GSB# 2022-9441; 2022-9836

UNION# 2022-0999-0017; 2022-0999-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

Robin Lostracco Ontario Public Service Employees Union Senior Grievance Officer

FOR THE EMPLOYER

Lisa Compagnone – Senior Counsel Maria-Kristina Ascenzi – Counsel Treasury Board Secretariat Legal Services Branch

HEARING

May 7, 2024

Decision

1The Union grieves that the Employer has failed to recognize the National Day of Mourning (the “NDM”) as a paid holiday under the applicable Collective Agreements, following the passing of Her late Majesty Queen Elizabeth the Second. The NDM occurred on September 19, 2022.

2The parties proceeded by way of an Agreed Statement of Facts (the “ASF”). The relevant portions of the ASF state as follows:

Agreed Statement of Facts

The Grievances

4. On or around September 21 & 29, 2022, the Union filed grievances 2022-0999-0015 and 2022-0999-0017. They allege the National Day of Mourning (September 19, 2022), which recognized Her Late Majesty Queen Elizabeth the Second’s passing, should have been recognized as a paid holiday under the holiday entitlements set out in the respective collective agreements. The parties’ grievances are found at Tabs C & D.

5. There are many individual grievances that were filed that the parties have agreed are being held in abeyance pending the outcome of the Union grievances.

6. The holiday entitlement under the relevant Unified and Corrections collective agreements currently read as follows:

An employee shall be entitled to the following paid holidays each year:

New Year's Day Remembrance Day Civic Holiday

Easter Monday Boxing Day Thanksgiving Day

Canada Day Good Friday Christmas Day

Labour Day Victoria Day Family Day

Any special holiday as proclaimed by the Governor General or Lieutenant Governor.

7. The holiday language has remained largely unchanged since 1977.

National Day of Mourning

8. On September 8, 2002, Her Majesty Queen Elizabeth the Second passed away.

9. The Prime Minister’s office released a statement in the afternoon of September 13, 2022, which stated, in part:

The Prime Minister, Justin Trudeau, today announced that September 19, 2022, will be a National Day of Mourning in Canada, to mark the passing of Her Majesty Queen Elizabeth II. […]

It will be designated a holiday for the public service of Canada, and other employers across the country are also invited to recognize the National Day of Mourning (TAB E).

10. The Governor General issued an Order in Council on September 13, 2022, which stated:

Her Excellency the Governor General in Council, on the recommendation of the Prime Minister, directs that a proclamation be issued 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 (TAB F)

11. The Proclamation directed by the Governor General 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 was issued on September 13, 2022. (TAB G)

12. On September 13, 2022, the Federal Minister of Labour Mr. Seamus O’Regan, stated on Twitter (now X) that “September 19, 2022, will be a holiday for federal government employees. It will be a day of mourning for the passing of Her Majesty Elizabeth II, Queen of Canada. Federally regulated employers are welcomed to follow suit, but they are not required to do so.” (TAB H).

13. On September 13, 2022, Ontario Premier Doug Ford’s office released a statement to the news media stating that the province would mark the Queen’s funeral on September 19, 2022 “as a provincial Day of Mourning in lieu of a provincial holiday.” The province would be holding a moment of silence at 1:00 p.m. on that day (TAB I).

14. On September 14, 2022, Deputy Minister, Treasury Board Secretariat issued a memo to all OPS staff indicating that “Here in Ontario, the government will be marking September 19, 2022, as a Day of Mourning throughout the Province. The people of Ontario, including the Ontario Public Service, may observe a moment of silence in their workplace, school, or other location at 1:00 p.m. on that day to reflect Her Majesty’s passing.” (TAB J) The memo was further to a memo issued by the Secretary of Cabinet on September 8, 2022 (TAB K).

15. The Queen’s state funeral was held on September 19, 2022, at Westminster Abbey in London.

16. The Employer did not recognize the day as a paid holiday, employees were expected to work their regular schedule.

17. The 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. Nor has it been proclaimed a public holiday under the Ontario Employment Standards Act, 2000.

SUBMISSIONS OF THE UNION

3The parties agree (as per the ASF) that there was a proclamation on September 13, 2022 (the “September 13 proclamation”). The Union argued that the NDM satisfied the definition for a holiday and that the September 13 proclamation proclaimed the NDM to be a special holiday.

