  
determination of weight, if any.  
18  
[57] The union relies heavily on statistics provided by Ms. Burns, arguing that the statistical disparity  
in this case is an undisputed fact.  
[58] The union also relies on Supreme Court of Canada jurisprudence with respect to the long  
evolution in case law and society’s approach to dealing with historical discrimination against women,  
whether intentional or otherwise,4 and the obligation to create conditions where women are treated  
respectfully, without any adverse impacts.5  
[59] The union asked us to consider potential adverse impact on people in the future, taking account  
of the possibility that at some future date, casual employees might be entirely female, and permanent  
employees entirely male.  
[60] The union directed us to consider the Code’s provisions respecting discrimination with respect  
to a term or condition of employment and cautioned that the board cannot make a decision that  
violates the Code.  
[61] Because the parties agreed to bifurcate evidence and argument regarding liability, from remedy,  
there is no need to address the employer’s argument that the union is also responsible for any  
discrimination that may be found to exist. The only issue is whether these two clauses governing  
payment of overtime violate the SEA. The union asks for a ruling not on liability, but on the  
interpretation of the CBA. The CBA has expired, so the parties are in a bargaining position. If these  
clauses are found to violate protections of women against indirect, unintentional, systemic  
discrimination, the board should let the parties know so they can bargain it.  
Employer’s Position  
[62] The employer submits that any claim for discrimination on the basis of sex beyond the  
allegation that the employer breached s. 2-21(1) of the SEA is outside the scope of this grievance.  
Absent agreement or acquiescence, arbitrators cannot extend, amplify, add issues to the grievance  
once submitted, or substitute for the issues raised in the grievance.6 While arbitrators may, on  
occasion, delve into a consideration of what the “real” grievance at issue is,7 this is not permitted  
where the CBA uses the word “shall” when setting out the requirements to file a grievance.8 It is not  
fair to the employer if a board of arbitration considers a new issue that was not raised in the  
grievance.9  
[63] Further, an arbitrator has no jurisdiction to hear a reframed argument that involves an attempt  
to reshape the complaint into something substantively new.”10 That is the case here. The grievance  
4 Fraser v. Canada (Attorney General), 2020 SCC 28, para 59 and later  
5
Miron v. Trudel,1995 97 (SCC), [1995] 2 SCR 418; Stewart v Elk Valley Coal Corp., 2017 SCC 30 at para  
24, [2017] 1 SCR 591  
6 Brown and Beatty, supra, at §2:9  
7 Evidence and Procedure in Canadian Labour Arbitration, loose-leaf (Rel 69, August 2018) 2nd ed (Toronto: Thomson  
Reuters, 1994) at §4-20  
8
I.C.W., Local 721 v Brockville Chemical Industries Ltd. (1972), 24 LAC 423 (Ont Arb), at paras 10-12  
9 Cheshire Homes of Regina Society v Canadian Union of Public Employees, Local 3207, 2016 152570 (Sask  
Arb), paras 275 283  
10 Mosaic Potash Colonsay ULC v United Steel Workers of America, Local 7656, 2010 SKCA 70 at para 39, 359 Sask R  
24, Richards J.A.  
19  
invokes only s. 2-21 of the SEA. Any attempt by the union to reframe the grievance to reference  
discrimination broadly is an attempt to shape the complaint into something substantively new. Any  
allegation by the union that the employer has discriminated in any other manner must be dismissed as  
being outside the scope of the grievance.  
[64] Fundamentally, the employer takes the position that, under the guise of a discrimination  
grievance, the union asks the board to confer the benefit of a higher overtime rate on casual  
employees, when this was not obtained through bargaining. This is not permitted at law.  
[65] Arbitration boards have long cautioned against conferring additional monetary benefits to a  
collective agreement, unless the intention of both parties is clear and unambiguous.11 Unless a claim  
is based on a specific term of the agreement, compensation is a matter of collective bargaining and  
not for arbitration.12  
Decision  
[66] The heart of this grievance is cast in terms of an alleged violation of Section 2-21(1) of the SEA.  
This is what the parties understood and addressed in their correspondence throughout the grievance  
process, including the unusual two sets of actual hearings set out at Steps 1 and 2, and the referral to  
Step 3, which is arbitration.  
[67] CBA Article 8.1.5. requires that in making application for a Step 1 hearing by the Director of the  
Department concerned, the Union shall outline, in writing, the matter complained of and the  
settlement sought.Article 8.1.6. requires that in appealing a Step 1 decision to the City Manager for  
a Step 2 hearing, the union shall file with the City Manager or their designate, a written statement of  
the claim along with the reasons for lodging the appeal.Article 8.8 provides that any grievance not  
settled by discussion or in Steps 1 and 2, may proceed to arbitration (Step 3).  
[68] In short, there is no provision for expanding the scope of the grievance at Step 3. If the wishes of  
the parties were not already clear that the scope of the grievance is not to expand before or at Step 3,  
CBA Article 8.1.12 is explicit that in no event shall the Board have the power to change this  
agreement or to alter, modify or amend its provisions.”  
[69] It is a fundamental principle of fairness that parties to an arbitration process have the right to  
know the case they must meet, and to reply accordingly. Adding boilerplate language to a grievance  
such as “and any other legislation and/or provisions applicable” is not sufficient to meet this test. The  
employer cannot reasonably be expected to guess what, if any, other legislation is relied upon by the  
union, particularly given the plethora of federal, provincial and municipal legislation upon which a  
grievance could conceivably be founded. This is particularly so in this case, in which the grievance is  
founded, not upon a specific article in the CBA, but rather on legislation impacting the collective  
bargaining relationship.  
