CONTENTS
Tuesday 5 November 1991
Retail Business Establishments Statute Law Amendment Act, 1991, Bill 115 / Loi de 1991 modifiant des lois en ce qui concerne les établissements de commerce de détail, projet de loi 115
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: Cooper, Mike (Kitchener-Wilmot NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Carter, Jenny (Peterborough NDP)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Winninger, David (London South NDP)
Also taking part: Kormos, Peter, (Welland-Thorold NDP)
Clerk: Freedman, Lisa
Staff: Beecroft, Doug, Research Officer, Legislative Research Service
The committee met at 1539 in room 228.
RETAIL BUSINESS ESTABLISHMENTS STATUTE LAW AMENDMENT ACT, 1991 / LOI DE 1991 MODIFIANT DES LOIS EN CE QUI CONCERNE LES ÉTABLISSEMENTS DE COMMERCE DE DÉTAIL
Resuming consideration of Bill 115, An Act to amend the Retail Business Holidays Act and the Employment Standards Act in respect of the opening of retail business establishments and employment in them.
Suite de l'étude du projet de loi 115, Loi modifiant la Loi sur les jours fériés dans le commerce de détail et la Loi sur les normes d'emploi en ce qui concerne l'ouverture des établissements de commerce de détail et l'emploi dans ces établissements.
The Chair: I call this meeting of the standing committee on administration of justice to order. I believe Mr Winninger had the floor, still debating page 13, the government motion.
Section/article 1:
Mr Winninger: Just to continue where I left off, various objections have been raised by the member for Ottawa West regarding the involvement of the Ontario Municipal Board in hearing appeals from the proposed legislation. I was pointing out at the time that the Ontario Municipal Board is well equipped to handle these kinds of appeals due to its expertise and the fact that the process is less costly and less time-consuming than appeals to the court would be.
Mr Chiarelli mentioned that the current chair of the OMB, Mr Kruger, is an experienced bureaucrat. You may recall from yesterday's discussion that Mr Kruger appeared before the standing committee on government agencies last January 22. At that time, he acknowledged that the OMB did have a backlog of appeals, but he was taking positive, affirmative steps to deal with that backlog. Three of the procedures Mr Kruger was implementing were as follows: (1) case management; (2) pre-hearing conferences would be resorted to with greater frequency, and (3) the board was studying the possibility of implementing alternative dispute resolution and mediation techniques as alternatives to formal hearings.
I would just like to conclude my remarks very briefly by indicating the success with which Mr Kruger is currently meeting these objectives. First of all, I have here the 85th annual report of the OMB, covering the fiscal year April 1, 1990, to March 31, 1991. On page 8 of that report, the number and kind of appeals the OMB received in 1991 are set out. I note with interest that in many cases the number of appeals the OMB has before it is down substantially from what it was in the 1989-90 fiscal period. For example, assessment appeals, which comprise a large proportion of appeals heard by the OMB, are down from 731 appeals the year previous to 719 appeals in 1990-91. Similarly, zoning bylaw appeals/approvals are down from 749 appeals in 1989-90 to 694 in this past fiscal year. The same can be said of minor variance appeals, consent appeals, official plan appeals, plans of subdivision and consolidated hearings, all of which are down substantially from the previous year.
To the members on the opposite side who indicate that the OMB is ill-equipped, given its backlog, to handle appeals under this proposed legislation, certainly there is no basis for that.
I would go on to say that in the past fiscal year, the hearings division of the OMB scheduled 2,593 hearings involving 4,091 files, but the number of actual hearings was only 1,962 involving 3,146 files, simply because a number of the hearings resulted either in adjournments or withdrawals. So there is not an unmanageable number of appeals coming before the OMB such that the OMB, with its resources, its expertise and its experience would not be able to deal with them.
It has been noted that the OMB hears a multitude of appeals under at least 75 public acts and, additionally, 100 private acts. So in terms of the percentage of volume of work that would be created by Sunday shopping, the proposed legislation and the appeal route would not constitute a significant number of appeals, considering the vast volume of appeals the OMB deals with in any given fiscal period, everything from the Aggregate Resources Act right down to the Trustee Act and all the letters of the alphabet in between. It has a very wide mandate, and the kind of Sunday shopping appeals that might be expected to flow from the proposed legislation would not be so cumbersome that the OMB could not handle them.
I would also indicate that there are some extremely experienced people on the OMB. As you may know, there are approximately 30 members. These members are largely lawyers, but also chartered accountants, planners, architects and economists. Some of them have as much as 23 years of experience. Here is one even higher, Mr Colbourne, who has served for 31 years. That is just an example of the length of tenure -- 17 years, 23 years, 22 years, 31 years. These are people who bring to their task a long and distinguished period of service. Certainly these are people who are well-equipped to hear the kind of appeals we would expect to flow out of the act, to hear them expeditiously and in a manner that will not create the kinds of delays that might have been experienced by the board in the past.
Mr Kruger also alluded to his plan to use more pre-hearing conferences. As I mentioned yesterday, pre-hearing conferences are a fundamental way of narrowing the issues, perhaps eliminating some of the issues, bringing people together and resolving the issues without having a protracted, formal hearing. This is certainly a way of managing the case load, and Mr Kruger has indicated that he intends to resort more and more to pre-hearing conferences.
It is a pity that the member for Ottawa West cannot be here today because he did spend a lot of time referring to the work his committee -- this committee, actually -- did on alternative dispute resolution and the report of this committee that was published in June 1990 when Mr Chiarelli was Chair. I note with some interest that in its conclusion, the report indicates that alternative dispute resolution is still in its infancy in this province and there is a great deal more work to be done in the area and precisely because alternative dispute resolution is in the early stages of development that the committee considered its study and its report to be only a first step, yet the member for Ottawa West, now sitting on this committee again, asks why we have not put a provision for alternative dispute resolution in this bill. He should be mindful of the fact that his own report indicated this concept is still in its infancy.
Surely it ill behooves Mr Chiarelli to hold up this important piece of legislation merely because he thinks this might be a good test situation for alternative dispute resolution. Mr Kruger has indicated that he wants to implement alternative dispute resolution. There may be nothing preventing that for Mr Kruger, but it would certainly not be in the interests of the Ontario public to hold up this vital piece of legislation to experiment with alternative dispute resolution, however compelling that alternative may be.
One might also ask, is alternative dispute resolution appropriate here as it would be as an alternative to judicial proceedings? Donald Steele, now a justice of the Ontario Court (General Division), said in a paper: "It has been held by the courts that there is no such thing as a lease or an action in that sense before the municipal board. It is an administrative tribunal and not a court. For this reason, there are not really parties to an application nor is there specifically an onus of proof upon any individual on either side."
If you do not have parties in the strict sense of the word, do you really have an appropriate forum to use alternative dispute resolution? I am not convinced one way or the other, but I throw that out for the consideration of this committee. Perhaps this is not the best place to start with alternative dispute resolution. Perhaps there might be more appropriate arenas in which to test it out, as suggested by the fine report tabled by Mr Chiarelli.
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In conclusion, I would suggest that there has to be an appeal route. We cannot simply allow municipalities to be the final arbiter. There has to be some way of ensuring that when a municipality does pass a bylaw permitting Sunday openings there is compliance both with the spirit and letter of the province-wide tourist criteria. What better route to appeal than the OMB, which already exists, which already hears municipal appeals of this nature, which has the staff, the expertise, the training and is an appropriate forum in which to hear such appeals?
