Arbitrator didn't consider intention of parties in interpretation of holiday provision
An Ontario court has overturned an arbitrator’s decision that the National Day of Mourning for Queen Elizabeth the Second should have been a holiday for the Ottawa Police.
The Ottawa Police Services Board (OPSB) has two collective agreements – one for police personnel and one for civilian employees of the Ottawa Police. Both collective agreements had articles listing holidays recognized by the board, for which employees would receive holiday pay and/or time off. The list featured 13 holidays, including one floating day.
Both articles included a statement that “any day proclaimed by the Governor General in Council or the Lieutenant Governor in Council for the Province of Ontario, or the City of Ottawa shall be a statutory holiday.”
On Sept. 13, 2022, the Governor General in Council directed for a proclamation to be issued requesting the people of Canada to set aside Sept. 19 to honour the memory of Queen Elizabeth the Second, who had died on Sept. 8. This was followed by a proclamation published in the Canada Gazette saying the same.
No statutory holiday
The same day, the Prime Minister’s Office issued a news release stating that Sept. 19 would be “designated a holiday for the public service of Canada.” It added that other employers across Canada would be “invited to recognize the National Day of Mourning,” but clarified that federal statutory holidays could only be granted through legislation such as the Canada Labour Code or Holidays Act, which did not happen.
The Ontario provincial government did not make Sept. 19 a holiday under its Employment Standards Act 2000, so the OPSB did not recognize it under either of its collective agreements.
The union filed two grievances, one for each collective agreement, claiming that the OPSB had breached the collective agreements by failing to recognize the National Day of Mourning as a holiday. It argued that the Governor General had proclaimed the day, so it fell within the scope of the holiday articles’ wording.
An arbitrator found that the collective agreements didn’t require a day to be proclaimed as a holiday for it to be made one, as the wording indicated that a holiday could be any day proclaimed by the Governor General. Since the National Day of Mourning on Sept. 19 was proclaimed as such, it should be a holiday under the collective agreements, said the arbitrator in granting retroactive statutory holiday benefits to all union members for the day.
Intention of parties
The arbitrator also found that, had the parties intended for days only to be proclaimed as holidays to be included in the holiday provisions, then they would have included wording that specified it. If this was unfair to the OPSB, it would have to negotiate to change it in the collective bargaining process, the arbitrator said.
The OPSB applied for judicial review, arguing that the arbitrator failed to consider the mutual intention of the parties to the collective agreements and her interpretation led to an absurd result – that any day proclaimed by the Governor General for any reason could be a holiday. The OPSB noted that there were four proclamations in 2021 alone – including a day of mourning for the death of Prince Phillip – that the union did not grieve to be observed as holidays, which indicated their intentions in agreeing to the holiday provisions.
The court noted the principles of collective agreement interpretation, which included giving the language its “plain and ordinary purposive labour relations interpretation” and in a manner “which best preserves the spirit and intent of the collective agreement.” The court found that the arbitrator correctly recognized these principles, but failed to consider the evidence that the union had never previously demanded a holiday under the collective agreement when a proclamation was made.
Unreasonable interpretation of collective agreement
The court agreed with the OPSB that the arbitrator’s interpretation of the collective agreements led to an unreasonable outcome, that any proclamation would entitle employees to an additional paid holiday. This would create “an accumulating and significant expense for which the board, as employer, could not plan or budget,” said the court.
The court noted that the arbitrator recognized the potential unfairness of their decision, saying that the OPSB would have to renegotiate when the time came. However, the arbitrator didn’t properly assess what the parties thought when they entered into the agreements, the court said.
“The approach taken by the arbitrator was to determine the ‘plain and ordinary meaning’ of the word ‘proclaimed,’ without asking whether the parties intended that a holiday would be granted every time a ‘proclamation’ was made for symbolic reasons,” said the court.
The court determined that the arbitrator’s decision allowing the National Day of Mourning on Sept. 19, 2022, to be a holiday under the collective agreements was unreasonable and not keeping with the principles of collective agreement interpretation. The arbitrator’s decision was set aside. See Ottawa Police Services Bd. v. Ottawa Police Assn., 2023 ONSC 6225.
