The Royal Ottawa Health Care Group’s attempt to avoid paying premium rates for two full-time switchboard operators on statutory holidays was rejected by the court, which upheld an arbitrator’s decision that the practice violated the collective agreement.
The ruling clarifies that regularly scheduled full-time employees who would otherwise work on those days are entitled to either take the holiday with pay or receive overtime compensation.
The dispute centred on a clause in the collective agreement that provides premium pay for full-time employees “required to work” on designated holidays. The hospital replaced the two grievors — both switchboard operators — with part-time or casual staff on statutory holidays to sidestep the premium. The union argued that the hospital was ignoring contract language that gives regular full-time employees the option to either take the holiday or work it for additional pay.
The arbitrator found the hospital had breached the agreement. According to the decision, “there is no ‘past practice’ evidence,” meaning the hospital’s conduct did not align with how the collective agreement was being applied across other departments. By contrast, the hospital insisted the language “required to work” had only one meaning: employees are paid the premium rate only if their presence on the holiday is explicitly demanded. Under the hospital’s approach, managers could simply schedule replacements and avoid triggering the premium.
In reviewing the hospital’s challenge, the court concluded the arbitrator’s decision was reasonable. It emphasized the arbitrator’s broad discretion to interpret the contract in its full context, including how the relevant provision was applied to other employees. In all other departments, the same contractual language resulted in two choices: full-timers could decline a holiday shift and receive paid time off, or they could work and receive additional compensation. The switchboard operators were denied that right.
According to the evidence before the arbitrator, elsewhere in the hospital “the full-time employee was entitled to work on the holiday for premium pay.” That practice had been in place for several years, and the union contended it had carried over into the current collective agreement. Although the hospital claimed this was evidence of an inadmissible “past practice,” the arbitrator distinguished it as relevant context, not merely a historical arrangement. “Since the Union has not attempted to adduce extrinsic evidence, or tried to rely upon an estoppel, or rely upon a past practice, I need not deal with any of the other specific case law introduced by the Employer,” the arbitrator wrote.
The hospital advanced a two-pronged argument on judicial review: first, that the arbitrator wrongly relied on practice-based evidence without applying the established legal test for admitting “past practice” into an arbitration; and second, that the collective agreement’s wording was so clear that any contradictory interpretation was unreasonable. The court rejected both points. It held that the arbitrator was permitted to treat the hospital’s widespread holiday scheduling method as part of the collective agreement’s context, pointing to jurisprudence recognizing the range of possible meanings for phrases like “required to work.” The court noted that while some language suggests a strict or mandatory interpretation, it does not preclude a more flexible reading that aligns with how the parties have routinely operated.
In dismissing the hospital’s application, the court stressed that “it was open to the arbitrator to admit contextual evidence of the current practice elsewhere in the hospital.” Labour arbitrators, the court observed, have specialized expertise in interpreting collective agreements, especially in complex workplace settings. The court found the arbitrator’s ruling “transparent, intelligible, and justified” given the contractual wording and the evidence of how that wording was applied to other employees in similar situations.
Further, the court concluded that nothing in the agreement expressly empowered the hospital to exclude full-time employees from holiday shifts if those employees preferred to work—and thereby earn the premium rate. The hospital’s counsel, S.B., initially contended that the arbitrator relied on provisions not raised by the parties, but later conceded during oral arguments that interpreting the entire agreement was within the arbitrator’s purview.
In emphasizing a contextual approach, the arbitrator cited the Supreme Court’s guidance on contractual interpretation, which directs decision-makers to consider the “factual matrix” underlying the disputed provisions. If the language allows for more than one reasonable interpretation, the arbitrator’s analysis of workplace realities can tip the scales in favour of one meaning over another.
The court declined to intervene in the arbitrator’s reasoning, reaffirming that full-time status implies regular scheduling and, by extension, the option to work or take the holiday off. In concluding the matter, the court ordered the hospital to cover the union’s costs of $5,500.
No date for the decision was provided. Both parties were represented by counsel throughout the proceedings, with S.B. appearing for the hospital and C.B. acting for the union. Neither counsel commented on whether the hospital plans to adjust its holiday scheduling practices or consider alternate strategies for shift coverage.
Human resources professionals and employment lawyers will note the significance of this ruling for how “required to work” language is approached in collective agreements. Where the text permits multiple interpretations, evidence of consistent application across different departments may tip the balance. As the court stated, “there may have been more than one acceptable interpretation of the collective agreement open to the arbitrator,” but the chosen interpretation was reasonable and deserved deference.
Although this litigation centred on two switchboard operators, the broader principle underscores the need for employers to demonstrate consistency when interpreting clauses affecting holiday pay. The court’s endorsement of a contextual analysis reinforces that arbitrators can—and often must—look at the bigger picture beyond the bare words of a contract.
The hospital’s attempt to schedule around the premium rate for holidays ultimately failed because the arbitrator’s reading aligned with how the contract had been implemented across the organization. The court’s refusal to overturn that interpretation highlights the risks employers face when deviating from a practice that has been widely adopted.
For more information, see Royal Ottawa Health Care Group v. OPSEU, 2025 ONSC 1337 (CanLII).
