Regina Civic Members’ Union, CUPE Local 21 v City of Regina

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 employees—whether permanent, temporary, or casual—in 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 composition—from a diversity perspective—of

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.

5

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.

7

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.

8

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,

9

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

provisions¹are 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.

¹Permanent employees have been entitled to overtime at a rate of double time since the July 1975 CBA between the

parties.

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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

circumstance—the 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

community—from 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 employees’ eligibility 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:

²Exhibit 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?³In 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.

³The 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,⁴and 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.⁶While arbitrators may, on

occasion, delve into a consideration of what the “real” grievance at issue is,⁷this is not permitted

where the CBA uses the word “shall” when setting out the requirements to file a grievance.⁸It 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.”¹⁰That is the case here. The grievance

⁴Fraser 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

⁶Brown and Beatty, supra, at §2:9

⁷Evidence 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

⁹Cheshire Homes of Regina Society v Canadian Union of Public Employees, Local 3207, 2016 152570 (Sask

Arb), paras 275 – 283

¹⁰Mosaic 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.¹¹Unless 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

¹²Brown and Beatty, Canadian Labour Arbitration, 5^thed., 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 Horrocks¹³recently confirmed that where labour legislation

provides for the final settlement of disputes arising from a collective agreement, then—unless there

is express legislative intent to the contrary—the 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

¹³Northern 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,¹⁴this 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

“grievance” as it is clearly “a dispute, difference, or disagreement” between 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.¹⁵This is true in all cases involving alleged breach of the SEA—the 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.¹⁷We 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 probabilities¹⁵does 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).

¹⁶Stephen 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”.

¹⁷While 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 conditions” in 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 Refinery¹⁸outlines 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 Arbitration¹⁹set 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.

¹⁸2004 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.

¹⁹Loose-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 work—this 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 workplace—the 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 conditions” cannot 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, Eurofound²⁰states,

“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 section–Schedule 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:

²⁰September 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

.

²¹Ontario 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 2,069–10,000 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 groups—though they do identical work—

do not share “similar working conditions” in 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 conditions” as 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:²²To 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 2” jurisdiction,²³meaning 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

²²2007 SKQB 182 (Ball, J.)

²³Dumbovic, 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.,²⁴where 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,²⁵the 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.

²⁴1980 3937 (Sask HRT)

²⁵1983 CarswellSask 631 (CA)

30

[114]

In Frechette v Namraw Lumber Ltd.,²⁶Ms. 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,²⁷the 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,²⁸the 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:

²⁶1995 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.²⁹Therefore, 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.³⁰Ms. 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 500.³¹There, 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

²⁹Shkuratoff 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.

³⁰2020 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,³²s. 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 4’ jurisdiction like Ontario, the statutory prohibition on pay discrimination

based on sex does not prohibit pay discrimination based on employment status. That prohibition was

³²Caballero 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,³³as 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 conditions” that 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 plausible—is it reasonable?

• Is the interpretation effective—does 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

are clearly integral to the employer’s operations. The parties are entitled to negotiate a CBA that

confers additional entitlements on those employees who have committed to providing their services

to the City on a permanent basis, over and above those available to employees who have not so

³³(2021), 149 CLAS 147 (Ont Arb), para 34

35

committed. Casual employees are entitled to pursue employment elsewhere or return to their studies

after a summer season with the City.

[130] The practical realities of the union’s allegation in this matter cannot be ignored. Distilled to its

fundamentals, the union’s argument is this: employers can never pay different types of employees

different wages where they are performing similar jobs. It argues that equal work always requires

equal pay, every time and in all circumstances. It is saying that this must be the case; otherwise, there

is the potential that persons of different sexes might be paid differently. That is not the law in

Saskatchewan. The law in Saskatchewan prohibits pay discrimination based on sex—that is it. It does

not prohibit employers from paying different types of employees at a different rate; it prohibits them

from doing so only where the different rate is based on sex.

[131] Finally, there is no jurisdiction in Canada – except for Ontario for one year - that prohibits

different pay based on employment status. But that is what the union is seeking. It is asking this

Board to find that all employees—temporary, seasonal, casual, permanent, part-time, full-time—

must be paid exactly the same. It is asking the Board to fundamentally change the law and the CBA.

This request must be rejected.

[132] At the end of the day, this Board accepts and agrees with the union (as does the City), that pay

discrimination based on sex is prohibited by the SEA. Of course it is, and so it should be. But that is

not what the CBA does. Rather, the CBA provides for different overtime rates for permanent and

casual employees. There is no prohibition at law against so doing.

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 SEA s. 2-21(2)?

[133]

The employer concedes that the overtime payment differential between permanent and

casual employees is not based on a merit system. However, it submits that the payment differential is

made pursuant to a seniority system, which is broadly defined. The employer submits that it has a

seniority system in place under which employees are hired as casual employees and, when they

accrue enough seniority, are appointed as permanent employees and receive the additional benefits

that come with this higher employment status. As noted by the Court of Appeal in Kivela, permanent

positions are “awarded largely on the basis of seniority acquired by casual employees” (para 4). This

is a seniority system at law. The union argued, in oral submissions, that this has nothing to do with

seniority.

[134]

At first blush, the employer’s submission in this respect is not persuasive, given that

permanent and casual employees each have their own distinct seniority systems under the CBA and

there does not appear to be any requirement that permanent employees must first serve as casuals or

that casuals with the most seniority are given preference in permanent hires.

[135]

Nevertheless, in light of our conclusion that the employer has not contravened s. 2-21(1) of

the SEA, there is no need for us to decide the issue.

36

I.

ORDER

[136]

In the end, we conclude that the employer has not breached the SEA. The grievance is

therefore dismissed.

[137]

Given that the parties agreed to bifurcating the hearing between liability and remedy, and

given our findings regarding liability, there is no need for us to address the employer’s submission

that the union, having negotiated and signed the CBA, is jointly liable for any damages that might be

awarded against the City.

[138]

Nevertheless, it is true that the union bargained and extensively negotiated the CBA with

the City, agreeing to the differential treatment of casual employees versus their permanent

counterparts. Now it argues that the City has broken the law in coming to such agreement with the

union. The parties have a mature and sophisticated bargaining relationship. All of this leads to the

observation that the gains sought to be achieved by the union are best attained at the negotiating

table, rather than through an arbitration ruling that would have far-reaching implications for the CBA

and beyond, and that were neither bargained for nor anticipated by either party. The CBA is open for

renegotiation now and it is open for the parties to address this issue in a different way.

[139]

Despite the outcome of this grievance arbitration, the board wishes to commend the union

for seeking to move the needle on behalf of casual employees and to promote the interests of its

female membership. The union has fired a shot across the employer’s proverbial bow. This should

serve to cause the City to re-double its efforts to improve the representation of women employees

within its workforce, to the mutual benefit of the parties.

