CONTENTS
Monday 28 October 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: Callahan, Robert V. (Brampton South L)
Clerk: Freedman, Lisa
Staff: Beecroft, Doug, Research Officer, Legislative Research Service
The committee met at 1536 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.
Section/article 1:
The Chair: I would like to call the standing committee on administration of justice to order. We will now be proceeding with clause-by-clause. Each of the caucuses has had its opening statement. We will proceed starting with section 1 and work our way through. Unless there is a unanimous consent to stand one down, we will proceed with them each in order.
Mr Sorbara: What I propose to do today is stand down the first two amendments, if we are at the point now of discussing where we are with amendments. Are we there?
The Chair: Yes, we are.
Mr Sorbara: I propose to stand down the first two amendments, the first one being a Liberal amendment and the second one being a Liberal amendment. I ask the indulgence of the committee to accept having those stood down. I would like to begin by moving the third amendment, if you are ready for that.
The Chair: Do we have unanimous consent to stand down numbers one and two? Agreed. We will proceed to number three.
Mr Sorbara moves that subsection 4(1) of the act, as set out in subsection 1(1) of the bill, be struck out and the following substituted:
"(1) Despite section 2, the council of a municipality may by bylaw permit retail business establishments in the municipality to be open on holidays for the maintenance or development of tourism, for economic development purposes or for any other purpose prescribed by the regulations made under this section."
Mr Sorbara: Mr Chairman, what I propose to do is address the committee on the purpose of this amendment and, within the context of this amendment, add a few remarks about where we have been in considering Bill 115 and where we are going from here.
Might I just add that my colleagues Mr Poirier, the member for Prescott and Russell; Mr Chiarelli, the member for Ottawa West, and Mr Callahan, the member for Brampton South, who will be participating in the committee for some time, propose to make some remarks on this section as well. I am not sure about the government members. Mr Harnick always has an interesting word or two to say during the deliberations of this bill. I expect he will have something to say on this one as well.
Make up your list and do not allow my friend Mr Morrow to get the floor to move closure, because I am sure that under those circumstances, given that we have just started, you would not --
The Chair: Each of the members will be noted as recognized.
Mr Sorbara: Good. I want to tell members that the process that has characterized these hearings thus far has often, I think, been a good, sound and solid process. We had four weeks of very fruitful public hearings. I regret the government members did not seem to want to argue as forcefully as they could for amendments that would have reflected what we heard in those public hearings, but that is for them to decide.
I think frankly that the process degenerated a little bit back on September 16 when the government moved for an indefinite postponement of clause-by-clause consideration without telling us why that was. That started to poison these hearings and this consideration of Bill 115 just a little bit. We then saw a couple of closure motions as a result, and that poisoned the process even further.
I only mention that to tell you that, just as the old NDP opposition is learning how to become a government, we who used to be in government are learning how to become an opposition. One of the things we have learned pretty quickly is that if you treat the opposition capriciously and arbitrarily, you will have, inevitably, a far more difficult time conducting the business you want to conduct.
Let me just give you one example from a completely other portfolio and another minister. Last Thursday, Ruth Grier introduced a bill to create the Interim Waste Authority Ltd for the province of Ontario and for the greater Toronto area. It is unprecedented that a minister would introduce such an important piece of legislation and not make a statement in the House during ministerial statements. I want to reiterate that for my friends on the government side, who may well be sitting on the committee that considers that bill. It will have a much more difficult time passing, simply by virtue of the affront the minister displayed to Parliament and particularly to the opposition last Thursday. We were insulted. You know how important these environmental issues are to us, and for those of us who have major dumps in our ridings, this is crucial. This is life or death for our communities. People in our communities feel very strongly about it. When the minister introduces a major piece of legislation and fails to respect the right of the opposition to a brief, five-minute response -- she could have spoken for 20 minutes; there were no other statements that day -- it creates almost a guarantee that the opposition is going to feel offended and it is going to make it more difficult to pass that bill.
Similarly here, when the government started to act arbitrarily, in our view, this committee started to work not quite as well as it had. We hope that has turned around now and we can get on with the business of considering the bill in clause-by-clause in a timely fashion. I want to advise you, sir, that I do not think we will get very far today because --
Mrs Mathyssen: You are going to be a bore.
Mr Sorbara: My friend Mrs Mathyssen says I am going to be a bore. No, I am not going to be a bore; I am just going to let her know that, as with all these sorts of matters, amendments proposed by governments have to be caucused. We have to talk about these amendments tomorrow in our caucus to develop a collective or caucus view as to what approach we want to take to the bill, given these amendments.
