Friday, 3 April 2015

Employees and The Ontario Retail Business Holidays Act

As a general statement of law, it is illegal for a retail business to be open on a holiday. Of course, there are numerous exemptions to this rule; the most well-known of which being the ‘tourist area’ exemption. What many people may not know, however, is that the legal onus is on the store’s employees to restrain members of the public from buying goods.

Have employees been convicted of allowing the public to shop on a holiday? They have.

The Law

The law that regulates the opening of retail businesses on holidays is the Retail Business Holidays Act, RSO 1990, c R.30. That law defines what constitutes: (a) “retail business” (the selling or offering for sale of goods or services by retail); (b) a “retail business establishment” (the premises where a retail business is carried on); and (c) a “holiday”.

The “holidays” enumerated by that statute are as follows:

  1. New Year’s Day,
  2. Good Friday,
  3. Easter Sunday
  4. Victoria Day,
  5. Canada Day,
  6. Labour Day,
  7. Thanksgiving Day,
  8. Christmas Day, and
  9. any other public holiday declared by proclamation of the Lieutenant Governor to be a holiday for the purposes of the Act. [There are not any.]

One should note that this list is not the same as the list of holidays prescribed by the Ontario Employment Standards Act, 2000; both “Family Day” and Boxing Day are omitted from this list.

Unless exempted from the application of the law, and there are numerous exemptions, section 2 of the Retail Business Holidays Act prescribes the following:

2. (1) No person carrying on a retail business in a retail business establishment shall,

(a) sell or offer for sale any goods or services therein by retail; or

(b) admit members of the public thereto,

on a holiday.

(2) No person employed by or acting on behalf of a person carrying on a retail business in a retail business establishment shall,

(a) sell or offer for sale any goods or services therein by retail; or

(b) admit members of the public thereto,

on a holiday.

Who Was Convicted and Why

In 1996 twenty-five retail employees working at a Hy & Zel’s Supermarket Drug Store were acquitted of working in contravention of the Retail Business Holidays Act: [1996] O.J. No. 1937 (QL) (Ont. C.J. (Prov. Div.)) The judge in that case found that the law contravened the Canadian Charter of Rights and Freedoms guarantees protecting freedom of religion (s. 2(a)), life, liberty and security of the person (s. 7), and equal protection under the law (s. 15(1)). As to whether the legislation was a reasonable limitation of Charter freedoms, he said only that “the Act cannot be saved under s. 1” and provided no explanation or analysis to support that conclusion.

On appeal by the Crown, however, R. v. Hy and Zel's Supermarket Drug Store , 2000 CanLII 22624 (ON SC), the Honourable Justice McCombs saw things differently.

In his reasons for decision, Justice McCombs laid out the following brief history of the Retail Business Holidays Act:

[8] The Act was proclaimed in 1975 to establish “common pause” days for retail workers. It established each Sunday, and a number of other days, as holidays on which retail businesses were prohibited from engaging in the sale of goods or services.

[9] The 1975 Act included a Sabbatarian exemption permitting, in certain circumstances, retail businesses which closed on Saturday, to be open on Sunday. As well, the 1975 Act permitted certain types of businesses to remain open on holidays, subject to conditions.

[10] In 1986, the Supreme Court of Canada, in R. v. Edwards Books, upheld the constitutional validity of the 1975 Act, concluding that, although the Act limited retailers’ religious freedom, the limitation was justified under s. 1 of the Charter. In 1989, the Ontario Court of Appeal upheld the same legislation, which was then under scrutiny for alleged infringement of, among others, the equality provisions of the Charter. Again, the legislation was held to be justified under s. 1: R. v. Paul Magder Furs Ltd.

[11] A succession of amendments to the Act has substantially reduced the number of days when holiday shopping is prohibited. Under the current legislation, Sunday shopping is now permitted, except for Easter Sunday. Under s. 1(1), the number of days meeting the definition of “holiday” has been reduced from sixty to eight. The current holidays are: New Year’s Day; Good Friday; Victoria Day; Canada Day; Labour Day; Thanksgiving Day; Christmas Day; and, Easter Sunday.

In overturning the original trial judge’s decision, Justice McCombs commented as follows:

[29] The removal from the Act of the prohibition against Sunday shopping, with the exception of Easter Sunday, has shifted the main purpose of the legislation from the preservation of weekly common pause days, to the preservation of only a few common pause days. In my view, this shift in purpose does not change the binding nature of the decisions of the appellate courts to which I have referred.

[30] I conclude that the learned trial judge erred in declaring the Retail Business Holidays Act to be unconstitutional and of no force and effect.