[140]

We thank counsel for their assistance.

Dated at Saskatoon, Saskatchewan, this 6^thday of September 2022.

__________________________________

Daniel Shapiro, Q.C., C. Arb.

I concur, at Saskatoon, Saskatchewan, this 6^thday of September 2022

_______________________________

Adam Touet, Board Member

37

DISSENT

I respectfully dissent from the majority award.

In my view, the majority decision misinterprets recent Canadian law and errs in its application to this

case.

Further, the majority decision also creates improper barriers to the Union’s case, inappropriately

limiting the Board’s jurisdiction to an alleged violation of Section 2-21(1) of the Saskatchewan

Employment Act. The Union was clear in its case and grievance filings throughout the various stages

of the grievance procedure up to and including arbitration. The original grievance stated:

“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.” (emphasis

added)

Exhibit U2, the Step 1 response letter from the employer to the union dated February 2, 20 saw Maria

Burns, Manager, Client Services & Labour Relations, City of Regina referring to and

acknowledging, “…important social justice legislation intended to equalize the experience of women

in the workplace” other than the SEA. (emphasis added)

The Step 2 letter from the Union stated:

“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.” (emphasis added)

There is nothing unusual about the Union framing its grievance in this way. In fact, it is a common

teaching in Union education designed to ensure a grievance isn’t lost on a technicality such as the

one relied upon in the majority decision.

Throughout their submissions the Union consistently referred to the Collective Bargaining

Agreement, The Saskatchewan Employment Act (“SET”), and other legislation and/or provisions that

may be applicable to their claim regarding an allegation of pay discrimination. Even if had they not,

arbitrators have wide latitude and a statutory obligation to hear and determine such matters taking

into consideration all applicable legislation and provisions, at times exclusively.

In a recent article by Brian Thiessen, QC, Abigail Ywaya and Jenny Lee, they summarize one of the

most recent cases regarding an arbitrator’s authority over possible human rights breaches:

Supreme Court clarifies jurisdiction of labour arbitrators in human rights issues

Author(s): Brian Thiessen, QC, Abigail Ywaya, Jenny Lee

38

Dec 10, 2021

The Supreme Court of Canada (the SCC) in Northern Regional Health Authority v. Horrocks, 2021

SCC 42, has clarified that where a collective agreement provides a labour arbitrator with exclusive

jurisdiction over issues arising out of a unionized workplace, this exclusivity applies to cover

possible human rights breaches.

The SCC confirmed, therefore, that unless there is explicit legislative intent to give concurrent

jurisdiction over the specific dispute, where the labour arbitrator has exclusive jurisdiction over

dispute resolution, unionized employees cannot seek their own modes of redress, but must defer to

the agreed-upon methods of dispute resolution in the collective bargaining agreement.

Background

The plaintiff employee, Linda Horrocks, was suspended in 2011 from her employment with the

Northern Regional Health Authority for being under the influence of alcohol while at the workplace.

She disclosed her addiction, after which her employer asked her to sign an agreement requiring her to

abstain from alcohol. She refused to sign the agreement, and she was subsequently terminated. Her

union filed a grievance with the labour arbitrator. The union won the grievance and the plaintiff was

reinstated to work with conditions that were essentially the same terms as the agreement she had

refused to sign. However, she was unable to comply with the terms of her employment and was

terminated again. The plaintiff filed a complaint with the human rights commission alleging a breach

of the Human Right Code due to discrimination on the basis of her disability.

At the Manitoba Human Rights Commission (the Commission), the employer health authority argued

that the adjudicator did not have jurisdiction over the matter, as a result of the SCC’s holding in

Weber v. Ontario Hydro, [1995] 2 SCR 929. The employer argued that the plaintiff was a unionized

employee, and the labour arbitrator had exclusive jurisdiction over the matter as a result of the

jurisdiction conferred to the labour arbitrator in the collective agreement. The human rights

adjudicator rejected this argument, and exercised jurisdiction of the matter. The adjudicator then held

that there had been a breach of Ms. Horrocks’ human rights.

Upon judicial review, Justice Edmond set aside the finding of the Commission. He held that the

central issue was whether the employer had just cause to terminate, and whether such a finding,

including any human rights implications, was within the exclusive jurisdiction of the labour

arbitrator.

The Court of Appeal agreed with the trial judge’s finding that the termination matter fell within the

exclusive jurisdiction of the labour arbitrator even where there are human rights violations, but that

the Commission had jurisdiction because

39

 Ms. Horrocks had severed the employment and human rights aspects of her claim by

not grieving the termination

 the discrimination claim transcended employment

 the union was not interested in pursuing arbitration

The Court of Appeal directed the Court of Queen’s Bench to determine whether the decision on the

merits of the discrimination complaint was reasonable.

Supreme Court of Canada decision

The SCC allowed the appeal and reinstated the trial judge’s finding that the Commission did not have

concurrent jurisdiction over the matter. Central to the majority’s finding was the fact that past

jurisprudence in Weber directed courts to give exclusive jurisdiction to labour arbitrators where the

issue at dispute is the subject of a collective agreement.

The majority of the Court held that while human rights legislation does prevail over other acts, the

obligation is simply that the rights and obligations in human rights legislation are to be respected

above the rights and obligations in any other act. Moreover, the procedures of human rights

legislation are not to take precedence over the procedures of other legislation unless the legislature

has unequivocally and explicitly stated such an intention.

The majority also held that considering the context of a competing tribunal each time would have the

effect of raising jurisdictional issues each time and cause confusion as to the appropriate forum in

which to bring a dispute. These jurisdictional questions would be contrary to the principles of

predictability, finality and certainty. The majority then went to hold that the presumption should be

that the labour arbitrator has exclusive jurisdiction unless there is legislative intent to displace that

presumption.

Justice Karakatsanis dissented and held that the jurisprudence and statutory scheme did not mean that

labour arbitrators had exclusive jurisdiction in all cases. In her view, the jurisprudence directed

courts to favour labour arbitration over civil resolution in the courts, but left open the possibility that

two statutory bodies may have competing jurisdiction unless one body has explicitly ousted all other

statutory bodies.

Furthermore, she held the majority’s finding would create a barrier for access to justice. The union’s

duty to fair representation is a collective duty that would require balancing the needs of all unionized

such that the union has the discretion not to grieve individual human rights breaches. Conferring

exclusive jurisdiction to labour arbitrators would effectively prevent individuals from having human

rights breaches addressed. As a result, Justice Karakatsanis held that the Court should allow

concurrent jurisdiction over human rights issues, and then the Commission should adopt the practice

of declining jurisdiction unless it found the labour arbitrator’s findings to be unreasonable or unfair.