We are already on the record, and our view will not change, that these amendments assist precious little in making a bad piece of legislation good. Virtually everything we heard during the public hearings on this bill has not been addressed by the government amendments. In fact, the government amendments have made the bill worse, not better.
The amendment I have just moved, we believe, would transform a relatively bad bill into a relatively good bill. In fact, what it would do would be to recreate the so-called local option that the Liberals had, that we had in our Bill 113 in a different form, and we acknowledge that. But what we have seen is that thus far that approach, letting local communities decide for themselves what stores will open and what stores will not, is in the end probably the only safe, the only appropriate -- the best -- approach to dealing with the question of Sunday shopping.
But I want to go back to what the former minister said during his introduction of this bill and in first and second reading of the bill, and what the present minister, who joins us today for clause-by-clause consideration, has said in respect of Bill 115. Both ministers, the previous minister and the current minister, have argued that this bill is about Sunday work, not about Sunday shopping. That is poppycock.
He also says that this bill brings about a common pause day for the people of Ontario. That is poppycock. This bill has the effect of forcing stores to close on Sunday, most of them, so obviously it is about whether or not stores will be open or closed. That, in my vocabulary and my lexicon, is about Sunday shopping. In fact a very small part of the bill is about Sunday work and we support that part.
You could achieve everything you want to achieve if you really believed what you say about this bill being about Sunday work by simply passing that section. We could abandon the rest of the bill today and get on with that section and retail workers would have the protection you are proposing to give to them.
The other thing that is being said is that this bill is about a common pause day. For whom? Do nurses take advantage of this bill and book off in the hospitals of this province? Do flight attendants take advantage of this bill and say they do not have to fly today? What about miners and auto workers? What about the people who run the hydro system?
Mr Poirier: What about MPPs?
Mr Sorbara: What about MPPs, my friend the member for Prescott and Russell says. What about every single worker in this province except a very small sector working in businesses which will be forced to close? They are protected. Not only are they protected, they are doubly protected because the stores they work in cannot open. Even if they want to work, they cannot go to work. Some protection. But if the stores open in contravention of the law, they have the absolute right under our bill to refuse to work on Sunday with full protection of the law.
I say this does not offer anyone a common pause, and you have already protected the workers you say you want to protect. Why not then get off the backs of the shopkeepers of this province, who simply want an opportunity to carry on their businesses at times when people will come to those businesses and do their shopping?
Ms Carter: Not in my riding, they will not.
Mr Sorbara: My friend the member for Peterborough says "Not in my riding," and that is the beauty of the law as it exists right now. If the people of Peterborough and their city councillors decide they want to keep the stores closed on Sunday, they can do that. That is called a municipal option and it is actually working.
In Windsor, for example, they say they want the stores to stay open. I am not very surprised they say that in Windsor. The businesses there desperately need that Sunday market. In North Bay they say they want to keep the stores closed, and similarly in Peterborough, and that is possible under the law that exists now.
But I tell my friend Ms Carter from Peterborough that it will not be the case under your bill, because under your bill all the stores in Windsor are going to have to close again, notwithstanding that they desperately need the opportunity to participate in the greater Windsor-Detroit market and catchment area so as to stay alive. This bill is about business and it is about retail business and it is about Sunday shopping.
Let me tell you why I believe so strongly that we ought not to proceed with this bill. I want to take you back to our hearings in North Bay. Sir, if I recall correctly, you may have chaired that meeting. Do you remember, we were flirting with the idea of getting rid of the member for Durham East and we had you on --
Interjections.
Mr Fletcher: On a point of order, Mr Chairman: We did not contemplate getting rid of any member. That is a derogatory remark that need not be said in this committee.
Mr Sorbara: I want to withdraw that remark. But I will say, sir, that you were there on a trial basis to see whether or not it would work out and it has worked out and we are glad that you are in the chair. We are delighted.
The Chair: I believe I was subbing while the other chair was on vacation.
Mr Sorbara: I want to take you to North Bay and remind you of the testimony of the assistant solicitor for the district municipality of Muskoka. I thought it was one of the most insightful analyses of the bill and the problem that we heard during the four weeks we had public hearings. I thought it was articulate, I thought it was thorough and I thought it was insightful, and I am going to refer to that testimony and those submissions.
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Mr Poirier: Even though he was a lawyer.
