Canada: Family Day In Ontario - An Update

We have now had two Family Day holidays since the Ontario Government's creation of the ninth paid public holiday under the Employment Standards Act, 2000 ("ESA"). Since then, there have been several arbitration awards regarding whether employers are required to provide Family Day as a paid holiday.

As we noted in our previous Legal Alert on Family Day, in situations where employers are currently providing a "greater right or benefit" to employees, subsection 5(2) of the ESA applies, and provides that:

If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.

Here is how some recent cases have decided the greater right or benefit argument.

The Focus Of The Comparison

One of the union arguments raised in a number of the awards was that the above amended wording of the ESA now required a comparison based on the specific holiday, as opposed to the usual global comparison. The arbitrators, however, have all adopted the approach set out in the Divisional Court's decision of Queen's University v. Fraser1, where the Court explained that one must look at the entirety of the terms in the agreement respecting holidays and not compare each individual item. Accordingly, the general consensus remains that an assessment of whether the employer is providing a greater benefit necessarily involves a consideration of the entire holiday scheme, including such factors as the number of holidays provided, the qualification period, the requirement to work the day before and the day after the holiday, the pay rate for working on the holiday, and any other qualifying condition.

With respect to whether the floater days can be counted in the comparison, the cases confirm that it will depend on as little as where the floater provision is located in the agreement and/or whether the floater days have a "use them or lose them" character. This issue was considered in at least two of the family day awards. In Agropus, Division of Natrel and Teamsters, Local 6472, the collective agreements provided four floater days, in addition to nine holidays. Similarly, the collective agreement at issue in U.S. Steel Canada and USW Loc 87823 had 10 holidays, including one Floating Holiday to be observed within the bi-weekly period in which each employee's birthday actually occurred. In both cases, the union relied on Toronto Zoo and C.U.P.E., Local 16004, where the arbitrator refused to consider two floating days provided for in the collective agreement as part of the holiday benefit being compared. In that case, in concluding that the floating holidays did not relate to the same subject matter as statutory holidays, the arbitrator noted that the two floating days were listed in a separate provision and the days were forfeited if they were not taken within the year allotted. In Agropus and U.S. Steel, however, the arbitrators held that the floating days related to the same subject matter as holiday pay, since the floating days were listed with the other statutory holidays, and there were no "use them or lose them" policies. Accordingly, the collective agreements were held to provide a greater benefit.

Whether Employers Are Required To Consider Employees' Individual Entitlement

Recent decisions have raised the question of whether, in determining greater right or benefit, an adjudicator must look at each employee's entitlement individually. At least one arbitrator had found that the comparison must be made in respect of each individual employee. In Zehrs Markets and U.F.C.W., Local 1755, the arbitrator held the employer will generally not contravene the ESA by applying the articles of the collective agreement rather than the provisions of the ESA. However, he ruled that since the comparison must be made on an individual employee basis, if an employee received less holiday pay under the agreement than he/she would have received under the ESA, the employer was required by the ESA to pay the employee the amount of the shortfall.

In the context of Family Day, a similar approach was taken in at least two awards: Shepherd Village Inc6., and Erie St. Clair7. In Shepherd Village, the collective agreement did provide for the forfeiture of two floater holidays. In that case, the arbitrator held that the forfeited floater days were of no benefit to an employee and meant that the agreement did not provide a greater benefit in respect of the employees who did not take the floater days. Accordingly, he concluded that the grievance was dismissed as it applied to the employees who received a floater holiday. However, he remained seized to deal with any situation where the collective agreement allowed for the forfeiture of the floater days in respect of any employee.

Similarly, the arbitrator in Erie St. Clair found that certain part-time employees under the Sarnia-Lambton collective agreement might not receive a greater benefit under the collective agreement. Although the arbitrator dismissed the grievance, it was subject to the proviso that the award did not deal with whether a part-time employee who would be entitled to greater or equal holiday pay under the ESA over the course of the calendar year enjoyed a greater benefit under the agreement, and he remained seized to deal with such a situation.

In another Zehrs case decided earlier this year,8 the union filed a grievance respecting the employer's refusal to pay holiday pay to part-time employees for the Family Day holiday. In this case, the evidence demonstrated that the holiday provisions of the collective agreement provided a greater benefit than the ESA to the vast majority of employees in the bargaining unit (92% of active employees were better off), but not every individual employee was better off in any given year.

The union took the position that the employer ought to treat Family Day as a paid holiday for all employees, given that the collective agreement was not a "greater right" for all employees. In the alternative, the union was of the view that, because the method used by the employer for applying the holiday pay provisions of the collective agreement resulted in a lesser benefit for approximately 8% of the employees, the employer was in breach of the ESA with respect to these employees, and so was required to remedy the breach in a similar manner as directed by Arbitrator Howe in the 2002 Zehrs case.

Arbitrator Albertyn dismissed the grievance and upheld the collective agreement as a "greater right or benefit". In his view, the "vagaries" of scheduling and availability meant that the 8% did not in fact get paid more than the employment standard, but they were nonetheless entitled to the full holiday pay benefit of the collective agreement. Further, the fact that in a particular period, or on termination, they did not in fact get paid the greater benefit, was not a typical characteristic of the holiday pay term of their employment. Arbitrator Albertyn therefore found that the employees were not entitled to the employment standard since the benefit contained in the collective agreement was what applied and prevailed, as contemplated in section 5(2) of the ESA. The union has applied for judicial review of arbitrator Albertyn's decision.

Whether An Employer Can Require Employees To Take Family Day As An Unpaid Holiday

While there were a number of creative arguments raised in the cases, an interesting issue discussed in Sterling Ford Sales (Ottawa) Inc. and CAW-Canada, Loc 42709 was whether an employer is permitted to force employees to take an additional unpaid holiday on a date which the government has set as a paid holiday. The union in this case argued, among other things, that the employer has an obligation to provide work, or at least pay, to employees, which it could not ignore by deciding to close its business on Family Day. The arbitrator did not accept the union's argument, finding that the collective agreement provision concerning the hours of work to be provided to employees did not constitute a guarantee that they would be permitted to work for pay on each and every day within the normal work week.

It remains to be seen how this issue would be decided where a collective agreement contains a guaranteed pay or guaranteed hours of work clause, or some other restriction in the collective agreement limiting an employer's ability to shut down without paying its employees.


It is clear from the recent decisions that arbitrators are in general agreement that if a collective agreement contains more paid holidays, which are not administered more restrictively, the collective agreement will be held to provide a greater benefit and the ESA provisions will not apply. It remains unclear, however, whether employers are required to consider employees' individual entitlement in determining whether it is providing a greater right or benefit. Hopefully, this issue will be decided by the Divisional Court in its judicial review of the recent Zehrs case.


1. (1985), 51 O.R. (2d) 140

2. (2008), 94 C.L.A.S. 19

3. (2008), 93 C.L.A.S. 53

4. (2001), 102 L.A.C. (4th) 397

5. (2002), 107 L.A.C. 261 (Howe)

6. (2008) 93 CLAS 79

7. (2008), 175 L.A.C. (4th) 298

8. Zehrs Markets and U.F.C.W. (unreported, February 2, 2009) (Albertyn)

9. (2008), 94 C.L.A.S. 338

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions