J. Q.B. A.D. 1997 No. 187 J.C. E. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: JOHN GEORGE LEN and WOODLAWN REGIONAL PARK AUTHORITY DEFENDANT Edward A. Komarnicki for the plaintiff Robert J. Grimsrud for the defendant JUDGMENT DAWSON J. March 3, 2000 [1] The issues herein centre around claim by John George Len (the “plaintiff”) against the Woodlawn Regional Park Authority (the “defendant”) for unpaid holiday pay. [2] The plaintiff sued for damages from the defendant alleging he was constructively wrongfully dismissed from his employment with the defendant. The plaintiff elected to have the determination of liability and the assessment of damages determined by civil jury. The jury determined that the plaintiff was constructively dismissed and awarded the plaintiff damages. [3] In addition to the claim for damages for failure to give reasonable notice of termination, the plaintiff asserted claim against the defendant for unpaid holiday pay that he alleged was owing to him at the date of termination. The plaintiff bases his entitlement to holiday pay on the provisions of The Labour Standards Act, R.S.S. 1978 c. L-1 (the “LSA”). At the time of the jury trial, the issue of the Saskatchewan Court of Queen’s Bench’s jurisdiction to deal with entitlement to holiday pay was being determined by the Court of Appeal for Saskatchewan. The plaintiff and defendant agreed that the jury trial should proceed with respect to the issues of liability and damages, reserving the issue of the plaintiff’s entitlement to holiday pay to myself, in the event that the Court of Appeal determined this Court had jurisdiction to determine the issue of entitlement to holiday pay. Specifically: ... [T]he parties have come to an agreement wherein the pleadings and the issues, both factual and legal with respect to holiday pay, will be severed from the jury and left in reserve until the Court of Appeal renders its decision and after the Court of Appeal renders its decision, those matters will—we will recommence the trial in front of myself as judge alone, and will then deal with the issues, both factual and legal, with respect to holiday pay. [4] In April 1999, the Court of Appeal rendered its decision on the matter in Kolodziejski v. Auto Electric Service Ltd. (1999), 1999 CanLII 12264 (SK CA), 177 Sask. R. 197. The Court of Appeal held that the Saskatchewan Court of Queen’s Bench had jurisdiction to entertain civil action for non-payment of holiday pay. As result, the trial of this matter was reconvened before myself, for determination on the issue of the plaintiff’s claim for unpaid holiday pay. BACKGROUND AND FACTS [5] The plaintiff was hired by the defendant on April 29, 1988 as the superintendent of the Woodlawn Regional Park (the “Park”). Prior to this, the plaintiff had been employed as police officer for twenty years. The plaintiff’s duties as superintendent included managing the general operations of the Park, managing the maintenance of the Park, including all buildings and lands, managing the revenue and expenses of the Park and accounting the same to the defendant and, supervising staff, including hiring and dismissing employees. [6] The Park was open to tourists during the period from May to October in each year. After October in each year, the Park was not open to tourists. Prior to the plaintiff being hired, all of the Park staff, including the superintendent, had been laid off by the defendant in October each year and then rehired by the defendant in the spring. [7] For the first few months after he was hired by the defendant, the plaintiff worked with the previous superintendent learning the job. The plaintiff was paid by the hour, at the rate of $8.00 per hour. Through the summer period of 1988 the plaintiff produced time sheets to verify his hours of work. There was no discussion of holiday pay when the plaintiff was hired in the spring of 1988. [8] In the fall of 1988, around the time that the plaintiff would normally have been laid off by the defendant, the plaintiff put forward, to the defendant, proposal that he continue to work over the winter. The plaintiff proposed that he work 30 hours per week over the winter of 1988-1989. The plaintiff also proposed that he also be paid truck allowance for the use of his truck throughout the year. The plaintiff suggested various projects which he would work on over the 1988-1989 winter months. In addition to the special projects, the plaintiff would keep the roads clean from snow and stock up on firewood. The defendant accepted this proposal. The plaintiff was no longer required to hand in time sheets. The plaintiff was not paid any holiday pay by the defendant for the period April 1988 until the fall of 1988 when the new agreement started. Through the winter of 1988 and early 1989 the plaintiff actually worked 30 hours per week. The plaintiff continued his employment with the defendant after the spring of 1989. [9] In 1990 the plaintiff made another proposal to the defendant. The plaintiff suggested he receive wage increase so that he would be paid the yearly sum of $19,200.00. He based his proposal for remuneration on 40 hour work week, 52 weeks per year. The plaintiff acknowledged that he used 40 hour work week only for the purposes of his proposal. He acknowledged that he did not regularly work 40 hours per week. The plaintiff testified that he sometimes worked more than 40 hours per week in the summer and, that in the winter, he regularly worked much less than 40 hours. The defendant accepted the plaintiff’s proposal and the plaintiff began receiving the remuneration as agreed. There was nothing in the plaintiff’s proposal which addressed the issue of holidays or holiday pay and the issue was not discussed by the parties. [10] In 1991 the plaintiff made further proposal for wage increase. This proposal was also based on 40 hour work week, 52 weeks per year. Again, the plaintiff acknowledged that he used the 40 hours only for the purposes of putting the proposal forward and that it did not reflect the hours he worked. The plaintiff also proposed an increase in the remuneration he received for his expenses, such as his truck allowance and cellular phone allowance. This proposal broke down these allowances into hourly rates, based on the 40 hour work week. The defendant again accepted his proposal. The plaintiff’s work obligations remained the same under this agreement. At no time during any of the discussions did the issue of holidays or holiday pay arise. Neither party raised it and there were no discussions regarding it. The plaintiff testified that when he made the proposals to the defendant he never contemplated holiday pay. In fact he testified that he did not know he was entitled