Ottawa police must recognize National Day of Mourning as holiday: arbitrator

Broad language in the Ottawa Police Service’s collective agreements meant that it should have recognized the National Day of Mourning for Queen Elizabeth II as a paid holiday, an arbitrator has ruled.

The Ottawa Police Association (OPA) represents both police personnel and civilian personnel who work for the Ottawa Police Services Board (OPSB). It has a collective agreement for each group.

Both collective agreements contained provisions listing days that were designated as “statutory and declared holidays. The provisions included the statements allowing for the addition of new statutory holidays through “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.”

On Sept. 13, 2022, the Prime Minister’s office issued a news release stating that Sept. 19 would be a National Day of Mourning for Queen Elizabeth II, who had passed away on Sept. 8. The release stated that the day would be designated a holiday for the public service of Canada, while other employers were “invited to recognize” the day.

The release also noted that statutory holidays in Canada could only be granted through legislation and the individual provinces and territories would determine how they would observe the National Day of Mourning.

The same day, the federal Minister of Labour stated that Sept. 19 would be a holiday for federal government employees and federally regulated employers could follow suit but weren’t required to do so.

An Ontario employer had to include the National Day of Mourning as a holiday under its collective agreement that referred a definition in federal legislation.

Proclamation of day to set aside for mourning

The Canada Gazette published a proclamation from the Governor General in Council requesting that “the people of Canada set aside” Sept. 19, 2022, to honour the memory of the late Queen.

The day was not made a holiday under any federal or provincial legislation, and the federal Office of the Chief Human Resources Officer issued a memorandum stating that the Day of Mourning was a “one-time holiday for all persons employed by the core public administration” and was not a designated paid holiday. It was to “administered pursuant to applicable authorities such as collective agreements and terms and conditions of employment.”

The OPSB did not recognize the National Day of Mourning as a holiday, so the OPA filed a grievance claiming that it violated the holiday provision of both collective agreements.

The OPA argued that the holiday provisions were broad enough to include the National Day of Mourning. The language only required that a “day” be “proclaimed” by one of the levels of government to be recognized as a holiday. By not using a more restrictive term such as “statutory” or “public” holiday, the intention was to recognize any days, the union said.

The National Day of Mourning was not a holiday under a BC agreement that required a declaration of a statutory holiday, an arbitrator found.

Non-statutory holidays included

The union pointed to the fact that Easter Monday was not a federal, provincial, or municipal holiday, but it was one of the holidays listed in the collective agreements. This demonstrated an intention to not limit the scope to just statutory holidays, it said.

Since the Governor General in Council issued a proclamation asking Canadians to set aside Sept. 19 as a National Day of Mourning, this met the requirements for recognizing a new holiday in the collective agreements, the union added.

The OPSB disagreed, contending that “proclaimed” had a specific meaning linked to the legislative process. The National Day of Mourning was not proclaimed as a holiday by passing any legislation, so there was no new statutory holiday to be added, it said, adding that the language had to have a clear expression of intent to confer a financial benefit.

The OPSB also pointed out that the OPA did not grieve when it didn’t recognize other proclaimed days as holidays, such as four proclamations in 2021 for the death of Prince Phillip, remembrance of the 2017 Quebec Mosque Attack, recognition of Canadian efforts during the pandemic, and honouring the victims of air disasters.

An Ontario employer didn’t have to add a National Day of Mourning to its list of holidays without an official proclamation of a holiday, an arbitrator found.

Plain, ordinary meaning

The arbitrator noted that the words in a collective agreement must be given their “objective plain and ordinary contextual labour relations meaning” and absent words or phrases cannot be inferred unless they are needed to comply with mandatory legislation.

The arbitrator also noted that the list of holidays in the collective agreements included three days – Easter Monday, Civic Holiday, and a floating day – which were not set out in federal or provincial legislation, so the scope of recognized holidays was not limited to statutory holidays. In addition, the holiday provisions included reference to a day proclaimed by the city, which didn’t have the power to create statutory holidays, said the arbitrator.

The arbitrator agreed with the OPA’s interpretation of the holiday provision language, that the plain meaning was that a “day proclaimed by the Governor General in Council” should be recognized, not just a day proclaimed as a statutory holiday.

“The language of [the collective agreements] does not require that a ‘day’ be ‘proclaimd as a holiday’ in order to fall within the provisions,” said the arbitrator. “It only requires that it be ‘proclaimed’ by the Governor General in Council.”

Some provinces shut down government operations while businesses stayed open on the National Day of Mourning for Queen Elizabeth II.

Past practice not determinative

The arbitrator also found that the OPA’s failure to seek holiday designation for other proclaimed days didn’t mean it couldn’t in this case, noting that “parties often approach contract enforcement in different ways.”

The National Day of Mourning on Sept. 19, 2022, was proclaimed as a day to honour the memory of the late Queen and fell within the meaning of a new holiday in the collective agreements, said the arbitrator, adding that the OPSB must live with the collective agreement wording that it agreed to until the next round of collective bargaining.

The arbitrator allowed the grievance and ordered the OPSB to compensate employees for a new holiday on the National Day of Mourning. See Ottawa Police Association v. Ottawa Police Services Board, 2023 CanLII 25852.