[70] We agree with the employer that, absent agreement or acquiescence (neither of which is alleged  
here), arbitration boards are not vested with the jurisdiction enjoyed by superior courts to amend  
11  
Vancouver Hospital v H.E.U., Local 180 (1996), 43 CLAS 74 (BC Arb), para 46; SEIU, Locals 299 & 333 v  
Extendicare (Canada) Inc. (2002), 69 CLAS 152 (Sask Arb), para 17; Saskatchewan Telecommunications and UNIFOR,  
Locals 1-S (E.S.L. Top-up and Requalification), Re (2018), 141 CLAS 5 (Sask Arb), para 52  
12 Brown and Beatty, Canadian Labour Arbitration, 5th ed., looseleaf (Rel. 2, March 2022), at §8.1  
20  
pleadings. There are good reasons for this. The parties carefully designed the unique stages of the  
grievance process to be responsive to the specific issues raised in the grievance. An arbitration board  
that expands the scope of a grievance deprives the parties of the benefit of the settlement processes  
they so meticulously crafted.  
[71] In the end, there is a distinct risk that if we were to accede to the union’s argument and depart  
from the principles of fairness, we would lose jurisdiction in the case. Such a result would ultimately  
not advance the interests of the union or the employees whose interests it seeks to support.  
[72] In submissions, the union addressed at some length issues concerning adverse impacts and proof  
of discrimination in employment. The employer responded to these issues to some extent, while at  
the same time arguing that they are beyond the scope of the grievance. We note further that the  
employer has not alleged how the framing of the grievance as compared to what was argued by the  
union at the hearing caused the employer prejudice. Nevertheless, it is not for us as a board to  
speculate on what if any additional evidence the employer may have sought to tender if the grievance  
had been framed as including a violation of the Code or adverse impact discrimination. We note that  
in Fraser the court considered evidence of three individual women as to the circumstances they felt  
gave rise to discrimination, as well as expert evidence and other material addressing the  
disadvantages women with children face in the labour force. Although there may be cases where  
discrimination is so blatant that evidence explaining it is not necessary, this is not one of them. We  
do not know the impacts on female employees and the reasons for them, which arguably might relate  
more to summer student work than anything else. Nevertheless, because of the decision we have  
arrived at with respect to the scope of the grievance, it is not necessary for us to consider these  
arguments. The point is that the employer was deprived of the meaningful opportunity to call  
evidence to defend against the expanded allegations. The Code provision the union relies on is  
general, versus the SEA language, which refers specifically to pay discrimination based on sex, the  
issue lying at the heart of this case. We do not see how enlarging the scope of the grievance to  
include the Code provision assists the board or adds anything obvious to the union’s case.  
[73] We find that the scope of the grievance is limited to the applicability of S. 2-21(1) of the SEA.  
2. Does the arbitration board have jurisdiction to adjudicate upon the complaint of pay  
discrimination under the SEA?  
[74] The Supreme Court of Canada in Horrocks13 recently confirmed that where labour legislation  
provides for the final settlement of disputes arising from a collective agreement, thenunless there  
is express legislative intent to the contrarythe jurisdiction of the labour arbitrator is exclusive.  
[75] In that case, Linda Horrocks, a unionized employee, alleged that her employer, the Northern  
Regional Health Authority (NRHA), failed to adequately accommodate her disability when it  
terminated her for violating a last chance agreement. After her termination, she filed a complaint  
before a Manitoba Human Rights Commission adjudicator, alleging that her termination violated her  
rights under the Manitoba Human Rights Code. The NRHA contested the Commission’s jurisdiction  
to hear the complaint, arguing that the exclusive jurisdiction of an arbitrator under a collective  
agreement extended to human rights complaints arising in a unionized workplace. The Commission  
disagreed and found it had jurisdiction because the essential character of the dispute related to an  
13 Northern Regional Health Authority v. Horrocks, 2021 SCC 42  
21  
alleged human rights violation. The Commission then found that the NRHA had discriminated  
against Horrocks.  
[76] Ultimately, the Supreme Court of Canada ruled in favour of the NRHA. The Court concluded that  
the Commission did not have jurisdiction over the complaint: jurisdiction lay exclusively with the labour  
arbitrator in accordance with the collective agreement and the Manitoba Labour Relations Act. In  
reaching its conclusion, the Court reiterated and further refined the two-step analysis set out in its  
decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec  
(Attorney General), 2004 SCC 39, to resolve disputes between labour arbitrators and competing statutory  
tribunals:  
STEP ONE: The relevant legislation must first be examined to determine whether it grants the  
arbitrator exclusive jurisdiction and, if so, over what matters. Where the legislation includes a  
mandatory dispute resolution clause, an arbitrator has the exclusive jurisdiction to decide all  
disputes arising from the collective agreement, subject to clearly expressed legislative intent to the  
contrary.  
STEP TWO: If the legislation grants the labour arbitrator exclusive jurisdiction, then a  
determination must be made as to whether the dispute falls within the scope of the jurisdiction.  
Such jurisdiction will extend to all disputes that arise, in their essential character from the  
interpretation, application or alleged violation of the collective agreement. The relevant inquiry is  
into the facts alleged, not the legal characterization of the matter.  
[77] The Court disagreed with the Commission’s characterization of the complaint as arising from  
“an alleged violation of [Horrocks’] human rights.” Instead, the Court found that Horrocks’  
complaint arose from the NRHA’s exercise of its rights under the CBA and its alleged violation of  
that agreement. The Court recognized that the complaint involved certain of Horrocks’ statutory  
rights, but those rights were “too closely intertwined with collectively bargained rights to be sensibly  
separated” and so her claim falls solely to the arbitrator to adjudicate. The Court in Horrocks was  
careful to note that certain statutory schemes across Canada may disclose a legislative intention that  
human rights tribunals have concurrent jurisdiction over complaints arising under a collective  
agreement. In some cases, legislation may enact a complete code that confers exclusive jurisdiction  
over certain kinds of disputes on a competing tribunal. Other legislation may endow a competing  
tribunal with concurrent jurisdiction over disputes that would otherwise fall solely to the labour  
arbitrator for decision. Where that is the case, the courts must respect that legislative intention.  