Mr Sorbara: My friend the member for Prescott and Russell points out that he was also a very competent lawyer, or something like that. He said at the outset of his remarks, and I invite the government members to reflect on this, "Any attempt to categorize business on the basis of class of customer," -- read tourists -- "on the basis of product line, on the basis of number of employees just is not workable." The principle the committee should be thinking about is freedom of choice. I do not think that is just a Liberal principle, but we cherish that principle.
Then he went on to explain to the committee that modern governments of the Ontario sort engage really in two basic kinds of activities. The first is the provision of services: health care services, registration services, services of a wide variety. The second general kind of activity that governments engage in is the regulation of conduct: setting rules and regulations as to what can and cannot happen in the jurisdiction.
The Sunday shopping bill is a bill dealing with the regulation of conduct. He said there are four tests to determine whether or not a government should engage in the regulation of conduct. He judged the bill based on whether or not it met this four-part test. The first test was whether or not the conduct regulation being proposed -- that is, to close most stores except tourist stores on Sunday -- has the general support of the community. I think the polls say this proposal does not have the general support of the community. More and more people are saying shopkeepers and consumers ought to be able to make a free choice as to whether they do or do not shop on Sunday or they do or do not open their stores on Sunday.
The general support of the community is eroding. Let's grant that five years ago, 10 years ago, 20 years ago, yes, there was general support in the community. He says, "Don't get engaged in conduct regulation unless you have the general support of the community," not 100%, but something more than 44% or 30%, which is the case now.
The second test is whether or not measures are understandable and workable. Again, Bill 115 fails in this test of being understandable and workable. It is not workable because there are precious few businesses that are exclusively tourist. We recall that the government previous to the previous government tried to regulate Sunday shopping on the basis of the tourist exemption and it did not work. My God, we knew it did not work when we were in power, and that is why we brought forward another alternative, which was the opportunity for local communities to set local standards.
Not only that, the bill is also not understandable. It is not understandable to make the differentiation between businesses that pass the threshold test and those that do not. So Bill 115 fails the second part of the test.
The third test he proposed was that the bill be legal within the jurisdiction of the body trying to make the law; that is, it meets several legal requirements and it meets the requirements of our fundamental law, in this case the Charter of Rights. He made an eloquent argument supporting the proposition that this bill discriminates in a way that offends the spirit, if not the letter, of the Charter of Rights.
One of the problems with the amendments that the government is now proposing in respect of December shopping is that it flies in the face of the holidays of a lot of people who do not celebrate Christmas, the people who celebrate Rosh Hashana and the people who celebrate a wide variety of central feasts. They are so offended that the government would choose one month, and it was the Christian month. They are phoning my office and they are going to be phoning your offices as well, so do not think that you have solved the problem by settling on December for a little bit of freedom, and for the rest of the year retailers can try to eke out a living. He says this bill does not meet general legal standards that govern how we regulate conduct in Ontario and I think he is right.
The fourth test is whether or not there is a clear intention to enforce the conduct regulation. Is there a clear intent to slam closed the doors of businesses that open on Sunday?
Mr Callahan: I hear the boots already.
Mr Sorbara: On this he did not give an answer and I cannot give an answer. The only thing I can tell my friends the Solicitor General, the government members and the studio audience is that the problem we had when we tried to tackle Sunday shopping and wrestle it to the ceiling was that it was impossible to enforce a tourism exemption. Storekeepers all over the province would go through all kinds of contortions to meet the tourist exemption. The local A&P store in downtown Hamilton put up a sign saying "Welcome tourists, we're open on Sunday."
Even if there is a clear intention to enforce, I want to tell my friends on the government side that you will have a devil of a time trying to enforce this bill that arbitrarily tries to pick the winners and losers; that tries to say, "Yes, you can buy a toaster oven on Sunday at this store but you can't buy a toaster oven at that store because it didn't get the approval of the local council." Or if the bill passes as the Solicitor General proposes, the store owner gets the approval of the local council, but some fanatic appeals to the OMB. He gets into a 15-month hearing and packs up his suitcase and goes home because it is not worth the legal expense.
These are shopkeepers. These are not the Conrad Blacks of the world who can hire the high-class lawyers from Bay Street. These are shopkeepers who are looking for an opportunity to do business when people want to come and shop. We have been discussing it for five months and you still will not understand that the world has changed out there. We do not bow to the needs of Christians any more. I say that as a Christian. We do not bow to the needs of any other group. We set rules that meet the four standards of our friend the assistant solicitor from Muskoka. This bill does not meet that test and you ought to withdraw it.
