Court quashes paid holiday for Ottawa police officers to mark Queen’s death

Canada’s head of state, Queen Elizabeth II died on Sept 8, 2022, at the age of 96.

Published Nov 18, 2023 • Last updated 14 hours ago • 3 minute read

Queen Elizabeth II died on Sept 8, 2022. The Liberal federal government issued a proclamation requesting that the people of Canada set aside Sept. 19, 2022, to honour her memory, but it was not designated a statutory holiday. Photo by Julie Oliver /POSTMEDIA

An appeal court has overturned an arbitrator’s decision to award members of the Ottawa Police Association a paid holiday to mark the death of Queen Elizabeth II.

In a recent decision, a panel of Ontario Divisional Court judges quashed a March decision by arbitrator Kelly Waddingham, who said the Ottawa Police Services Board violated the collective agreement by failing to recognize Canada’s national day of mourning as a paid holiday.

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Waddingham’s ruling followed two grievances launched by the Ottawa Police Association.

The appeal panel, however, said the arbitrator did not correctly apply the legal principles used to interpret a collective agreement.

The panel said the arbitrator failed to ask whether those who signed the collective agreement really meant that a holiday should be granted every time a government “proclamation” was made for symbolic reasons.

Such an interpretation, the panel said, would mean that any proclamation would entitle employees of the Ottawa Police Service to an additional paid holiday — and, sometimes, recurring ones.

“This would create an accumulating and significant expense for which the board, as employer, could not plan or budget,” concluded Superior Court Justice Elizabeth Sheard, writing for the panel.

Canada’s head of state, Queen Elizabeth II died on Sept 8, 2022, at the age of 96. She was the longest-serving monarch in British history.

The Liberal government of Prime Minister Justin Trudeau subsequently issued a proclamation, requesting that the people of Canada set aside Sept. 19, 2022, to honour the memory of the queen.

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The government designated the national day of mourning a holiday for the public service and invited other employers to do the same. It was not a statutory holiday, which can only be granted through legislation.

Most workers in Canada fall under provincial jurisdiction, not federal, and the proclamation forced the provinces to decide whether they would offer their employees a similar holiday on Sept. 19.

Ontario decided not to give workers a holiday, but encouraged them to observe a moment of silence. Quebec, Saskatchewan and Alberta followed suit.

British Columbia, Manitoba, Nova Scotia, Prince Edward Island, Newfoundland and Labrador were among the provinces that opted to grant government workers a public holiday, but most allowed private-sector employers to make their own decisions.

The Ottawa Police Services Board decided not to recognize the national day of mourning as a holiday.

The Ottawa Police Association grieved that decision, arguing that its contract language compelled the board to declare Sept. 19 a statutory holiday. The contract says “any day proclaimed” by the Governor General, Lieutenant Governor or City of Ottawa “shall be a statutory holiday.”

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The board argued it wasn’t enough for a government to simply make a proclamation; it said the day had to be “proclaimed as a holiday” for it to take effect.

The arbitrator concluded a “proclamation” was sufficient, even though three such proclamations had been made in 2021 alone: for the death of Prince Philip; in remembrance of the 2017 Quebec mosque attack; and in recognition of health-care workers during the COVID-19 pandemic.

The board said the arbitrator’s decision created “an absurd result” since it could mean police officers and civilian employees gained multiple new paid holidays every year. It appealed to Divisional Court.

In Divisional Court, lawyers for the police association said such an outcome would be reasonable given the wording of the collective agreement.