[78] In a recent decision,14 this board discussed and applied the Horrocks decision, in considering  
whether the Workers’ Compensation Board had exclusive jurisdiction to adjudicate upon a human  
rights complaint brought to arbitration under the CBA. In that case, we found that the Workers’  
Compensation Act does signal clear legislative intent to confer jurisdiction on the WCB to make the  
type of determination sought by the employer.  
[79] We find that the present dispute is readily captured under the Article 8.1.1. definition of  
grievanceas it is clearly a dispute, difference, or disagreementbetween the City and the union or an  
employee pertaining to any matter relating to the terms and conditions of employment of any  
employee.Thus, applying Step One above, we agree with the union that the starting point is that the  
board has exclusive jurisdiction to adjudicate on the core of the grievance before us.  
14  
Regina Civic Members’ Union, Local 21 v. City of Regina (MK), 2022 73192 (SK LA)  
22  
[80] Turning to Step 2 of the analysis in Horrocks, we now consider whether the dispute falls within  
the scope of the jurisdiction. The inquiry is into the facts alleged, not the legal characterization of  
the matter. The facts allege that the employer committed pay discrimination in its treatment of female  
casual employees. We find that this is a dispute that arises, in its essential character, from the  
interpretation, application or alleged violation of the CBA.  
[81] The employer, while not conceding jurisdiction, did object to such a finding, provided the board  
confines itself to the SEA, which we have done. In the end, we find that the union has met both Steps  
One and Two of the Horrocks analysis. This board has jurisdiction to adjudicate on the SEA issue  
raised.  
3. Which party, if either, bears the onus of proof?  
Employer’s position  
[82] The employer’s position is that the case law is clear: the onus rests with the union to prove its  
allegation. There is no onus on the employer to prove the contrary or indeed to prove anything. The  
union must prove on a balance of probabilities its allegation that the employer has breached s. 2-  
21(1) of the SEA.15 This is true in all cases involving alleged breach of the SEAthe party alleging  
the breach bears the onus of proving it.16  
Union’s position  
[83] The union did not provide a brief and did not explicitly address the issue in oral submissions. At  
the same time, it did not dispute the employer’s characterization of the onus.  
Decision  
[84] The union alleges pay discrimination under the SEA and we accept the employer’s submissions  
and authorities to the effect that the union bears the burden of establishing this.17 We find that,  
15  
C.(R). v McDougall, 2008 SCC 53 at para 49, [2008] 3 SCR 41] established that “the only practical way in which to  
reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred,” and that,  
“it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending on the  
seriousness of the case” (see paras 44 45).  
The employer submits that in any event, should the board consider a claim for discrimination beyond s. 2-21(a) of the  
SEA, the union has failed to prove its case. To advance a claim for discrimination, the union bears the onus of  
establishing a prima facie case of discrimination. This requires (as per Stewart v Elk Valley Coal Corp., 2017 SCC 30 at  
para 24) demonstrating that:  
a. there is a characteristic protected from discrimination;  
b. there has been an adverse impact; and  
c. the protected characteristic was a factor in the adverse impact.  
Only once the union establishes this prima facie case on a balance of probabilities15 does the burden shift to the employer  
to justify the conduct or practice: CUPE Local 21 and Regina (Ctiy) (GM) re, 2021 CarswellSask 756 (Sask Arb).  
16 Stephen Nichols v Construction Workers Union (CLAC), L151 and Westwood Electric Ltd., 2017 72971 (Sask  
LRB) at para 23. The employer asserts that this is consistent with previous approaches taken to s. 2-21’s predecessor:  
Pasqua Hosp. v Harmatiuk (1987), 42 DLR (4th) 134 (Sask CA) at paras 22 23, where the court identified that the  
question was whether the complaint was “substantiated on a balance of probabilities”.  
17 While the onus would have shifted to the employer should the union succeed in establishing prima facie discrimination  
under the Code, we have already decided that we are limited to a consideration of the SEA provisions raised.  
23  
should the union establish that the employer contravened s. 2-21(1) of the SEA, it remains open to the  
employer to seek to establish an exception, as provided for in s. 2-21(2).  
4. Has the employer committed pay discrimination on the basis of sex, in breach of s. 2-21(1)  
of the SEA? Specifically, is the payment differential between permanent and casual female  
employees based solely upon sex?  
Interpretive Question: Do the words similar working conditionsin s. 2-21(1)(a) of the SEA  
permit wage discrimination based on differences in employment status?  
[85] This case requires us to interpret legislation that does not appear to have been judicially  
interpreted. Before we can begin to consider whether pay discrimination has been established, we  
must first decide whether, as a matter of statutory interpretation, the union has crossed the statutory  
threshold for even considering the issue of pay discrimination.  
[86] The oft cited case C.E.P., Local 777 v. Imperial Oil Strathcona Refinery18 outlines the proper  
arbitral approach for interpreting collective agreements (which also applies to interpreting statutes):  
the words must be read in their entire context, in their grammatical and ordinary sense, harmoniously  
with the scheme of the agreement, its object, and the intention of the parties. Interpreters look not  
only to the intention of the parties, when intention is fathomable, but also to the entire context of the  
collective agreement. This avoids creating a fictional intention of the parties where none existed but  
recognizes their intention if one can be shown. The principle also looks at the entire context of the  
legislation or agreement to determine the meaning to be given to words in dispute.  
[87] That decision sets out a modern principle of interpretation, which directs interpreters to:  
1. consider the entire context of the statute;  
2. read the words of the statute in their entire context and in their grammatical and ordinary  
meaning; and  
3. read the words of a statute harmoniously with the scheme and object of the statute and with  
the intention of the parties.  