In fact, there may be cases where a member of the OMB is going into a particular locality to deal with an assessment appeal or an affordable housing appeal or an appeal from an official plan where the two could be combined. There might be an outstanding appeal from the proposed legislation and it would make perfect sense and be expedient that one person hear both appeals in that situation. The OMB is that flexible that it can do that.
I would suggest then that the OMB is cheaper and faster than the courts and it has the expertise. This three-month time line for the hearing of appeals ensures that they will be dealt with in a timely and an expeditious fashion, and that the OMB will use its best efforts to ensure that this kind of timeliness is observed. With that I will yield the floor.
Mr Poirier: If Guy Lombardo was still alive today, he would gladly play some kind of elevator music to the background of that claim, David.
Mr Mills: You are showing your age, Jean.
Mr Poirier: Yes sir, you are damn right I am showing my age. When you have been a member for seven years, everything you say -- with all due respect to the OMB, it is not quick. It is efficient, I guess, but anybody can be efficient over a hell of a long time. Maybe you are a lawyer. Like I told you before, lawyers are just going to be happier than hell that you are going to send this to the OMB. What they are not going to make with the car insurance thing, they are going to make at the OMB. Thank you NDP, if I were a lawyer, with all due respect.
Do you know what is frustrating about the OMB? You have not been here long enough, but you will find out that it is as bloody slow as you can get, it is already bogged down, and now for the good news: You are going to add to the bogging down. The frustrating part as a member is that you cannot get your little nose in there, you know that, because it is a tribunal. People will come and see you as the MPP: "You're the guys who pushed this on to the OMB. Do something for me; it's getting bogged down," and you will not be able to go there because you are an MPP.
A lot of people do not realize that MPPs cannot get involved with the OMB, but we cannot, believe me. A lot of people do not know that, and you guys can answer your constituents who are going to come and see you and say: "Help me. I've got a delay; I've got cobwebs on my dossier. The archives in Canada want to consider my dossier, it's damn old, it's been in front of the OMB for so long."
You guys are telling me that you are going to make this an express lane at the OMB? What do you think this is, a Mac's Milk of municipal affairs? It is not an express lane and you are going to add on to the bloody load, no matter what you are going to add up to it. I am appalled that you are going to overload the OMB. You should have lightened the load of the OMB, not what is going to happen. Oh, my God. Some more overload with the OMB.
I guess you are in good faith. I do not pretend you are not in good faith, but you just do not know what the hell is happening out there. This is going to create quite a ruckus and, like I told you, it is going to add to the bureaucracy, to the overload of all the systems and it is not going to resolve what you think it is going to resolve. It will not. It will add on to it, David.
I know what you are going to tell me six months or a year from now. "You're right, man" -- you can tell that to me in private -- "this is really bogging things down." The wheels are just not going to turn any more. I do not give a darn what anybody else inside may have told you at the OMB; this just adds on to it. No amount of money that you, as a government, could give to the OMB to add on to its capacity is going to work.
This motion is the best example I could ever use, if I ever wanted to use one example of how a government can grind things down unknowingly. I think you are in good faith -- unknowingly, I say. I cannot imagine that you would have knowingly bogged things down.
Mr Sorbara: Give them a little more credit.
Mr Poirier: Let's give them a little more credit. Unknowingly bog things down. This motion is going to be a monument on how to bog things down in red tape, bureaucracy, delays, frustration, and you will be caught in the middle as an MPP and unable to do a darn thing about it because you cannot go and put your little nose in at the OMB, because the bear trap is going to spring on your nose if you try to go to the OMB with something like that, with what one of your constituents has.
You are going to get a lot of zealots, ayatollahs, who will put their fingers in the OMB pie trying to stop things, for whatever reason. If I were a municipal politician it sure would be interesting to see this. Of course it is a provincial bill; of course it is a provincial motion; of course it is a provincial condition, but you will have succeeded in bogging down mine and your current and future dossiers away from this bill and further into the OMMB -- the OMB. The Ontario Milk Marketing Board and Ontario Municipal Board -- there is one "M" extra here.
Mr Sorbara: They are milking the system.
Mr Poirier: They are milking the system for sure. I know so well what you guys will tell me in private a year from now. "My God, we were in good faith but we had not realized what a hell of a mess we instituted by this one motion."
I want to put that on the record. I know, you got your marching orders, fair enough. I know you are in good faith, but I want this as a hard copy to distribute to you when you will come to see me a year from now with your long face and say, "Hey, wow, did we goof up on this one." I will give this copy to you in private a year from now. I will not embarrass you too much. I like you guys in private, but you are really screwing up with this one, believe me.
The Chair: Further debate on the Liberal motion. Mr Sorbara.
Mr Sorbara: Just to correct you, sir. It is not the Liberal motion, it is the government motion. It is a motion that is probably the single most significant mistake that the government has made since it introduced this bill.
We are moving through to the completion of clause-by-clause consideration. If the government had been listening even up to today, it would be announcing at this point that it was supporting the amendment that is on the table and that we will be proposing towards the end of these hearings to allow the discount drugstore market to continue to survive in Ontario.
We put a leader to the Solicitor General during question period today. He obfuscated, he avoided the issue, he pretended that the problem arose under the Liberal government, and he refused to acknowledge that, lo and behold, he happens to be the minister and he has the power. "The minister could be a hero," to quote the member for Nipigon when he was in opposition. This minister, sitting here, could be a hero with some 3,000 people who are looking to him for a little bit of justice in a very small amendment that will allow for even and fair and just competition.
As we are looking at this OMB amendment, I hope the minister is thinking about stepping out of the room and sitting down with the people from the discount drugstores and their employees to at least discuss the possibility that before we finish we can clean up that little bit of injustice that exists in the bill as it is now presented.
I am here to speak about amendment 13 that is before us. I spoke at some length about this amendment when it was proposed and tabled before the committee. I just want to reiterate now what I said then.
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All of the things Mr Chiarelli said and Mr Poirier has said are accurate reflection of the mischief that this amendment will create. What is worse, sir, is that two things will happen as a result of this amendment. Individuals who are aggrieved, nosy busybodies who do not like the idea that Gord Mills's little tourist shop got an exemption and is going to be open on Sunday, will have the power to harass Gord Mills and his little tourist shop.
Mr Poirier: And they will.
Mr Sorbara: Instead of the decision of the council being the decision that the community should live with, some busybody from down the street will be able to go to the OMB and apply for an appeal, and that appeal has to be heard.
Sure the OMB will try to expedite. Two years down the road maybe there will be a final decision, but do you know what? Gord Mills's little tourist shop is going to be closed by then, because at the profit margins that Gord Mills can make in this economy and in most economies, he does not have the money to pay the lawyers to handle that appeal. Agreed that Mr Mills wants to open his store on Sunday under the narrow exemptions that this government provides, he will not get a chance, because you provide a legal hassle, a little mischievous tool to anyone.
There is not even any qualification. The amendment you are going to pass is, any person who objects. So there is Derek Ferguson, the member for Guelph --
Mr Fletcher: Fletcher. Get it right.
Mr Sorbara: Fletcher. Some day he will make an impact on the Legislature and I will learn his name.
There is Derek Fletcher, the member for Guelph, and he hears about some little newsstand that happened to get an exemption over in Niagara. Do you know what, Mr Chairman? Derek Fletcher and Derek Ferguson can both hassle that storekeeper through months and months of litigation.
There is one more point I want to make, and I hope my friends in the government caucus listen to this. This amendment is terribly unfair and, I would submit to you, violates the Charter of Rights and Freedoms, because it does not give both parties equal access to the system for appeal and the appeal mechanism being proposed here.
