In a past focus alert, we discussed the implementation of a new statutory holiday. The National Day for Truth and Reconciliation, which became a holiday for federally regulated employees under the Canada Labour Code (the “Code”) in 2021, is intended to honour First Nations, Inuit and Métis survivors and their families and communities, as well as to ensure that the public commemoration of their history and the legacy of residential schools remains a crucial element of the reconciliation process. It is observed annually on September 30th.
On July 13, 2023, Arbitrator Albertyn released his decision in Association of Law Officers of the Crown (ALOC) v. His Majesty the King as represented by the Treasury Board Secretariat. This case, which came to be as a result of grievances filed by several unions representing employees in Ontario’s public service, involved the interpretation of the unions’ specific collective agreement language in order to determine whether the National Day for Truth and Reconciliation should be considered a holiday for these provincially regulated employees as well.
This arbitration involved five separate trade unions: the Association of Law Officers of the Crown (ALOC), the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO), the Ontario Crown Attorneys’ Association (OCAA), the Ontario Public Service Employees’ Union (OPSEU), and the Professional Engineers Government of Ontario (PEGO). Each of the unions represents public sector employees of the Crown in Right of Ontario (the “Employer”).
With slight variations in the specific wording of the clause, each of the relevant collective agreements contained a holiday provision that referred to the same 12 federal and/or provincial statutory holidays, as well as provided bargaining unit members with an additional entitlement to “any special holiday as proclaimed by the Governor General or Lieutenant Governor”.
On September 20, 2021, the unions were advised that, on September 30, 2021, the National Day for Truth and Reconciliation would be treated as a holiday within the public service. At the same time, they were informed that this was being done on a without precedent and without prejudice basis.
In 2022, the Employer decided not to recognize the National Day for Truth and Reconciliation as a holiday within the public service. In response, the unions each filed a grievance which raised a common question: Is the National Day for Truth and Reconciliation captured within the holiday entitlements set out in each of the relevant collective agreements? In other words, even though Ontario’s public service employees are not entitled to this holiday under the Code, are they nonetheless entitled to it as a result of the particular language of the applicable collective agreements?
In support of their grievances, the unions argued that the National Day for Truth and Reconciliation is a special holiday that was “proclaimed” by the Governor General when, on June 3, 2021, Bill C-5 – being the piece of legislation that that created the National Day for Truth and Reconciliation through amendments to the Code and to various other federal statutes – was given Royal Assent by Chief Justice Richard Wagner, acting as the Governor General. In the unions’ view, this was so because it was on that date that the National Day for Truth and Reconciliation was “declared” or “announced” or “published” as a legal holiday. The unions further argued that the words “Governor General” in the relevant holiday provisions were simply meant to refer to the federal government as distinct from the provincial government, such that “proclaimed by the Governor General” was actually a reference to a legislative act by the federal government.
For its part, the Employer asserted that there had not been a proclamation by the Governor General that would trigger the application of the relevant holiday provisions. In its view, the Governor General giving Royal Assent to a statute was not a “proclamation” or “proclaiming”, terms which it argued had a specific and distinct meaning. Rather, the Employer argued that for the Governor General to proclaim a holiday, he or she had to exercise an executive (and not legislative) function, acting on the authority of the Cabinet of the Government of Canada.
In his decision, Arbitrator Albertyn noted that the question to be answered in this particular case was the following: What did the parties intend when they agreed to the language, “any special holiday as proclaimed by the Governor General or Lieutenant Governor”? As part of that determination, he indicated that that he would have to decide whether there was any sound legal basis for suggesting, as the Employer had, that the parties understood themselves to have agreed that they were not including any holiday which resulted from provincial and/or federal legislation, and that instead only those holidays which resulted from a proclamation issued by the Governor General (or Lieutenant Governor) in Council, acting on the authority of the Cabinet, would become new entitlements under the relevant holiday provisions.
Ultimately, Arbitrator Albertyn found the Employer’s proposition to be “wholly unlikely”. Although he acknowledged that the notion of a difference between Royal Assent and proclamation was interesting, he held that it was far from common knowledge among those responsible for negotiating collective agreements. Not only did he not believe that these individuals would have understood there to be such a difference, but he also did not believe that they would have understood that one type of declaration would create a new holiday entitlement while the other would not. In his view, their focus would not likely have been on the mechanism of promulgation or declaration of the holiday into law, but instead on the outcome.
Arbitrator Albertyn also considered other arbitration awards that had examined what is meant by “proclaimed” and “proclamation”. In particular, he highlighted AUPE and Alberta Health Services (848846), Re (“AUPE”), in which the arbitrator decided that Bill C-5 being given Royal Assent meant that the National Day for Truth and Reconciliation was “proclaimed” “as that word is generally understood in legal parlance”, as well as CUPE 1252 and New Brunswick (Finance and Treasury Board), in which the arbitrator relied on the AUPE decision for the proposition that Royal Assent is the same as proclaiming into law. Arbitrator Albertyn also indicated that he agreed with the arbitrator’s conclusions in CUPE, Local 1750 and Ontario (WSIB) and adopted his reasoning. In that case, Arbitrator Sheehan had interpreted the same language as that at issue and had found that the National Day for Truth and Reconciliation was captured by that language because it had been “proclaimed” by the federal government.
Bearing all of this in mind, Arbitrator Albertyn concluded as follows:
In my view, the specific language used in the collective agreements by the parties to include new holidays created by government does not particularly matter (whether it be “promulgated by the federal or provincial government” or “proclaimed by the Governor General or Lieutenant Governor” or other similar wording), so long as that intention is clear. What is manifest in the phrase, “an employee shall also be entitled to any special holiday as proclaimed by the Governor General or Lieutenant Governor”, is that when a new holiday has become 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.
Accordingly, the grievances were upheld. Arbitrator Albertyn declared that the National Day for Truth and Reconciliation was a paid holiday within each of the holiday provisions in the relevant collective agreements, and that it ought to have been granted as such on September 30, 2022. He referred the matter of remedy back to the parties for resolution.
In Our View
This decision contrasts with one we discussed in an earlier Focus Alert, where the National Day of Mourning for Queen Elizabeth II that was declared on September 19, 2022 was deemed not to have been ”proclaimed” a holiday under somewhat similar collective agreement language. In that case, however, the National Day of Mourning had not been made a holiday through any type of legislative process, and had instead simply been announced in statements made by the Prime Minister and his delegates.