[88] According to this modern principle, the "entire context" includes the statute as a whole  
document. One provision cannot be understood in isolation because what is said in one place will  
often be qualified, modified or excepted, directly or indirectly, in another. It must be assumed that  
negotiators were conscious of all the provisions of the statute. An example is the use of words that  
have defined meanings. Those meanings must be applied whenever the defined word is used in the  
collective agreement. Words in a statute are to be read harmoniously with the scheme of the act,  
which could include the arrangement of provisions and the purpose of the act or a particular section  
or part of the Act.  
[89] Brown & Beatty, in Canadian Labour Arbitration19 set out the cardinal presumption that the  
parties are assumed to have intended what they have said and it is the normal or ordinary meaning in  
context that is to be assumed, unless this leads to an absurdity or the context reveals otherwise.  
18 2004 Carswell Alta 1855 , paras 40 and 41. See also, in the context of the application of the ‘modern method” to  
statutory interpretation, Rizzo & Rizzo Shoes Ltd. (Re), [19980 1 SCR 27 at para 21.  
19 Loose-leaf (Release No. 53, October 2016) 4th ed, vol 1 (Toronto: Thomson Reuters Canada Limited, 2016) at 4:2100  
24  
[90] It is the modern principle of interpretation that we have used to analyze the legislation, the CBA,  
the evidence, and argument and to make a decision on the grievance.  
[91] At the outset, it is worth repeating the relevant provisions of the SEA:  
Subdivision 4 Discrimination in Pay Prohibited  
No discrimination in pay  
2-21(1) No employer shall pay an employee of one sex at a rate of pay less than the rate paid to an  
employee of another sex if:  
(a) they are employed by the employer for similar work that is performed in the same workplace  
under similar working conditions; and  
(b) the performance of the work requires similar skill, effort and responsibility.  
(2) Subsection (1) does not apply if a payment differential is made pursuant to a seniority system or  
merit system.  
(3) No employer shall reduce the rate of pay of any employee in order to comply with this section.  
(4) If an employer has contravened subsection (1), the employer is not, after that contravention,  
entitled to reduce the rate of pay to which an employee is entitled on the grounds that the work is  
subsequently performed only by employees of the same sex.  
(5) No employer shall pay an employee a different rate of pay on the basis of any prohibited ground,  
as defined in The Saskatchewan Human Rights Code, 2018, unless The Saskatchewan Human Rights  
Code, 2018 permits the different rate of pay.  
2013, c.S-15.1, s.2-21; 2018, c35, s.2  
[92] First, we conclude that the extract from the province’s website that the employer relies on, and  
which was admitted into evidence without objection by the union, does not provide a reliable aid to  
interpretation. There is no evidence or indication as to the source of this summary to indicate its  
authoritativeness.  
[93] Starting with a consideration of the language of s. 2-21(1)(b), we find without hesitation that the  
overtime work in question, whether performed by casual or permanent employees, requires similar  
skill, effort and responsibility.” The evidence was that this work, more than being similar, is in fact  
identical, apart from the employment status of those who perform it. Were sub-section (b) the only  
criterion to interpret, the union would be in a much stronger position.  
[94] However, it is necessary to interpret the section as a whole, including the specific language of  
subsection (a), and in the context that it precedes subsection (b). Further, the use of the word and”  
between (a) and (b) signals legislative intention that both elements must be proven before a finding  
of pay discrimination can be made.  
[95] Further, some common interpretation assumptions that can assist us here are:  
1. The law is drafted in the way it is for a reason, even if one may have to read (and re-read)  
the text a few times to understand why.  
25  
2. The drafter is competent and has followed drafting conventions.  
3. Existing law and court cases have been considered during the drafting process.  
4. Every word has a meaning, and no word is superfluous.  
5. Different words used intentionally in different provisions of an act have different meanings  
in those provisions. In other words, different words = different meaning.  
[96] We will comment shortly on common assumption 3 above. However, taking into account  
common assumptions 1, 4 and 5 above, and having found that the union has proven the basic  
elements of s. 2-21(1)(b), we conclude that the provisions of sub-sections (a) and (b) must have  
different meanings in this context.  
[97] Ascertaining the plain language interpretation of sub-sections requires breaking down all the  
components of proof required by s. 2-21(1). We can readily conclude that both permanent and casual  
classes of employee are:  
o Employed by the employer [(a)]  
o for similar workthis clearly deals with the type of work performed, as distinct from  
the skill, effort and responsibility required, as referred to in (b)  
o that is performed in the same workplacethe evidence was that the work performed  
by the two classes of employees takes place in the same workplace; and  
o performing work requiring similar skill, effort and responsibility[(b)].  
[98] However, the interpretive issue is whether both classes of employees perform such work under  
similar working conditions.Because this term is not defined in the SEA, it is necessary for us to do  
so, first in the context of its grammatical and ordinary sense. Subsection (b) stipulates that the  
performance of the work requires similar skill, effort and responsibility.The interpretation  
assumption that the legislature intended different words to have different meanings, and did not  
intend to cover identical ground in (a) and (b), assists us in interpreting the meaning of similar  
working conditions.In other words, the phrase similar working conditionscannot simply  
reference the similar nature of the work, or the fact that the work requires similar skill, effort and  
responsibility.” It must therefore mean something more or different.  
[99] The International Labour Organization (ILO) provides the following definition:  
Working conditions Working conditions are at the core of paid work and employment relationships.  
Generally speaking, working conditions cover a broad range of topics and issues, from working time  
(hours of work, rest periods, and work schedules) to remuneration, as well as the physical conditions  
and mental demands that exist in the workplace. (emphasis added)  
[100]  
In other words, the definition includes a focus on employment relationships and thus  
encompasses the terms and conditions of employment. This leads to the conclusion that those with  
measurably different employment relationships are not working under similar working conditions.”  