40

The majority explicitly rejected this suggestion, citing the fact that human rights tribunals had

adopted the practice of holding that they have concurrent jurisdiction and exercising that jurisdiction

even where parallel labour arbitration proceedings are taking place. The majority expressed concern

for a duplicity in proceedings and the risk that human rights tribunals may essentially subvert the

authority of labour arbitrators where, in the view of the human rights tribunal, the decision of the

labour arbitrator is unfair. Moreover, the majority found that the union had a duty of fair

representation and should work to ensure that all the claims of the individual, including human rights

breaches, are fairly addressed.

Conclusion

This decision answers the question as to whether individual union members can seek redress on their

own. Essentially, the SCC has directed unionized employees to first seek labour arbitration where

their collective bargaining agreement gives exclusive jurisdiction to a labour arbitrator. For

employers of unionized workforces, this decision provides much welcome certainty to the statutory

scheme and will prevent the duplication of proceedings regarding the same employee.

Another article by Jean-Michael Corbeil referring to Northern Regional Health

Authority v. Horrocks, 2021 SCC 42, summarizes the case similarly. An excerpt:

…In a 6-1 decision, the Supreme Court allowed the appeal. The majority affirmed that where labour

legislation provides for final settlement of disputes arising from a collective agreement through

arbitration, an arbitrator will have exclusive jurisdiction over all disputes that arise, in their essential

character, from the interpretation, application, or alleged violation of the collective agreement.

Moreover, it is now settled law, following the Supreme Court’s decisions in Weber and in Parry

Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, that workplace-

related legislation is deemed to be incorporated into collective agreements, and it follows that the

alleged violation of such legislation (including human rights legislation) falls within the ambit of

disputes that arise out of the collective agreement. A labour arbitrator’s jurisdiction over a dispute

arising out of employment-related statute would therefore be exclusive.

Further:

…the majority concluded that Manitoba’s Labour Relations Act, like most other labour relations

legislation in the country, does grant labour arbitrators exclusive jurisdiction over disputes arising out

of the interpretation, application, or alleged violation of the collective agreement. Moreover, the

Court concluded that the Manitoba Human Rights Code does not disclose a clear legislative intent to

grant concurrent jurisdiction to the Manitoba Human Rights Commission. As result, the

complainant’s claim could only have been filed as a grievance.

41

It is worth noting that at paragraphs 36 to 38 of its decision, the majority addressed access to justice-

related concerns that may arise from reserving exclusive jurisdiction over human rights matters to the

grievance and arbitration process – a forum over which the union, and not the individual employee,

has complete control. In response to these concerns, the majority essentially stated that any such

access to justice issues are the result of clear legislative intent, and, in any event, unions have a duty

of fair representation to consider pursuing human rights-related grievances on behalf of their

members.

The Supreme Court of Canada’s decision was supported by the Canadian Association of Counsel to

Employers (CACE). CACE, an intervenor in the proceedings, where they praised the decision as

clarifying jurisdictional boundaries between labour arbitrators and human rights tribunals. CACE

also believed the decision prevents complaints from being heard in multiple forums with potentially

conflicting outcomes.

Exhibit U4, the Step 2 grievance response letter from the employer dated March 18, 2021, from

Marlys Tafelmeyer, Director, People & Organizational Culture, City of Regina, stated:

“… 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.” (Emphasis added)

To suggest the scope of the grievance is limited to allegations of pay discrimination under s. 2-21(1)

of the SEA is improper not only because of an arbitrator’s authority but because of this

acknowledgement by the employer of the case before them.

There is no doubt this Employer knew the case they had to meet; concepts named in their own

documents (i.e., gender discrimination and the effects of adverse impact) demonstrate their full

understanding of what they were dealing with. The majority decision invents a lack of understanding

on the employer’s part to bolster the evasion of relevant provisions of Canadian law to dismiss the

grievance.

The majority decision at para 68 goes on to say:

“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.”

This suggestion that the scope of the grievance was expanded at Step 3 or before, is even more

baffling. What part of the grievance has been expanded upon? From the outset, the scope of the

grievance has not changed; neither the Union’s original contention of pay discrimination towards

women, the adverse effect they experience or the protected group they represent. The Union’s case

has always been about the adverse effect of discrimination towards women. The Board was not asked

to change the bargaining agreement or to alter, modify or amend its provisions, but to apply it’s

provisions and other applicable and/or relevant Legislation and provisions to the issue at hand. The

scope of the grievance has never changed, just the lens through which the Board is permitted to look.

42

In my view, such a restriction on the Board’s jurisdiction to review and properly adjudicate the issue

causes extreme prejudice to the Union and its members. Even the employer, at para 72 of the

majority decision, takes no issue with how the grievance was framed and what was argued at the

hearing, “…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.” This acknowledgement

questions why the majority now takes such umbrage.

Similar Working Conditions:

While I agree with the majority decision that, “… the phrase “similar working conditions” cannot

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.”, I oppose the finding

that the phrase encompasses “employment status,” a finding at odds with any Saskatchewan or

Canadian authority.

The majority asks a question just prior to paragraph 85:

“Interpretive Question: Do the words “similar working conditions” in s. 2-21(1)(a) of the SEA permit wage

discrimination based on “differences in employment status”?

This case requires us to interpret legislation that does not appear to have been judicially

interpreted.”

This assertion is incorrect. At paragraph 5 in a case before Judge Tillie Taylor, Simpsons-Sears Ltd.

v. Saskatchewan (Human Rights Comm.), 1977 2858 (SK HRC), “similar working

conditions” were defined, as follows:

…That their working conditions were similar, "working conditions" being defined as "the physical

working conditions". (emphasis added)

She went on to say, at paragraph 53:

… (See Bence, C. J. Q. B., in Board of the Yorkton Regional High School ats Saskatchewan Human

Rights Commission (1976) W. W. D. 149,: "the intention of the legislature in passing Section 41(1)

was that proof of the fact that females were paid less than males for similar work was, in fact, proof

of an act of discrimination.").

“Similar working conditions” have nothing to do with the employment status of an employee, as the

majority decision contends. Organizations referred to, namely the International Labour Organization

(ILO) and Eurofound, in order to support such a finding, would be surprised and likely appalled to

discover their important work has been applied in this manner.