Let's look at the way in which we have tried to improve the bill. The amendments that we brought forward are trying to make a bad piece of legislation not perfect, but acceptable for passage in our Legislature. That is why this amendment to provide economic criteria is here. We admit it is an open door; it would let anyone qualify. But do the New Democrats not believe in freedom of choice? Should we not stop this business of trying somehow to figure out what to do with that wonderful, ancient, now-disappeared tradition of no work on Sunday?
I remember the commandment "Keep holy the Lord's Day." We would not do anything on that day. We did not play hockey.
Mr Winninger: Thou shalt not delay legislation unnecessarily.
Mr Sorbara: That was not a commandment from Moses, my friend, and my constituents elected me here to make bad legislation better as an opposition member.
Interjections.
Mr Sorbara: We are upholding nothing. We are trying to improve what you do and save the people from a bill -- listen, let's just pass it. That is fine. You guys are going to hang on this. You really are going to hang on this.
Our amendments tried to make a bad piece of legislation at least presentable to the people of this province. We have the economic criteria and we have heard that it is not going to fly. "Forget it. C'est impossible. This would leave the door too open to abuse." Abuse of what sort? You mean storekeepers are actually going to unlock the doors at noon on Sunday and say: "Come in. I have some wares to sell"? If that is abuse, give me more of it.
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I do not think you are going to pass this one. We put forward an amendment to allow music stores to stay open. We thought, "They're not going to do economic development criteria, but we have some people out there who run music stores who are getting burned in an unfair market." I think of one retailer in Scarborough who said, "The video store renting pornographic movies three stores down is also selling compact discs and he can do it legally." You can use your eyes on Sunday to see movies. That is fine. You can take them home and indulge to your heart's content. A couple or three years ago we said, "The bookstores can stay open. This is good. We want people to read. Literacy; this is the future of the province. Keep the bookstores open." That is fine, but you cannot use your ears. You cannot go and buy Beethoven, Bach or Mozart. It is the 200th anniversary of Mozart and you cannot go and buy a piece of music and listen to it on Sunday.
Do you know what this retailer did? He was so offended that he started renting out his CDs and his tapes on a 50-year basis. He charged the same price. Rent it for 50 years, bring it back and that will be great. You know what? The police in this NDP state came and busted him again and that is going to be another $2,000 fine. He is going out of business with $10,000 in fines. I am asking you to support a little amendment to say he can stay open if he wants on Sunday and what are you saying? "No. My God, we couldn't do that. This would offend the principle of a common pause day for retail workers." He does not have any workers. It is just he and his wife. No one is going to be offended. Nobody's rights are going to be violated. It is just he and his wife. I am asking you to let them open their stores if they want to. I think you are going to say no, but we are going to see when I propose that amendment.
Then we brought forward the so-called Dylex amendment. We thought that if you will not open all year round on a local option basis, which is what the Liberal bill was, maybe you will recognize that retailers in this province right now are having a difficult time remaining competitive, meeting the payroll and paying the suppliers, so let them stay open from Thanksgiving until Christmas.
I appreciate that it is a kind of sop to the Christmas season, but we will be putting it forward because we feel that retailers need a break. I mean, you will not reduce the taxes. You should be reducing retail sales tax right now because we are in such desperate straits. You should be reducing gasoline tax now because people routinely cross the border buy a dollar's worth of gas in Windsor to get them over the bridge so they can fill up their tanks. Then they get the milk, bread, cigarettes, booze and toaster oven. We need a tax break. We need a break for these people. We need to do something.
Do you know what they did in Denmark? In Denmark they had such a terrible cross-border shopping problem with Germany that --
Mr Callahan: They blew up the bridge.
Mr Sorbara: My friend says they blew up the bridge. I do not think that was the case. They drastically cut taxes on gasoline, cigarettes, beverage alcohol and a number of other items. Do you know what? There is no cross-border shopping problem any more.
Here we could all use a little tax break. Shelley Martel campaigned in Sudbury saying that the retail sales tax should immediately go down from 8% to 7%. The former Premier of the province, David Peterson, said the same thing and it got him in a lot of trouble. You are in government now. Let's adopt Shelley's plan. Let's bring it down to 6% or 5%, maybe for just a one-year period. The Tories used to do that and that was to good effect.
But if you will not do that, we say in these amendments, for God's sake allow the storekeepers at least enough freedom for a quarter of the year. It would not be so bad. We asked for October to December and what did we get? Three weeks in December. My God.
Mr Morrow: What a compromise. We listened, right?
Mr Sorbara: My friend Mr Morrow says, "We listened." You did not listen to the people I heard during this committee.