On the one hand, if that busybody from Guelph decides that he wants to launch an appeal, a bylaw having been granted, he has every right to do that. It says, "Any person who objects to a bylaw made by a council to allow Sunday openings." Any person can object, can appeal, if the council says yes. But what about the council that says no to Gord Mills's little tourist shop? I tell my friend Mr Mills that this amendment does not give that shopkeeper the same right of appeal to a decision by a council denying the right to operate on Sunday under the tourism exemption.
The New Democratic Party is the party that preaches fairness and equity and equality and justice on all sides, so if you give it to one, you should give it to the other. Why was this drafted like this? I know why it was drafted like this: because the New Democratic Party was a little bit worried about the flak it was getting from the United Food and Commercial Workers International Union. Notice they do not come any more. Pearl MacKay has left us.
Interjection: Yvonne is here.
Mr Sorbara: Yvonne is here, I am sorry. She did not come to all of the hearings.
This amendment happens to be the United Food and Commercial Workers International Union amendment, taken almost word for word. You see, the United Food and Commercial Workers International Union is not interested in giving the shopkeeper the same right of appeal, but surely those members of the government caucus, having been elected under a party banner, have a greater responsibility to think of the public interest. The public interest requires and demands that if you give the right of appeal to the losing party, you would give the same right of appeal to the other party, if the other party loses.
Any person who objects to an opening allowed by a municipal council, and that is every single member of the United Food and Commercial Workers International Union, or any other busybody who is aggrieved at the fact that a storekeeper gets the right to open on Sunday, has the right to appeal, except the shopkeeper. I cannot believe it. I cannot believe that you would not say: "Well, we want to give an equal right of appeal. We believe in fairness and justice."
I would invite a government caucus member to explain that to me. If I could get a reasonable explanation for that, all the work and all the debate that has gone on here would, in some respects, be worthwhile. Tell me, convince me that the storekeeper who does not get a bylaw ought not to have the right of appeal. It does not make sense. It is hurtful. It is harmful. It is unjust. It is inequitable. It would not take too much to add to this amendment a phrase like, "and any retailer who is denied a bylaw by a local council also has the right of appeal."
That does not mean he or she is going to win at the Ontario Municipal Board, it just means that he/she has the same rights that the other side has. It seems fair, it seems just, and I cannot understand why you did not put it in this piece of legislation.
I hope Mr Mills, who is the parliamentary assistant, or the Solicitor General, who should not be here, but should be meeting with the discount drugstore owners, or someone -- I invite anyone in the room except you, Mr Chairman, who has the responsibility of maintaining a neutrality and order here -- will explain to me why this is fair, giving one side the right to appeal, but not the other. It is like saying that if the crown convicts you of a criminal offence you do not have the right to appeal, but if the crown is not successful in the conviction and you are acquitted, then the crown has the right of appeal.
Would that be a fair justice system? You go to court and you win and the crown can appeal, but you go to court and you lose and you cannot appeal. What kind of justice is that? It is not the kind of justice I would be proud of if I were a government member on this committee.
The Chair: Are you finished?
Mr Sorbara: I am done.
Mr Mills: I would like to make a comment to set the record straight just in case the Conflict of Interest Commissioner happens to read Hansard.
Mr Sorbara: You do not have a store?
Mr Mills: Yes. I would not want him to have some sort of conniptions about something that I had not declared. I do not have a store, and your store is merely used in a hypothetical vein. I appreciate that, but I would just like it on the record.
Mr Sorbara: I want to note for the record that notwithstanding my invitation to a government member or the parliamentary assistant or the Solicitor General to explain why this inequity should appear in this amendment, there was no response. Let's vote. I move the question.
The committee divided on Mr Mills's motion, which was agreed to on the following vote:
Ayes -- 5
Carter, Fletcher, Mathyssen, Mills, Morrow.
Nays -- 2
Poirier, Sorbara.
Mr Sorbara: Can we go back to 9?
The Chair: Yes, now we will be going back to 9, which we stood down yesterday.
Mr Carr: Did we stand down 1 and 2?
The Chair: Yes. We just stood down 9 and 10 until Mr Sorbara came back. Yes, 1 and 2 are still stood down.
Mr Sorbara moves that subsection 4(4) of the act, as set out in subsection 1(1) of the bill, be amended by adding after "on" in the third line "or proposing to carry on."
Mr Sorbara: This is an amendment that I think is of a highly technical nature, and yet would add substantively to the bill we are considering. I do not know really how to do this in a way that will be effective. I really beg the attention of the government members on this, because I think there is a possibility that you might be willing to support this amendment.
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Mr Mills: I do not think so.
Mr Sorbara: May I just explain what this amendment will do?
Mr Poirier: Listen, Gord; he has a good point.
Mr Sorbara: The way the bill is now structured, it is necessary that an individual or a corporate entity be carrying on business at the time an application to a council is brought for a tourist exemption.
We heard during our hearings in Peterborough I think one of the most effective submissions I heard during the course of the hearings. It was not politics. It was not involved really in the debate about whether there should be Sunday shopping. In fact, it was totally devoid of the kind of rhetoric that all of us understand in this debate and many of us, including myself, indulge ourselves in as part of the exercise, I guess.
Mr Poirier: It was not politics; it was common sense.
Mr Sorbara: As my friend Mr Poirier says, it was simply common sense. The thrust of the argument goes like this. If an individual is contemplating carrying on a business in a locality that is not designated as a tourist area, it may be crucial to that individual to know whether he or she is going to be able to carry on business on Sunday.
That will have an impact on things like the very decision to enter into a lease or enter into the purchase of the property. It may have something to do with how much rent a storekeeper is willing to pay to rent premises to carry on business. It may have something to do with the way in which he or she designs a marketing strategy. If, for example, that proposed shopkeeper realizes that most of the people come to that locality in the community on Sundays, then he would have to know whether he was going to be the beneficiary of an exemption before he undertook to carry on the business.
Regrettably, and I think mistakenly, this legislation requires that he first open the business and run the business before he can apply for an exemption.
I know that in most cases applications are going to be made by entities that are already carrying on business, there is no doubt about that, but the marketplace is an organic, dynamic kind of entity. It changes. Storekeepers go out of business. New entrepreneurs decide they want to try their hand in the marketplace, and in some instances they will need to know.
The submission we heard from the people from Belleville was indeed much larger, because they were developers. They were going to build an entire shopping block which was designed specifically to cater to the Sunday traffic: the boaters and the tourists who come in the summertime to the community of Belleville.
Mr Poirier: In a tourist area.
Mr Sorbara: In a tourist area. They said to us, "We can't sign leases with our tenants unless we can tell them the ground rules," and to them an important ground rule is whether they are going to be able to open on Sunday. That is going to make a difference as to whether this project goes ahead.
I recall, when we heard those submissions, every one of us on the committee was nodding in agreement. Every one of us realized that in that kind of instance, yes, someone should be able to make an application before he carries on business.
Mr Mills used to sit on a city council. So did the Solicitor General. He will know that sometimes, in an application for a zoning change or an official plan amendment, a transaction is conditional upon receiving the appropriate zoning.
This authority to operate under the tourist exemption is very much like an amendment to a zoning bylaw. If you cannot make an application, if your application is a nullity until you have opened the business, there is no acknowledgement of the way businesses emerge and develop and finally open their doors.
I plead with this committee, not because it will do me or my party any good or there are any politics in this at all. I just plead in this one instance that we set aside what the cabinet submission said and, for our shopkeepers and those entrepreneurs who might be thinking about going into business, use a little bit of common sense here.
