An arbitrator has dismissed grievances filed by two nurses who claimed Norfolk General Hospital in Simcoe, Ont., violated their collective agreement by not granting them two full weeks of vacation during the summer months.
The Ontario Nurses’ Association filed grievances on behalf of two nurses who worked non-standard shift schedules and had portions of their summer 2023 vacation requests denied. The union argued the hospital breached a provision in the local appendix to the collective agreement that addressed summer vacation entitlements.
One nurse worked a “DDNN” schedule consisting of two day shifts, two night shifts, and five days off. She requested vacation for July 28 and 29, August 25, and September 1, 2 and 3. The hospital approved all dates except August 25.
The second nurse worked a “Continental” schedule of 12-hour shifts. Her vacation request was partially denied for nine days spanning June through August.
The union argued Article H-1(g) of the local appendix guaranteed every full-time employee could take 75 hours of paid vacation during summer months annually. The provision stated: “Full-time nurses may take a maximum of two (2) weeks of their vacation entitlement off during the summer months.”
The union contended the word “maximum” referred to the limit of vacation that nurses could most often take during summer from their total annual entitlement, rather than an absolute cap. Union counsel argued the provision should be read in conjunction with the second sentence, which stated that after all full-time nurses had the opportunity to schedule two weeks off, remaining time would be granted by seniority.
The union relied on arbitral authority supporting a contextual approach to interpreting collective agreements, arguing the word “maximum” should be understood within the scheme of the entire agreement.
The employer maintained the provision established a maximum period rather than a minimum guarantee, and that its purpose was to ensure equitable access to summer vacations.
The arbitrator asked the parties for further written submissions on whether the provision could be violated by the employer denying requested vacation days, given that the first sentence appeared to establish a maximum rather than guarantee a minimum.
The arbitrator found no valid reason to give the words anything other than their straightforward meaning. “The word ‘maximum’, used in the first sentence of the provision, cannot be read as meaning ‘minimum’,” the arbitrator stated.
The arbitrator determined the provision meant full-time nurses could opt to take no more than two weeks of vacation entitlement during summer months in the first instance. If the employer could accommodate additional vacation absences after all full-time nurses had that opportunity, those requests would be granted by seniority.
“The first sentence is not a guarantee that every full-time employee who wants two weeks of vacation leave during the summer months will be successful in that regard,” the arbitrator wrote.
The arbitrator found the obvious purpose of the first sentence was to ensure equal access to a basic level of summer vacation regardless of seniority, while the second sentence ensured seniority would govern if additional summer vacation time could be accommodated.
The arbitrator rejected the union’s approach, stating: “There is no justification, in my view, for distorting the plain meaning of the provision in the manner advocated by the union.”
The arbitrator noted that while the scheme of a collective agreement could potentially resolve uncertainty in provisions, it could not be used to create uncertainty in otherwise straightforward language. “I am confident that, on no reading of any of the cases cited, can the ‘scheme’ be used to create uncertainty in an otherwise straightforward and unambiguous provision,” the arbitrator stated.
The arbitrator determined the hospital had not violated Article H-1(g) and dismissed both grievances.
See the original ruling here: Norfolk General Hospital v Ontario Nurses’ Association, 2026 CanLII 29 (ON LA).
