The Ontario Superior Court has upheld an arbitrator’s decision that the City of London was not obligated to grant its outdoor employees a paid holiday on September 19, 2022, the day designated to honour the memory of Queen Elizabeth II.
In a recent ruling, Justice O’Brien of the Divisional Court dismissed an application by the London Civic Employees Union, Local 107, which argued that the city breached the collective agreement by not providing a paid holiday on that day. The court found that the arbitrator’s interpretation of the collective agreement was reasonable and should not be overturned.
Background
The union represents the city’s outside workers. The collective agreement between the union and the city includes a list of paid statutory holidays, as well as an additional clause providing for a paid 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.”
On September 13, 2022, the Governor in Council issued a proclamation requesting that Canadians set aside September 19, 2022, as the day to honour the memory of Queen Elizabeth II, who passed away on September 8, 2022. The proclamation stated: “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.”
The city maintained that the proclamation did not meet the requirements of the Bills of Exchange Act (BEA), and therefore did not trigger the additional paid holiday under the collective agreement. The union filed a grievance, which was heard by arbitrator Ian Anderson.
Arbitrator’s decision
Arbitrator Anderson agreed with the city, concluding that the proclamation did not fall within the wording of the collective agreement because it “requested” Canadians to set aside the day, rather than “appointing” it as required under the BEA. He noted that section 42(a)(iii) of the BEA defines legal holidays as including “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.”
The arbitrator emphasized the importance of the specific language used in both the BEA and the proclamation. He reasoned that for a day to be considered a legal holiday under the BEA, it must be “appointed” by the Governor in Council, not merely “requested.” He stated that the proclamation’s wording allowed individuals to make their own decisions, which did not provide the certainty required for the computation of time related to payments of bills of exchange.
Arbitrator Anderson acknowledged that another arbitrator had reached a different conclusion on similar wording but distinguished his decision by pointing out that the previous case did not address the difference between “request” and “appoint.”
Union’s arguments
The union challenged the arbitrator’s decision, arguing that he erred in his interpretation of the collective agreement and failed to apply the modern principle of interpretation. It contended that the purpose of the proclamation was to encourage Canadians to set aside the day as a day of mourning, effectively fulfilling the BEA’s requirement of an “appointed” day.
The union also pointed to the proclamation’s additional wording: “Of All Which Our Loving Subjects and all others whom these presents may concern are required to take notice and govern themselves accordingly.” It argued that this language imposed an obligation on Canadians to observe the day, aligning with the BEA’s criteria.
Furthermore, the union criticized the arbitrator for not sufficiently considering statements from the Prime Minister and other government officials declaring September 19, 2022, as a national day of mourning.
Court’s analysis
Justice O’Brien found the arbitrator’s interpretation to be reasonable and within a range of acceptable outcomes. She noted that the standard of review is reasonableness, emphasizing that courts should show deference to a labour arbitrator’s expertise in interpreting collective agreements.
The court agreed that the words “request” and “appoint” have different meanings and that the proclamation did not expressly “appoint” the day as required under the BEA. Justice O’Brien stated, “I find this interpretation to be reasonable. The words used in the BEA and the proclamation are different.”
She further noted that the purpose of the BEA is to ensure certainty in the computation of time for the payment of bills of exchange, making precise language essential. The court observed that the Governor in Council could have used stronger language to “appoint” the day but chose to “request” instead. “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,” Justice O’Brien wrote.
Regarding the union’s reliance on the proclamation’s wording to “govern themselves accordingly,” the court found that this did not alter the nature of the request. “The additional wording adds little to the analysis given that it only requires Canadians to govern themselves according to a proclamation that ‘requests’ them to set aside the day,” Justice O’Brien stated.
Contemporaneous statements by government officials
The court also addressed the union’s argument that the arbitrator failed to consider statements by government officials. Justice O’Brien supported the arbitrator’s focus on the actual wording of the proclamation, noting that it was made by the Governor in Council and not by individual government officials.
She observed that the statements did not assist the union’s case. For instance, a statement on the Prime Minister’s website said that September 19, 2022, would be a National Day of Mourning but also that it would be “designated a holiday for the public service of Canada and other employees across the country [were] also invited to recognize the National Day of Mourning.” Similarly, a statement from the Minister of Labour indicated that federally regulated employers were “welcomed to follow suit, but they are not required to do so.”
“Where the public statements described a day of mourning but also stated it would only be designated a holiday for federal government employees, it was open to the arbitrator to conclude they did not assist the union,” Justice O’Brien wrote.
Departure from previous arbitration
The union argued that the arbitrator unjustifiably departed from another arbitrator’s decision involving similar collective agreement language, where the day was deemed to fall under the BEA. Justice O’Brien found that the arbitrator had adequately distinguished his decision.
She explained that the critical difference was that the argument about the distinction between “request” and “appoint” was not raised in the previous arbitration. Moreover, the Supreme Court’s decision in Vavilov indicates that arbitrators are not bound by internal precedent in the same manner as courts. “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,” she noted.
“Arbitrator Anderson explained his departure from Arbitrator Bendel’s decision. Arbitrator Anderson reached his decision on an argument not put to Arbitrator Bendel,” Justice O’Brien wrote. “The nature of reasonableness review is that, in most cases, there can be more than one reasonable outcome.”
The application was dismissed, and the court upheld the arbitrator’s decision that the City of London was not required to grant a paid holiday to its outdoor workers on September 19, 2022. The union was ordered to pay costs of $5,000 to the city, as per the parties’ agreement.
For more information, see London Civic Employees Union Local 107 v. Corporation of the City of London et al, 2024 ONSC 6625 (CanLII).
