Further to our e-Alert of October 15, 2007 entitled "New Statutory Holiday to be Established in Ontario," the Ontario Government has now filed Ontario Regulation 547/07, which establishes a new public holiday, "Family Day," under the Employment Standards Act, 2000 (ESA).

The new holiday is the ninth designated by the ESA. It will fall each year on the third Monday in February, beginning on February 18, 2008.

How Will Your Business Respond to Family Day?

With the first Family Day fast approaching, employers should begin considering how their organization will respond. In particular, employers should begin reviewing existing employment contracts and collective agreements to determine whether they will treat Family Day as an additional holiday for employees.

Many employers already provide employees with more contractual public holiday rights and benefits than required by the ESA minimum standards. For example, a number of employment contracts and collective agreements provide "floater days" in addition to the original eight statutory holidays. Moreover, many employment contracts and collective agreements provide more "public holiday pay" than required by the ESA.

Employers should be aware that under the ESA, if the provisions of an employment contract or collective agreement that directly relate to the same subject matter as an employment standard provide a "greater right or benefit" than those provided by the ESA, the contractual provisions apply and the ESA does not apply.

As a result, where an employer already provides "greater rights or benefits" in its employment contracts or collective agreements with respect to public holidays, the employer may assert that there is no obligation to treat Family Day as an additional holiday, even with its addition to the ESA.

Such was the case in National Steel Car Ltd. and U.S.W.A., Local 7135 (1990), 10 L.A.C. (4th) 353 and Boise Cascade Canada Ltd. [1992], O.E.S.A.D. No. 165. In both decisions, adjudicators held that employers did not have to provide an additional paid holiday following the creation of Boxing Day, on the basis that existing contracts already provided more paid holidays than required by the ESA.

Similarly, in the more recent decisions of Zehrs Markets and U.F.C.W., Local 175 (2002), 107 L.A.C. (4th) 261 (Howe), and Biltrite Industries v. U.S.W.A. [2003], O.L.A.A. No. 772 (Mikus), adjudicators found there is no obligation on an employer to strictly comply with the ESA’s public holiday provisions if the employer already provides employees with a greater "bundle" of holiday rights and benefits than required by the ESA.

In determining whether Family Day should be treated as an additional holiday benefit, employers should conduct a detailed comparison of applicable contractual holiday provisions and the "public holiday" provisions of the ESA. In this respect, employers should conduct a thorough review of employee policies, contracts and collective agreements in order to assess whether they provide a greater benefit than the ESA, even with the addition of the new public holiday.