Civil Procedure – Appeal – Leave to Appeal
Statutes – Interpretation – Saskatchewan Employment Act, Section 2-37
The applicant, LePage Contracting, applied for leave to appeal the decision of the Saskatchewan Labour Relations Board (board) that dismissed its appeal of a wage assessment by an adjudicator in favour of the prospective respondent, L.M. (see: 2020 CanLII 10515). The applicant’s application was made pursuant to s. 4-9 of The Saskatchewan Employment Act, which permits an appeal on a question of law with leave of a judge of the Court of Appeal. The issue in the case related to public holiday pay and vacation pay. At the time of hiring of L.M., the applicant testified that he was asked whether he wished to be paid $28 per hour plus vacation pay or $30 per hour including vacation pay, and he chose the latter. L.M. denied that this had been the arrangement at the adjudication and said that his rate of pay was $30 per hour and he was not paid vacation pay. The adjudicator found that since vacation pay was not included in L.M.’s statement of earnings as required by s. 2-37 of the Act, and there was no evidence to the contrary, vacation pay was deemed not to have been paid. The board found that the adjudicator’s decision was deficient in that he had not provided an assessment of credibility of the witnesses that would support his conclusion that there was no evidence to the contrary. The board decided that what had to be determined in this case, however, was whether the legislation permits an employer to increase the rate of pay in lieu of setting out the amounts for public holiday pay and vacation pay as per s. 2-37. It held that it could not, and if there were such an agreement, it would be invalid. Thus, even if the adjudicator’s reasoning was deficient, the result was correct. The applicant’s proposed ground of appeal on this point was that both the adjudicator and the board had asked the wrong question. The issue was whether it had paid L.M. public holiday and vacation pay. It alleged that it had established the contrary through its evidence and the presumption in s. 2-37 of the Act did not apply.
HELD: The application was allowed. Leave to appeal in relation to the ground of appeal described as well as others was granted. The ground was not destined to fail and was of sufficient importance to warrant determination by the court.