The level of remuneration, which clearly differs between the two classes of employees, not only in  
relation to overtime but in relation to many other areas, signals a clear difference in working  
26  
conditions.These are features of differing employment status. Similarly, Eurofound20 states,  
Working conditions refers to the working environment and aspects of an employee’s terms and  
conditions of employment(emphasis added).  
[101]  
We find that it is reasonable to deduce that the phrase similar working conditions”  
encompasses different types of employment status. Had the legislature intended to prohibit  
employers from compensating one class of employees differently from another class of employees  
(where both male and female employees within each class receive identical remuneration), clear and  
unequivocal language to this effect would have been expected. The national legislative context of  
pay discrimination legislation serves as an important contextual backdrop to our analysis. As will be  
discussed shortly, to find otherwise would require a finding that the Saskatchewan Government  
intended to extend much more expansive coverage than exists anywhere else in Canada.21  
[102]  
The CBA negotiated by the parties sets out the benefits applicable to casual employees in  
an entirely separate sectionSchedule B, versus those for permanent employees, which are set out in  
the body of the CBA (Schedule A). This differential treatment, coupled with the clear language of  
Overtime Articles 17.5 and 17.6, which govern overtime for permanent employees, and the preamble  
to Schedule B, which provides that casual staff are governed by “the working conditions outlined in  
this schedule.” Read collectively, these provisions of the CBA clearly signal a negotiated intention to  
treat these two classes of employees differently. While the terms and conditions of their employment  
are both governed by the CBA, they differ significantly between the two. Unlike permanent  
employees, casual employees are not guaranteed any hours. They also receive different benefits.  
[103]  
Specific differences between permanent and casual employees with respect to the examples  
discussed during testimony can be summarized in the table below:  
20 September 20, 2011 definition, https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-  
dictionary/working-conditions#:~:text=Working%20conditions%20refers%20to%20the,time%20and%20work-  
life%20balance; and August 15. 2022: Working conditions refer to the conditions in and under which work is  
performed. A working condition is a characteristic or a combination of characteristics of work that can be modified and  
improved... Working conditions are a subject of labour law and are regulated by all of its various sources: legislation,  
collective agreements, works rules, the employment contract, as well as custom and practice”.  
https://www.eurofound.europa.eu/topic/working-conditions  
.
21 Ontario for one year prohibited discrimination even on the basis of employment status, before removing that  
protection.  
27  
Permanent Employees  
Casual Employees  
Casual employees with 4,160 regular hours  
worked accumulate sick leave credits at the rate  
of 0.061602 hours credit per each regular hour  
to a maximum of 240 hours  
Accumulate sick leave credits on a bi-weekly  
basis at a rate of 0.061602 hours per hour of  
service to a maximum of 1,828 hours  
Sick time  
Vacation  
Accumulate vacation credits with pay on an  
hourly basis.  
Receive annual vacation in accordance with the  
SEA.  
Employees’ spouses and dependent children are  
entitled to death benefits in the event of the  
employees’ deaths, and permanent employees  
are entitled to disability benefits.  
Death and  
Disablement  
Benefits:  
Not entitled to either type of benefit.  
Casual employees are not entitled to join this  
plan, but Employer provides a separate group  
The Employer provides a Group Life Insurance life plan with $15,000 coverage for casual  
Life Insurance  
Plan  
employees with 2,06910,000 hours of service  
and $40,000 coverage for those with over  
10,000 hours of service.  
Workers’  
Compensation  
Top-up  
Permanent and probationary employees get a  
supplement to workers’ compensation benefits  
Casual employees with seniority also get a  
benefit.  
Special Leaves  
of Absence  
Granted to permanent employees only  
50/50 cost-shared dental plan.  
N/A  
50/50 cost-shared dental plans for casual  
employees with 2,069 hours of service  
Dental Plan  
[104]  
The parties have consistently treated casual employees differently from permanent  
employees throughout the collective bargaining process since the 1975 CBA. It is reasonable to  
deduce that, based on the plain language of the SEA, when interpreted in the context of the specific  
provisions of the CBA noted in the above table, these two groupsthough they do identical work—  
do not share similar working conditionsin many important respects. Indeed, permanent and casual  
employees perform their work under significantly different working conditions. Their hours and  
schedules are different, as are the benefits they are entitled to for their work.  
[105]  
Because of these differences in working conditions, the union has not established that they  
perform their work under similar working conditionsas it must, to prove a contravention of s. 2-  
21(1). This is yet another reason why the union’s argument must fail.  
SEA section 2-21 Addresses Wage Discrimination Based on Sex  
[106]  
In considering the union’s specific allegation in the grievance, it is important to understand  
s. 2-21 of the SEA and the context in which it was enacted.  
[107] Pay inequity based on sex is a well-recognized historical disadvantage that women have  
faced in the workplace. The various Canadian jurisdictions have all enacted legislation in response to  
28  
this problem. These legislative responses have evolved through four distinct phases, as described in  
University of Saskatchewan v Dumbovic:22 To summarize:  
1. Equal pay for equal work: This principle requires that male and female employees be paid the  
same wage for doing identical work. Thus, a waiter and a waitress must be paid the same wage.  
This legislation exists in every province.  
2. Equal pay for similar or substantially similar work: This applies to situations where male and  
female employees may have different job titles but perform substantially the same work. This  
type of legislation also exists in every province and has been commonly applied to compare  
nurses' aides to orderlies and male janitors to female cleaners.  
3. Equal pay for work of equal value: This concept differs radically from the two preceding ones,  
in that it does not compare "work," but the "value" of work. Value is determined by job  
evaluation techniques. The equal value concept involves comparing apples to oranges: they  
cannot be compared in terms of consumer taste and preference, but can be compared in terms of  
cost of production, storage, delivery, and nutritional value. Pay equity or "equal value" laws  
reflect the political decision that workers' wages will not be determined wholly by market forces.  