Finally, we brought in an amendment just to deal with the timing of the coming into force of this bill. We do not see any support for that either. What did the government give us in terms of amendments, after all we have heard and after the evidence that the province now is satisfied that people are grown up enough to keep holding the Lord's Day in their own way, whether shopping or not, whether worshipping or not? What kind of amendments did we get from the government initially? Two amendments that will make it so administratively difficult for a shopkeeper to open on Sunday that he would have to be rich enough to get out of the business anyway in order to meet the administrative burden here.
First of all, we sick the Ontario Municipal Board on the shopkeeper. What happens is this: The shopkeeper goes to the municipal council and says: "I would like to open my store on Sunday. I have a significant tourist clientele. I need the business. Here are my financial statements. Everyone in the area agrees this would be a good idea." The council says, "Yes, we support that." Under the bill you initially proposed, the next Sunday he could open his doors.
Now, the bylaw that is passed is not in force for 31 days and the amendment invites any interested person to appeal to the OMB. So Gerald Vandezande, who is not here today, the first day he has not been in the studio audience, goes to city council and says, "I have 2,000 voters who are not going to support you if you don't like that." If Vandezande does not win, then he can raise enough money just to hassle them at the OMB for a good 15 months. I will tell you, sir, it does not matter what the Solicitor General says about expeditious hearings at the OMB; as a lawyer, I can drag that hearing out for a good year if I want to, with evidence and new submissions.
The shopkeeper says: "What's going on? I just got permission from the local council to open my doors and now every other day I am down at my lawyer's with a cheque, paying for an appeal to the OMB that I didn't instigate." That is what you give us after a month of public hearings, when people said they wanted the freedom to make up their own minds. That is the first amendment.
Notice in that first amendment that if the shopkeeper does not get a favourable consideration from the local council, he or she does not have the right to appeal to the OMB. This is the most discriminatory, distasteful amendment I have ever seen brought forward during my time on this committee. Those who want the stores to close get a right to appeal the decision of the local council to the OMB, but the shopkeeper who brought the application to the local council, if he is refused, has no right of appeal in the mind of the Solicitor General. If you think that is fair, you and I have a different idea of what fair is. At least you could have made it balanced. At least you could have given an equal right of appeal to the shopkeeper who was turned down perhaps for political reasons.
Just before election time Jack Layton is worried. Jack Layton is going to give us zones of tolerance for prostitution in Toronto. That is great. Thank you, Jack. That is just what we need.
Mr Callahan: On Sunday too, I'll bet.
Mr Sorbara: On Sunday too, my friend from Brampton says. But if Jack Layton, the political beast that he is, hears that a whole bunch of people do not want the Eaton Centre to stay open on Sunday, then Jack Layton suddenly changes his tune and becomes intolerant. Well, our kids will go to the zone of tolerance rather than go to the local malls, and that makes me very disappointed.
Interjection: Come on, now.
Mr Sorbara: Well, listen, he is the NDP candidate in the city of Toronto. He is not my candidate, he is your candidate. It is his zones of tolerance. I am glad the Solicitor General is here, because they are his zones of tolerance that he is going to have to police. What does this mean, "zones of tolerance"? Why do we not just call it a red light district? Give me a break. We will move them out of this neighbourhood and have a zone of tolerance.
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What is the other amendment the government brought forward? It is not good enough that there is an appeal by the Lord's Day Alliance to the OMB. We need another avenue to close down the stores.
Let us say a store is staying open, oh my God, illegally, actually opening the door to try to sell some of its goods and services on Sunday. In the democracy I know about, the people to enforce that law are the police. Here is the Solicitor General needing enough police to go around and close down all these nasty shopkeepers and get them back to church. Most of them go to church before they open the store, but that is another story.
It is just not good enough in Allan Pilkey and Bob Rae's Ontario to have the police do the job. They bring forward an amendment allowing any -- here it is again -- "interested party" to bring an application to the Ontario Court. This is vigilantism.
Mr Morrow: Point of order, Mr Chair: Would you please ask the honourable member, Mr Sorbara, to go back to his original amendment, if you would not mind.
Interjections.
The Chair: Order, please.
Mr Sorbara: I am speaking to the amendment, Mr Chairman. I am saying it is unprecedented for a small, quasi-criminal matter that is supposed to be enforced by the police to be put in the hands of local fanatics who will go to court and demand an injunction and then take it to the storekeeper and say: "There. Not only did you break the law and you are subject to a fine, but now the courts are going to jail you if you keep your doors open."