to holiday pay. The defendant’s representatives testified that they believed the remuneration they agreed to pay the plaintiff included holiday pay. [11] As stated, neither party discussed the issue of holiday pay, nor did they discuss or raise the issue of the plaintiff’s time away from his duties or any requirement as to times when he had to be there. In 1988, when the plaintiff was first hired and working 30 hours per week, he took off three days for seminar. On that single occasion he made up the three days he was away from work. However, once the plaintiff went on monthly salary, working all year long, he was never required to make up any time he was away from his duties. [12] From 1990, the plaintiff’s hours of work were very flexible in the winter. It was only in the first winter of his employment that he was required to be at work 30 hours per week during the winter. He did not put in the 30 hours per week in the winter after the first year of employment, nor did he have the number of winter projects that he had in the first year of his employ. After the first year, he had few projects each winter, but mainly, through the winter months, the plaintiff kept the roads clean, ensuring that the walkways and cross country ski trails were clear. The plaintiff usually simply arranged for the local rural municipality or the City of Estevan to clear the snow, although he occasionally cleaned it himself. He also arranged for firewood to be delivered to the Park, his obligation then being to be at the Park when it was delivered. The plaintiff said that in the winter he was at the Park everyday, unless the roads were not clear. If the roads were not clear he did not attend the Park at all in winter. He could not give any estimate of the amount of time he worked in the winter. He did say that some days in winter he would just drive through the Park, which would take him no more than one half hour. He said there was no requirement that he be at the Park for any particular time during the winter. His duties with respect to the Park in winter were minimal. [13] The plaintiff testified that his hours of work in the summer were flexible as well. He said that he worked more hours in summer than in winter, but that his hours were not tracked in either season. The plaintiff said that he sometimes worked longer hours at the Park in the spring, when familiarizing the new employees with their duties, but repeated that it was difficult to pinpoint his hours of work at anytime. [14] The plaintiff was elected an alderman with the City of Estevan in 1988. In 1993 he was elected Mayor of the City of Estevan, position that he has held from January 1994 to the present. The flexibility of his position as Park superintendent allowed him to attend to his aldermanic and mayoralty duties. He was able to go to City Hall to carry out his mayoralty duties every day, during both the summer and winter. He testified that his summer routine as superintendent included meeting with the Park employees in the morning, then leaving the Park during the day, attending to City Hall to attend to his mayoralty duties and then returning to the Park later in the afternoon to again meet with employees. He said this routine occurred from the time he became the mayor. He testified he would go to the Park on the weekends during the summer months. [15] The plaintiff often attended out of town conferences and meetings on behalf of the City of Estevan (the “City”). He was paid per diem and expenses by the City, in addition to his mayor’s salary, whenever he attended functions outside the City of Estevan. He was also paid per diem by the City when he sat on the Board of Revision (which was held in the City of Estevan). The plaintiff took the position that when he attended these out of town conferences on behalf of the City he was also attending on behalf the defendant. However, he was never requested by the defendant to attend these meetings nor was he paid any reimbursement by the defendant for his expenses. It was only the City that paid him per diem and expense remuneration for such meetings. There was one occasion when the plaintiff attended meeting in Minot on behalf of the defendant. On that one occasion he was paid only by the defendant. [16] Records were produced from the City (exhibits P-44 and P-45) indicating the particular days that the plaintiff was paid per diem and travel expenses by the City. Between May 1, 1989 and April 30, 1990 the plaintiff was paid per diem and/or travel expenses by the City of Estevan for 10 days; between May 1, 1990 and April 30, 1991 it was days; between May 1, 1991 and April 30, 1992 it was days; between May 1, 1992 and April 30, 1993 it was 8.5 days; between May 1, 1993 and April 30, 1994 it was days; between May 1, 1994 and April 30, 1995 it was days; between May 1, 1995 and April 30, 1996 it was 10 days; between May 1, 1996 and April 30, 1997 it was 12.5 days; between May 1, 1997 and October 1997 it was it was days. [17] The plaintiff also testified that each year he took personal days away from his duties with the defendant, although he could not tell the court how many. He recalled two separate occasions during the summer season when he and his wife went to the United States for few days. He testified that during the period of his employment with the defendant he went to Regina about twice year each year, for one day at time, for personal reasons. He testified he took no extended personal holidays, in excess of one week while in the employ of the defendant. He also testified that when he was going out of town for personal or City reasons, he did not have to ask for permission to be away from his superintendent duties. He also acknowledged that he took off time for sick days, including time off for leg operation, but he was never required to keep track of those days off. He said generally he was able to take the time away from his duties that he required, for personal and other business concerns. He said that if he left his duties for more than few days he would let the defendant know. However, sometimes during the winter if he was going to be away, he would simply ask one of his laid-off summer workers to fulfill his duties. The summer worker would simply take drive through the Park to make sure everything was fine. The plaintiff did not consider any of these days away from his duties to be holidays. In his opinion he never took holidays from his duties with the defendant, because he was not absent from his duties for three weeks at one time. [18] The plaintiff was dismissed from his employment with the defendant in October 1997. The jury held that the plaintiff had been constructively dismissed from his employment. The jury awarded