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Vital Statistics - Holidays. London Civic Employees Union Local 107 v. Corporation of the City of London et al
In London Civic Employees Union Local 107 v. Corporation of the City of London et al (Div Court, 2024) the Ontario Divisional Court dismissed a JR, this regarding whether "the City of London’s outdoor employees were entitled to a paid holiday on September 19, 2022 ... (t)his was the day set aside to honour the memory of Queen Elizabeth II."
This case illustrates [esp. para 21] the 'tolerated uncertainty' that is allowed under the Vavilov approach to JRs. Here an earlier case [London (City) v. Canadian Union of Public Employees, Local 101, 2024 ONSC 4074] held that an almost identical legal question "interpreting similar wording in a different collective agreement" resulted in an opposite conclusion:[2] The applicant union represents the city’s outside workers. The parties’ collective agreement contains an article listing paid statutory holidays and includes an additional clause for a holiday on “any other day declared by a competent authority to be a holiday within the meaning of the Bills of Exchange Act as amended from time to time.”
[3] On September 13, 2022, the Governor in Council (GIC) issued a proclamation regarding a day to honour the Queen’s memory on September 19, 2022. In the city’s view, the proclamation did not fall within the wording of the Bills of Exchange Act, R.S.C. 1985, c. B-4 (BEA). It therefore did not offer the union’s members a paid holiday. The union filed a grievance.
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[10] The BEA defines “legal holidays or non-juridical days” in relevant part by referring to those “appointed by proclamation.” Paragraph 42(a)(iii) of the BEA provides:42. In all matters relating to bills of exchange, the following and no other days shall be observed as legal holidays or non-juridical days:
(a) in all the provinces,
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(iii) any day appointed by proclamation to be observed as a public holiday, or as a day of general prayer or mourning or day of public rejoicing or thanksgiving, throughout Canada. (emphasis added) [11] The September 13, 2022 proclamation at issue here does not expressly “appoint” a day to be observed as a day of general mourning. It reads in part:Now Know You that We, by and with the advice of Our Privy Council for Canada, do by this Our Proclamation request 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. (emphasis added) [12] The arbitrator examined the French and English versions of the BEA and reasoned that for a day referenced in a proclamation to be a legal holiday for the purposes of the BEA, the GIC must fix or appoint the day. It was not sufficient, in his view, for the proclamation to request or, as he interpreted the French version, “call upon” the people of Canada to set aside a day of mourning. The wording of the proclamation allowed individuals to make their own decisions, which did not provide enough certainty for the computation of time related to payments of bills of exchange.
[13] I find this interpretation to be reasonable. The words used in the BEA and the proclamation are different. The city has provided examples of similar proclamations that “requested” the people of Canada set aside a day to mourn or honour a memory. These included a day to mourn the victims of September 11, 2001, a day to honour the memory of the Queen Mother, and a day to honour the memory of Prince Philip. Other proclamations dating back to the first half of the 20th century used different wording, such as to “appoint “a public holiday to be observed as a general day of mourning” in respect of the death of King George V in 1936. The GIC should be taken to be aware of the BEA. It could have “appointed” the day – and has done so in the past -- but chose to use the more flexible term “request” in this instance.
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Departure from Other Arbitral Award
[20] Finally, the union submits the arbitrator failed to justify his departure from a decision by a different arbitrator interpreting similar wording in a different collective agreement. I disagree. The union relied on a decision by arbitrator Michael Bendel interpreting the collective agreement for the city’s inside workers. Arbitrator Bendel concluded that under that collective agreement, the proclamation fell within the wording of s. 42(a)(iii) of the BEA. This court upheld that conclusion as reasonable on judicial review but remitted the matter to the arbitrator for failure to consider evidence put before him regarding historical collective agreements and proclamations: London (City) v. Canadian Union of Public Employees, Local 101, 2024 ONSC 4074.
[21] The critical difference in that case is that the parties did not raise the key argument about the difference between “request” and “appoint.” Vavilov reminds us that arbitrators and other administrative decision-makers are not bound by internal precedent in the same manner as courts. Some conflicts between administrative decisions are the “price to pay” for independence of decision-making:As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision-making freedom and independence” given to administrative decision-makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law; p. 800 [of Domtar Inc. v. Quebec (commission d’appel en matière de lésions professoinnelles), 1993 CanLII 106 (SCC), [1993] 2 S.C.R. 756]. [22] Reviewing courts should still be concerned with the general consistency of administrative decisions. If an arbitrator departs from longstanding practice or established internal decisions, the departure must be justified: Vavilov, at para. 131 In this case, there was only one other recent decision, not an established precedent. In any event, Arbitrator Anderson explained his departure from Arbitrator Bendel’s decision. Arbitrator Bendel found the proclamation fell within s. 42(a)(iii) in the sense that it referenced a “day of mourning” as required by the BEA. This was in response to the city’s argument that the proclamation referenced a day to “honour the memory” of the Queen and not a “day of mourning” as set out in the BEA. The argument that the GIC “requested” the day be set aside rather than “appointing” a day of mourning was not put to him.
[23] Arbitrator Anderson implicitly accepted Arbitrator Bendel’s conclusion that a “day to honour the memory” was the same as a “day of mourning.” He did not raise any disagreement with this point but reached his decision on an entirely different basis. Similarly, this court only found Arbitrator Bendel’s interpretation of s. 42(a)(iii) to be reasonable on the “day of mourning” issue. In any event, it has remitted the matter to the arbitrator.
[24] The departure from Arbitrator Bendel’s decision was clearly explained. Arbitrator Anderson reached his decision on an argument not put to Arbitrator Bendel. The nature of reasonableness review is that, in most cases, there can be more than one reasonable outcome. Arbitrator Anderson’s conclusion was within a range of possible, acceptable outcomes that was justified in respect of the facts and the law: Vavilov at para. 86. I do not find this case to be of the type referenced in para. 124 of Vavilov where there is only one reasonable interpretation of the collective agreement. As a result, it is not appropriate for the court to intervene. . 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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