For example, a closer examination of the Eurofound website finds the following proposed directive

designed to strengthen the application of the principle of equal pay for equal work or work of equal

value between men and women through pay transparency and enforcement mechanisms, excerpts of

which follow:

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52021PC0093&from=EN

43

…This proposed directive is part of a broader package of measures and initiatives addressing the root

causes of the gender pay gap and economic empowerment of women. Pay discrimination and bias in pay

structures are only one of the root causes of this gender pay gap of 14%, besides other causes and factors,

such as horizontal and vertical labour market segregation, full time versus part-time work as well as unpaid

care-related constraints. Even without these causes and factors, there is still a so-called “unexplained”

gender pay gap, which accounts for two thirds of the gender pay gap in the EU Member States, and which

this initiative aims to tackle. It is also important to note that the employment history, including the gender

pay gap, together with the design of the pension system, affects the gender pension gap… (emphasis added)

(6) Directive 2006/54/EC of the European Parliament and of the Council 42 provides that for the same work

or for work of equal value, direct and indirect discrimination on grounds of sex with regard to all aspects and

conditions of remuneration is to be eliminated. In particular, where a job classification system is used for

determining pay, it should be based on the same criteria for both men and women and should be drawn up

so as to exclude any discrimination on grounds of sex.

(7) The 2020 evaluation 43 found that the implementation of the equal pay principle is hindered by a lack

of transparency in pay systems, a lack of legal certainty on the concept of ‘work of equal value’, and by

procedural obstacles faced by victims of discrimination. Workers lack the necessary information to make a

successful equal pay claim and in particular information about the pay levels for categories of workers who

perform the same work or work of equal value. The report found that increased transparency would allow

revealing gender bias and discrimination in the pay structures of an undertaking or organisation. It would

also enable workers, employers and social partners to take appropriate action to enforce the right to equal

pay.

(8) Following a thorough evaluation of the existing framework on equal pay for equal work or work of

equal value 44 and a wide-ranging and inclusive consultation process 45 , the gender equality strategy 2020-

2025 46 announced binding measures on pay transparency.

(9) The gender pay gap is caused by various factors, part of which can be attributed to direct and indirect

gender pay discrimination. A general lack of transparency about pay levels within organisations maintains a

situation where gender-based pay discrimination and bias can go undetected or, where suspected, are

difficult to prove. Binding measures are therefore needed to improve pay transparency, encourage

organisations to review their pay structures to ensure equal pay for women and men doing the same work or

work of equal value, and enable victims of discrimination to enforce their right to equal pay. This needs to be

complemented by provisions clarifying existing legal concepts (such as the concept of ‘pay’ and ‘work of

equal value’) and measures improving enforcement mechanisms and access to justice.

(10) The application of the principle of equal pay between men and women should be enhanced by

eliminating direct and indirect pay discrimination. This does not preclude employers to pay differently

workers doing the same work or work of equal value on the basis of objective, gender-neutral and bias-free

criteria such as performance and competence.

(11) This Directive should apply to all workers, including part-time workers, fixed-term contract workers or

persons with a contract of employment or employment relationship with a temporary agency, who have an

employment contract or employment relationship as defined by the law, collective agreements and/or

practice in force in each Member State, taking into account the case-law of the Court of Justice of the

European Union (‘the Court’). In its case law, the Court established criteria for determining the status of a

44

worker 47 . Provided that they fulfil those criteria, domestic workers, on-demand workers, intermittent

workers, voucher based-workers, platform workers, trainees and apprentices should fall within the scope of

this Directive. The determination of the existence of an employment relationship should be guided by the

facts relating to the actual performance of the work and not by the parties’ description of the relationship.

(emphasis added)

(12) In order to remove obstacles for victims of gender pay discrimination to enforce their right to equal pay

and guide employers in ensuring respect of this right, the core concepts related to equal pay, such as ‘pay’

and ‘work of equal value’, should be clarified in line with the case law of the Court. This should facilitate the

application of these concepts, especially for small and medium-sized enterprises.

(13) The principle of equal pay for equal work or work of equal value for women and men should be

respected with regard to wage or salary and any other consideration, whether in cash or in kind, which the

workers receive directly or indirectly, in respect of their employment from their employer. In line with the

case-law of the Court 48 , the concept of ‘pay’ should comprise not only salary, but also additional benefits

such as bonuses, overtime compensation, travel facilities (including cars provided by the employer and

travel cards), housing allowances, compensation for attending training, payments in case of dismissal,

statutory sick pay, statutory required compensation and occupational pensions. It should include all

elements of remuneration due by law or collective agreement. (emphasis added)

The ILO is quoted in Fraser v. Canada (Attorney General), 2020 SCC 28 at paragraph 111 in

support of similar goals, here regarding pensions:

The International Labour Organization has also commented on how

increased periods of part-time work result in lower pension benefits for women:

Throughout their life cycles, women accumulate disadvantages that pile

up at older ages. Double or triple discrimination is often amplified as

women advance in age. Women are especially vulnerable owing to their

high numbers in unpaid, low-paid, part-time, frequently interrupted, or

informal economy work. As a result they are less often entitled to any

contributory pension benefits in their own right. Even if they are, their

pensions are often significantly lower than those of men due to lower

earnings and shorter contribution periods.

(Rights, jobs and social security: New visions for older women and men

(2008) (emphasis added)

The majority, at paragraph 92 continues:

“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

45

interpretation. There is no evidence or indication as to the source of this summary to indicate its

authoritativeness.”

The extract referred to, a full hearing exhibit (E3) provided by the employer, comes from a

Government of Saskatchewan website, and reads as follows:

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. (emphasis added)

"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.

For the majority to find that this Government of Saskatchewan information, “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.” while simultaneously asserting that some wording discovered on an

ILO and Eurofound website does provide a reliable aid to interpretation is confusing at best. The

majority relies on unconvincing references, which in their estimation, “…leads to the conclusion that

those with measurably different employment relationships are not working under “similar working

conditions.” while ignoring relevant and consistent Provincial and Canadian guidelines, even those

provided by the employer.

Further, during our deliberations, Board members were encouraged to research the definition of

similar “working conditions” themselves. In addition to exhibit E3, I provided the Board with the

following information:

46

On the Justice Laws Website – Canada, we find Equal Wage Guidelines under the Canadian Human

Rights Act. Their definition of “working conditions” can be found at 8 (1), below:

https://laws-lois.justice.gc.ca/eng/regulations/sor-86-1082/FullText.html

Equal Wages Guidelines, 1986

SOR/86-1082

CANADIAN HUMAN RIGHTS ACT

Registration 1986-11-18

Guidelines Respecting the Application of Section 11 of the Canadian Human Rights Act and

Prescribing Factors Justifying Different Wages for Work of Equal Value

The Canadian Human Rights Commission, pursuant to subsections 11(3) and 22(2)Footnote^*of

the Canadian Human Rights ActFootnote^**, hereby revokes the Equal Wages Guidelines, made on

September 18, 1978Footnote^***, and makes the annexed Guidelines respecting the application of

section 11 of the Canadian Human Rights Act and prescribing factors justifying different wages for

work of equal value, in substitution therefor.