the plaintiff damages in lieu of notice in the amount of 12 months’ wages. At the time of his dismissal he was earning $1,665.00 per month, inclusive of all benefits, except holiday pay, plus monthly truck allowance of $500.00. The jury also awarded the plaintiff one-half of the truck allowance for the 12 months’ notice period, in the amount of $250.00 per month. The jury also held that the defendant had engaged in bad faith conduct in the manner in which it dismissed the plaintiff. The jury extended the notice period by six months and awarded the plaintiff further damages of six months’ wages and six months’ truck allowance of $250.00 per month for the bad faith conduct. POSITION OF THE PARTIES [19] The plaintiff claims that he has never received holidays or, pay in lieu of holidays, from the defendant from the time he was hired in April, 1988 until his dismissal in October 1997. The plaintiff claims for unpaid holidays for the period, April 1988 to October 1997. The plaintiff also claims holiday pay on the amount awarded by the jury as damages in lieu of proper notice. The plaintiff further claims that the holiday pay owing should be based on his wage, plus one-half of his truck expense allowance. He asserts that the truck allowance was actually part of his wage. That is, he asserts that the amount of the truck allowance was artificially inflated so that he could receive part of his wage as an allowance which would not be subject to income tax. [20] The defendant rejects the plaintiff’s argument and claims that the plaintiff’s contract of employment was all-inclusive. It asserts that the contractual wage included component of holiday pay in lieu of holidays, therefore the plaintiff received holiday pay on each payment of his wages. The defendant claims that the plaintiff made an offer to the defendant and the defendant accepted that offer as inclusive of all remuneration payable to the plaintiff. The defendant states that there was no discussion of additional payment for holidays, nor of time off for holidays, and as such, the plaintiff’s employment contract was all-inclusive and the plaintiff received his holiday pay in lieu of time off with each wage payment that he received. [21] The defendant further asserts that the plaintiff’s all-inclusive contract was more favourable than the minimum standards set out in the LSA. It argues that the plaintiff’s wage and benefits exceeded minimum wage, that the plaintiff determined his own hours of work and, that the plaintiff’s ability to take time off work in totality, exceeded the minimum standard of three weeks of holidays set out in the LSA. [22] In the alternative, the defendant claims that if the court finds that the plaintiff’s contract was not all-inclusive or that it did not exceed the minimum LSA standards, the time the plaintiff spent away from work must be considered holidays. The defendant asserts that the plaintiff was never authorized to attend conferences on behalf of the defendant and that his attendance on behalf of the City must be considered holidays from his employment with the defendant. The defendant also alleges that the plaintiff also exaggerated the amount of time he spent on the job in the winter time. Further it asserts that the reduced winter hours were not in lieu of overtime pay, as the plaintiff was a “manager” within the meaning of s. 4(2) of the LSA and therefore not entitled to overtime. [23] In the further alternative, the defendant claims that the doctrine of estoppel or waiver should apply to prevent the plaintiff from claiming his entitlement to holiday pay. The defendant asserts that the plaintiff never claimed his right to holiday pay for 10 years and the defendant relied on the plaintiff not doing so. The defendant asserts it would be substantially prejudiced if the plaintiff was now allowed to assert that right. [24] Further, the defendant claims that if the court finds that the plaintiff is entitled to holiday pay, the plaintiff should only be entitled to recover back to April 1990 as the plaintiff is limited by The Limitation of Actions Act, R.S.S. 1978, c. L-15 which only allows recovery of money under a contract up to six years after the cause of action arises. [25] Finally the defendant asserts that the plaintiff’s holiday pay should not be based on his wage and truck allowance as “wages” as defined in the LSA does not include allowances for costs. The defendant also asserts that holiday pay should not be payable on the award assessed by the jury as damages in lieu of notice. [26] The onus and burden in wrongful dismissal case rests with the plaintiff. As stated by Laskin C.J.C. for the Supreme Court for Canada in Red Deer College v. Michaels et al. (1975), 1975 CanLII 15 (SCC), 57 D.L.R. (3d) 386 at 390: ... It is, of course, for wronged plaintiff to prove his damages, and there is therefore burden upon him to establish on balance of probabilities what his loss is. The parameters of loss are governed by legal principle. The primary rule in breach of contract cases, that the wronged plaintiff is entitled to be put in as good position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff.... The plaintiff must prove his entitlement to holiday pay in lieu of time off for the period of his employment and for the notice period damages awarded by the jury. However, the Saskatchewan Court of Appeal in Regina v. Caxton Printing Ltd. and Central Press (1953) Ltd., 1977 CanLII 1452 (SK CA), [1977] W.W.R. 410, addressed the presumption that arises out of the LSA. In that case, the Crown charged an employer for failing to comply with the overtime provisions in the LSA. The court stated at p. 414: ... The only way overtime can be considered payable is to assume what the Crown had to prove, namely, that if the employees worked more than eight hours in any one day then, under s. 17 of the Act, overtime was payable. But, even if that is considered as presumption arising from the wording of the Act, it is clearly rebuttable presumption which may be met either by showing an arrangement pursuant to s. 18 or by reference to an agreement under s. 62. Caxton, supra, delineates that plaintiff can rely on presumption arising out of requirement in the LSA, to meet his burden to establish his damage. The onus then shifts to the defendant to rebut the presumption, in accordance with some exception in the LSA. In this case, the plaintiff can rely on s. 30(1) of the LSA to establish he is entitled to holidays: 30(1) Every employee to whom this Act applies is entitled: (a) ... to an annual holiday of three weeks after each year of employment with any one employer .... Section 30(1) of the LSA states that an employee is entitled to an annual holiday of three weeks