Day of mourning for Queen wasn't paid holiday for London outside workers, appellate court rules

A national day of mourning held following the death of Queen Elizabeth was not a paid holiday for London's outside workers, an Ontario appellate court has ruled.

The decision comes more than two years after the workers' union, The Canadian Union of Public Employees (CUPE) Local 107, filed a grievance on the matter against the city.

The union, which represents more than 500 full-time outside workers, including roadside operations, sewer, and waste disposal, argued the municipality failed to recognize the day as a paid holiday under their collective agreement.

Under the agreement, outside workers who aren't required to work will get paid for New Year's Day, Good Friday, Christmas Day, and several other holidays.

At the heart of the grievance is a clause that the provision include "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."

The union argued that included the day of mourning, held on Sept. 19, 2022. The union filed their grievance on Sept. 22, 2022. 

In October 2023, an Ontario arbitrator sided with the city and denied the grievance, stating the proclamation made by the Governor General didn't fall within the wording of the Bills of Exchange Act, which required a day be "appointed," rather than "requested."

"For a proclamation 'requesting' the 'people of Canada' to 'make' a day of mourning to constitute an exercise of the power to appoint, the Governor in Council would have to be able to delegate it," arbitrator Ian Anderson wrote. "In my view, in the absence of authority to the contrary, this is impermissible."

The union appealed, arguing, among other things, that Anderson erred in his interpretation, and didn't account for statements made by government officials, including Prime Minister Justin Trudeau, that Sept. 19, 2022 would be a national day of mourning.

In a ruling last week, the Ontario Superior Court of Justice Divisional Court upheld Anderson's ruling, dismissing the union's application.

"In this case, the arbitrator's analysis was reasonable. The distinction drawn by the arbitrator between the wording of the BEA and the wording of the proclamation was transparent, intelligible, and justified," a three-justice panel concluded in its Dec. 4 ruling.

"The arbitrator also did not err in his approach to the contemporaneous statements by government officials. The arbitrator declined to rely on the statements first because the proclamation was made by the [Governor in Council] and not by any individual government official," their ruling reads.

"In that respect, he was entitled to focus on the actual wording of the proclamation rather than on various statements, each with their own wording, by different government representatives … In any event, the arbitrator found the statements did not assist the union."

In addition to dismissing the application, the court ruled the union "shall pay costs of $5,000 all-inclusive to the city."

CBC News sought comment from Jamie McBride, CUPE Local 107's president, but received no response before publication.

CUPE Local 101, the union representing the city's inside workers, filed its own grievance on the issue on Sept. 20, 2022. It, however, was successful, with an arbitrator ruling they were satisfied the proclamation fell within the Bills of Exchange Act.

The city argued the union was estopped from grieving because it hadn't also filed grievances for the city's failure to treat the deaths of the Sovereign or other Royal Family members as holidays under previous collective agreements.

In July, an appellate court found the arbitrator's decision unreasonable, as he failed to consider historical collective agreements and proclamations submitted by the city in rendering his decision.

The panel ordered the issue of estoppel be sent back to the same arbitrator, and that he "consider the issue anew."