 Return to footnote^*S.C. 1977-78, c. 22, s. 5(1)

 Return to footnote^**S.C. 1976-77, c. 33

 Return to footnote^***SI/78-155, 1978 Canada Gazette Part II, p. 3695

Ottawa, November 18, 1986

Short Title

1 These Guidelines may be cited as the Equal Wages Guidelines, 1986.

Interpretation

2 In these Guidelines, Act means the Canadian Human Rights Act. (Loi)

Assessment of Value

Skill

3 For the purposes of subsection 11(2) of the Act, intellectual and physical qualifications acquired by

experience, training, education or natural ability shall be considered in assessing the skill required in

the performance of work.

4 The methods by which employees acquire the qualifications referred to in section 3 shall not be

considered in assessing the skill of different employees.

Effort

5 For the purposes of subsection 11(2) of the Act, intellectual and physical effort shall be considered

in assessing the effort required in the performance of work.

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6 For the purpose of section 5, intellectual and physical effort may be compared.

Responsibility

7 For the purposes of subsection 11(2) of the Act, the extent of responsibility by the employee for

technical, financial and human resources shall be considered in assessing the responsibility required

in the performance of work.

Working Conditions

 8 (1) For the purposes of subsection 11(2) of the Act, the physical and psychological

work environments, including noise, temperature, isolation, physical danger, health

hazards and stress, shall be considered in assessing the conditions under which the work

is performed. (emphasis added)

 (2) For the purposes of subsection 11(2) of the Act, the requirement to work overtime or to

work shifts is not to be considered in assessing working conditions where a wage, in excess

of the basic wage, is paid for that overtime or shift work.

Method of Assessment of Value

9 Where an employer relies on a system in assessing the value of work performed by employees

employed in the same establishment, that system shall be used in the investigation of any complaint

alleging a difference in wages, if that system

 (a) operates without any sexual bias;

 (b) is capable of measuring the relative value of work of all jobs in the establishment; and

 (c) assesses the skill, effort and responsibility and the working conditions determined in

accordance with sections 3 to 8.

Employees of an Establishment

10 For the purpose of section 11 of the Act, employees of an establishment include, notwithstanding

any collective agreement applicable to any employees of the establishment, all employees of the

employer subject to a common personnel and wage policy, whether or not such policy is

administered centrally.

Complaints by Individuals

 11 (1) Where a complaint alleging a difference in wages is filed by or on behalf of an

individual who is a member of an identifiable occupational group, the composition of

the group according to sex is a factor in determining whether the practice complained

of is discriminatory on the ground of sex.

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 (2) In the case of a complaint by an individual, where at least two other employees of

the establishment perform work of equal value, the weighted average wage paid to

those employees shall be used to calculate the adjustment to the complainant’s wages.

Complaints by Groups

12 Where a complaint alleging different wages is filed by or on behalf of an identifiable occupational

group, the group must be predominantly of one sex and the group to which the comparison is made

must be predominantly of the other sex.

13 For the purpose of section 12, an occupational group is composed predominantly of one sex

where the number of members of that sex constituted, for the year immediately preceding the day on

which the complaint is filed, at least

 (a) 70 per cent of the occupational group, if the group has less than 100 members;

 (b) 60 per cent of the occupational group, if the group has from 100 to 500 members;

and

 (c) 55 per cent of the occupational group, if the group has more than 500 members.

14 Where a comparison is made between the occupational group that filed a complaint alleging a

difference in wages and other occupational groups, those other groups are deemed to be one group.

 15 (1) Where a complaint alleging a difference in wages between an occupational

group and any other occupational group is filed and a direct comparison of the value

of the work performed and the wages received by employees of the occupational

groups cannot be made, for the purposes of section 11 of the Act, the work performed

and the wages received by the employees of each occupational group may be

compared indirectly.

 (2) For the purposes of comparing wages received by employees of the occupational

groups referred to in subsection (1), the wage curve of the other occupational group

referred to in that subsection shall be used to establish the difference in wages, if any,

between the employees of the occupational group on behalf of which the complaint is

made and the other occupational group.

Reasonable Factors

16 For the purpose of subsection 11(3) of the Act, a difference in wages between male and female

employees performing work of equal value in an establishment is justified by

 (a) different performance ratings, where employees are subject to a formal system of

performance appraisal that has been brought to their attention;

 (b) seniority, where a system of remuneration that applies to the employees provides

that they receive periodic increases in wages based on their length of service with the

employer;

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 (c) a re-evaluation and downgrading of the position of an employee, where the wages

of that employee are temporarily fixed, or the increases in the wages of that employee

are temporarily curtailed, until the wages appropriate to the downgraded position are

equivalent to or higher than the wages of that employee;

 (d) a rehabilitation assignment, where an employer pays to an employee wages that

are higher than justified by the value of the work performed by that employee during

recuperation of limited duration from an injury or illness;

 (e) a demotion procedure, where the employer, without decreasing the employee’s

wages, reassigns an employee to a position at a lower level as a result of the

unsatisfactory work performance of the employee caused by factors beyond the

employee’s control, such as the increasing complexity of the job or the impaired

health or partial disability of the employee, or as a result of an internal labour force

surplus that necessitates the reassignment;

 (f) a procedure of gradually reducing wages for any of the reasons set out in

paragraph (e);

 (g) a temporary training position, where, for the purposes of an employee

development program that is equally available to male and female employees and

leads to the career advancement of the employees who take part in the program, an

employee temporarily assigned to the position receives wages at a different level than

an employee working in such a position on a permanent basis;

 (h) the existence of an internal labour shortage in a particular job classification;

 (i) a reclassification of a position to a lower level, where the incumbent continues to

receive wages on the scale established for the former higher classification; and

 (j) regional rates of wages, where the wage scale that applies to the employees

provides for different rates of wages for the same job depending on the defined

geographic area of the workplace.

17 For the purpose of justifying a difference in wages on the basis of a factor set out in section 16, an

employer is required to establish that the factor is applied consistently and equitably in calculating

and paying the wages of all male and female employees employed in an establishment who are

performing work of equal value.

18 In addition to the requirement of section 17, for the purpose of justifying a difference in wages on

the basis of paragraph 16(h), an employer is required to establish that similar differences exist

between the group of employees in the job classification affected by the shortage and another group

of employees predominantly of the same sex as the group affected by the shortage, who are

performing work of equal value.

19 In addition to the requirement of section 17, for the purpose of justifying a difference in wages on

the basis of paragraph 16(i), an employer is required to establish that

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 (a) since the reclassification, no new employee has received wages on the scale

established for the former classification; and

 (b) there is a difference between the incumbents receiving wages on the scale

established for the former classification and another group of employees,

predominantly of the same sex as the first group, who are performing work of

equal value.