after each year of employment. Section 31(1) of the LSA states that the employer must permit an employee to take the three week holidays within 12 months of the date on which the employee becomes entitled to the holidays. Section 33 prescribes that remuneration is payable to an employee, in lieu of holidays, for an employee who does not take his or her annual holidays: 33(1) An employee is entitled to receive annual holiday pay in the following amounts: (a) if the employee is entitled to an annual holiday pursuant to clause 30(1)(a), three fifty-seconds of the employee’s total wages for the year of employment immediately preceding the entitlement to annual holiday; (1.1) With respect to an employee who is entitled to an annual holiday pursuant to section 30 but who does not take that annual holiday, the employer shall pay to the employee the employee’s annual holiday pay not later than 11 months after the day on which the employee becomes entitled to the annual holiday. [Emphasis added] The plaintiff may rely on s. 33 to establish that he is entitled to holiday pay in lieu of taking holidays. The onus, then shifts to the defendant to prove that the defendant complied with some exception in the LSA. [27] There are several preliminary issues which must be dealt with at this stage. As preliminary issue, the defendant asserts, that, even if the plaintiff is entitled to holiday pay in lieu of time off, the plaintiff should be considered to have waived this entitlement by his conduct over the years. The defendant asserts that the plaintiff never claimed his right to holidays or holiday pay for 10 years and, that the defendant relied on the plaintiff’s conduct in this regard. [28] Waiver of an employee’s rights under the LSA was considered by the Saskatchewan Court of Appeal in Burmeister v. Regina Multicultural Council (1985), 1985 CanLII 2347 (SK CA), 40 Sask. R. 183. In that case the court considered whether an employee could waive her entitlement to overtime. The court referred to s. 75 of the LSA. 75(1) No agreement, whether heretofore or hereafter entered into, has any force or effect if it deprives an employee of any right, power, privilege or other benefit provided by this Act. (2) This Act applies to agreements made in or out of Saskatchewan with respect to service or labour performed in Saskatchewan. The court held that this section would prevent an employee from waiving her entitlement. Section 75 appears to be full answer to the defendant’s position in this regard. Whether the plaintiff asserted his right to holiday pay or not, he remained entitled to his annual holidays in accordance with the LSA. [29] The next preliminary issue to be determined is the period for which the plaintiff may make such claim for holiday pay. The defendant claims that The Limitation of Actions Act bars any claim for holiday pay prior to April, 1990. [30] Section 3(1)(f) of The Limitations of Actions Act states that cause of action for the recovery of money under contract, express or implied, must be commenced within six years of the date on which the cause arose. In this case, the plaintiff brought his action December 31, 1997. The plaintiff, therefore, can claim for any debt owing to him from December 31, 1991 to his date of termination. The question is, is the plaintiff entitled to holiday pay for any holidays not taken prior to December 31, 1991? [31] Section 30 of the LSA indicates than an employee becomes entitled to three weeks holidays, after each year of employment. In the event the employee does not take the holidays within 12 months after the date on which he becomes entitled to it, s. 33 states that the employer shall pay to the employee the employee’s annual holiday pay not later than 11 months after the day on which the employee becomes entitled to the annual holiday. [32] Here the plaintiff began his employment in April 1988, and became entitled to holidays one year later and, likewise each year thereafter. He became entitled to his holidays for the period of employment April, 1990 to March 1991, in April 1991. If the plaintiff did not take all of his 1990-1991 holidays by March 1992, the defendant would have been required to pay the plaintiff holiday pay by February 1992. The defendant therefore would have owed the plaintiff holiday pay in lieu of the 1990-1991 holidays at December 1991 (assuming the plaintiff did not take such holidays). As such, any debt for the April 1990 to March 1991 holidays would have arisen within the statutory period of six years. Therefore, the plaintiff can claim for any holiday pay in lieu of time off that he can establish that he was entitled to from April, 1990 to his termination date. [33] further preliminary issue to be determined is the amount on which any holiday entitlement should be based, in the event the plaintiff proves he is entitled to holiday pay. The plaintiff claims that the proper amount on which to base any holiday pay entitlement is his monthly wage plus one-half of his truck allowance, which was $250.00 per month. The plaintiff asserts that the truck allowance portion should be included as it was really part of his wage and only designated as an allowance to avoid taxation. [34] The defendant denies this claim, arguing that the truck allowance should not be included in any computation of holiday pay, if the plaintiff is entitled to holiday pay. The defendant relies on the LSA definition of “wages”: In this Act: ... (r) “wages” means all wages, salaries, pay, commission and any compensation for labour or personal services, whether measured by time, piece or otherwise, to which an employee is entitled. The defendant claims this definition does not include an expense allowance and therefore the plaintiff’s truck allowance should not be included in the calculation of his holiday pay entitlement. [35] In this case, the jury awarded the plaintiff damages he suffered for loss of his truck allowance. Such awards have been made to an employee where he loses an employment benefit that also benefitted him personally. In this case, however, the plaintiff argued before me that the allowance was really wage disguised for the purposes of avoiding paying income tax. Wimmer J. in Smith v. General Recorders Ltd. (1994), 1994 CanLII 5152 (SK QB), 121 Sask. R. 296 (Q.B.) at para. 36 addressed such claim: [36] At the time Smith received his notice of termination he was receiving $45,000 per year comprised of salary of $39,000 and car and gas allowance of $6,000. The car and gas allowance was fiction intended to allow Smith to escape payment of income tax. He never used his car on company business, the practice being to rent car or use company-owned car for such purposes. While making no finding as