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Author:
Arjun Dhir

Date:
2021.09.08

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THE EMPLOYERS' EDGE

AN OVERVIEW OF CANADA’S NEW STATUTORY HOLIDAY: THE NATIONAL DAY FOR TRUTH AND RECONCILIATION

Practice Areas: Human Resources Support

Earlier this year, the government of Canada officially passed legislation establishing a new federal statutory holiday entitled, The National Day for Truth and Reconciliation to be observed annually on September 30, beginning in 2021.

Background

The formation of this national holiday is in response to the 80th Call to Action in the Truth and Reconciliation Commission report. In a news release, the government of Canada indicated that, “the day has been created to give everyone an opportunity to recognize and commemorate the legacy of residential schools” – which more than 150,000 First Nations, Metis and Inuit children were forced to attend between the 1830s and 1997. This date coincides with Orange Shirt Day, which began in 2013 and involved wearing orange shirts to honour Indigenous children forced to leave their families to attend residential schools.

Which Employees are Impacted by this New Holiday?

Federal Employees

As a federal statutory holiday, September 30 will now be a designated paid holiday for federally-regulated employees, including public and private sector employers who are subject to the Canada Labour Code. Accordingly, this applies to all individuals who work directly for the federal government or in industries relating to: air transport, broadcasting, banking, postal service or rail transport, among various others.

Provincial Employees

The federal government has left it up to the respective provincial and territorial governments to decide whether to follow the federal government’s lead and recognize The National Day for Truth and Reconciliation as a statutory holiday within their jurisdiction.

To date, the response from representatives within the provinces and territories has been varied. However, their respective responses generally fall within two defined categories which will be elaborated on further below:

  1. Mixed or Partial Recognition; or
  2. Will Not Recognize.

1. MIXED OR PARTIAL RECOGNITION

Alberta

The Government of Alberta has recently indicated that they “encourage all Albertans to reflect on the legacy of residential schools” and will lower flags on Alberta government buildings on September 30. However, it is leaving the implementation of the statutory holiday up to the discretion of individual employers in provincially-regulated industries.  The province’s capital city, Edmonton, recently announced that they will recognize September 30 as a paid statutory holiday for all city staff along with employees of the Edmonton Police Service.

British Columbia

The government of British Columbia announced that it would honour the holiday for all public-sector employees, 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.

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. This effectively 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. 

New Brunswick

While New Brunswick Premier Blaine Higgs urged his constituents to use September 30 as a day to reflect and “consider what each of us can do as individuals to advance reconciliation”, he confirmed that it will not enshrined as a statutory holiday in the province. However, the province’s largest city, Moncton, has unanimously voted to make September 30 a municipal holiday for all city employees.  The cities of Saint John and Miramichi have since followed suit.

Newfoundland and Labrador

The government of Newfoundland and Labrador have confirmed that the province will observe the new holiday in an effort to, “honour survivors and raise awareness about the terrible legacy of residential schools in Canada.” In practice this means that as of 2021, all government offices will be closed for the day. 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.

Northwest Territories

Similar to the approach taken by British Columbia and Manitoba, the government of the 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. This move will impact all public servants working in the Northwest Territories, including teachers. 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.

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.

Nunavut 

Nunavut was the final province or territory to indicate how they would observe the holiday within the province. Nunavut’s Minister of Human Resources, David Akeeagok, recently announced that the time between the Federal government’s introduction of the holiday on August 3, 2021 to the actual holiday on September 30, 2021 – was insufficient to allow the territory to complete necessary consultations and amend the applicable existing legislations. As such, only government of Nunavut public servants will be given be entitled to the holiday in 2021. Nonetheless, Akeeagok confirmed that the National Day for Truth and Reconciliation will ultimately be observed as a statutory holiday throughout Nunavut on September 30, 2022.

Prince Edward Island

The Prince Edward Island government recently made big news announcing that not only will the province begin observing the new holiday in 2021, but this coming fall, Premier Dennis King will be introducing an amendment to the province’s Employment Standards Act to officially recognize September 30 as a provincial statutory holiday for all Islanders. Effectively, this means that the new holiday will only affect employees working in provincial government offices and public schools in 2021. However, as early as September 2022, all employees throughout the province will be entitled to the holiday – making PEI the first to do so.

Saskatchewan

The government of Saskatchewan confirmed that they will not be observing the new statutory holiday throughout the province. However, 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.

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. As with many of the foregoing provinces and territories, Yukon did not make mention of amending their employment legislation. As such, private sector employees will likely be excluded from this holiday.

2. WILL NOT RECOGNIZE

Ontario

The government of Ontario recently announced that they will not be recognizing September 30 as a provincial holiday. Nonetheless, Curtis Lindsay, press secretary for Indigenous Affairs Minister Greg Rickford indicated that, “Ontario is working in collaboration with Indigenous partners, survivors and affected families to ensure the respectful commemoration of this day within the province, similar to Remembrance Day”. Additionally, employers should be mindful that they may be required to recognize the holiday if it has been negotiated into collective agreements or employment contracts.

Quebec

In quite possibly the harshest response to the new holiday, Quebec Premier François Legault unequivocally advised reporters that the province has enough statutory holidays and the government is not interested in adding another – no matter the reason.

Conclusion

More than 6000 children are believed to have died while attending the residential schools that functioned throughout Canada for over 150 years. As such, establishing a day to honour and commemorate those who have fallen, as well as survivors and their families, represents an important step for Canada and a vital component of the reconciliation process.

However, many believe that the full effect of this holiday will not be felt due to the provinces’ collective resistance to recognizing September 30 as a statutory holiday within their respective jurisdictions. This has understandably drawn the ire of various Indigenous communities and will likely remain a point of contention in the coming years.

The Lawyers for Employers at CCPartners will continue to monitor any further announcements from the provinces in this regard and will update this article accordingly. If you are unsure about how this new holiday will impact your business, be sure to contact any one of our lawyers for further client-specific advice.

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