It will not be a headline. No one will have his chairmanship of a committee taken away. No one will write about this, except that when we leave here tonight, if we pass this, we will all realize that we have done something right. I direct my comments to the Solicitor General for a moment. I say to him, "Just give them the nod that this is okay." Bob Rae, Chuck Rachlis -- what is his name? -- Ross McClellan, none of them will even know. I am sorry to mention it, but they will not.
I have been in your position. I have sat on a committee as a minister, and when a good amendment was raised in a committee by an opposition member that did not have any politics to do with it and I felt, having consulted with my advisers, that it would just make the bill a little bit better, I have given that nod. Giving that nod will not make very much of an impact for most of the world, but all of us could just use this as a clear example of how we have worked together to make the bill better.
My friend is shaking his head. I do not know if he means that I should stop talking, but I am going to stop talking on this. I have pitched everyone on the committee whom I thought was willing to listen about this. I have talked to Chuck Rachlis about it and he said to me in the hallway, in the basement of this building, "It sounds reasonable to me, Greg."
There are no politics in it. It just allows for the normal municipal approval process to unfold in a way that makes it work. I do not like the tourism exemption. I think it should be broader, but if there is to be a tourism exemption, then in some instances some people will have to make an application before they open the business. It is life and death. That does not mean the council cannot say no. The council can say no and that is fine; that is what the law provides.
Look at just one other little bit of unfairness in this. Take an applicant who has leased a store on a street already designated a tourist area, say Bathurst Street from St Clair to Bloor in Toronto. Under those circumstances, anyone who rented a store in that area, no matter what he was selling, would be the beneficiary of the exemption. So they have the ability to know that before they rent the store.
We are just arguing for those unique situations where the physical building itself is not in a designated tourist area and yet the storekeeper must know whether he can open on Sunday before he signs the lease. I think it is only fair and only reasonable that we do that. No one will criticize any of us for making this small improvement and I plead with the committee members to support it.
Mr Carr: I will be supporting this particular amendment because I suspect that what happens when pieces of legislation are drawn up is that numerous situations can arise that a lot of people have not thought of. I think this may be a classic case of one that was not thought of when it was initially brought up.
The committee has heard about two cases of this kind. There was the chap from Belleville who did an excellent presentation in Peterborough. There was also a group that came before us, I believe in London, looking at the same type of situation in Niagara Falls, where they were proposing to put together a very large complex. One of the questions they were concerned about was whether they would be able to open on Sunday. What they said was that the jobs and investments will depend on whether a particular area gets a tourism exemption. I understand in the case of Niagara Falls the municipality has in the past opted to open and would like to do so in the future. However, we will now have a situation where, as crazy as it sounds, the municipality says, "Yes, it will be a tourist area," but this particular new development will have to go back again before council and open up the same debate.
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The amendment proposes a commonsense approach. If a municipality decides to open, I do not think they should discriminate against groups that may be in the process of building. I think if this amendment does not go through, some of the investment decisions that will be made in just those two areas -- and they were the only two that we heard about, there may be more -- will be on this government's shoulders.
It was similar to where one of the groups said, "We want to be constructive and practical, so we offered to open just prior to Christmas." I believe this is the same type of circumstance. In both Belleville and Niagara Falls they are facing the major problem of cross-border shopping. That is why Niagara Falls has opted to declare itself a tourist area. This amendment will ensure that the Niagara Falls investment can go ahead. They need to know very quickly, because a lot of the investment decisions being made are based on the people who have already committed. They found it very difficult to go to people and say, "Would you like to open a shoe store in the new mall we're thinking of putting together?" because they did not know whether this would pass.
So hopefully some common sense will come into this and this amendment will pass. I hope so, because it would show that input does count, rather than listening to a few selected groups that traditionally have always had their say before committees. It would be interesting to see a couple of private groups listened to. It is something I suspect all of us had considered when it came through. There is no reason we should not proceed with this, so I will be supporting it, Mr Chair.
Mr Mills: Of course, I cannot support this amendment, although I listened intently to what my colleague has said, which in some areas and to some degree I must say makes one think about it. But, having said that, one must understand that what you are proposing is very speculative. What it will encourage is speculation and that speculation would not fly with the intent of this bill.
Mr Sorbara: It will not encourage speculation because it says "proposing to carry on a business."
The Chair: Mr Sorbara, Mr Mills has the floor.
Mr Mills: To further the speculation, it does give a degree of uncertainty, in my opinion. Having sat on a municipal council for a number of years, I can understand that if this amendment was introduced and a council gave the okay to a project which subsequently did not meet what the original plan was, the council would be under tremendous pressure. Such was the case on the deal in Belleville, when there was so much money laid out. How could you not be persuaded by the impact of the amount of money involved to bend a little bit on your stand on the criteria for tourism? I would think that you are very vulnerable to that.
Mr Sorbara: What do you do when somebody violates a zoning bylaw, Gord?
The Chair: Mr Sorbara, you will have your opportunity later.
Mr Mills: To conclude my thoughts, how do we protect the municipal councils when this happens? I can see that we would have to write in some further legislation to protect the councils who are caught in this bind. When you have already given the green light and they go ahead and subsequently do not comply with the intent of the bill, then you are in one dickens of a bind to get out of it, and that is going to cost money. So I think that given the atmosphere of speculation and uncertainty, I cannot support the amendment because it would really be detrimental to the intent of this bill.
Mr Poirier: Mr Chair, can I get the parliamentary assistant to listen to my proposal? I see where he is coming from.
Imagine me, I am a businessman in Belleville. Mr Sorbara is also a businessman in Belleville. I have an existing development, he has got a proposed development. You have sat on a city council, as others have, and we know that a lot of city councils pass a lot of bylaws for a lot of different reasons. People come to council with an existing business, fill out a form saying this is what they want to do, and council passes a bylaw to authorize it, only to find out, upon some information in a brown envelope under the door or through their own inspectors finding out, that the existing business is not what they thought they approved in the bylaw. Council is then faced with wondering what to do and how to react.
You know as well as I do that the members of a lot of municipal councils, even sometimes behind closed doors, scratch their heads and wonder, "What do we do with that?" You and I know that, faced with an existing business, a lot of municipalities tend to shut an eye and let it go through and thus of course create a dangerous precedent. You and I know that some municipalities really hit them over the head with the law, while others choose to turn a blind eye.
Now take the case of a proposed business. The owner comes to the municipality with a written legal document -- not a verbal presentation -- the same type of document I would have to bring if I were an existing business, saying exactly what he will be doing, how, when, where, the five Ws. The only difference is the "when." His date would be different from mine. It is the only darn difference.
I could fool you, the members of the municipal council, and you would then have to worry about what to do with me. He could fool you. But you would have a mandate, as municipal politicians, to follow through, because you could give me an approval, a bylaw for an existing business; you would give him a bylaw for a proposed business. If I defaulted, if I was erroneous, especially on purpose, you would have a legal option to whack me over the head. If he did the same thing with his proposed project, you would have no less a mandate to hit him or her, the only difference being that you might hit him at a different time than you would hit me. Gord, there is no difference.
You have legal recourse because the bylaw you would give me as an existing business or him as a proposed business is based on a legal document, based on a legal document that he and I would have to submit to you, that you would have in your possession, that you would be able to consult. If you noticed something erroneous, you would have legal recourse to whack us over the head.
We know that some municipalities do not do their work. They ignore violations of existing bylaws. It happens all the time in Ontario. Do not come and tell me that you are worried that the municipality might not do it later on. A whole bunch of them are not doing it today. There is no difference, Gord.
