Case Comment: Workers fight to respect the National Day of Truth and Reconciliation Holiday

In 2021, the Federal government enacted Bill C-5 to create a new federal holiday to be observed on September 30, the National Day for Truth and Reconciliation. The purpose was to respond to the Truth and Reconciliation Commission of Canada’s Call to Action #80 by creating a holiday which seeks to honour First Nations, Inuit and Métis Survivors, honour their families and communities, and to ensure that public commemoration of their history and the legacy of residential schools remains a vital component of the reconciliation process.In 2022, the Ontario government decided that it would not recognize September 30, the National Day for Truth and Reconciliation, as a holiday for provincial public sector workers. The Employer required employees to work on the date and did not issue holiday pay or credits to those who worked. Workers fought back to respect the process of Reconciliation. OPSEU/SEFPO said from the beginning that the OPS Collective Agreement is very clear that “any special holiday proclaimed by the Governor General” is recognized as a holiday, and we would take action to enforce and honour this holiday.The Grievance Settlement Board recently issued two decisions relating to the policy grievances brought by OPSEU/SEFPO, which were litigated together in solidarity with similar grievances from four other unions within the OPS. The Union was successful in enforcing the terms of our Collective Agreement, and the Arbitrator declared that the National Day for Truth and Reconciliation is a holiday under the OPSEU/SEFPO OPS Collective Agreement and should have been granted to OPS workers as a paid holiday in 2022.In 2023 and moving forward, OSPEU/SEFPO members in the OPS will have this day recognized as a holiday. OPSEU/SEFPO and the OPS are currently in the process of negotiating the remedy for the 2022 breach by the Employer.

What is legally notable about the decisions?

Plain and Ordinary Meaning

In a preliminary decision, the Arbitrator stated that “what matters for the determination of the rights of the parties is what that provision of the collective agreement means and how it should properly be interpreted. The starting point for the proper interpretation of the provision is the plain and ordinary meaning of the words chosen by the parties. The words are what matter most.”The Employer defensively asserted that there was a technical legislative distinction between a “Proclamation” by the Governor General and “Royal Assent” of a Bill being passed into law, while OPSEU/SEFPO and the other Unions argued that the Arbitrator should look to basic principles of contract that would determine the clear, mutual intentions of the parties.The Board did not accept the employer’s argument and did not believe that the labour relations representatives who negotiated the Collective Agreement would have made or intended such a technical distinction. The Board applied the plain and ordinary meaning of the words in the collective agreement. Ultimately, this led to a decision that the parties intended “any special holiday as proclaimed by the Governor General or Lieutenant Governor” to mean any new holiday has become the law either by federal or provincial legislation, or by executive order.The goal in any interpretative dispute is to determine the mutual intent of the parties; it is the words of the collective agreement that matter most to the understanding and interpretation of what the parties bargained.This is a significant victory for OPSEU/SEFPO members – one that allows workers in the OPS to use the day to honour the victims and survivors of the residential school system, to remember the children who never came home, and to reflect on a call to redress the ongoing impacts of colonization.https://canlii.ca/t/jz5lt

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