[31] The appeal is therefore allowed, the judgment of the learned trial judge set aside, and the respondents are found guilty as charged.

On sentencing the corporations, i.e. the stores, were sentenced to modest fines. The employees, although convicted, only received suspended sentences.

Justice McComb’s decision was further appealed to the Court of Appeal for Ontario. In upholding the convictions (R. v. Hy and Zel's Inc., 2005 CanLII 32194 (ON CA)), that court again agreed that the purpose of the legislation was to provide for a “common pause” for employees; not to reinforce any one particular set of religious values.

Commentary

While the employees in the Hy and Zel’s case only received suspended sentences, the punishment that can be imposed on employees is no joke. Pursuant to subsection 8(3.1) of the Retail Business Holidays Act, the minimum fine for an offence under this Act, other than for a contravention of subsection 2(2), is $500 for a first offence, $2,000 for a second offence and $5,000 for a third or subsequent offence. The maximum fine is prescribed by subsection 8(1) as follows:

Every person who contravenes section 2 or a regulation under section 4 is guilty of an offence and on conviction is liable to a fine of not more than the greater of,

(a) $50,000; or

(b) the gross sales in the retail business establishment on the holiday on which the contravention occurred.

Essentially, what paragraph 8(1)(b) does is allow the government to claw back from the retailer what the retailer received by being open on the holiday. Given the cost of merchandise sold, let alone overhead costs, the fine could be quite significant – especially if the retailer had a good day.

There is a question of fairness, however. Should the onus be on employees to prevent the store from opening, as is prescribed by subsection 2(2)? In every other aspect of employment law the law presumes an imbalance of bargaining positions, such that the rights of the employee are preferred over that of the employer. Retail employees, I would suggest, are among the most vulnerable employees and have the least amount of bargaining power. Why then would this law put the onus on them to prevent the store from opening?

It seems somewhat ironic that the courts would interpret the law as protecting days of “common pause” for employees, while at the same time imposing upon them the duty to ensure that the law is upheld and that they are not exploited by their employers.

Simply stated, the onus imposed on employees by virtue of subsection 2(2) of the Retail Business Holidays Act is wrong; the onus should be on the employer to know and follow the law. The same would be wholly consistent with every other aspect of Ontario employment law.

Takeaways for Employees with Labour Pains

The takeaway for employees who work in the retail sector is that legally you should not be working on statutory holidays. However, this author must concede that the same is much easier for me to say than for you to do.

Charges against employees under this law are rare; however, they can happen. More common, I would suspect, is the reality of employees being fired for refusing to work on a holiday.

Employees should be aware that subsection 73(1) of the Ontario Employment Standards Act, 2000 protects the rights of employees to refuse to work on a “public holiday,” as that term is defined in that law, and any day declared to be a holiday for the purposes of the Retail Business Holidays Act. As mentioned above, and as canvassed more fully in the post Public Holidays under the Ontario Employment Standards Act the list of “public holidays” enumerated in the Employment Standards Act, 2000 is longer than that in the Retail Business Holidays Act. Accordingly, retail employees can legally refuse to work on any holiday. Employees should further be aware that pursuant to paragraph 74(1)(a)(iv) of the Employment Standards Act, 2000 “No employer… shall intimidate, dismiss or otherwise penalize an employee or threaten to do so… because the employee… exercises or attempts to exercise a right under this Act.”

Accordingly, if you are a worker in Ontario and your employer is trying to convince you to work on a holiday, you do have rights. You cannot legally be fired for refusing to work on a holiday and the Ontario Ministry of Labour does have the power to get you your job back, together with lost wages.

If you are a worker in Ontario and have been fired for refusing to work on a holiday, it may be time to speak with an experienced employment lawyer. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

As mentioned above the list of exemptions to the prohibition on opening on holidays is simply too long to repeat in this blog post. If you are a retail employer, it may be prudent to first consider whether an exemption applies to your business.

However, employers would be prudent to note the contradiction between the exemptions provided in the Retail Business Holidays Act and the rights of employees established by subsection 73(1) of the Employment Standards Act, 2000. Although the law may permit your business to open, that does not mean that you can legally require your employees to work on that day. There is a legal contradiction of which employers and businesses must be aware. Further, as mentioned above, paragraph 74(1)(a)(iv) of the Employment Standards Act, 2000 prohibits employers from firing or threatening employees who seek to stand on their rights.

If you are a retail business owner in Ontario and find yourself looking for legal advice on how to approach this set of laws, it is likely prudent to speak with an experienced employment lawyer for businesses. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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