For God's sake, in the name of future development in Ontario, in the name of those 3,000 jobs in the large discount pharmacies, you do not want to be part of any amendment involving five words that do not change a darn thing you want to do. It just permits those people with proposed projects to submit to you the same type of legal document submitted by those with existing projects. You will not mess up the responsibility of the local politicians any more or less than you have to do when dealing with existing projects, not a damn bit more.
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How can you say: "No, we're not going to consider your proposed businesses. Existing businesses are creating jobs today, but you are proposing to create jobs in Ontario later on. Just try to lease whatever you build"? Would you want to lease in circumstances where you do not know whether you can open on Sunday or whether you are going to be designated for a tourism exemption? None of you would lease if you did not know what the hell you were getting into and I would not blame you. You have got to be crazy.
With what is happening to Ontario's economy, you cannot take those kinds of chances. You need to know from the project owner, who needs to know from the municipal government, what the chances are of opening next year, six months or 18 months down the road. If he is going to invest, not $3.49 but millions of dollars, he may be crazy, but he is not so crazy as to invest that kind of money if he cannot get the green light on whether the project will be designated touristic. People are not going to lease from him, Gord. You know that.
There is no difference between an existing and a proposed business in this matter, and you darn well know it. If a municipality fails to deal with businesses which break the law, it makes no difference it is an existing business which breaks the law now and is not dealt with now, or whether it is a proposed business which breaks the law six months from now and is not dealt with six months from now. In both cases, the same legal documents mandate the municipality to hit business over the head, whether now or later. And you know it.
This does not change anything you want to do with your law.
Mr Sorbara: I am afraid we are losing this one. I know the ones we were going to lose right from the beginning. The fix was in. We were not going to get economic development as a criteria, we were not going to get expansion of parameters, but I thought we were going to win this one. I really thought we were going to win it. I thought we would convince you.
Mr Poirier: It makes so much sense, damn it.
Mr Sorbara: The reasons that my friend the member for Durham East gave are so devoid of rationality, are so lacking in substance as to be an embarrassment to Parliament or to one of its committees. We are not here to make life easy for municipal councillors. We get elected because there are difficult decisions to be made about the way in which our society runs. There is no speculation involved here.
The amendment says that someone proposing to carry on a business has to go to the council and say, "I propose to carry on the business of selling hot dogs and hamburgers or whatever to sailors or whomever." He has been a municipal councillor. He knows that the granting of a bylaw will have all sorts of conditions attached. He also knows that when an existing business gets an exemption, that does not mean that a business that does not sell rugs today could not sell rugs tomorrow, even if you did not contemplate that. Sometimes you have to enforce your bylaws. That is what we are elected for.
I really thought we were going to win this one. It is the one I wanted to win because I am a lawyer and I have some small sense of how businesses are seeded and germinate, grow and develop. I guess I believed the Premier when he said, "We want to do those things which will allow business to begin to thrive in Ontario once again."
This amendment is so minor, so devoid of politics, so inconsequential to whether you get elected next time or you do not get elected. It is common sense brought to us by people of the province who said, "We welcome you to carry on your debate on Sunday shopping. We bring you an amendment that is eminently reasonable and allows business to carry on in a normal way."
I thought we were going to win this one. I thought I had the ability to make arguments, both in this room and in the corridors of power, with Chuck Rachlis, the Solicitor General, his counsel and the members of this committee and, here and there, to try to take the politics out of it.
I think I would have traded something for it, in fact. I would have said, "Okay, we'll ease up a little bit." I felt that strongly about it. I am so bloody naïve in this business still. I believe that people will come here and make fair and reasonable decisions and will not be totally in the grip of one leader or one job or one assignment. We will see about that when we vote on this.
Let's have a recorded vote. Are any of the NDP members going to leave the room so we can win this? You will not be voting against it. I invite you to do it now.
The committee divided on Mr Sorbara's motion, which was negatived on the following vote:
Ayes -- 3
Carr, Poirier, Sorbara.
Nays -- 6
Carter, Fletcher, Mathyssen, Mills, Morrow, Winninger.
The Chair: Mr Sorbara moves a 10-minute adjournment.
Motion negatived.
The Chair: Let's move on to the Liberal motion on page 10.
Mr Sorbara moves that section 4 of the act, as set out in subsection 1(1) of the bill, be amended by adding the following subsection:
"(5.1) The council of a district, metropolitan or regional municipality and the council of the county of Oxford may also consider and pass a bylaw under subsection (1) on its own initiative."
Mr Sorbara: There is a defect in this bill. The defect is this: The bill only allows applications to come before council that arise from businesses or from an association of one or more persons carrying on a retail business that is like a shopping district. I believe that it would improve this bill if the council itself, notwithstanding that there are no active applications, be able to identify a tourist area and, without an application arising by a business or by a group of businesses, that the council have the authority to pass a bylaw on its own initiative. That is what the amendment stands for.
Mr Carr: I wanted to say very briefly that I will be supporting this motion. On the one hand, the government of the day is saying it is going to let municipalities make the decisions; on the other hand, it wants to involve some other people in the process.
If a municipality is going to make a decision one way or the other, I think it would help the process and speed it up a little bit if it is allowed to do that. This particular motion is one that I think will add to it, so I will be supporting it.
The Chair: Seeing no further debate, all those in favour --
Mr Sorbara: A 20-minute bell please. If we cannot get a 10-minute adjournment, we will have a 20-minute bell.
Mr Fletcher: What time do we come back?
The Chair: One minute to 5.
The committee recessed at 1639.
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The Chair: I call this meeting back to order. On the Liberal motion, page 10: All those in favour?
Mr Poirier: A recorded vote.
The committee divided on Mr Sorbara's motion, which was negatived on the following vote:
Ayes -- 3
Carr, Poirier, Sorbara.
Nays -- 6
Carter, Fletcher, Mathyssen, Mills, Morrow, Winninger.
The Chair: We will now go to the Liberal motion on page 12 which was stood down yesterday.
Mr Sorbara moves that subsection 4(7) of the act, as set out in subsection 1(1) of the bill, be struck out.
Mr Sorbara: Just like the poor Atlanta Braves, struck out. Just to explain the purpose of the motion, I will read subsection 4(7) to you. It says, "The council is not required to pass the bylaw even if the tourism criteria are met." What a silly little piece of nonsense that is. That means that Gord Mills in his little shop could not apply before he opened up the store, when he was proposing to open up a store, and we have just dealt with that, regrettably. So now he opens up the store and the council says to him: "Don't worry, open up your business. You meet the tourist criteria. Come to us; you'll get the bylaw." He knows he meets the tourist criteria because the store down the street, which is selling the very same things on Sunday, is a tourist shop, and he is just opening up in competition.
He knows he meets the criteria. His council knows he meets the criteria. They go to the council and they make the arguments. Every councillor in the municipality says, "Yes, you've met the criteria." Then the mayor, or whoever it is who calls the vote at the city council, says, "All those in favour of this bylaw?" and no one puts up his or her hand. Then the clerk says, "All those opposed to the bylaw?" and everyone puts up their hands, and he says: "What happened?" Why suddenly did I lose? I met the tourist criteria."
We have in this law an absolutely arbitrary authority of the municipal council to refuse, notwithstanding that the tourist criteria are met. Honest to God, my friends, I do not understand that. I do not contemplate why you would want to put that arbitrary power in the hands of a municipal council.
Do you know what? Here again I refer back to the amendment on the appeal to the Ontario Municipal Board. This poor sucker has not even the right to appeal to the OMB. If the bylaw were passed, some aggrieved party like the member for Welland-Thorold who wants all the stores to close could appeal.