4The Union argued that, applying the recognized principles of interpretation (as set out in Ontario Power Generation and Society of Energy Professionals, 2015 CANLII 56079 (ON LA) and Maple Leaf Consumer Foods and United Food and Commercial Workers Canada, Local 175, 2011 CanLII 6860(ON LA)) supports the conclusion the NDM constitutes a special holiday under the applicable Collective Agreements. The Union argued that the NDM satisfied the definitions of a holiday found in Black’s Law Dictionary, the Interpretation Act, R.S.C. 1970, c. I-23 and the Bills of Exchange of Act, R.S.C. 1985, c. B-4. For example, the Union took the Board to the definition of “holiday” and “proclaim” in Black’s Law Dictionary. The Union noted that Black’s Law Dictionary gives a broad meaning to the term “proclaim” and refers to “special holidays” as commemorating historical events. According to the Union, the passing of Queen Elizabeth the Second was one such historical event. Similarly, the Interpretation Act defines a holiday as including “any day appointed by proclamation to be observed as a day of general prayer or mourning”. Finally, the Union noted that the Bills of Exchange Act states that for all matters relating to bills of exchange, “any day appointed by proclamation to be observed as a public holiday, or as a day of general prayer or mourning … throughout Canada” will be observed as a holiday. The Union noted that both the Prime Minister and the Premier declared September 19, 2022 would be a National Day of Mourning.

5According to the Union the term “special holiday” must have a different meaning than a statutory or public holiday. The Union argued that if the parties wanted to limit the types of holidays to only those types of holidays they could have done so. The Union relied on Canadian Union of Public Employees – Local 1750 and The Crown in the Right of Ontario (Workplace Safety and Insurance Board), 2023 CanLII 8788 (ON GSB) (Sheehan) where this Board held that the term “special” included the meaning “designed for a particular purpose or occasion.”

6The Union next argued that the September 13 proclamation, designated September 19, 2022 for the special purpose of mourning the passing of Her Majesty Queen Elizabeth the Second. In other words, according to the Union, the September 13 proclamation proclaimed the NDM as a special holiday. As such, according to the Union, the combined effect of the NDM and the September 13 proclamation met all the criteria of the Collective Agreements to be treated as a holiday once proclaimed by the Governor General.

7The Union also argued that its interpretation of the relevant language was consistent with the principle of interpretation that eligibility for benefits, such as holidays, should be viewed liberally and that any exceptions to eligibility should be narrowly construed. It relied on Construction Labour Relations Association of British Columbia and UA, Local 170, 2023 BCLRV 80 and PRT Growing Services Ltd. and B.C. General Employees’ Union, 2023 CanLII 66800 (BC LA) in support of that position.

8Finally, and as will be set out in greater detail below, the Union also sought to distinguish the decision in Assn. of Law Officers of the Crown and AMAPCEO (National Day for Truth and Reconciliation), 2023 352 L.A.C. (4th) 388 (“Assn. of Law Officers of the Crown”). In that decision, Arbitrator Albertyn interpreted the same collective agreement language as the language at issue in these grievances. However, the Union argued that the Arbitrator in that case was answering a different question and that the decision could therefore be distinguished on that basis.

SUBMISSIONS OF THE EMPLOYER

9The Employer argued that in interpreting the language at issue, the goal is to determine the intention of the parties. The Employer noted that Arbitrator Albertyn took this interpretive approach in Assn. of Law Officers of the Crown. The Employer also noted that the Divisional Court endorsed this approach in Ottawa Police Services Bd. V. Ottawa Police Assn., 2023 ONSC 6225.

10The Employer also argued that the language at issue has already been interpreted in Assn. of Law Officers of the Crown. According to the Employer, there is no reason to depart from that decision. In Assn. of Law Officers of the Crown, Arbitrator Albertyn concluded as follows:

What is manifest in the phrase “an employee shall also be entitled to any special holiday as proclaimed by the Governor or Lieutenant Governor”, is that when a new holiday has become law of the land, either by federal or provincial legislation or executive order, then it is to be included in their collective agreements. That is the plain and ordinary meaning of the provision.”