4. Pay equity: All three of the approaches discussed above share one thing in common. They are  
enforced by a complaints system. Somebody must file a complaint to trigger enforcement of the  
legislation's general prohibitions. A complaints system of enforcement is usually based on the  
assumption that violations are the exception, not the rule. Investigation of individual complaints is  
feasible only if breaches are exceptional. Pay equity, on the other hand, is based on the  
assumption that wage discrimination against women is endemic to the economy and requires a  
broad and systemic remedy. Thus, the fourth generation type of equal pay legislation abandons  
the complaint system of enforcement in favour of a regulatory model. Legislation of this type  
does not simply prohibit wage discrimination but places positive obligations on employers to  
scrutinize their pay practices and ensure that these practices comply with legislation.  
[108]  
Saskatchewan is a Phase 2jurisdiction,23 meaning that it has enacted legislation  
mandating equal pay for similar or substantially similar work. Phase 2 legislation is described by the  
Federal Task Force Final Report authored by Professor Beth Bilson, Q.C. as follows:  
Labour Standards  
The principle of equal pay for equal work, or for similar or substantially similar work, aims  
at eliminating the practice of paying men and women different pay rates for doing the same  
job. This principle has been embodied in labour standards legislation. The basic premise is  
that, as a matter of social policy, workers should be protected from the vagaries of the labour  
market and that their vulnerability in the employment relationship should be recognized by  
the establishment of minimum standards for all employment contracts. These statutes  
typically set standards for wages, hours of work, vacation leave, overtime and other essential  
terms and conditions for workers. These standards are enforced by a regulatory system  
which includes inspections, reports, and a process of summary adjudication.  
[109]  
Today, s. 2-21(1) of the SEA is Saskatchewan’s Phase 2 legislation. As such, it prohibits  
employers from paying male and female employees differently where they are performing  
22 2007 SKQB 182 (Ball, J.)  
23 Dumbovic, para 87  
29  
substantially the same work. As noted in Dumbovic, this has commonly been applied to compare  
nurses’ aides to orderlies, and male janitors to female cleaners.  
[110]  
Accordingly, as a threshold question, s. 2-21(1) requires first, the identification of a male  
employee or comparator group and a female employee or comparator group; and second, proof of a  
pay differential between the male and female employees or between the male and female groups.  
Because this subsection precludes discrimination in pay based solely on sex, there must be an actual  
difference in pay based on sex before any contravention can be established.  
The Historical and Ontario Approaches are Informative  
[111]  
We turn to the historical approach taken by Saskatchewan decision-makers, which also  
provides important context for our interpretation, given the common assumption that legislators must  
be deemed to have considered existing legal background and case law. Section 2-21(1) is the  
successor to s. 17(1) of The Labour Standards Act, RSS 1978, c L-1:  
Equal pay  
17(1) No employer or person acting on behalf of an employer shall discriminate between his male and  
female employees by paying a female employee at a rate of pay less than the rate of pay paid to a male  
employee, or vice versa, where such employees are employed by him for similar work which is  
performed in the same establishment under similar working conditions and the performance of which  
requires similar skill, effort and responsibility, except where such payment is made pursuant to a  
seniority system or merit system.  
(2) No employer shall reduce the rate of pay to any of his employees in order to comply with this  
section.  
(3) Where an employer has contravened subsection (1), he shall not thereafter be entitled to reduce the  
rate of pay to which an employee is entitled on the grounds that the work is subsequently performed  
only by employees of the same sex.  
[112]  
The foremost use of this section has been where a female employee alleges that her  
employer failed to give her equal pay as compared to her fellow male employees. That was the case  
in Booth v Frame and Wheel Alignment (1976) Ltd.,24 where Ms. Booth was a painter being paid at  
$6.50 per hour. Her fellow male painters received $7.50 per hour. In these circumstances, the Human  
Rights Tribunal concluded that the employer had breached s. 17 and did not fit itself within the  
statutory exceptions.  
[113]  
In Solar Sales Ltd. v Schiltz,25 the Court of Appeal affirmed the finding of the Human  
Rights Commission that Solar Sales Ltd. had contravened s. 17 of the LSA. Solar Sales employed a  
number of persons in a warehouse and it paid Mr. Schultz, a male employee, at a higher rate of pay  
than its female warehouse employees. The Commission found “the substantial similarities very much  
outweigh th[e] incidental difference” in physical effort required of Mr. Schultz such that the  
employees were performing similar jobs and pay discrimination was established.  
24 1980 3937 (Sask HRT)  
25 1983 CarswellSask 631 (CA)  
30  
[114]  
In Frechette v Namraw Lumber Ltd.,26 Ms. Frechette had complained that Namraw failed to  
pay her at a rate equal to a male employee. The Human Rights Commission found that Namraw had  
violated s. 17 of the LSA and said the following respecting what a complainant must prove to  
establish a violation:  
[6] Section 17 prohibits an employer from paying women and men different wages for  
performing similar jobs. To prove a violation of s. 17 the complainant must show that the  
female and male employees who received different wages:  
1. were employed for similar work  
2. in the same establishment  
3. under similar working conditions  
4. with the performance of the jobs requiring similar skill, effort and responsibility.  
[115]  
In other cases, decision-makers have considered male and female groups of employees  
against one another and found pay discrimination.  
[116]  
In Department of Labour and University of Regina, Re,27 the University of Regina was  
ordered to pay persons employed as Cleaners at the same rate as those classified as Caretaker I. The  
Cleaner I employees were all part-time female employees who worked four hours a day, while the  
Caretaker I employees were full-time employees who worked eight-hour shifts, and all but one of  
whom were male. While many Caretaker I duties were not undertaken by Cleaner I employees, five  
male employees were doing essentially similar work to that of the cleaners” and received a greater  
rate of pay for same. Five out of a total of 46 amounted to slightly over 10% of the Caretaker I  
employees and was sufficient to ground a breach of the LSA.  