In my example this shopkeeper has met the tourist criteria. He only sells tourist goods. That is it; that is all. He has a competitor and he thinks he can enter the market. He makes the arguments; the arguments are successful. Everyone agrees that the tourist criteria are met. And you are saying in this bill that the council can just say no. Is that not a recipe for fairness? Is that not the way we want to do business?
It is like setting out the provisions to get a building permit. You have met all the requirements. You have the architect to draw the blueprints; they have been approved by engineers. The zoning bylaw allows you to build the building. You go to the council and say: "Here it all is. It's all there before you. I've done all the work. The engineers are ready." Can the council say, "Well, sorry, you can't build it; no building permit"? "Well, why?" "Oh, we don't know why, just no. We have the authority to just say no."
Do you really want that in this bill? Do you really want shopkeepers not to have any certainty about whether or not they are going to get a bylaw? Do you want that? Is that what you really want? Do you think that is going to be fair?
Imagine the situation of a shopkeeper who hires a lawyer to make an application for the granting of a bylaw for a tourism exemption. The shopkeeper will say to the lawyer, "Do you think I'm going to be able to get this bylaw to allow me to open on Sunday?"
The lawyer is going to have to say two things: "I believe you meet all the tourist criteria as set out in the regulations. Your clientele is basically coming over on Sunday from Buffalo or from Tonawanda to Niagara-on-the-Lake to go to the theatre and to do a little shopping, and you sell the kind of handicrafts that appeal to tourists, so you meet those criteria. You're even in a kind of historic building. So you've met all the criteria. But you know what?" the lawyer will say to his client. "I have no idea whether or not you're going to get a bylaw," because the law will say, unless we change this, the council is not required to pass the bylaw, even if the tourism criteria are met.
Mr Mills: Common sense.
Mr Sorbara: On what basis does the council make a decision then? How they feel that night? Whether or not Gerald Vandezande is in the room? Whether or not they are the victims of some lobbying from the United Food and Commercial Workers Union? On what criteria? There are no criteria in the law. They can just say no. Maybe that storekeeper has not voted for the right mayoralty candidate.
Mr Mills: Oh, come on.
Mr Sorbara: Listen, I say to my friend from Durham East, there are no criteria. You are giving the council the authority to say no without any basis in law or fact at all. That is arbitrary and that is unfair. You cannot pass it like this, Gord. You need some criteria to say, "Yes, you've dealt with that."
You say that a special committee is going to develop tourism criteria. That is okay; that is right. So long as you have a tourism exemption, you need those kinds of criteria, but surely to God you need criteria as well to say no if you have met the tourism criteria as set out in the regulations.
Will someone here, perhaps the member for Welland-Thorold, express to me, make the arguments that this is fair, that this is just?
Mr Mills: I will.
Mr Sorbara: I am looking forward to hearing that, because the last time you tried to do it I think you embarrassed us all. I really do.
Mr Mills: Oh, come on. That is your opinion.
Mr Sorbara: It is my opinion.
Mr Winninger: He did not embarrass me at all.
Mr Sorbara: He embarrassed me. I do not have a set of criteria upon which the local council should base a decision to say no, notwithstanding that the tourism criteria are met. You are not proposing to put it in. So why do you want to give them the absolute authority to say no?
If you say to your children, "Look, so long as you've got your homework done, and so long as you've cleaned up your room, and so long as you've done your chores outside, you can go out to a movie tonight," and then, after they have done all that, you say, "Yes, but you still can't go to the movie tonight," what are the children going to say?
This is an arbitrary authority in the hands of councils on a very delicate subject, and I think it is absolutely shocking that, notwithstanding all the hurdles you have put in the way of a shopkeeper who wants to open on Sunday, you would none the less still have a provision in the act which allows the council to say no without reasons.
I appeal to the member for Welland-Thorold, who is a lawyer, and from all accounts a rather good lawyer. He will know that under our laws, courts are required to give reasons for their decisions. It is a primary precept of administrative law. The reason that courts and administrative tribunals are allowed to give reasons is so that the applicant can understand the reason the state ruled against him or her. My friend from Welland-Thorold knows that. Certainly the member for London South, who is a lawyer as well, knows that. It is now contrary to our basic and fundamental law to make an arbitrary decision and to render a decision without reasons. Read the case books. The case books in our courts say that you have to give reasons, because that is fairness and justice. It is a basic principle of fairness in our law.
You are just about to pass a law that says you do not need any reason at all. You can meet the tourism criteria and we can say no. We can say: "Away with you, out -- no bylaw, no right of appeal, no nothing. That was a very good argument, counsel. We acknowledge that you've met all the criteria. You're a tourist shop; your only customers are tourists. They come to Niagara-on-the-Lake to shop in your store on Sunday. But you know what? You're out of luck." How in the world can you justify that?
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Once again I plead with you, particularly in view of the fact that you have put in the right to appeal on the part of a person who is angry about the passage of a bylaw to remove this section. I would argue that it is unfair, that it is unjust, that it is inappropriate and that it violates the fundamental law of this land. It is inappropriate to allow a quasi-judicial body, whether that is the Workers' Compensation Board or the Ontario Municipal Board or a city council, to make a decision without giving reasons. Here you invite them and you authorize them to do just that. This provision will not stand up in a court of law and it ought not to stand up in the Parliament that makes those laws which govern those courts. I plead with you to pass this amendment and strike this section.
Mr Carr: I will be supporting this. It is basically one word that sums this up: fairness. For a party that has always talked about fairness, it seems to me that the only reason it talks about fairness is when that serves its own interests, and they use the word not in the true sense of it, but when it means the party's position. This is the one that would make it so that a particular -- if you read it, the council is not required to pass a bylaw even if the tourism criteria are met.
During the other period they talked about going to the Ontario Municipal Board, because they wanted to make sure that the decisions were open and upfront and aboveboard. I do not know how to paraphrase the member for London South, but he talked about wanting to have that process. Here you are now saying, "But if it is something that the council does not even want to consider, they don't have to put it on."
It is a case of fairness. Do not ever use the word "fairness" in talking about this piece of legislation if you are not prepared to pass this particular motion. I will be supporting it. I hope the members will. I am looking for some indication: Yes or no, Gord. No, I do not think so, but those are my comments.
Mr Mills: When I lived up in that wonderful city of Barrie north of here and represented those wonderful people on that wonderful council, we had a motto on the council: "The city is the people." That is really what this amendment is not about. The member opposite spoke about this not meaning fairness. This amendment does not mean fairness at all.
I can recall -- we were on that committee -- just an incident that speaks very much to this government bill in so far as that the council is not required to pass the bylaw even if the tourism criteria are met. We had, in hearings here in Toronto, a number of store owners from the Beaches. They were absolutely adamant that they wanted the Beaches to be a tourist area, open willy-nilly. Then on the other side of the coin we had the residents of the Beaches come here and speak about the congestion of the traffic in the Beaches area on Sunday, the difficulty they had getting into their homes, the parking, the types of people who came in there who disrupted their lives, the parks -- they could not get to the parks.
Mr Sorbara: Then put those criteria in the law, Gord.
Mr Mills: This is the very essence of what we as a government are saying. The council is not there to serve one business alone. It is there to serve all the people it represents. How on earth can it serve everybody if it is obligated to pass a bylaw to permit tourism in a given area when the very people who live in that area, and I give you the example of the Beaches, are adamantly opposed to that being declared a tourist area?
This is a very good example where a council in its wisdom may say: "Yes, you people, you store owners in the Beaches do meet the tourist criteria. People tend to assemble there on the weekend. It's a wonderful spot near the boardwalk, etc. But we have to recognize too the rights of the people who live here, and we are not prepared to give you that tourist criteria despite the fact that you meet all that." That I see as a very good analogy of why this particular part is there.
