In a recent decision under the Labor Relations Act, 1995, Arbitrator Adam Beatty dismissed four union grievances concerning the National Day of Mourning, which was declared following the death of Queen Elizabeth. The grievors claimed that because the National Day of Mourning was a “holiday” within the meaning of the applicable collective agreements (CAs), it should have been recognized by the employer as a paid holiday. Arbitrator Beatty dismissed the grievances finding that the National Day of Mourning did not constitute a holiday under the CAs, and the employer did not violate the CAs when it did not recognize it as a paid holiday for its employees.

Background

When Queen Elizabeth II passed away on September 8, 2022, Prime Minister Justin Trudeau declared September 19, 2022, a National Day of Mourning.

In Canadian Union of Public Employees and Its Locals 905.17 (Part-Time and Casual) and 905.18 (Full-Time) and Vaughan Public Library Board, the union representing the employer’s employees filed four grievances claiming that the National Day of Mourning was a “holiday” within the meaning of the applicable CAs and should have been recognized by the employer as a paid holiday.

The employer had two separate CAs: one for part-time and casual employees, and the other for full-time employees. Article 15.01 is identical in both CAs:

15.01 All employees will be paid for the following holidays:

and any other day proclaimed by the federal, provincial or municipal governments. [Emphasis added]

In his decision, Arbitrator Beatty noted the following evidence, which he took from the Agreed Statement of Facts:

9. … On September 13, 2022, the Prime Minister of Canada held a news conference where he stated, amongst other things, the following:

We have also chosen to move forward with a federal holiday on Monday. We will be working with the provinces and the territories to try and see that we’re aligned on this. There are still a few details to be worked out, but declaring an opportunity for Canadians to mourn on Monday is going to be important.

10. Later that day, the Minister of Labour Mr. Seamus O’Regan issued a statement indicating that “Federally regulated employers are welcome to follow suit, but they are not required to do so”.

11. The Prime Minister also published a statement regarding the National Day of Mourning on September 13, 2022. The statement included the following:

Statutory holidays in Canada can only be granted through legislation, which must pass through the House of Commons and the Senate, and receive Royal Assent. The Government of Canada has consulted the provinces and territories, who will determine an appropriate way to mourn Her Majesty Queen Elizabeth II in their jurisdictions.

12. Also on September 13, 2022, the Canada Gazette (the official gazette of the Government of Canada that publishes all public notices, official appointments, and proposed regulations from the Government of Canada) published “The Proclamation Requesting that the People of Canada Set Aside September 19, 2022, as the Day on Which They Honour the Memory of Her Late Majesty Queen Elizabeth the Second, Who Passed Away on September 8, 2022”. This proclamation did not declare the National Day of Mourning to be a holiday.

13. On September 16, 2022, the Office of the Chief Human Resources Officer of the Government of Canada issued a directive to all Heads of Human Resources, Directors/Chiefs of Labour, Relations and Compensation, and the Public Service Pay Centre stating:

This Day of Mourning is a one-time holiday for all persons employed by the core public administration (CPA). It is not a Designated Paid Holiday; however, this day is to be administered pursuant to applicable authorities such as collective agreements and terms and conditions of employment.

14. The National Day of Mourning was not added to the list of general holidays under the Canada Labour Code, or the list of holidays under the Holidays Act. The National Day of Mourning has also not been proclaimed a public holiday under the Ontario Employment Standards Act, 2000. Nor was it proclaimed a public holiday by the City of Vaughan.

Union’s Position

The union argued that that the Federal Government “proclaimed” the National Day of Mourning a federal holiday (i.e., the Prime Minister in a press conference and the Office of the Chief Human Resources Officer of the Government of Canada in a directive) and employees subject to the CAs were entitled to be paid for it. Furthermore, since the title of Article 15.01 in the applicable CAs was “Holidays” rather than “Statutory Holidays,” a holiday did not need to be a “statutory holiday” to qualify as a holiday for which employees were entitled to be paid.

Employer’s Position

The employer argued that the meaning of the word “proclaimed” in Article 15.01 of the CAs was key. The term “proclaimed” is linked to the “end” of a legislative process; the National Day of Mourning was not made a “holiday” via a legislative process, proclaimed a “holiday” in the Canada Gazette, or made a holiday under the Canada Labour Code (CLC), the Holidays Act, or any other legislation. Furthermore, neither the Prime Minister nor the Office of the Chief Human Resources Officer of the Government of Canada were “the Federal Government”.

Arbitrator’s Award

Arbitrator Beatty dismissed the grievances. He found that the National Day of Mourning did not constitute a holiday under Article 15.01 of the CAs, and the employer did not violate the CAs when it did not treat it as a paid holiday. The arbitrator’s reasons for making this determination, based primarily on principles of contract interpretation, are set out below:

• The word “proclaimed” is key because Article 15.01 establishes that for a day to be considered a holiday it must be “proclaimed” by one of the levels of government.
• Based on the normal and ordinary meaning of “proclaimed,” the requirement that a holiday be proclaimed by a level of government under Article 15.01 strongly indicates that the meaning of the term includes a link to the legislative process.
• The existing jurisprudence further supports a link between the concept of a day being “proclaimed” a holiday and the end of the legislative process.
• Because the word “proclaimed” is not used elsewhere in the CAs, it must have been the parties’ intention to give it a specific meaning that is distinct from other terms in the CAs.
• Article 15.01 does not state “statutory holidays” and it would be inappropriate to read that term into it.
• It is not sufficient for the Prime Minister or another governmental entity to “state” that a day will be a holiday. “Proclaim” means a link to the legislative process.
• There is very little evidence that the National Day of Mourning was treated as a “holiday”:
  
  • It was referred to as a holiday only twice: by the Prime Minister during a press conference on September 13, and in a directive issued by the Office of the Chief Human Resources Officer of the Government of Canada on September 16, 2022. The directive also stated that the designation applied only to those employed by the CPA and members of these bargaining units are not part of the CPA;   
  • The National Day of Mourning was not made a holiday under any legislation, and it was not referred to as a holiday in the Canada Gazette;
  • There is no evidence that the Federal Government (or any other level of government) treated the National Day of Mourning as a holiday. As for the statement by the Prime Minister and the statement by the Office of the Chief Human Resources Officer, neither of these entities constitute the Federal Government, and there is no language indicating that the parties intended to expand the scope of who could proclaim a holiday.

Bottom Line for Employers

It is not uncommon for a unionized employer to be subject to a CA that, like the ones in this case, provides that employees will be paid for listed holidays “and any other day proclaimed by the federal, provincial or municipal governments.” This award suggests that if an employer is subject to a CA that contains similar language, whether a particular day will be treated as a paid holiday will depend on the meaning of the word “proclaimed,” which is tied to the end of the legislative process. Accordingly, it is not enough for a day to be referred to as a “holiday” by a governmental entity; a legislative process culminating in the proclamation of the day as a “holiday” is required.

Notably, a recent example of a statutory holiday that was proclaimed via a legislative process occurred when Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labour Code (National Day for Truth and Reconciliation) passed through the House of Commons and the Senate, and received Royal Assent. This bill amended the CLC to provide for annual observance by the Federal Government and federally regulated workplaces of a new statutory holiday on September 30, the National Day for Truth and Reconciliation.