Ontario, Canada Appellate Court Finds National Day of Mourning to Honour Memory of Queen Elizabeth II Not a Paid Holiday under Relevant Collective Agreements

In Ottawa Police Services Bd. v. Ottawa Police Assn., 2023 ONSC 6225, the Ontario Superior Court of Justice (Divisional Court) (Ont. SCJ (Div. Ct.)) quashed an arbitrator’s decision allowing two grievances that claimed collective agreements had been violated because they did not recognize September 19, 2022 as a paid holiday.  The Governor General “proclaimed” September 19, 2022, a national day of mourning to honour the memory of Her late Majesty Queen Elizabeth the Second, who died on September 8, 2022.  The day was not made a holiday under the Canada Labour Code, the Ontario Employment Standards Act, 2000 or any other legislation, however.


Two collective agreements between the Ottawa Police Services Board (Board) and the Ottawa Police Association (OPA) (one respecting civilian members and the other respecting police personnel) (CAs) provided that, in addition to a list of designated holidays identified in each, any day “proclaimed by the Governor General in Council or the Lieutenant Governor in Council for the Province of Ontario” shall be a statutory holiday for purposes of the CAs.

The OPA filed grievances arguing that, as the day in question had been “proclaimed by the Governor General,” it must be treated as a paid statutory holiday (Grievances).

Arbitrator’s Decision

The arbitrator allowed the Grievances and granted retroactive statutory holiday benefits to all OPA members for September 19, 2022. In so doing, the arbitrator reasoned that, had it been the parties’ intention to have the language apply only to days “proclaimed as a holiday,” the parties would have included such a clarification in the language itself.

Court’s Decision

The Board sought judicial review of the arbitrator’s decision.  The Ont. SCJ (Div. Ct.) quashed the arbitrator’s decision and dismissed the Grievances. 

The court acknowledged that the arbitrator correctly set out the principles of collective agreement interpretation in her decision, including the “general ‘guiding’ principle” that language used in the CA must be interpreted “in a manner that best preserves” its “spirit and intent”; however, the court found that she failed to consider the evidence and the Board’s submissions that the OPA had never previously demanded a holiday under the CAs when other simple proclamations had been made in the past. 

The court considered the arbitrator’s decision “an unreasonable outcome” as it would “create an accumulating and significant expense for which the Board, as employer, could not plan or budget”: whenever a proclamation is made, OPA members would be entitled to an additional paid holiday day in the year of the proclamation and, in some cases, in every year thereafter. 

The court noted that the arbitrator seemed to recognize that her interpretation of the CAs would cause unfairness; however, it found that she did not appear to also see that the parties, and certainly the Board, could not have intended an interpretation that would have such an outcome.

The court determined the arbitrator should have asked if the language in the CAs revealed a “plain and clear intention” that any day that is “proclaimed” would be added to the list of holidays set out in the CAs.  It emphasized that the “critical question,” consistent with the principles of interpretation the parties agreed to apply, is what did the parties intend when they entered into their CAs?  The court found the arbitrator did not ask this question.  It concluded that the arbitrator’s approach “was not in keeping with applicable principles and jurisprudence.” and her decision’s rationale and outcome were unreasonable.

Bottom Line for Employers

Ottawa Police Services Bd. v. Ottawa Police Assn. both reinforces and serves as a reminder of a key principle of collective agreement interpretation, namely that collective agreements must be interpreted in a manner that best preserves their spirit and intent and that does not lead to an unfair or unreasonable outcome.  

While unionized employers should always pay careful attention to the specific language used in proposals tabled during the collective bargaining process, this decision makes clear that even where agreed-upon wording is less than perfect, the “plain and ordinary” meaning of a word or phrase will not always be the end of the story.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.