Mr Winninger: I agree with Gord.
Mr Sorbara: I have an answer to that. I simply invite you to put that in the bill. Just add on, "The council is not required to pass a bylaw even if the tourism criteria are met where, in the opinion of the council, it is in the best interests of the community that a bylaw not be granted." But you are not putting any qualification on it at all.
Mr Mills: I think it is common sense, really.
Mr Sorbara: Gord, I am telling you right now it is not common sense. Under the law, this gives them the authority to say, "We will not grant the bylaw because we don't like you."
Mr Mills: I do not think that is --
Mr Sorbara: Yes. That is why I am saying the sentence is not finished. Put some qualification on it: "Where, in the opinion of the council, it is in the best interests of the community that the bylaw not be granted." That would be fine. Any kind of a qualifier so that the individual applicant could have reasons. That would make sense.
You do not understand, Gord, that under the law, when you give arbitrary authority, you invite arbitrary decisions. That is why we as lawmakers have the responsibility to qualify the authority of decision-making bodies. It says in the Ontario Municipal Act that reasons must be given. Decisions will be struck down if they are arbitrary unless the act gives the authority for arbitrary decisions.
I invite you to bring forward your own amendment. You always pass government amendments. Qualify the authority. Bring it in. I will stand down mine. Bring it in next Monday to put some sort of qualifier. I suggest "where, in the opinion of the council, it is in the best interests of the community that the bylaw not be granted." At least it is in the interests of the community. There is no other qualifier. You have to understand how important fairness is. I plead with you to think about this again. At the same time, you could give a right of appeal. Maybe you do not want to do that. I think that is unfair. I think it is arbitrary. But surely to God arbitrary authority is not the thing the NDP government wants to be remembered for in its first term.
Mr Mills: I have listened to what you have had to say and I have taken that into my head and I am prepared to stand this amendment down until we get a ruling, if that is really what you feel comfortable with.
Mr Sorbara: I am perfectly willing to have it stood down.
The Chair: Do we have unanimous consent to stand this down?
Mr Morrow: Yes.
The Chair: Okay, we will stand this down.
The Chair: Now we are on the government motion on page 15.
Mr Mills moves that subsection 4(8) of the Retail Business Holidays Act, as set out in subsection 1(1) of the bill, be struck out and the following substituted:
"(8) Subject to section 4.3, a bylaw under this section comes into force on the thirty-first day after it is passed by the council."
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Mr Mills: I think it is self-explanatory. I will not go into that.
Mr Sorbara: Excuse me. It is anything but selfexplanatory. Notice what they have done here. They have removed the section that says the council's decision is final, except that there is no right of appeal for the storekeeper if he loses. That is now unsaid, but it is there. What they have replaced it with is the 31-day appeal period, once again another little door open to the crusaders to harass the storekeeper who gets permission.
I guess you have to have this if, as it turns out, we are going to have that right of appeal. I hear these Bob Rae speeches about trying to facilitate the carrying on of business, and you say that you want the OMB to deal with these appeals expeditiously but you add a 31-day period where no one has to do anything except that the doors have to stay closed. Why would you do that? If you really wanted the OMB to deal with it expeditiously, why would you not say 10 days or five days? Why would you say 31 days? Do you not understand that for a storekeeper --
Mr Mills: I think you have to have 30 days.
Mr Sorbara: You do not. Mr Mills says, "I think you have to have 30 days." You are in government now. You "have to have" what you decide. You are making laws now. We are making laws, so do not tell me that somebody else said, "You have to have." You do not "have to have." You can change this to read 10 days so that it gets done quickly. If someone is going to appeal, then he has got 10 days to do it. Why give him 31? That is five Sundays in some months. That is five days of not being able to do business, so even if he gets the bylaw, he cannot open the store for 31 days. Why not wait just 10 days? Can I plead with you to stand this down and think about maybe doing it for 10 days? At least that is just one Sunday.
Oh, there is the nod. Now we are making laws with nods. No, we cannot do that. What you are doing --
Mr Mills: Well, 30 is what we said.
Mr Sorbara: Well, 30 is what you are saying. Yes, that is reasonable, keep the store closed. He has just got the bylaw. He got it in October because he wants to stay open particularly for the month of October because it is Oktoberfest in Kitchener. He finally got it through. He goes to open the store and, "Sorry, you can't do that; 31-day period; someone might appeal."
Well, Gord, I just want to tell you that if you had the courage of your convictions, you would agree with me to make it 10. I would prefer five, but why 31? Why make it so long? When you talked about the appeal, the Solicitor General said you were going to expedite the appeal at the OMB even though for many cases it takes up to 15 months.
I move an amendment to this, sir. I want to move that the words "thirty-first" be struck and the word "fifteenth" replace it.
The Chair: Mr Sorbara moved that the words "thirty-first" be removed and "fifteenth" replace it.
Mr Sorbara: Now, just speaking to my amendment, I would have preferred 10. I am trying to negotiate. The New Democrats are great negotiators. They have all had great familiarity with the trade union movement. I am trying to negotiate something that is more reasonable. Just keep them closed for two more Sundays after they get the bylaw; that is 15 days rather than 31. That gives enough time for the United Food and Commercial Workers International Union, the Lord's Day Alliance of Canada or whoever else wants to appeal, to appeal.
Interjection.
Mr Sorbara: Fifteen days is enough.
Mr Winninger: Thirty is standard.
Mr Sorbara: Well, you have my motion.
Mr Winninger: Under the rules.
Mr Sorbara: Under what rules?
Mr Winninger: The rules of civil procedure.
Mr Sorbara: No, my friend. You are a lawmaker now. Under the rules of civil procedure, 31 days stands unless another appeal period is set out specifically in a statute. We have the authority. Do you not realize that you were elected to make laws, not to read them? That is the incredible thing about you guys. You think you are here to somehow enforce some sort of old, traditional system. Mr Winninger says, "The rules of civil procedure say 31 days." I am telling him, this is not civil procedure; this is a new, fresh law. It will never have existed until we pass it. We have the ability to say, "In this case, because we want to expedite things, we're not going to take the civil procedure standards; we're going to say 15 days." Are you kidding? Gerald Vandezande will be there on day one anyway with the appeal, so what do you have to worry about? I plead with you to support my amendment to the amendment, and I will support yours. How is that for a deal?
Mr Poirier: Do you really think the zealots will wait 31 days, my friend? No way. They will be there before the decision, for Pete's sake. They will be there during. They are not going to wait 31 days. This is a hell of a blow to anybody wanting to do business.
Mr Carr: I would think hopefully there will be some movement on this. I will be supporting the amendment to it and hopefully it will be done in the spirit of co-operation and a little bit of movement. That is why we are here.
At 5:20 my son took the ice in a hockey game and I am going to be missing that. Hopefully at the end of the day I will be able to say: "Gavin, congratulations on the shutout. You aren't like your old man; you're a good goaltender. Also, we did something worth while and in the spirit of co-operation."
We can make the change and make it a little more practical. I think 15 days would be a little bit of give and take on both sides. Hopefully there will be some.
The Chair: Seeing no further debate on the amendment, all those in favour?
Mr Sorbara: A recorded vote.
The committee divided on Mr Sorbara's motion, which was negatived on the following vote:
Ayes -- 3
Carr, Poirier, Sorbara.
Nays -- 6
Carter, Fletcher, Mathyssen, Mills, Morrow, Winninger.
The Chair: On the main motion, all those in favour?
Mr Sorbara: A recorded vote.