such, this arrangement bears all the characteristics of scheme for tax evasion. As matter of public policy, no court should appear to countenance such an arrangement by taking it into account in an award of damages. That case would appear to be applicable in this case. The plaintiff clearly indicated that the $250.00 portion of the truck allowance was made to avoid paying tax. As such, it would be contrary to public policy for this Court to appear to endorse the plaintiff’s actions by calculating his holiday pay on the basis of his wage and this portion of his truck allowance. Any holiday pay owing to the plaintiff will be calculated only on the plaintiff’s wage. [36] As stated earlier, the plaintiff can rely on s. 33 of the LSA to establish he is entitled to holiday pay in lieu of taking holidays. The defendant then bears the onus of rebutting the presumption of entitlement in accordance with some exception set out in the LSA. now turn to this issue. [37] Under the LSA there are only two ways in which an employer may choose to pay an employee in lieu of actually giving holiday time off. The first is in accordance with s. 37 of the LSA. That section requires that the employer and employee enter into written agreement stating that the employee will not take the holidays he is entitled to, due to shortage of labour. The plaintiff and defendant here did not enter into such written agreement. [38] The second way an employer may choose to pay an employee in lieu of giving holiday time off is to establish that the employment contract terms are more favourable in terms of conditions, hours of work, holiday benefits or rate of wages than those requirements set out in the LSA. Section 72(1) of the LSA states: 72(1) Nothing in this Act or in any order or regulation made under this Act affects any provision in any Act, agreement or contract of service or any custom insofar as it ensures to any employee more favourable conditions, more favourable hours of work or more favourable rate of wages than the conditions, the hours of work or the rate of wages provided for by this Act or by any such order or regulation. [39] Wedge J. in Board of Education of Prince Albert School Division No. v. Saskatchewan (Minister of Human Resources, Labour and Employment) (1991), 1991 CanLII 7896 (SK QB), 101 Sask. R. 266 (Q.B.) held that nothing in the LSA prohibits an all-inclusive contract where the contract provides total package more favourable than the minimum standards in the LSA. In the Prince Albert School Division case, the plaintiff was employed by the defendant through five one-year contracts. The first of these contracts stated that the contract was all-inclusive. The final contract stated that the salary included statutory holidays and annual vacation pay. The other contracts were silent as to holiday pay. Wedge J. determined that it was the intention of the parties that all contracts would include holiday pay based on the wording of the contracts read together. [40] Maurice J. in Regina (City) v. Saskatchewan (Minister of Human Resources, Labour and Employment) et al. (1991), 1991 CanLII 7781 (SK QB), 89 Sask. R. 211 (Q.B.) also made similar finding. He determined that firefighters received better payment for statutory holidays than mandated by the LSA. In making this determination, Maurice J. compared the benefit in the collective agreement pertaining to statutory holidays to the minimum standards in the LSA. [41] In Canada Safeway Ltd. v. Director, Labour Standards Branch (Sask.) and Betteridge (1993), 1993 CanLII 6720 (SK QB), 117 Sask. R. 163 at para. 13 (Q.B.) the court compared the holiday pay provisions in collective agreement to those in the LSA. In addressing the issue Barclay J. quoted from Regina v. Caxton Printing Ltd. and Central Press (1953) Ltd., 1977 CanLII 1452 (SK CA), [1977] W.W.R. 410 at 419 and 421 (Sask. C.A.): The appellants’ submission has properly identified one problem that arises in the construction of s. 62(1). There is another problem: In determining whether any provision in an agreement prescribing rate of pay is more favourable than its counterpart contained in the Act, should that provision be isolated from the rest of the agreement and be treated as unaffected by the other provisions of the agreement—dealt with in vacuo so to speak—and the comparison between it and its counterpart in the Act then made, or should that provision and its effect be first evaluated in the light of the other provisions of the agreement then, only after such evaluation has taken place, should the comparison be made? ... As to the second problem, my conclusion is that the legislature intended the rate-of-pay provision in any agreement to be read and evaluated in the light of the other provisions of the agreement before comparison is made with its counterpart in the Act. That the legislature contemplated that it should be left open to demonstrate that provision (in an agreement) on its face less favourable than its counterpart in the Act is, in fact, more favourable than the latter is evident not only from the wording of the section but from the decision itself to include the second branch of s. 62(1) in the section.... In Canada Safeway, supra, Barclay J. found that over number of years of employment, the employee was better off under the collective agreement than the employee was under the LSA, even though the minimum standard was not met in particular year. [42] In this case, the plaintiff relies on s. 30(1)(a) to establish that he was entitled to three weeks of holiday time following each year of employment with the defendant. Therefore the defendant must establish (in accordance with s. 72(1)) that the plaintiff’s employment contract was more favourable than the standards in the LSA. To meet this burden, the defendant claims that the plaintiff’s monthly wage contained component of holiday pay and that the plaintiff’s total employment package exceeded the LSA standard. The defendant argues that the plaintiff is not entitled to the minimum standards in the LSA in addition to the more favourable contractual benefits. [43] Whether the plaintiff’s monthly wage included component of holiday pay and whether the plaintiff’s employment contract exceeded the LSA standard is question of fact. [44] The plaintiff’s 1990 employment contract was based on proposal made by the plaintiff and accepted by the defendant. The proposal indicates that the plaintiff based his wage on 40 hours per week, 52 weeks per year. The plaintiff and the defendant both indicate that holiday pay was never discussed. The 1990 proposal speaks only to wages. The plaintiff’s 1991 employment proposal speaks to wages and expense allowances. From the evidence of both parties it is