What kind of amendment is that? We have enough police officers if you have to proceed with this bill. This is intolerable that you would create vigilantism in Ontario to satisfy a few fanatics in the United Food and Commercial Workers International Union. I heard them call for that amendment. You are giving them their OMB amendment and you are giving them the vigilante amendment. So what are they going to do? They are going to go around and take union funds and organize court cases looking for injunctions, and I find that unacceptable.
Do you know what? You are not going to get it, because I have the authority to establish that the amendment is out of order. It will never get by me if unanimous consent is necessary. I tell my friend from Oshawa that the government is not going to get it, because we do not need vigilantism in this province. If there are going to be laws, let the police of this province enforce the laws. Let us not open it up to citizens who might have ulterior motives. "Interested parties," indeed. We will have none of it. I hope this committee will accept this amendment, which allows for economic development as a criteria. I commend it to you and to the members of this committee. I hope we have a vibrant debate on it and that when we finally come to vote, it will be acceptable to the Solicitor General and to the other members of the committee.
Those are my remarks, sir.
Mr Harnick: I have listened with interest to what Mr Sorbara has said and I will be supporting this amendment because it will expand the scope of the municipal option and will take it out of the restriction of a tourist zone only.
However, I think this bill is a joke. The whole bill should go. This amendment makes a bad bill slightly more palatable, but everything that is wrong with the bill remains.
I cannot accept this government delegating to the municipalities, any more than I could accept delegation to municipalities in the Liberal legislation on Sunday shopping. There is no question that delegated authority did not solve the shopping problem when the Liberals enacted their legislation, and it is not going to solve the problem with Sunday shopping now that the socialists have proposed the legislation. If anybody thinks that is the solution, he is absolutely wrong.
The idea of the common pause day is now absolutely meaningless. The minister came here, I asked him questions, and he could not tell me why Sunday was chosen as the common pause day. He said it was tradition. I asked him what tradition he was referring to and he could not tell me. He showed great reluctance to put on record that the only tradition there is on Sunday is a religious tradition. He would not admit that, but at the same time he did not know what tradition he was referring to.
On the basis of his testimony, the common pause day is completely meaningless as far as I am concerned. This is corroborated by the fact that he has now stood up and said that we may shop for three Sundays in December. If that is the case, there is no such thing as a sacred common pause day. If you can do it for three or four weeks in December, you can do it for 52 weeks, and nobody is upset by it.
This idea of falling back on a common pause day is nothing other than the grossest hypocrisy. That is exactly what this bill is predicated upon: gross hypocrisy.
The common pause day is also in direct contravention of the Charter of Rights and Freedoms. There is absolutely no question in my mind that this legislation will be challenged and declared contrary to the Charter of Rights and Freedoms. We only have to look at the equality provisions. We also have to look at the idea of the multicultural society we live in and at the charter in terms of section 27. This legislation, I submit, will be deemed unconstitutional.
If you want to be honest about this legislation, you have to look at who is being affected by Sunday shopping. The retailers are the people being affected. They are the people who own the small businesses we habitually support and buy our produce from, the people we buy our clothing from, the people in the neighbourhoods who run the commercial districts, the people who are our friends, the people who keep our communities vibrant. Those are the people who are being forced not to do business. Those are the people whose livelihood is affected.
If the members of this government honestly believe they have to protect union people, and they are entitled to that belief, they can do it by making amendments to the Employment Standards Act. This whole bill is nothing more than a big redundancy. It is totally unnecessary legislation. If the only thing that has to be protected is a worker's ability to refuse work on Sunday, then enact legislation that says nobody can be forced to work on Sunday. You do not need a Sunday shopping bill to protect employees from working on Sunday, and that is what this bill does.
Furthermore, this bill, with its amendments, is a complete mockery. On the one hand, it says you can declare yourself a tourism exemption and open, and those criteria are very broad. On the other hand, there is the ability and opportunity for any person who does not like this legislation to go down to the OMB and effectively prevent the municipal option from taking place. They can do it and get a thousand of their friends to do it, and someone's application for a tourism exemption can be held up for years. On the one hand, you are giving the opportunity to shop. Then, realizing the criteria you laid down are too broad, you are closing the opportunity for people to do business on Sunday.
The three or four weeks in December is another thing that makes a mockery of this legislation. Why can you shop in December? The reason you can shop in December is that Christmas is coming, and Christmas is a Christian holiday. We have the minister unwilling to admit that the tradition preventing Sunday shopping is the Christian tradition. He is afraid to say that, but he cannot tell us which tradition it is. The tradition that permits Sunday shopping for four weeks in December is the idea that you have to permit people to shop because they have to get ready for Christmas, which is a Christian holiday.
