An Ontario arbitrator has found that the "National Day of Mourning" on September 19, 2022 was not a "holiday" within the meaning of the collective agreements in issue as that day was not "proclaimed" to be a holiday by a legislative process.
The Prime Minister declared September 19, 2022 to be a National Day of Mourning to mark the Queen's passing on September 8, 2022. The Office of the Chief Human Resources Officer of the Government of Canada announced that September 19, 2022 would be a "one-time" holiday for persons employed by the Core Public Administration. The federal Minister of Labour issued a statement that "federally regulated employers are welcome to follow suit, but they are not required to do so."
In this arbitration award, Canadian Union of Public Employees and Its Locals 905.17 (Part-Time and Casual) and 905.18 (Full-Time) and Vaughan Public Library Board (National Day of Mourning), the union took the position that the National Day of Mourning fell within the relevant holiday Articles of two collective agreements (for part-time/casual employees and for full-time employees) and should therefore be recognized as a holiday. Those Articles stated that employees would be paid for prescribed holidays as set out in the Articles, as well as "any other day proclaimed by the federal, provincial or municipal governments."
The union argued, among other things, that the federal government had clearly proclaimed the National Day of Mourning as a federal holiday and, as such, employees who fell under the collective agreements were entitled to that holiday. It also argued that the titles of the Articles in question were "Holidays" not "Statutory Holidays" and therefore the holiday did not need to be a "statutory holiday" to fall within the Articles.
The employer argued, among other things, that the contractual meaning of the word "proclaimed" was key to the interpretation of the Articles. It asserted that the term "proclaimed" is linked to the "end" of a legislative process, of which there was none in this instance. For example, the National Day of Mourning was not made a holiday under the Canada Labour Code, the Holidays Act, or any other legislation.
Arbitrator Beatty agreed that this case was one of contract interpretation. He noted that the term "proclaimed" was used only in the Articles being considered and not elsewhere in the collective agreements. The Arbitrator stated that the use of the term "proclaimed" in these Articles was a strong indication that the meaning of the term is linked to the end of a legislative process, an interpretation which is consistent with existing jurisprudence. There was no legislative process related to the National Day of Mourning.
The Arbitrator continued that there was very little evidence that the National Day of Mourning was to be treated as a holiday, nor was it made to be a holiday under any legislation.
As a result, the Arbitrator dismissed the grievance, concluding that the National Day of Mourning did not constitute a holiday under the applicable Articles of the collective agreements.
Takeaways
The holiday provisions of many collective agreements contain language similar to the ones considered in this case; for example, that employees are entitled prescribed holidays plus "any other day proclaimed by the federal, provincial or municipal governments." This award sends a strong signal that the term "proclaimed" will be analyzed through the lens of contractual interpretation. As was found here, the term has a clear meaning in law, which is the "end" of a legislative process – one which is lacking with respect to the National Day of Mourning.
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