Collective agreement required proclamation; holiday specified for federal employees
An Ontario employer is not required to add a National Day of Mourning to its list of holidays under the collective agreement without an official proclamation, an arbitrator has ruled.
The Malton Village Long Term Care Centre (MVLTCC) is a network of six long-term care facilities located in the regional municipality of Peel in Ontario. The MVLTCC had a collective agreement with a union representing all employees who were not professional medical staff or managerial level.
The collective agreement included a section containing a list of days that were recognized as paid holidays, along with a statement “and any other day proclaimed as a holiday by the federal, provincial, or municipal government.”
On Sept. 13, 2022, the Prime Minister’s office released a statement announcing that Sept. 19 would be National Day of Mourning (NDM) in Canada, as it was the day of the funeral for Queen Elizabeth II. The statement went on to say that the day would be designated a holiday for the public service of Canada while inviting other employers across the country to recognize the day, although the provinces and territories would determine themselves how to mark the day in their jurisdictions.
The statement was followed up by confirmation that Sept. 19 would be a holiday for federal government employees but not federally regulated employers. The Governor General directed that a proclamation be issued requested that “the people of Canada set aside” the day to honour the late Queen.
The NDM was not a new holiday under a collective agreement, a BC arbitrator ruled.
Provincial day of mourning
The Ontario government stated that it would mark the day as a “provincial day of mourning in lieu of a public holiday,” while the Region of Peel encouraged employees to reflect on the Queen’s life by observing 96 seconds of silence at 1 p.m. on Sept. 19.
An MVLTCC employee and the union both submitted grievances arguing that the NDM on Sept. 19 should be a paid holiday. They asserted that the collective agreement required the MVLTCC to recognize the day as a holiday for all employees in the bargaining unit and provide holiday pay.
The union pointed out that the collective agreement did not expressly say that an additional holiday had to be a statutory holiday, as three holidays listed in the section – Easter Monday, the second Friday in June, and the Civic Holiday – were not recognized as holidays in Ontario or in the Canada Labour Code. It also said that the NDM fit within the definition of a holiday in the federal Bills of Exchange Act and Interpretation Act, which include “a day of mourning appointed by proclamation” in their definitions of a holiday.
The union also argued that the announcements made by the Prime Minister’s office and the Governor General should qualify under a broad and generous interpretation of “proclamation.” Given these announcements and the plain meaning of “proclamation,” the NDM should be a holiday added to the collective agreement’s holiday section, said the union.
The arbitrator noted that the definition in legislation was not determinative of the meaning in a collective agreement, unless the agreement specifically adopted the statutory definition. In addition, the federal and provincial governments could proclaim a one-time holiday, said the arbitrator.
Inclusive language in a collective agreement required a BC employer to add the NDM and the National Day of Truth and Reconciliation to its list of holidays.
Proclamation
The arbitrator found that the plain meaning of “proclamation” was official announcement or formal declaration with a degree of formality beyond a mere announcement. In this case, the federal government used proclamation with regards to honouring the Queen’s memory but did not mention a holiday in conjunction with it. The only reference to holiday was when it was specifically indicated that the NDM would be designated a holiday for the federal public service, said the arbitrator.
The arbitrator determined that the federal government issued a proclamation for the NDM, but not one declaring Sept. 19, 2022, as a holiday.
“In effect, it is my view that the granting of a holiday to federal government employees was not an act of the federal government qua government, but rather an action of the prime minister qua employer,” said the arbitrator.
Since there was no proclamation from the federal, provincial, or municipal governments making the NDM a holiday, then the MVLTCC was not required to make the day a holiday for employees under the collective agreement, said the arbitrator in dismissing the grievance. See Malton Village of the Regional Municipality of Peel v. Canadian Union of Public Employees, Local 966, 2023 CanLII 16682.
An Ontario arbitrator found that a new federal holiday should be recognized by a provincial employer due to its collective agreement language.
