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Vital Statistics - Holidays. London (City) v. Canadian Union of Public Employees, Local 101
In London (City) v. Canadian Union of Public Employees, Local 101 (Div Court, 2024) the Divisional Court considers a labour JR where the applicant City challenges an arbitrator's finding regarding paid holiday.
Here the court considered a 'paid holiday' provision from the Bills of Exchange Act:[1] The Applicant, the Corporation of the City of London, seeks judicial review of the decision of Arbitrator Michael Bendel of 20 March 2023 arising from a dispute between the City and the Respondent, Canadian Union of Public Employees Local No. 10. In that decision, the Arbitrator determined that 19 September 2022, proclaimed by the Government of Canada as a national day of reflection following the late Queen’s death, was a day of “…general…mourning…throughout Canada” within s. 42(a)(iii) of the Bills of Exchange Act, R.S.C. 1985, c. B-4 (the “BEA”), and therefore was a paid holiday under Article 11.1 of the Collective Agreement between the City and the Union. Therefore, the members of the bargaining unit were entitled to be compensated for the City’s refusal to treat 19 September 2022 as a paid holiday.
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[4] Article 1.11 of the Collective Agreement defined as holidays specific enumerated days, “…and any other day declared by a competent authority to be a holiday within the BEA.
[5] Section 42(a)(iii) of the BEA provides that “…any day appointed by proclamation to be observed as a public holiday, as a day of general prayer or mourning, or as a day of public rejoicing or thanksgiving throughout Canada” shall be observed as holidays or non-juridical days.
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[9] The Grievance hearing took place on 15 December 2022 and 7 February 2023 before Arbitrator Michael Bendel, an Arbitrator appointed by the Ministry of Labour pursuant to s. 48 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, to hear the grievance. The sole issue before the Arbitrator was whether 19 September 2022 was a day declared by a competent authority to be a holiday within the meaning of s. 42(a)(iii) of the BEA.
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[17] The Arbitrator found that the parties, in a clear and unambiguous way, delegated to the Government of Canada the power to add holidays to the Collective Agreement by incorporating a reference to s. 42(a)(iii) of the BEA. Further, the Arbitrator was satisfied that the Proclamation of 19 September 2022 was a day of general mourning throughout Canada within s. 42(a)(iii) of the BEA. To support this conclusion, the Arbitrator relied on the French text of the Proclamation, which he found was “narrower or more specific”. While the English version of the Order in Council and Proclamation lacked the word ‘mourning’, the French language version of both contained the word “deuil” which is also found in the French version of s. 42(a)(iii) of the BEA.
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[47] With respect to the interpretation of the Proclamation and s. 42(a)(iii) of the BEA, I find the Arbitrator’s decision was reasonable. The decision displays an internally coherent and rational chain of analysis that supports the Arbitrator’s conclusion about the interpretation the Proclamation and s. 42(a)(iii). The decision is rational, logical, and intelligible. He applied the correct law.
[48] This is not a case where one version of the Proclamations was ambiguous and the other, not. Rather, both versions were clear. The Arbitrator held that the French and the English versions of the Proclamation and s. 42(a)(iii), while clear, differed from each other and could not be reconciled. Therefore, the more narrow version had to be adopted. Because the French version of the Proclamation and s. 42(a)(iii) included the word “deuil” (meaning “mourning”, in English) but the English version did not include the word “mourning”, the French version was the narrower version of the Proclamation and s. 42(a)(iii) therefore applied.
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