clear that these two proposals are not the whole terms of the plaintiff’s contract. The 1990 proposal does not discuss the expense allowances, yet the 1991 proposal indicates percentage increase to the plaintiff’s 1990 expense allowances. The proposals were amendments to larger employment package that began when the plaintiff was hired in 1988. In 1988 the plaintiff was hired on an hourly wage and enjoyed all the implied standards in the LSA. When the plaintiff changed to monthly wage, there was no agreement that there would be change in his holiday entitlement. Further, the plaintiff was allowed to take days off from his employment with the defendant without being required to reimburse the defendant for the time away, in each year. The defendant’s position that the contract included component of holiday pay each month is inconsistent with its position that the plaintiff took these days off as holidays during the year. In this case I am not convinced that the contract of employment included a component of holiday pay in lieu of time off. [45] The question then is whether the holiday benefits contained in the plaintiff’s employment agreement are greater than the minimum standard in the LSA. The plaintiff was able to take off from his duties for as many days as he required and was not required to attend to his duties on any given day. In each year, he took time off from his duties with the defendant to attend exclusively to City business. In addition he took personal days each year. He could be away from his duties without notice to his employer. He only notified the defendant if he was going to be away for few days at one time, and then only in summer. In winter he simply made arrangements for someone else to check the Park. Further, the plaintiff was not required to attend to Park duties for any particular time on any given day. In the summer, he could attend to the Park in the morning and then again in late afternoon, leaving him free to attend to other business during the day. In the winter he did not attend to the duties at all if the roads were covered with snow and if they were not, sometimes his duties would take no more than 30 minutes. He was able to spend good portion if not the majority of the day on his mayoralty duties or personal business. Despite the fact that the plaintiff was given wide flexibility by the defendant in his position as superintendent, the evidence is not conclusive as to whether his contract of employment provided him with more than three weeks holidays in each year. The defendant bears the onus of proving that the benefits of the contract were greater than the minimum standard in the LSA, and it has failed to do so. In these circumstances the provisions of the LSA relating to holiday pay apply. The plaintiff was entitled to holidays or holiday pay in lieu of taking holidays. [46] As stated, the onus and burden in wrongful dismissal case rests with the plaintiff. While the plaintiff can rely on the LSA to establish he is entitled to holidays, and while the defendant bore the onus to prove the employment contract was more favourable than the LSA minimum standard, the onus remains on the plaintiff to prove his damages. The onus is on the plaintiff to prove that he did not take his three weeks holidays during the period of this claim. The plaintiff points to s. 70(1), (j), (k) and (l) of the LSA in an attempt to shift the burden to the defendant to prove that the plaintiff did take holiday time. Section 70 states: 70(1) Every employer shall at all times keep readily available for inspection by the minister or his duly authorized representative, in each place of business operated by him in the province or in connection with which any employee is employed or in such other place or places as are approved by the minister, true and correct records showing particulars of every unwritten contract and copy of every written contract or other document dealing with wages or other monetary benefits to which any employee is entitled and, in respect of each of his employees or the employment of each of his employees: ... (j) the date upon which the employee becomes entitled to each annual holiday; (k) the dates on which each annual holiday is taken by the employee; (l) the amount paid to the employee in respect of each annual holiday to which the employee is entitled and the date of payment. This section requires an employer to keep those records for the purpose of inspection by the minister. Had the defendant kept such records, the plaintiff could have relied upon them to prove the debt owing to him. But failure to keep records for the inspection of the minister does not result in reverse onus. The onus remains on the plaintiff to establish what holidays he did not take: that is his loss. [47] The plaintiff admitted to taking time away from his duties for personal time and for City business as mayor. The plaintiff claims, however, that the time spent on City business was also spent on behalf of the defendant and should therefore not be considered holidays. The plaintiff argued that when he attended some of these out of town conferences on behalf of the City, he also attended on behalf the defendant. He suggested that he was not away from his employment duties with the defendant on these occasions, as he was representing the defendant at such meetings or seminars. However, the evidence does not support the plaintiff’s assertion. The plaintiff was only requested by the defendant to attend one meeting in Minot on behalf of the defendant. On this one occasion the defendant paid the plaintiff for his attendance. At no other time did the defendant request the plaintiff to attend the meetings that the plaintiff was attending on behalf of the City. The plaintiff received no instructions from the defendant with respect to representation at such meetings or conferences. Though the meetings may have been of interest to the defendant, the plaintiff was not there in his capacity as superintendent. The defendant was not paid any per diem nor any reimbursement for his expenses by the defendant. It was only the City that paid him per diem and expense remuneration for such meetings. The plaintiff’s suggestion that he was not away from his employment duties with the defendant when he was out of town attending conference on behalf of the City or sitting on Board of Revision for the City is implausible. [48] The plaintiff asserts that even if he was away from his duties as superintendent, any time that he took off while employed by the defendant should not be considered holidays because he did not take the time away in one uninterrupted three week period. As noted before, s. 31(1)(b) indicates that an employee shall be permitted