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I cannot quite understand the hypocrisy of all this. You will not admit that Sunday is the pause day because it is the Christian day, yet in December you can waive the Christian day to shop for the Christian holiday that takes place on December 25. It is positively ludicrous. It is the stupidest, most ill-conceived way to approach a piece of legislation that anybody could possibly imagine.
I suspect that there are people -- those NDP spin doctors -- who lie awake at night thinking about these things because they have nothing else to do with their time. It smacks so badly of hypocrisy that anybody who could present legislation like this has to be an idiot.
Mr Fletcher: On a point of order, Mr Chair --
Mr Chiarelli: What is the matter? Do you object to "idiot?"
Mr Fletcher: Yes, I object to the word "idiot" being used, especially when --
Mr Harnick: I will withdraw that.
Mr Fletcher: Thank you.
The Vice-Chair: Thank you very much, Mr Harnick. Continue please.
Mr Harnick: Sorry. They have to be, at the very least, very confused.
Mr Callahan: Not rocket scientists.
Mr Harnick: Not scientists of any kind. I do not think they are scientists enough to put together a set of toy trains.
Mr Mills: Who called the last election? Were they rocket scientists?
Mr Harnick: No, I do not think anybody will admit that the people who called the last election were any kind of scientists either.
This legislation just absolutely smacks of hypocrisy. If you really want to protect workers from working on Sunday, do it in the Employment Standards Act and scrap the rest of this nonsense. Let people in this province do what they want to do. Do not tell people when they can shop and when they can sleep and when they can go out and when they can work, because it is none of this government's damn business the way people conduct themselves in terms of when they want to work and when they do not want to work.
If your interest is to protect the people in society who may not want to work because this is a religious day, and I respect that, then do it in the Employment Standards Act. You can accomplish exactly what you want to accomplish without being hypocritical.
That is why I do not think this is a great amendment, but nothing short of scrapping this bill would be the right procedure. This amendment makes this bill slightly more palatable and I will vote for the amendment. But again, I urge the government to withdraw this legislation and amend the Employment Standards Act. Let's stop talking about Sunday shopping in this province, because we are going backwards instead of forwards.
Mr Mills: I do not propose to speak for 35 or 40 minutes ranting and raging about all the things that have been said by both the opposition and the third party, because we are here to get on with this bill and to get it finished and into the Legislature and dealt with.
Mr Harnick: There has to be more to it than just getting it done. Let's do it right.
Mr Mills: I am opposed to this amendment and undoubtedly my colleagues will be too, because what this does is merely widen the municipal option. That is what this amendment is all about, and in effect it potentially will make wide-open Sunday shopping and destroy the concept of this bill, which is to protect the common pause day.
There is all kinds of rhetoric about what is the common pause day. I presume, and I do not think I am alone, that most of Ontario grinds to a halt on Sundays. The schools all close and it does not matter what religion they are. Everything grinds to that slow, wonderful way that we have come to spend the weekends, and in particular Sundays in Ontario, and that is a fact of life. So with those comments, I will not be supporting this amendment and neither will my colleagues.
Mr Callahan: I come to visit this committee as a sub, but this thing has been going on since I was elected in 1985. It is like a time warp. I really wonder. We may have a new name for Sunday by the time we get through all this stuff. I always realized that politics was the art of the possible, not the art of the impossible. From what I understand of the bill, you guys are trying to satisfy everybody.
When I chaired the standing committee on administration of justice on the original Sunday shopping legislation, people came before us with legitimate concerns. There were people who considered Sunday to be a holy day, as I guess many Christians do, and as I do. I consider it to be a family day. There were workers who were concerned about having to work on that day. We listened to that.
At that time, the bill the Liberals brought forward put Sunday shopping in the arena of the local councils. You really had the greatest protection because local councils are the closest political body to the people, one that can be approached expeditiously and without great expense -- at least in my community they can, I do not know about the rest, though I think it is pretty well the case throughout Ontario. People could air their views and try to persuade the people who represented them that they should or should not open stores on Sundays. It provided a good sounding board where the businessmen who did not want to open up or the workers who did not want it opened up could square off and convince these people they should vote one way or the other. The ultimate weapon they had, of course, was that if their representatives did not listen to them, they got turfed out in the next election.