[117]  
In Harmatiuk v Pasqua Hospital,28 the Human Rights Commission had found Pasqua  
Hospital in violation of s. 17(1) of the LSA. The hospital employed women as housekeeping aides  
and men as caretakers. There was no dispute over their hours of work or salaries, or that their work  
was performed in the same establishment under similar working conditions and required similar skill  
and responsibility. However, the employer argued that the physical effort required of the male  
caretakers as opposed to the female housekeeping aides was substantially different so as to justify the  
wage disparity. The Commission found that while some caretakers spent some of their time exerting  
greater physical strength, the female aides exerted extra mental effort while working in patients’  
rooms such that the difference in kind did not render their efforts sufficiently different to justify the  
disparity. This was affirmed by the Court of Queen’s Bench, and by the Court of Appeal.  
[118]  
It is also useful to contrast the Saskatchewan approach with that taken in Ontario, which has  
enacted “Phase 4” legislation. Its Employment Standards Act, 2000, SO 2000, c 41 contains the  
following prohibition:  
26 1995 CarswellSask 838 (Sask Bd of Inq) Note that this decision challenged before the Court of Queen’s Bench: see  
Frechette v Namraw Lumber Ltd. (1995), 133 Sask R 266 (QB). The Commission’s decision to award $2,500 for hurt  
feelings was set aside but all other aspects were maintained.  
27 (1975), 62 DLR (3d) 717 (Sask QB)  
28 (1983), 149 DLR (3d) 237 (Sask QB)  
31  
42(1) Equal pay for equal work  
No employer shall pay an employee of one sex at a rate of pay less than the rate paid to an employee  
of the other sex when,  
(a) they perform substantially the same kind of work in the same establishment;  
(b) their performance requires substantially the same skill, effort and responsibility; and  
(c) their work is performed under similar working conditions.  
42(2) Exception  
Subsection (1) does not apply when the difference in the rate of pay is made on the basis of,  
(a) a seniority system;  
(b) a merit system;  
(c) a system that measures earnings by quantity or quality of production; or  
(d) any other factor other than sex.  
[119]  
Where the different rate of pay is not based on sex discrimination, employees performing  
substantially the same work may be paid different rates.29 Therefore, to establish a breach under s.  
42(1), applicants bear the onus of proving they were “paid less… because of sex.In Desbiens v  
Automotive Wholesale Inc.30 Ms. Desbiens argued that the legislation had been violated because she  
was paid commissions at a different rate than the comparator sales representatives. She was an Office  
Administrator who was paid $17.00 per hour and $150.00 per vehicle sale, while sales  
representatives were paid 25% of sales revenues. The Labour Relations Board dismissed her  
argument, finding that she had not provided evidence that the pay differential was because of sex:  
[45] In this case, the Board was not provided with any information about the sex of the other  
sales representatives or whether the sales representatives represent a male comparator group. In  
the absence of such evidence the Board simply does not have sufficient information upon which  
to find that the difference in the commission structure was because of the respective sex of the  
applicant and the sales representatives. In the absence of such evidence, no further analysis under  
section 42(1) is required.  
[46] The Board therefore finds that there was no violation of section 42(1) of the Act.  
(Emphasis added)  
[120]  
A similar conclusion was reached in Flexia Corp. v IWA-Canada, Local 500.31 There, the  
union grieved the wages of a licensed millwright. The grievor worked in a maintenance department  
alongside two other employees who were supervisory lead hands. The union argued that because all  
three employees performed the same work, it was a fundamental principle of fairness that they all be  
paid the same wage for the same work. The collective agreement provided for job classifications and  
wages, including separate ones for supervisory lead hands and for millwrights. Relying on  
employment standards and pay equity legislation, the union’s position was that the employer had  
breached the statutes by paying a different wage to employees who perform exactly the same job. In  
29 Shkuratoff and Ontario (Ministry of Children, Community and Social Services), Re. (2021), 149 CLAS 139 (Ont PSGB), at  
para 23; See also Bull v Sudbury Secondary Unit (OECTA), 2015 CarswellOnt 11466 (LRB) at paras 10 11.  
30 2020 CarswellOnt 13006 (LRB) at para 41  
31 (2007), 159 LAC (4th) 337 (Ont Arb)  
32  
response, the employer argued that the collective agreement and legislation did not require equal pay  
for equal work unless the differential is attributed to gender. The arbitrator agreed: before an  
arbitrator can intervene and correct an inequality or anomaly in wage, there must be a determination  
that some provision of the collective agreement or legislation has been breached (paras 47 48). The  
arbitrator expressly rejected the union’s argument:  
[59] These legislative initiatives are specifically intended to remedy the historic wage  
anomalies between male and female workers. They do not establish, as matter of law, the  
requirement that equal wages must be paid for equal work. No authority has been offered to  
this board, and no authority has been identified by this board, providing to the contrary.  
[121]  
To summarize, the overall context of the jurisprudence regarding this issue is consistent  
with and supportive of the interpretation we have place on the SEA from the perspective of plain and  
ordinary grammatical meaning.  
[122]  
Based on all the above, to establish a contravention of s. 2-21(1) of the SEA, the union must  
demonstrate the following on a balance of probabilities:  
a.  
b.  
there is a male and a female employee or a male and a female group of employees;  
there is a difference in rate of pay between the male and female employee or the male  
and female groups that is based solely on sex; and  
c.  
the male and female employee or the male and female group who received different  
wages were employed:  
i. for similar work,  
ii. in the same establishment,  
iii. under similar working conditions, and  
iv. in jobs the performance of which requires similar skill, effort and responsibility.  
