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Most of Canada is on holiday today: Is legislation necessary for a day off to be declared?

The third Monday of February is observed as “Family Day” in the provinces of Alberta, British Columbia (BC), New Brunswick, Ontario, and Saskatchewan; as Louis Riel Day in Manitoba; as Nova Scotia Heritage Day in Nova Scotia; and as Islander Day in Prince Edward Island.

In 2007, Ontario Regulation 547/07, first prescribed “Family Day”, the third Monday in February, as a public holiday under Ontario’s Employment Standards Act, 2000.

On the subject of holidays

More recently, on Feb. 7, 2023, Bill 2, the National Day for Truth and Reconciliation Act, was introduced at first reading before the Legislative Assembly of British Columbia. If passed into law, Bill 2 would recognize the National Day for Truth and Reconciliation as a public holiday and will establish September 30 as a statutory holiday under British Columbia’s Employment Standards Act.

Is it necessary for legislation to be enacted for a holiday to be declared?

Last year, Arbitrator Randall Noonan was asked to decide whether the National Day of Mourning (NDM) for Her Majesty Queen Elizabeth II was a statutory holiday for the purpose of five collective bargaining agreements applicable to private sector construction workers represented by two unions in British Columbia.

While Noonan agreed it was not necessary for legislation to be enacted for a holiday to be “declared,” he found that neither the federal nor provincial governments chose to declare the NDM as a holiday for private sector employees.

The arbitrator contrasted the federal government’s approach to NDM with the National Day of Truth and Reconciliation (NDTR), the latter having involved the enactment of specific legislation to amend the Canada Labour Code and include the NDTR as a holiday.

Moreover, the arbitrator highlighted how in 2022 government specified that the NDM holiday was for the “public service of Canada” and that other employers were merely “invited” to recognize the holiday.

In addition, the arbitrator noted that the BC Premier’s office made it clear that private-sector employers were simply encouraged “to find a way to recognize or reflect on the day in a way that is appropriate for their employees.”

See Construction Labour Relations Association of British Columbia v United Association of Plumbers And Pipefitters, Local 170, 2023 CanLII 3049

Tahir Khorasanee is an associate lawyer at Loopstra Nixon LLP (Management Side Employment, Labour, Human Rights & Commercial Litigation). He can be reached at tkhorasanee@loonix.com.