to take holidays in one uninterrupted period. Section 31(1)(c) allows an employee to give written notice to his employer of an arrangement for taking his holidays other than in one uninterrupted period. This subsection appears to indicate that the employee may choose the manner in which his holidays are to be taken if he follows the notice requirement in s. 31(1)(c). The employer “shall” then permit the employee to take his holiday in the proposed manner. In this case, the plaintiff was very free to choose the days he was away from his employment duties. Although the plaintiff did not provide the notice required in s. 31(1)(c), the defendant allowed the plaintiff to take days off in any manner he chose. It is inconsistent that the plaintiff’s failure to comply with the notice requirement meant for the benefit of the employer could be used by an employee to disclaim that his days off were holidays. [49] The plaintiff also claims in the alternative that the days he took off were part of his compensation for the overtime hours he worked during the spring and/or summer. He points out that he was never paid time and half as required by s. of the LSA for the hours of overtime he worked. The defendant denies this claim by asserting that the plaintiff was not entitled to overtime as he fell within the managerial exception in s. 4(2) of the LSA: 4(2) Part of this Act does not apply to an employee who performs services that are entirely of managerial character. The word “entirely” in s. was considered in Hill v. Begg, [1987] S.J. No. 824 (QL) (Q.B.) by Wimmer J. He held that doing some hands on work did not exclude managerial employee from this exception. The term “managerial character” was considered in Westfair Foods Ltd. v. Director of Labour Standards (Sask.) (1995), 1995 CanLII 6185 (SK QB), 136 Sask. R. 187 (Q.B.) by Klebuc J. He held that what constitutes “managerial character” varies with the facts of each case, but also held that there are some fundamental indicia of “managerial character”. At para. 24 he stated: ... The fundamental ones in my opinion are: (1) the supervision and direction of other workers; (2) the discipline of subordinates, individually or as part of management team; (3) evaluating the performance of subordinates; (4) hiring and promoting of subordinate staff; (5) some independence and discretion in performing assigned duties; (6) supervision of collective agreement, where the work place is unionized; (7) negotiating remuneration individually rather than collectively; (8) level of remuneration, vis-à-vis, non-managerial staff; (9) participation in carrying out the employer’s budgets and performance requirements. This list is not intended to be all inclusive; nor must each criterion be found to exist before an employee’s position can take on managerial character; nor is each criterion entitled to equal weight. To the contrary, in my opinion only the functions of supervision and right to discipline are of fundamental importance and therefore of greater significance. [50] In this case, the plaintiff asserts himself, in his statement of claim, that his responsibilities as superintendent of the Park were managerial. He stated that his duties included, inter alia: (a) the hiring, dismissal and supervising of other Park staff; (b) the management of the maintenance of the park, including all buildings and lands; (c) the management of the revenue and expenses of the Park and accounting same to the Defendant; and (d) the management of the day-to-day operations of the Park. [51] The evidence presented also bore out that the plaintiff carried out managerial duties. The plaintiff’s duties are indicia of managerial character as outlined in Westfair Foods, supra. Even though the plaintiff performed hands on work at the Park, he cannot disclaim his managerial role. In Burmeister, supra, Wakeling J.A. stated at para. 27: In any event, the respondent cannot upgrade the responsibilities of her job for the purpose of satisfactory severance and downgrade the same job for purposes of an overtime claim. The plaintiff was clearly manager within the meaning of the LSA. Further, even if the plaintiff were not a manager, the plaintiff failed to prove, on a balance of probabilities, that he worked overtime hours in excess of the statutory minimum, in the spring or summer or at any time, in order to qualify for overtime. The plaintiff did not establish that he in fact worked overtime. Any days off taken by the plaintiff cannot be considered taken in lieu of overtime. [52] The days that the plaintiff was away from his employment duties with the defendant are holidays as defined in s. 30 of the LSA. [53] As stated, the plaintiff bears the onus of proving his damages. That is, he bears the onus of proving that he did not receive three weeks holidays each year over the course of the period of his claim. The evidence indicates that the plaintiff was away from his duties with the defendant for the purposes of City business between April, 1990 and April 30, 1991 for days between May 1, 1991 and April 30, 1992 for days; between May 1, 1992 and April 30, 1993 for 8.5 days; between May 1, 1993 and April 30, 1994 for days; between May 1, 1994 and April 30, 1995 for days; between May 1, 1995 and April 30, 1996 for 10 days; between May 1, 1996 and April 30, 1997 for 12.5 days; between May 1, 1997 and October 1997 for days. In addition, the plaintiff indicated that he took time off for personal reasons, including approximately two days per year to travel to Regina. He took some holiday time with his wife during couple of years. During the winter season there were occasions where he did not attend at all to Park duties. His evidence with regard to time away from his duties was that he took no extended personal holidays of longer than one week while in the employ of the defendant. On the balance of the evidence presented the plaintiff has failed to satisfy me that he did not receive his three weeks holidays in each year. In fact, on the evidence before me find that in some years he took more than three weeks holidays. The plaintiff is not is entitled to any holiday pay for the period of April 1990 to October 1997. [54] The plaintiff also claims holiday pay on the notice period damages awarded by the jury. The jury awarded the plaintiff damages in lieu of notice for period of one year, plus an extension of the notice period of months. The plaintiff claims therefore that he should be entitled to holiday pay on this notice period of 18 months. The defendant denies the plaintiff is entitled to holiday pay on the damages and relies on Herbison v. Intercontinental Packers Ltd. (1983), 1983 CanLII 2398 (SK CA), 29 Sask. R. 296 (C.A.) and Henderson v. Bristol-Meyers