The committee divided on Mr Mills's motion, which was agreed to on the following vote:
Ayes -- 6
Carter, Fletcher, Mathyssen, Mills, Morrow, Winninger.
Nays -- 3
Carr, Poirier, Sorbara.
The Chair: Mr Mills moves that clause 4(9)(c) of the Retail Business Holidays Act, as set out in subsection 1(1) of the bill, be amended by striking out "hearing" and substituting "public meeting."
Mr Mills: I think I spoke to this yesterday to some degree and I do not intend to belabour the issue again. This takes away the legalistic criteria for a hearing as opposed to a public meeting, as I already said, and it is in Hansard.
Mr Sorbara: Here is an amendment that I could be moved to support. I do not think it is of much substance. I am not sure what we are getting into in terms of creating a new statutory concept in a public hearing. I would have preferred some research as to what the statutory requirements are for a public meeting. I know what they are as developed by the jurisprudence on administrative law. A hearing has to be open and each party has to be given a reasonable time to make its case. "Public meeting" sounds to me more like a political venture or a town hall meeting, and I do have some concern, but if the government wants to use that sort of more political language for the process that will give rise to the consideration by a council as to whether to pass a bylaw, it is okay with me.
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I do warn them, though, that they may run into some sort of challenges, because some lawyer may look at the fact that we struck out the word "hearing" and substituted "public meeting." When a council proposes to have a public meeting and it frames it under the same rules it would have framed a hearing, some crafty lawyer might challenge it and say: "No, you didn't do the right thing. The Legislature didn't want a hearing as you know it, it wanted a public meeting."
Unfortunately, you are not setting out any criteria for what a public meeting is and what it should be, so I think you may be creating a little bit of mischief. But, you know, I always like to do whatever the government seems to consider reasonable, so I will support this.
Mr Carr: I will not be, basically because, as I said briefly on the other amendment that was similar, I think the municipalities resent the provincial government nitpicking over certain aspects. I really, honestly, truly believe that whether you call it a hearing or public meeting, some municipalities have more public input and more thought and more consultation with the public than a lot of our committees that have public hearings where people listen. So I will not be supporting it. As was mentioned, it is not a very dramatic motion, but I just feel that I cannot support it.
The Chair: Seeing no further debate, all those in favour of the motion? All those opposed?
Motion agreed to.
Mr Sorbara: Robots. Robotics. Welcome to the robotics.
The Chair: We will move on to the Liberal motion on page 17.
Mr Sorbara moves that clause 4(9)(d) of the act, as set out in subsection 1(1) of the bill, be struck out.
Mr Sorbara: I think probably I should begin this debate simply by reading what that clause says. Let me read first the introductory words of subsection 4(9), "Subject to the regulations made under this section, the council may" -- and now the relevant clause -- "(d) limit the number of applications that will be considered in any year."
I just think it is a foolish authority and responsibility to give to a council. I think probably the thing that should determine how many applications there are should be the marketplace, the extent to which an area perhaps is transforming itself into a tourist destination and the other criteria that more or less govern the marketplace and the Sunday marketplace.
For a council to set out in any year a particular number of applications that it will entertain I think might do great injustice to that individual who is intending to apply for a tourist exemption under circumstances where the council has run out of application forms because of the impact of this section, and maybe all the applications it has granted or considered in any one year are relatively minor in comparison to the big new tourist business that is going to make a difference on the main street of Ontario.
If you give that authority to the council, it will exercise it. They will set out that they are going to consider 50 applications, or they may do that. Why do you want to be so hard on applicant number 51? The council can still reject it. The council can still say, "We've decided you've met the criteria, but we're not willing to pass a bylaw." We already dealt with that earlier. The council can delay the application, can ask the applicant to come back in three or four months. It has the authority to do that already.
Once again, we are talking about elements of this bill that are arbitrary and unfair. This is among the most stupid, I think, because it does not add anything to council's ability to make its own determination as to whether a business should or should not get a bylaw without amendment -- remember that -- but it could put a council in a very difficult situation. It has limited the number of applicants and then in the calendar year, say around September, suddenly there are no more applications that will even be considered under the law, and some poor guy has to wait another three months, four months, six months before his application is considered.
Does that make sense? Does that enhance our ability to regulate Sunday shopping? I do not think so. I think it is arbitrary. I think it is foolish. I think it is unfair. If we strike it out, we will make the bill just a little bit better. I do not think the Solicitor General is going to approve of it, but I wanted to put my arguments on the record in a call for a better bill than the one we are considering at this point.
Mr Carr: I will be supporting it. Again, the word that comes to mind is fairness. Just because you happen to be the last one in means that you will not be considered. There will be the case of stacking the deck against one particular individual. I think all citizens should be treated the same, not because they happen to get in first ahead of somebody else, and then the municipality will say: "Well, that's it. We're only going to do a certain amount during the year." If you are going to do it, allow it to be even and fair for all individuals. I will be supporting it and hopefully the government will as well.
Mr Mills: Just briefly, to adopt this motion would, in my opinion, be a municipal nightmare in administering all the applications. You have to have some control, and this effects that.
Mr Poirier: Could I ask the PA to expand on why this would be a nightmare and not the other way around?
Mr Mills: No, I am not going to.
Mr Poirier: Why not?
Mr Carr: It's not in his notes.
Mr Mills: I am not talking from my notes.
Mr Sorbara: You are talking nonsense then, Gordy. You are talking nonsense.
Interjections.
The Chair: Order, please. Mr Poirier still has the floor.
Mr Winninger: Tell him to call off the dogs. Let's be nice.
Mr Poirier: I was being nice until something happened here.
Honestly, Gord, would you please tell me how you would perceive this to be a nightmare? I am intrigued by that.
Mr Mills: I would imagine if you did not have some control over the number of applications, a municipal council could be totally engulfed with applications to the extent that all its business would be dominated by this and it would be unable to function. It would become, in my opinion -- and it is not in my notes, Gary -- a nightmare. That is just my own opinion why we cannot support this.
Mr Carr: What's the government's position?
Mr Mills: I have not gotten to that. I am not reading that.
Mr Sorbara: I want to say that is the silliest thing I have heard today. Would a municipality want the authority to limit the number of business licences it would entertain in any given year? Do we say that if we have reached the number 100 then the 101st applicant for a business licence will have to wait until next year? What in the world are you talking about?
Mrs Mathyssen: If there were 110 applicants --
The Chair: Mr Sorbara has the floor.
Mr Sorbara: I would love to hear from the member for Middlesex.
Mrs Mathyssen: If there are 110 applications, Mr Sorbara, surely the municipal council would be bogged down in all of those and could not function.
Mr Sorbara: Oh, well, we would not want that. No, you are right. Oh, I am sorry. You are right. I defer. That is right. We would not want municipal council staff to have to earn their salaries.
Mrs Mathyssen: Hence, you have very clearly proved what Mr Mills said in the first place by your own admission.
Mr Sorbara: You guys are really nuts. If you run this province too long --
Mrs Mathyssen: We are listening very carefully to what you are saying, Mr Sorbara.
The Chair: Order, please.
Mr Sorbara: I move we put the question. I want a 20-minute bell on this. We will vote Monday on it, okay? Shall we agree to that?
Mr Fletcher: Are you calling closure?
Mr Sorbara: No.
The Chair: There is no one else on the list.
Mr Sorbara: There is no one else on the list.
The Chair: Calling for a 20-minute bell, we will adjourn until Monday at 3:30 pm.
Mrs Mathyssen: We're not going to be here on Monday, Mr Chair.
The Chair: Oh, a week from Monday.
The committee adjourned at 1739.