11The Employer also took the position that definitions drawn from other pieces of legislation are not relevant to the interpretive exercise unless it can be shown that that legislation was in the contemplation of the parties at the time that they agreed to the language. The Employer noted that there was no such evidence before me. As such, whether or not the NDM satisfied the definitions of holidays found in Black’s Law Dictionary, the Interpretation Act, or the Bills of Exchange Act, is irrelevant to the interpretation of the relevant provisions. According to the Employer, this approach is consistent with the approach in Assn. of Law Officers of the Crown and AUPE and AUPE and Covenant Health (Named Holidays), 351 L.A.C. (4th) 328.

12With that interpretation in mind, the Employer argued that none of the relevant facts support a conclusion that the September 13 proclamation established that the NDM was a holiday. Neither the Prime Minister’s statement on September 13, 2022 stating that September 19, 2022 would be a day of mourning, nor the Federal Minister of Labour’s tweet from the same day (both discussed in the ASF above) amounted to a proclamation.

13The Prime Minister’s statement only designated the NDM as a holiday for the public service of Canada. Similarly, the Minister of Labour’s tweet only said that the NDM would be a holiday for the federal public service. It did not indicate that the NDM would be a holiday writ large.

14The Employer argued that both the Prime Minister and the Minister of Labour’s statements, were issued in their roles as employers not in their role as the Government. The Employer argued that when released, the Prime Minister’s statement included a section entitled “Quick Facts”. That section stated that statutory holidays can only be granted through legislation and that the Government of Canada has consulted with the provinces and territories, who will determine an appropriate way to mourn the passing of Her Majesty Queen Elizabeth the Second in their jurisdictions.

15At the provincial level, Ontario Premier Doug Ford also released a statement on September 13 2022, indicating that September 19, 2022 would be a day of mourning in lieu of a provincial holiday. Finally, on September 14, 2022, the Deputy Minister, Treasury Board Secretariat issued a memo stating that September 19, 2022 would be a Day of Mourning and that Ontarians, including members of the Ontario Public Service, could observe a moment of silence. The Employer noted that there was no dispute that the NDM was not considered a holiday in Ontario.

16The Employer also argued that the language in the September 13 proclamation did not proclaim the NDM to be a holiday. Rather, it requested “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”. In light of this conclusion, the Employer noted that the distinction drawn by the Union between a “special holiday” and a “holiday” was not relevant. Regardless of whether the holiday was “special” or not, no holiday was proclaimed by the September 13 proclamation. As such, according to the Employer, the NDM did not meet the requirements under the Collective Agreement to be considered a holiday.

17The Employer argued that the only statements that refer to a holiday are the statements of the Prime Minister and the Ministry of Labour (along with a statement of Chief Human Resources Officer of Canada that is referred to in many of the decisions cited but not included in the ASF). Those statements do not amount to proclamations and were only made in the context of the Federal Government as an employer.

18Based on all of these facts, the Employer argued that the proclamation was a request for a day of mourning, not for a public holiday. The Employer also argued that this conclusion was consistent with the overwhelming majority of cases that have also found that the proclamation did not amount to a proclamation of a holiday.

ANALYSIS

19The issue before me is whether the NDM should have been treated as a “special holiday as proclaimed by the Governor General or Lieutenant General” under the applicable Collective Agreements. Answering that question requires consideration of two sub-issues. First, what does the language in the Collective Agreements mean? Second, does the NDM fall within that meaning.

20I agree with the submissions of the Union that the language should be given its plain and ordinary meaning and that it should be read liberally. This approach has been adopted by a number of arbitrators addressing this issue, most recently by Arbitrator Wilson in OPSEU and Grand River Conservation Authority, 2023 CanLII 40826 (ON LA).

21The provision of the Collective Agreements at issue was recently interpreted by Arbitrator Albertyn. As set out above, in Assn. of Law Officers of the Crown, Arbitrator Albertyn held that the plain and ordinary meaning of the holiday provision was that where a new holiday becomes the “law of the land, either by federal or provincial legislation or executive order, then it is to be included in their collective agreements. That is the plain and ordinary meaning of the provision.”