On the Ontario Government website, under “Your Guide to the Employment Standards Act”, we

find:

Equal Pay for Equal Work

Similar working conditions

Working conditions include:

•

the working environment, like an office or outdoors

exposure to the weather, like rain or snowstorms

health and safety hazards, like exposure to chemicals or heights

Another reputable authority, the Cornell Law School, discusses the parameters of jobs performed

under “similar working conditions:”

https://www.law.cornell.edu/cfr/text/29/1620.18

Cornell Law School

1620.18 Jobs performed under similar working conditions.

(a) In general. In order for the equal pay standard to apply, the jobs are required to be performed

under similar working conditions. It should be noted that the EPA adopts the flexible standard of

similarity as a basis for testing this requirement. In determining whether the requirement is met, a

practical judgment is required in light of whether the differences in working conditions are the kind

customarily taken into consideration in setting wage levels. The mere fact that jobs are in different

departments of an establishment will not necessarily mean that the jobs are performed under

dissimilar working conditions. This may or may not be the case. The term “similar working

conditions” encompasses two subfactors: “surroundings” and “hazards.” “Surroundings”

measure the elements, such as toxic chemicals or fumes, regularly encountered by a worker,

their intensity and their frequency. “Hazards” take into account the physical hazards regularly

encountered, their frequency and the severity of injury they can cause. The phrase “working

conditions” does not encompass shift differentials. (emphasis added)

(b) Determining similarity of working conditions. Generally, employees performing jobs requiring

equal skill, effort, and responsibility are likely to be performing them under similar working

conditions. However, in situations where some employees performing work meeting these standards

have working conditions substantially different from those required for the performance of other

jobs, the equal pay principle would not apply. On the other hand, slight or inconsequential

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differences in working conditions which are not usually taken into consideration by employers or in

collective bargaining in setting wage rates would not justify a differential in pay.

The Law Insider defines “similar working conditions” similarly:

https://www.lawinsider.com/dictionary/similar-working-conditions

Law Insider

Similar working conditions means the surroundings and hazards, including the frequency and

intensity of such conditions. Surroundings measure the elements, such as toxic chemicals or fumes,

regularly encountered by an employee.

Adverse Impact:

“Adverse impact” is a concept clearly understood by employers and unions, especially among parties

as sophisticated as these.

A recent case provided by the Union from the Supreme Court of Canada (SCC), Fraser v. Canada

(Attorney General), 2020 SCC 28, addressed issues of adverse effect discrimination and gender

equality in the context of a government job-sharing program under a statutory pension plan. On the

Human Rights Legal Support Centre website, we find a summary:

Adverse Effect Discrimination: Good Intentions, Negative Human Rights Impacts

“Adverse effect discrimination” is an important concept in human rights law. It involve

situations where a workplace policy, rule or practice that seems to treat everyone equally actually has

the opposite effect on a protected group under the Canadian Charter of Rights and

Freedoms (Charter) or provincial human rights legislation, such as Ontario’s Human Rights Code

(Code). For example, a work schedule requiring work on Friday evenings for all employees might

have a negative effect on employees with religious observations at that same time. This type of

unintentional discrimination is also called “constructive” or “indirect” discrimination. The

workplace policy, rule or practice has the effect of unintentionally singling out particular people and

results in unequal treatment.

The Fraser Case

In Fraser, the three claimants were retired RCMP officers who took part in a job-sharing program

after having children to provide more flexibility for childcare while working part-time. The program

participants who were primarily mothers and women anticipated they would be eligible for full

pension credits. However, provisions allowing for the buy back of pension credits that existed for

certain service-leaves did not cover credits lost due to job-sharing.

The claimants argued that these loopholes in the job-sharing program violated section 15(1) of

the Charter by having a negative impact on women with children on the protected grounds of sex

and family status. The applications judge, in Fraser v. Canada (Attorney General), 2017 FC 557,

found it was not discriminatory to not provide full-time pension credits to employees working part-

time and that the negative consequences the claimants experienced were a result of their personal

52

choice to participate in the job-sharing program. This decision was upheld by the Federal Court of

Appeal in Fraser v. Canada (Attorney General), 2018 FCA 223.

The Ruling

In a 6-3 split decision, the majority of the SCC allowed the claimants’ appeal. Writing for the

majority, Justice Abella stated the denial of pension credits for those in the job-sharing program

disproportionately impacted women, as the participants of the program were predominantly mothers

with young children. Women have experienced historical disadvantage in the workplace due to their

bearing a disproportionate amount of childcare responsibilities, resulting in them accepting part-time,

lower-paid positions and experiencing gaps in their employment history. The negative pension

consequences the claimants experienced perpetuated this long-standing source of economic

disadvantage to women. This violated section 15(1) of the Charter and could not be justified under

section one.

This Case’s Importance

In dismissing the claim on the basis of it simply being a “choice" to participate in the job-sharing

program Justice Abella, decided that the lower courts had misinterpreted the SCC’s jurisprudence on

section 15(1). Differential treatment can be discriminatory even if based on the choice of the affected

individual. The claimants’ decision to work on a part-time basis was not necessarily voluntary. It was

a result of economic and practical pressures related to being a working mother, attempting to balance

work with childcare obligations. The lower courts also improperly relied on a formalistic, “mirror

comparator group” approach to equality that was firmly rejected by the SCC in Withler v. Canada

(Attorney General), 2011 SCC 12.

Fraser is an important case about the recognition and remedying of adverse effects discrimination

and is a critical development toward the realization of substantive equality in Canada.

Excerpts from the Fraser case, with emphasis added:

[26] Section 15(1) of the Charter states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection

and equal benefit of the law without discrimination and, in particular, without discrimination based

on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[27] Section 15(1) reflects a profound commitment to promote equality and

prevent discrimination against disadvantaged groups (Quebec (Attorney General) v. A,

[2013] 1 S.C.R. 61, at para. 332; Kahkewistahaw First Nation v. Taypotat, [2015] 2

S.C.R. 548, at paras. 19-20). To prove a prima facie violation of s. 15(1), a claimant

must demonstrate that the impugned law or state action:

 on its face or in its impact, creates a distinction based on enumerated

or analogous grounds; and

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 imposes burdens or denies a benefit in a manner that has the effect of

reinforcing, perpetuating, or exacerbating disadvantage.

(Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la

santé et des services sociaux, [2018] 1 S.C.R. 464, at para. 25; Centrale des syndicats

du Québec v. Quebec (Attorney General), [2018] 1 S.C.R. 522, at para. 22.)