The Union Has Not Satisfied the s. 2-21 Criteria  
[123]  
Bearing the above in mind, we now address the reason why the union’s allegation of  
contravention must be dismissed. Section 2-21(1) of the SEA prohibits employers from  
discriminating in pay only if based on sex; it does not prohibit any other differences in pay. Yet what  
the union has proven in this case is that two groups of employees are paid different overtime rates  
based on their employment status: that is, whether they are casual or permanent. This does not  
amount to prohibited pay discrimination based on sex under the SEA.  
[124]  
Fundamentally, the union’s allegation is this: under the CBA, casual employees may  
perform the same work as permanent employees but be paid for overtime work at a rate of one-and-  
a-half versus double time for permanent employees. The permanent and casual employee groups both  
include male and female employees. Flowing from this, the union alleges that prohibited pay  
discrimination based on sex can occur: a female permanent employee and a male casual employee, or  
a male permanent employee and a female casual, can be performing the same job but receive a  
different overtime rate. This, the union says, is prohibited pay discrimination based on sex.  
[125]  
This contention is not persuasive. The union has not established that casual employees are  
paid less than permanent employees based on sex. The union has proven one thing only: permanent  
33  
employees are paid overtime at a higher rate than casual employees. That is it. There is no  
connection to sex, at all.  
[126]  
Consider the casual employees. It is undisputed that both male and female casual  
employees are paid overtime at the rate of one-and-a-half as required by the SEA. There is no  
distinction based on sex amongst these employees.  
[127]  
The same is true amongst the permanent employees. Both male and female permanent  
employees are paid overtime at double time, as bargained for by the Union since 1975. There is no  
distinction based on sex amongst these employees.  
[128]  
Compare, then, the permanent versus casual employee groups. This is the only point at  
which any distinction between any employees in terms of overtime arises. There are four possible  
scenarios. Working overtime at similar jobs are:  
1. a male permanent employee and a male casual employee;  
2. a female permanent employee and a female casual employee;  
3. a male permanent employee and a female casual employee; or  
4. a female permanent employee and a male casual employee.  
[129]  
Each of these scenarios is possible because both the casual and permanent union employee  
groups include male and female employees. In each of these four scenarios, the permanent employee  
would receive overtime at the double rate and the casual employee would receive overtime at the  
one-and-a-half rate. This is in no way dependent on the sexes of the employees. It is a function only  
of their employment statuses and the agreed-to benefit of a higher overtime rate for permanent  
employees. Consequently, the union has failed to demonstrate that there is a male and a female  
employee or a male and a female group of employees who receive different pay because of their sex.  
[130]  
We observe that for a brief one-year window, the Ontario legislation included a prohibition  
on wage discrimination for “differences in employment status.” Operative on January 1, 2018 and  
repealed by the new Ontario government later that same year,32 s. 42.1 of its Act read:  
Difference in employment status  
42.1 (1) No employer shall pay an employee at a rate of pay less than the rate paid to another  
employee of the employer because of a difference in employment status when,  
(a) they perform substantially the same kind of work in the same establishment;  
(b) their performance requires substantially the same skill, effort and responsibility; and  
(c) their work is performed under similar working conditions.  
[131]  
“Difference in employment status” was defined as (a) a difference in the number of hours  
regularly worked by the employees; or (b) a difference in the term of employment, including a  
difference in permanent, temporary, seasonal or casual status.  
[132]  
While no equivalent section exists or has ever existed in Saskatchewan, it bears observing  
that even in a Phase 4jurisdiction like Ontario, the statutory prohibition on pay discrimination  
based on sex does not prohibit pay discrimination based on employment status. That prohibition was  
32 Caballero v Power Workers’ Union, 2019 CarswellOnt 19190 (Ont LRB), paras 3 4  
34  
enacted in Ontario for a one-year period only, and for this one year only, employers were required to  
pay casual and permanent employees the same. The repeal of this provision was recognized by the  
Arbitrator in Town of Whitby and CUPE, Local 53 (Equal Pay for Equal Work Part-time  
Employees), Re,33 as having repealed the obligation to pay part-time employees the same as full-  
time employees.”  
[133]  
This supports the employer’s argument that s. 2-21(1) and its Ontario equivalent do not  
prohibit differences in pay where that difference is not attributable to sex. To decide otherwise would  
be to conclude that the Saskatchewan Government intended to depart from legislative norms across  
the country and blaze a trail to introduce a dramatic change to the legislative landscape in this regard.  
This seems improbable.  
[134]  
Even assuming the union could establish that there is a male and a female employee or a  
male and a female group of employees who are being paid differently based on sex, the Union’s  
argument still must fail. That is because s. 2-21(1)(a) requires that the work be performed “under  
similar working conditions” and we have found that a difference in employment status (permanent  
vs. casual) amounts to a difference in working conditions. For another example, in Desbiens, being  
paid an hourly rate was not considered to be a “similar condition” to being paid a salary (para 50).  
[135]  
Finally, the parties themselves, in the preamble to Schedule B to the CBA, recognize a  
definition of working conditionsthat is consistent with the employer’s interpretation of the SEA:  
casual staff are governed by the working conditions outlined in this schedule.”  
Testing the Interpretation  
[136]  
As set out in CEP v Strathcona above, once an interpretation is settled on, it should be  
tested by asking the following questions:  
Is the interpretation plausibleis it reasonable?  
Is the interpretation effectivedoes it answer the question within the bounds of the  
collective agreement?  
Is the interpretation acceptable in the sense that it is within the bounds of acceptability for  
the parties and legal values of fairness and reasonableness?  
[128] In our respectful view, the employer’s interpretation of the legislation is both plausible and  
reasonable. The employer looked to the specifics of the CBA in the context of the jurisprudence and  
legislation in effect nationally. It focussed on the words used. It is effective, in that it answers the  
question at issue within the bounds of proper interpretation. The employer’s interpretation is within  
the bounds of acceptability for the parties and legal values of fairness and reasonableness. It does not  
lead to an absurdity.  
[129] This is not to say that the City minimizes the importance of the work of casual employees: they  
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