22In reaching this conclusion, I also note that there is no evidence before me to suggest that the parties’ intended to rely on the meaning of holiday as found in the Interpretation Act or the Bills of Exchange Act. Had the parties intended to rely on the definitions found in that legislation, they could have indicated that intention. For example, in Corporation of the City of London and Canadian Union of Public Employees, Local 101, 2022 CanLII 135041 (ON LA) the parties explicitly referred to the Bills of Exchange Act in the holiday provision of the collective agreement. There is no such reference in the relevant provisions of the Collective Agreements before me. Similarly, in PRT Growing Services Ltd., 2023 CanLII 66800 (BC LA) the arbitrator concluded that the NDM was a holiday under the collective agreement, at least in part because of the definition of a holiday in the Interpretation Act. Again, there is no evidence to support the conclusion that the parties intended to incorporate the definition of “holiday” from the Federal Interpretation Act into the Collective Agreements at issue in this matter. As stated in Assn. of Law Officers of the Crown, there is no statutory reference in the holiday provision of the relevant collective agreements “because the parties never intended to incorporate any statutory reference in that provision. When they want to refer to a statute, they tend to do so expressly.”

23Despite the Union’s arguments to the contrary, there is no reason to depart from the interpretation arrived at in Assn. of Law Officers of the Crown. In that decision, the Arbitrator had to interpret the same language as at issue in this matter. Arbitrator Albertyn indicated, more than once, that the key issue he was tasked with addressing was the proper interpretation of the language at issue in this grievance. At paragraph 7 of Assn. of Law Officers of the Crown, he wrote:

The key issue is the proper interpretation of the words in the holidays’ language of the different collective agreements, which reads: an employee shall also be entitled to any special holiday as proclaimed by the Governor General or Lieutenant Governor.

24Similarly, at paragraph 70, the first paragraph of the analysis section of the decision, once again he wrote:

The question to be answered is, what did the parties intend when they agreed to the language, “any special holiday as proclaimed by the Governor General or Lieutenant Governor”.

25Accordingly, I see no reason to depart from the interpretation in Assn. of Law Officers of the Crown.

26The next question is whether the NDM became the “law of the land, either by federal or provincial legislation or executive order.” In answering this question, the analysis should begin with a review of what was proclaimed with respect to the NDM. In other words, what did the September 13 proclamation actually say. As set out above in the ASF, the Governor General issued an Order in Council on September 13, 2022, which stated:

Her Excellency the Governor General in Council, on the recommendation of the Prime Minister, directs that a proclamation be issued 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.

27There is nothing in the language of the September 13 proclamation that would support the conclusion that September 19, 2022 was a holiday. The word “holiday” is not used anywhere in the September 13 proclamation. A number of recent arbitral decisions have reached the same conclusion when interpreting the September 13 proclamation, including Malton Village of the Regional Municipality of Peel and CUPE, Local 966, 2023 CanLII 16682 (ON LA); Covenant Health (supra); Vancouver Terminal Elevators’ Assn. and Grain Workers’ Union, ILWU, Local 333 (Day of Mourning), 352 L.A.C. (4th) 70; The Canadian Union of Public Employees, Local 38 and The Municipal Corporation of the City of Calgary, 2023 CanLII 99802; and London City Employees Union (CUPE, Local 107) and Corporation of the City of London, 2023 CanLII 100239 (ON LA).

28Nor can the Prime Minister’s statement, or the Minister of Labour’s statement (both also on September 13, 2022), be interpreted as a proclamation that September 19 would be a holiday for employees outside of the federal public service. As stated in Malton Village “not every public utterance by a government official, no matter how highly placed, rises to the level of a proclamation.”

29Both the Prime Minister’s and the Minister of Labour’s statements announced that September 19, 2022 would be a holiday for members of the federal government only. These statements were made by the federal government as an employer not as government creating law. The decisions in Malton Village; Covenant Health; and Corporation of the City of London all reached the same conclusion.

30There is no dispute that the Province of Ontario did not proclaim the NDM to be a provincial holiday. To the contrary, Premier Ford indicated that the September 19, 2022 would be a day of mourning in lieu of a holiday.

31Accordingly, there is no basis to find that the NDM became the “law of the land, either by federal or provincial legislation or executive order” such that it would be found to be a special holiday within the meaning of the Collective Agreements. As such, the grievance is dismissed.