Squibb Canada Inc. (1996), 1996 CanLII 6830 (SK QB), 146 Sask. R. 127 (Q.B.) as authority that holiday pay is not paid on notice period damages award. Cameron J.A. in Herbison, supra, stated at paras. [17] While Mr. Herbison’s contract entitled him to employment for an additional eighteen months, it did not guarantee him the right to work every day, and, at the end of the period, demand that he be paid holiday pay”, equal to 6/52's of his earnings during these eighteen months. In the same way that he was entitled to holiday, the company was entitled to have him take it, rather than pay him “holiday pay”. On the face of it s. 33 does not entitle him to holiday pay. [18] It must be borne in mind, as well, that this is an action for the recovery of damages for breach of contract, the measure of which is prima facie the amount Mr. Herbison would have earned had the employment continued for an additional eighteen months—less, of course, his earnings from his new employment. This is what he will recover under his judgment: his losses in full. Why then should there be added to this recovery, further sum, the entitlement to which is predicated on the assumption (for which there is no evidence) that, had the company continued to employ him, it would not have permitted him to take holiday as it would have been required to do by law? It is difficult to find the damage. Laing J. in Henderson, supra, determined that Herbison, supra, was dispositive of claim for holiday pay on notice period damages. He held in that case that the question was whether the plaintiff would have been required to take her annual holiday and he found that there was no evidence that she would not have been required to do so. [55] This line of inquiry has also been pursued in the Ontario case law. In Wright v. Kimberly-Clark Canada Inc. (1995), 1995 CanLII 7279 (ON SC), 11 C.C.E.L. (2d) 34 (Ont. Crt. J. (Gen. Div.)), Platana J. reviewed the leading cases from the Courts of Appeal in Alberta, Saskatchewan and British Columbia and found that none of the courts had awarded holiday pay on notice period damages based on similar reasoning. At para. 61 he concluded: [61] This reasoning is sound. Unless the plaintiff demonstrates an actual loss occasioned by the loss of vacation entitlement, or evidence that he was entitled to take pay in lieu of the vacation, there should be no compensation for same and the plaintiff’s claim in that regard is not allowed. The plaintiff here took his holidays each year and would likely have continued to do so had he continued in the employment of the defendant through the notice period. The plaintiff is not entitled to any damages for holiday pay on the notice period. [56] For the reasons stated, the plaintiff’s claim for holiday pay is dismissed with costs.
A jury determined the plaintiff was constructively dismissed from his employment as park superintendent in 1997 and awarded damages for failure to give reasonable notice. The defendant claimed the contract of employment was all inclusive; that the plaintiff exaggerated the amount of time he spent on the job in winter; that the reduced winter hours were not in lieu of overtime pay as he was a manager within the meaning of s.4(2) of the LSA; the doctrine of estoppel or waiver applied as he never claimed a right to holiday pay for 10 years and the employer relied on his not doing so; if the plaintiff is entitled to holiday pay he should only recover back to April 1990 as he is limited by the Limitation of Actions Act; it should not be based on wages plus truck allowance as wages as defined in the LSA does not include allowances for costs. The claim for unpaid holiday pay claimed from April 1988 to October 1997, based on his wages plus one-half his truck expense allowance, was reserved pending a decision by the Court of Appeal as to whether the Court of Queen's Bench has jurisdiction to determine the issue of entitlement to holiday pay. HELD: The claim was dismissed with costs.  1)The Court of Appeal held in Kolodziejski v. Auto Electric Service that the Queens' Bench has jurisdiction to entertain a civil action for non-payment of holiday pay. 2)The plaintiff may rely on s.30(1) of the LSA to establish he is entitled to holidays and on s.33 to establish he entitled to pay in lieu of taking holidays. The onus then shifts to the defendant to prove it complied with some exception in the LSA. Section 75 prevents an employee from waiving his or her entitlement. Whether the plaintiff asserted his right to holiday pay or not, he remained entitled to his annual holidays in accordance with the LSA. 3)The plaintiff can claim for any holiday pay in lieu of time off that he can establish he was entitled to from April 1990 to his termination date. Section 3(1)(f)of the LAA states that a cause of action for recovery of money under a contract, express or implied, must be commenced within 6 years of the date on which the cause arose. 4)The plaintiff clearly indicated that a portion of the truck allowance was made to avoid paying tax. As such it would be contrary to public policy for the Court to appear to endorse the plaintiff's actions by calculating his holiday pay on the basis of his wage and this portion of his truck allowance.  5)The defendant's position that the contract included a component of holiday pay each month was inconsistent with its position that the plaintiff took these days off as holidays during the year. The contract of employment did not include a component of holiday pay in lieu of time off.  6)Failure by the defendant to keep records for the purpose of inspection by the minister does not result in a reverse onus. The onus remains on the plaintiff to establish what holidays he did not take. 7)The plaintiff admitted to taking time away from his duties for personal time and for city business as mayor. The plaintiff was not there in his capacity as superintendent. Section 31(1)(b) indicates that an employee shall be permitted to take holidays in one uninterrupted period. The defendant allowed the plaintiff to take days off in any manner he chose. It was inconsistent that the plaintiff's failure to comply with the notice requirement meant for the benefit of the employer could be used by an employee to disclaim that his days off were holidays. 8)The plaintiff was clearly a manager within the meaning of LSA. Even if he were not a manager, he failed to prove, on a balance of probabilities that he worked overtime hours in excess of the statutory minimum in order to qualify for overtime. Any days off taken by the plaintiff could not be considered taken in lieu of overtime. The days he was away were holidays as defined in s.30 of the LSA. 9)He did not establish he did 3 weeks holidays.