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IN THE MATTER OF AN ARBITRATION
THE RAILWAY ASSOCIATION OF CANADA
THE RAILWAY EMPLOYEES’ DEPARTMENT DIVISION NO. 4
RE:GRIEVANCE RELATING TO THE OBSERVANCE OF REMEMBRANCE DAY AS A HOLIDAY IN MANITOBA.
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
P. Cutler and others
APPEARING FOR THE ASSOCIATION:
J. M. Duncan and others
A hearing in this matter was held in Montreal on March 11, 1970
AWARD OF THE ARBITRATOR
In this case, the Union seeks a determination that in the Province of Manitoba, Remembrance Day is more generally recognized as a holiday than is Civic Holiday. The determination of such a question by arbitration is expressly contemplated by article VI of an agreement between the parties made on the 20th of February, 1969. Article VI, insofar as it is material, is as follows:
Article VI - GENERAL HOLIDAYS
Effective January 1, 1969, the General Holidays Agreement of December 16, 1965, shall be amended as follows:
Section 1 is deleted and the following substituted therefore:
1. An employee who qualifies in accordance with Section 2 of this Article, shall be granted a holiday with pay on each of the following general holidays, including a general holiday falling on an employee’s rest day:
New Year’s day Labour Day
Good Friday Thanksgiving Day
Victoria Day Christmas Day
Dominion Day Boxing Day
Atlantic Provinces, Saskatchewan, Alberta and British Columbia
St. Jean Baptiste Day (in substitution for Remembrance Day)
Ontario and Manitoba
Civic Holiday (the first Monday in August – in substitution for Remembrance Day)
If in any province or part thereof a holiday is more generally recognized than any one of the holidays specified above, the signatories hereto will substitute such holiday therefor in that province or part thereof.
If the signatories hereto fail to agree that such holiday is more generally recognized, the dispute will be submitted to arbitration for final decision. When any of the above holidays falls on Sunday or Saturday the day observed by the Federal Government in respect of its employees as the holiday shall be recognized.
The agreement of 1965, referred to in the above article, provided for the granting of holidays with pay on a number of named days, including Remembrance Day, but not including Civic Holiday.
It will be seen that with respect to the Province of Manitoba, the effect of the 1969 agreement is to eliminate Remembrance Day as a holiday, and to add Civic Holiday in substitution for it. The agreement also provides generally for substitution of some more "generally recognized" holiday for any of the holidays granted by the agreement. Surprisingly enough, on the very day on which the agreement was made which provided for the substitution of Civic Holiday for Remembrance Day, the parties agreed to discuss the matter of which of these days was the more generally recognized. The matter was not settled, and ultimately proceeded to arbitration.
Upon the agreement of the parties, this matter was set for hearing on March 11, 1970, and notice of the hearing was sent to the parties on January 28, 1970. At the hearing, counsel for the Union, in opening his case, indicated that he had had difficulty in obtaining statistical proof relating to the issue, but he made reference to The Remembrance Day Act, R.S.M. 1954, c. 226, as amended, and to certain provisions of the agreement between the parties, and he made representations generally on the issue.
Counsel for the Association then made certain representations in reply, and stated certain facts which he considered relevant.
The facts stated were: 1) that the Minister of Labour for Manitoba had granted some 51 permits relating to the performance of work on Remembrance Day, 1969; and 2) that on Civic Holiday, 1969, of two major daily newspapers in Winnipeg, one published a morning edition only, and neither published an evening edition, whereas on Remembrance Day 1969 both newspapers published in the regular way. Counsel for the Union then made certain representations as to the legislation bearing on the issue. Counsel for the Association argued that the question was one of fact, and that no basis had been established for changing the holidays set out in the agreement. Counsel for the Union thereupon requested the arbitrator to "consider calling for" statistics relating to the matter. Counsel were then heard as to this request, which would involve 1) an adjournment of the hearing; and 2) the issuing of a subpoena requiring the production of certain documents.
