Harold Smith, QC and Chelsea Drodge

Background

On September 29, 2020, the government introduced Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labour Code (National Day for Truth and Reconciliation), to mark and recognize September 30 as the National Day for Truth and Reconciliation, thus making it a federal statutory holiday. Bill C-5 was then adopted by the Standing Committee on Canadian Heritage, without amendment, in November of 2020.

The stated purpose of this Act is to “respond to the Truth and Reconciliation Commission of Canada’s call to action number 80 by creating a holiday called the National Day for Truth and Reconciliation, to honour First Nations, Inuit and Métis Survivors and 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”.¹

The date September 30 was decided as it complements Orange Shirt Day, which is a day to remember the legacy of residential schools. September is symbolic as it has historically been a painful month for Indigenous families and communities because it is the time when children went back to residential schools.

After the discovery of the remains of 215 indigenous children in unmarked graves at a former residential school in Kamloops, British Columbia, in the spring of 2021, the federal government fast-tracked Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labour Code (National Day for Truth and Reconciliation). The legislation received royal assent on June 3, 2021 and came into force two months after that date.

The statutory holiday applies to employees covered under Part III of the Canada Labour Code, as well as federal public sector employees. Part III covers federally regulated private sector workplaces, and most federal crown corporations (e.g. interprovincial and international transportation, banking, telecommunications and broadcasting). It should be noted that this is a small percent of the population and only includes about 6% of the Canadian workforce.

The Government of Canada has no constitutional authority or jurisdiction to impose a statutory holiday for all Canadian employees, as that remains the jurisdiction of provinces and territories. Responsibility for labour matters in Canada is shared between the federal and provincial governments, as laid out in the Constitution Act, 1867. In order to have a national statutory holiday for all working Canadians, provincial and territorial governments would also have to amend their labour legislation and thus requires their cooperation.

Who does this apply to?

Federal employees

The introduction of Bill C-5 and the subsequent new holiday will only impact federally regulated employers. The Canada Labour Code has been amended to add the National Day for Truth and Reconciliation to the definition of “general holiday.” Employees under the Code will be entitled to paid time off for the holiday, the same as holidays such as Christmas Day. Additionally, it is also added to the list of holidays for which an employee is entitled to a paid day off on the day preceding or following it if it falls on a weekend.

While only federal employees automatically get this holiday, provincial employers with unionized workforces should check the specific terms of their collective agreements with respect to paid holidays. Some collective agreements contain provisions that recognize a list of specific days as paid holidays and any other day declared or proclaimed by the federal or provincial governments. Under such provisions, employees may be entitled to a paid holiday for the National Day for Truth and Reconciliation.

Newfoundland and Labrador

On September 9, 2021, the Province of Newfoundland announced that they will join the federal government in recognizing the National Day for Truth and Reconciliation.² The City of St. John’s announced on September 21, 2021 that it will also be observing the national holiday which means that municipal buildings and facilities will be closed and regular services will be suspended on this day.

The news release states that all government offices and entities will be closed for the holiday in an effort to, “honour survivors and raise awareness about the terrible legacy of residential schools in Canada.”  While the government will be observing the National Day for Truth and Reconciliation on September 30, it is not a statutory holiday as they have not made any changes to their Collective Agreements or legislation. Further, the government has indicated that they will review how this day for reflection will be adopted by the public service, as well as province-wide – suggesting that amendments may be proposed in the coming years.

British Columbia

The government of British Columbia announced that it would honour the holiday for all public-sector employees (“public schools… post-secondary institutions, research universities, Crown corporations and B.C. government offices,”), advising these employers to provide the day off to their employees as obliged to in union collective agreements. However, private sector employers under the province’s Employment Standards Act, will not be impacted by this new holiday.³

Manitoba

The government of Manitoba announced that September 30 will not be recognized as a statutory holiday, however, it will be formally recognized as a “day of observance” throughout the province. Similar to Newfoundland, this means that employees at provincial government offices, public schools and regulated child care will be given the day off. However, private sector employers will not be obligated to follow suit.⁴

New Brunswick

While New Brunswick Premier Blaine Higgs confirmed that while the holiday will be observed, it will not be recognized as a statutory holiday in the province. However, the province’s cities, Moncton, Saint John and Miramichi have voted to make September 30 a municipal holiday for all city employees.

Northwest Territories

Northwest Territories announced that the holiday will be observed by employees of both the federal and territorial governments starting this year, and will be observed annually moving forward. However, the province’s employment legislation has not been amended to introduce a new statutory holiday and, as such, private sector employees will not be entitled to it.⁵

Nova Scotia

The government of Nova Scotia confirmed that it will recognize September 30 as an annual provincial holiday beginning in 2021. Accordingly, provincial government offices, public schools and regulated child care will be closed. However, again, private businesses will have the choice to remain open.⁶

Prince Edward Island

The Prince Edward Island government announced that not only will the province begin observing the new holiday in 2021, but Premier Dennis King will be introducing an amendment to have September 30 recognized as a statutory holiday. This means that the new holiday will only affect employees working in provincial government offices and public schools in 2021, but in 2022, all employees throughout the province will be entitled to the holiday.⁷

Saskatchewan

The government of Saskatchewan announced that they will not be observing the new statutory holiday throughout the province. Despite this, the University of Saskatchewan and cities of Saskatoon and Regina have announced that they will recognize September 30 as a paid statutory holiday for all City employees.⁸

Yukon

The government of Yukon announced that it will recognize September 30 as a holiday for all provincial government employees and confirmed that schools will be closed across the territory. Yukon did not make mention of amending their employment legislation and private sector employees will likely be excluded from this holiday.⁹

Alberta

The government of Alberta will lower flags on Alberta government buildings, but is leaving the reorganization of the holiday up to the discretion of individual employers in provincially-regulated industries.¹º

Ontario

The government of Ontario announced that they will not be recognizing September 30 as a provincial holiday, however, alludes to respectful commemoration of this day within the province, similar to Remembrance Day.¹¹

Quebec

Quebec Premier unequivocally reported that the province has enough statutory holidays and the government is not interested in adding another.¹²

Nunavut

The provincial government of Nunavut has yet to release a statement regarding whether it will, or will not recognize the new holiday.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.

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¹ https://parl.ca/DocumentViewer/en/43-2/bill/C-5/royal-assent
² https://www.gov.nl.ca/releases/2021/exec/0909n05/
³ https://www.mapleridgenews.com/news/b-c-public-schools-government-offices-to-close-for-day-of-truth-and-reconciliation/
⁴ https://winnipeg.ctvnews.ca/manitoba-to-recognize-national-day-for-truth-and-reconciliation-1.5572573
⁵ https://www.gov.nt.ca/en/newsroom/nwt-public-service-marks-september-30-national-day-truth-and-reconciliation
⁶ https://novascotia.ca/news/release/?id=20210903008
⁷ https://www.princeedwardisland.ca/en/news/province-recognizes-national-day-of-truth-and-reconciliation
⁸ https://www.cbc.ca/news/canada/saskatchewan/national-day-for-truth-and-reconciliation-stat-holiday-saskatchewan-1.6161855
⁹ https://yukon.ca/en/news/september-30-now-federal-holiday-national-day-truth-and-reconciliation
¹º https://www.aptnnews.ca/national-news/alberta-wont-recognize-national-day-for-truth-and-reconciliation-angering-advocates/
¹¹ https://globalnews.ca/news/8176430/national-day-for-truth-and-reconciliation-ontario/
¹² https://montreal.ctvnews.ca/quebec-premier-rejects-suggestion-for-statutory-holiday-to-honour-indigenous-peoples-1.5479723