[29] How adverse impact or systemic discrimination is applied has received

extensive academic consideration (see, for example, Colleen Sheppard, Inclusive

Equality: The Relational Dimensions of Systemic Discrimination in Canada (2010), at

pp. 19-21; Evelyn Braun, “Adverse Effect Discrimination: Proving the Prima Facie

Case” (2005), 11 Rev. Const. Stud. 119; Jonnette Watson Hamilton and Jennifer

Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects

Discrimination under Section 15 of the Charter” (2015), 19 Rev. Const. Stud. 191;

Michèle Rivet and Anne-Marie Santorineos, “Juger à l’ère des droits fondamentaux”

(2012), 42 R.D.U.S. 363, at p. 374; Diane L. Demers, “La discrimination systémique:

variation sur un concept unique” (1993), 8 C.J.L.S. 83; Lisa Philipps and Margot

Young, “Sex, Tax and the Charter: A Review of Thibaudeau v. Canada” (1995), 2 Rev.

Const. Stud. 221). As Prof. Colleen Sheppard notes:

Why is it so critical to expand on our understanding of adverse effect

discrimination? If we do not, there is a significant risk that discrimination

embedded in apparently neutral institutional policies, rules, or procedures

will not be recognized as discriminatory. This risk is accentuated by the

necessity in anti-discrimination law to connect the experience of exclusion,

harm, prejudice, or disadvantage to a recognized ground of

discrimination. . . . We need a sophisticated and coherent theory of adverse

effect discrimination to assist claimants, lawyers, and adjudicators with the

complexities of the manifestations of systemic discrimination.

(“Of Forest Fires and Systemic Discrimination: A Review of British

Columbia (Public Service Employee Relations Commission) v.

54

B.C.G.S.E.U.” (2001), 46 McGill L.J. 533, at p. 542; see also Braun, at

p. 122.)

[30] It is helpful to start by defining the concept. Adverse impact discrimination

occurs when a seemingly neutral law has a disproportionate impact on members of

groups protected on the basis of an enumerated or analogous ground (see

Watson Hamilton and Koshan (2015), at p. 196; Sheppard (2001), at p. 549; see also

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, at para. 64; Taypotat, at

para. 22). Instead of explicitly singling out those who are in the protected groups for

differential treatment, the law indirectly places them at a disadvantage (Sophia Moreau,

“What Is Discrimination?” (2010), 38 Philosophy & Public Affairs 143, at p. 155).

[31] Increased awareness of adverse impact discrimination has been a “central

trend in the development of discrimination law”, marking a shift away from a

fault-based conception of discrimination towards an effects-based model which

critically examines systems, structures, and their impact on disadvantaged groups

(Denise G. Réaume, “Harm and Fault in Discrimination Law: The Transition from

Intentional to Adverse Effect Discrimination” (2001), 2 Theor. Inq. L. 349, at

pp. 350-51; see also Béatrice Vizkelety, Proving Discrimination in Canada (1987), at

p. 18; Sheppard (2010), at pp. 19-20). Accompanying this shift was the recognition that

discrimination is “frequently a product of continuing to do things ‘the way they have

always been done’”, and that governments must be “particularly vigilant about the

effects of their own policies” on members of disadvantaged groups (Fay Faraday, “One

Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and

Pay Equity at the Supreme Court of Canada” (2020), 94 S.C.L.R. (2d) 301, at p. 310;

Sophia Moreau, “The Moral Seriousness of Indirect Discrimination”, in Hugh Collins

and Tarunabh Khaitan, eds., Foundations of Indirect Discrimination Law (2018), 123,

at p. 145).

[32] Griggs v. Duke Power Co., 401 U.S. 424 (1971) was one of the first cases

to apply this concept and is a classic example of adverse impact discrimination. An

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employer required employees to have a high school diploma and pass standardized tests

to work in certain departments at a power plant. Neither requirement was significantly

related to successful job performance; both, however, had the effect of disqualifying

African Americans at a substantially higher rate than white applicants.

[58] Courts will also benefit from evidence about the outcomes that the

impugned law or policy (or a substantially similar one) has produced in practice.

Evidence about the “results of a system” may provide concrete proof that members of

protected groups are being disproportionately impacted (Action Travail, at p. 1139;

Vizkelety, at pp. 170-74). This evidence may include statistics, especially if the pool

of people adversely affected by a criterion or standard includes both members of a

protected group and members of more advantaged groups (Sheppard (2001), at

pp. 545-46; Braun, at pp. 120-21).

[59] There is no universal measure for what level of statistical disparity is

necessary to demonstrate that there is a disproportionate impact, and the Court should

not, in my view, craft rigid rules on this issue. The goal of statistical evidence,

ultimately, is to establish “a disparate pattern of exclusion or harm that is statistically

significant and not simply the result of chance” (Sheppard (2001), at p. 546; see also

Vizkelety, at p. 175; Fredman (2011), at pp. 186-87). The weight given to statistics will

depend on, among other things, their quality and methodology (Vizkelety, at

pp. 178-84).

[60] Ideally, claims of adverse effects discrimination should be supported by

evidence about the circumstances of the claimant group and about the results produced

by the challenged law. Evidence about the claimant group’s situation, on its own, may

amount to merely a “web of instinct” if too far removed from the situation in the actual

workplace, community or institution subject to the discrimination claim (Taypotat, at

para. 34). Evidence of statistical disparity, on its own, may have significant

shortcomings that leave open the possibility of unreliable results. The weaknesses with

each type of evidence can be overcome if they are both present (Braun, at p. 135;

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Vizkelety, at p. 192; Vancouver Area Network of Drug Users v. Downtown Vancouver

Business Improvement Association (2018), 10 B.C.L.R. (6th) 175 (C.A.), at para. 98).

Prof. Colleen Sheppard (2001) recognizes this possibility:

While in some cases the overwhelming correspondence between certain

categories and the gender or racial composition of the category makes the

sex or race discrimination claims relatively easy to substantiate, in other

cases the statistical preponderance may be less marked. In such cases it

may also be important to consider the qualitative components of the harm

that constitutes discrimination. [p. 548]

[61] This is not to say, of course, that both kinds of evidence are always

required. In some cases, evidence about a group will show such a strong association

with certain traits — such as pregnancy with gender — that the disproportionate impact

on members of that group “will be apparent and immediate” (Taypotat, at para. 33; see

also Fredman (2011), at pp. 187-88; Sheppard (2001), at pp. 544-45; Gaz métropolitain

inc. v. Commission des droits de la personne et des droits de la jeunesse, 2011 QCCA

1201, at paras. 27 and 47 (); Oršuš v. Croatia, No. 15766/03, ECHR 2010-II, at

para. 153).

[62] Similarly, clear and consistent statistical disparities can show a

disproportionate impact on members of protected groups, even if the precise reason for

that impact is unknown. Prof. Sandra Fredman has argued forcefully against requiring

claimants to specify “the reason why” they are being disadvantaged by a rule or policy:

To require the complainants to show the ‘reason why’ the PCP [policy,

criteria or practice] disadvantages the group as a whole is to fundamentally

misunderstand the meaning of indirect discrimination. It is the disparate

impact on the group of a PCP itself which constitutes the prima facie

discrimination . . . .

(“Direct and Indirect Discrimination: Is There Still a Divide?”, in Hugh

Collins and Tarunabh Khaitan, eds., Foundations of Indirect

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Discrimination Law (2018), 31, at p. 46; see also Sandra Fredman, “The

Reason Why: Unravelling Indirect Discrimination” (2016), 45 Indus. L.J.

231.)

[63] I agree. If there are clear and consistent statistical disparities in how a law

affects a claimant’s group, I see no reason for requiring the claimant to bear the

additional burden of explaining why the law has such an effect. In such cases, the

statistical evidence is itself a compelling sign that the law has not been structured in a

way that takes into account the protected group’s circumstances (see Fredman (2011),

at p. 181; Vizkelety, at pp. 174-76; Action Travail, at p. 1139).

[64] The United Kingdom Supreme Court reached a similar conclusion in Essop

v. Home Office (U.K. Border Agency), [2017] UKSC 27, [2017] 3 All E.R. 551. At

issue was a core skills assessment that immigration officers had to pass to be promoted.

Racial minorities and older candidates were shown to be less likely to pass the

assessment, but there was no evidence available to explain why this disparity was

occurring (para. 9).

[65] The Supreme Court concluded that there was disparate impact. Lady Hale

D.P.S.C. explained that a claimant does not need to “establish the reason for the

particular disadvantage to which the group is put” (para. 33). She noted that such a

requirement made it more difficult to combat “hidden barriers which are not easy to

anticipate or to spot” (para. 25). She also recognized that it is “commonplace for the

disparate impact, or particular disadvantage, to be established on the basis of statistical

evidence” — which would be impossible if claimants had to offer an explanation for

why any given statistical imbalances had occurred (para. 28).

[66] Essop confirmed a flexible approach to proving disparate impact, under

which proof of statistical disparity and broader group disadvantage may each be

sufficient to establish a claim, but are not rigid requirements (see also O’Connor v. Bar

Standards Board, [2017] UKSC 78, [2018] 2 All E.R. 779, at para. 43). The European

Court of Human Rights has similarly held that “when it comes to assessing the impact

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of a measure or practice on an individual or group, statistics which appear on critical

examination to be reliable and significant will be sufficient to constitute the prima facie

evidence the applicant is required to produce”; however, “[t]his does not . . . mean that

indirect discrimination cannot be proved without statistical evidence” (D.H. v. the

Czech Republic, No. 57325/00, ECHR 2007-IV, at para. 188 (emphasis added); see

also Oršuš, at paras. 152-53; Horváth and Kiss v. Hungary, [2013] E.L.R. 102

(E.C.H.R.), at para. 107).

[67] I agree with this approach. Both evidence of statistical disparity and of

broader group disadvantage may demonstrate disproportionate impact; but neither is

mandatory and their significance will vary depending on the case.

[81] In sum, then, the first stage of the s. 15 test is about establishing that the

law imposes differential treatment based on protected grounds, either explicitly or

through adverse impact. At the second stage, the Court asks whether it has the effect of

reinforcing, perpetuating, or exacerbating disadvantage (Alliance, at para. 25).

[82] Where possible, the two inquiries should be kept distinct, but there is

clearly potential for overlap in adverse effects cases based on “the impossibility of rigid

[99] This evidence finds firm support in commission reports, judicial decisions

and academic work. The landmark Report of the Royal Commission on the Status of

Women in Canada (Florence Bird, chair) acknowledged that a “larger proportion of

women work[ed] only part-time” (at p. 61) and warned that the inequitable treatment

of part-time workers would disadvantage women:

We recognize one major problem in the use of part-time workers: the

provision of fringe benefits for those not employed on a regular basis. We

nevertheless believe that ways must be found to provide these employees

with pay and working conditions no less equitable than those provided for

the full-time worker. [p. 105]

[100] In its report, the Commission of Inquiry into Part-time Work (1983, Joan

Wallace, comm.) confirmed that most employees in part-time, lower-paid positions

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were women (Part-time Work in Canada: Report of the Commission of Inquiry into

Part-time Work (1983), at pp. 21-22, 46 and 151). The Commission also studied the

use of job-sharing programs across Canada. The data it collected suggested that almost

all job-sharing participants were women, and that “[t]he arrival of a new baby was the

most common primary reason for initiating job sharing” (pp. 177-78).

[136] For over 30 years, the s. 15 inquiry has involved identifying the presence,

persistence and pervasiveness of disadvantage, based on enumerated or analogous

grounds. Its mandate is ambitious but not utopian: to address that disadvantage where

it is identified so that in the pursuit of equality, inequality can be reduced one case at a

time. That is why there is a s. 15(1) breach in this case — not because women continue

to have disproportionate responsibility for childcare and less stable working hours than

men, but because the pension plan “institutionalize[s] those traits as a basis on which

to unequally distribute” pension benefits to job-sharing participants (see Faraday, at

p. 318). This is ‘“discrimination reinforced by law’, which this Court has denounced

since Andrews” (Centrale, at para. 33, quoting Andrews, at p. 172). Contrary to the

views of my colleagues, there is nothing “extraordinary” about holding, as we do here,

that such discrimination violates s. 15(1) of the Charter. Based on our jurisprudence, it

would be extraordinary if we did not.

In my view, had the majority decision not inappropriately restricted its lens to the SEA, a flawed lens

at that, the facts contained in the Union’s submissions provided the necessary elements required to

uphold the grievance.

The statistical evidence of adverse impact towards women is apparent and immediate; more then 2.5

times the number of women occupy the ranks of casual employees employed by the City of Regina

than their permanent counterparts. Thirty nine percent of casual employees are women vs sixteen

percent of permanent employees. The pay disparity or adverse impact for casual employees while

working overtime is significant, 1.5 times vs 2 times the regular rate of pay. While both genders are

found within each group “The fact that discrimination is only partial does not convert it into non-

discrimination” (Brooks v. Canada Safeway Ltd., [1989] S.C.R. 1219, at p. 1248).

An historical analysis of bargaining practises, while perhaps regrettable, is irrelevant as is any

potential impact on other areas of pay policies. Any potential finding of joint liability is currently

moot due to the parties’ agreement to bifurcate the hearing between liability and remedy. The parties

are presently at the bargaining table.

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I would have allowed the grievance.

Andrew Huculak

Union Nominee

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