For a number of reasons, it is my view that the request must be refused. The adjournment, which was essentially for the purpose of preparation, was sought after the matter had been substantially argued. Even had it been sought at the outset of the hearing, however, it would not be allowed as of right. Ample notice having been given, the parties must be prepared to proceed with their cases on the date set, except where there is consent to a delay, or where compelling reasons for granting a delay appear. No such reasons appear in this case. Where counsel experiences difficulty in obtaining the attendance of witnesses or the production of documents he may obtain a subpoena on request (assuming the matter falls within the jurisdiction of a tribunal with authority to issue subpoenas). It was not necessary for counsel to await the day of the hearing to make such a request: it is quite proper to be made ex parte, and such requests are granted as a matter of course where the authority resides in the tribunal. It may be added that in the instant case counsel did not suggest that here was any difficulty in presenting any of the other sorts of proof which might have been material in this matter.
Although it is my view that this is not a proper case for adjournment, it should be said that in any event there appears to be no power in the arbitrator in these proceedings to summon witnesses or require the production of documents. In some jurisdictions there does exist such power: it is set out, for example in section 34 of The Labour Relations Act, R.S.O. 1960, c. 202. That statute does not effect these proceedings, and there is no equivalent power provided by the Industrial Relations and Disputes Investigation Act, S.C. 1948, c. 54. The only reference to arbitration in that statute appears to be in section 19, but there is no specification therein of any powers of an arbitration.
The Act does provide, in section 33 and 34, broad powers which may be exercised by a Board of Conciliation, and, by section 56(5) similar powers are conferred on an industrial Inquiry Commission. I am unable to find, however, an authority for my issuing a summons or subpoena in these proceedings, and I would decline to do so on this ground as well. It may be added that counsel did not indicate where such authority might be found.
It is difficult to see what probative value there would be in the material sought to be produced, namely, a report of the number of permits granted by the Minister of Labour for Manitoba for work Remembrance Day. Even if it could be shown that more of such permits were issued in 1969 than in previous years, this would not establish that Remembrance Day was more generally observed than Civic Holiday. While the statement for counsel for the Association as to the number of permits granted in 1969 was not agreed to (and since no proof was offered, I make no finding on the matter), it may be remarked that the mere number of permits issued supports no significant conclusions whatever.
Subject to my ruling on the request for an adjournment and the issuing of a subpoena – matters which have now been dealt with – the matter was otherwise fully argued, as counsel agreed. The question to be determined in these proceedings is indeed one of fact, and it is simply this: Is Remembrance Day more generally recognized than Civic Holiday as a holiday in Manitoba?
The agreement of the parties had the effect of substituting Civic Holiday for Remembrance Day, and this agreement was made effective as of January 1, 1969. While article VI of the agreement contemplates the possibility of future substitutions of one holiday for another, it is surely upon the party seeking the substitution to show, in the absence of agreement, that the proposed holiday is more generally recognized than one of the existing holidays. The material before me does not permit the conclusion that Remembrance Day is more generally observed in Manitoba than Civic Holiday.
It is true of course that Remembrance Day is recognized as a holiday in Manitoba. Observance of the day by business and industry is generally required by The Remembrance Day Act, above referred to. While that statute would appear not to affect the operation of the railroads, it does indicate that the holiday is recognized in Manitoba as a general matter, and it is such recognition, relative to the recognition of Civic Holiday, which is in issue here. Civic Holiday is also recognized as a holiday in Manitoba, not, generally, by an Act of the Legislature requiring its observance, but rather by municipal enactment, pursuant to enabling legislation. In any event, it is the extent of recognition, and not its legislative sanction, which is in issue.
Both holidays have, no doubt, been recognized for years. Whether or not the substitution by the parties of Civic Holiday for Remembrance Day reflects any change over the years in the degree of recognition afforded to each, it will be necessary, as I have indicated, for a party seeking to replace Civic Holiday by Remembrance Day to adduce evidence to show that the latter is the more generally recognized. It is not necessary to speculate as to the nature of the evidence which might be adduced relative to the issue; that is a matter for the ingenuity of counsel. It is sufficient to say that the material before me does not show that, at any time material to this matter, one of the days in question was "more generally recognized" than the other.
For the foregoing reasons, it must be my conclusion and award that a case has not been made out for the substitution of Remembrance Day for Civic Holiday under article VI of the agreement between the parties.
DATED AT TORONTO, THIS 31st DAY OF MARCH, 1970.
(sgd.) J. F. W. Weatherill