What have you tried to create here? I have to give you the benefit of the doubt that you are trying to do it in good faith. But I do not think you really understand that you are creating situations such as -- listen to this very lofty section of the act: "The Lieutenant Governor in Council may make regulations, (a) prescribing tourism criteria for the purposes of this section." The average Joe out there figures that Lincoln Alexander walks down the hall and gives his blessing to this. We all know that the Lieutenant Governor is such a marvellous man, and I am sure all of our Lieutenant Governors have been marvellous people. People trust them. They trust them more than they do politicians and they figure: "Well, if that father figure or that mother figure is presiding over the expansion of the restriction of the definition of tourism, I'm safe. I can sleep at night comfortably."
I think it is time the public really clued in to this. When they talk about "Lieutenant Governor in Council," they are talking about the cabinet. Even that would not be half bad, because the cabinet normally is people who sit around and try to work out on a reasonable plane -- be it for political reasons or expedience or whatever -- the best possible program. But it is not even the cabinet. The reality of the process today in this province and in the federal Parliament and in the parliaments throughout this country is that these decisions are made by the Premier or the Prime Minister and an inner circle of about four or five cabinet ministers, the people who can have more pressure or political points against the Premier and can control him, and four or five spin doctors who have absolutely no elected status.
Let's take the scenario. We are trying to create a common pause day. That is the watchword. That was what was pitched around in the election: "We're going to try to satisfy the people who came before us in good faith because they wanted their religious day protected, they wanted the family protected, and they wanted not to have to work on that day so they could be with their children." What did we do in an effort to accomplish this? We used the terminology I have just said. We have now left it in the hands of that august group down in the back office to change it at will without telling anybody. They do not even have to tell us. It does not have to go through the House. Nobody can debate it. It is strictly in their hands.
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That is a double-edged sword. Somebody here said, "Go ahead and pass this bill, because you are going to choke on it," and I suggest you will, because what it is going to require is a political body to restrict or expand that definition at some point, either on a general basis or on an application-by-application basis, and I guarantee you will not have the guts to do it. We will be right back here, either on that or on a challenge to the Supreme Court of Canada when it tells us that, yes, we are protecting the rights of Christians, but we are not protecting the rights of Muslims; we are not protecting the rights of people of the Jewish religion; we are not protecting rights of God knows how many other religious persuasions that have some day other than Sunday as their special day.
I always get a big kick out of it when everybody says it is going to destroy family life, but I do not believe you artificially create the perfect family. You do not create it by putting barriers there to prevent them from doing things on a particular day. You do not force them to go to church on Sunday, although I suppose many of us do. Do you think if you force them to go that they are any better off than they are if they go on their own? Do you think there is any way you can force dad to put aside his beer or his pop and turn off the television set and get rid of Sunday football or whatever else he is watching? You walk into the typical home today on a Sunday and I will be willing to bet you will see the father, and perhaps the mother too, sitting down in the living room or the kitchen or whatever, glued to the tube watching every sport imaginable, figure-skating or what have you.
If that is what we are holding together as family life -- and where are the kids gone? They have disappeared because they cannot get access to the television set, so they have gone over to their buddy's house. God knows what they are doing over there, but they are not exercising that family togetherness. You are leading a lot of people to believe that this is what you are trying to protect. Really, you do not care about the rest of society. It is the organized worker you are saying you want to protect. They are coming to you in a power group and saying, "Look, we don't want this, and if we have to do it, we want some bargaining power so we can ask for double, triple or quadruple pay to work on Sunday." That is what it is. It is a bargaining chip. This province and this country can ill afford to place any greater burden on the economy.
I was listening to the United States news last night. They believe that if they can put more money in the hands of consumers, the retail business -- small business and larger businesses -- will prosper. They had several economists on there who said: "No. That's not going to happen, because people are so frightened about what is going on globally -- the inability to compete -- that they are not prepared to go out." Whatever money they can possibly save, they are putting away like a squirrel. They are not going to spend it now. You go into any registry office in this province and you will find maybe five, 10, 15 people in there, whereas before you would have found them elbow to elbow. That is the sign of how the economy of this province has gone.
You talk about cross-border shopping. How are you going to protect these people who are trying to eke out a livelihood in the border shopping areas? What this amendment does is put it on the table so that people can make decisions about that. They do not have to rely on the length of the foot of the Premier of the day or the cabinet of the day. They can in fact determine in as clear a way as they can that there are other factors to consider.
What would happen if the council of a municipality decides, for whatever reason, to give somebody the nod and say, "Go ahead. It is clearly a tourist operation," and it is not a tourist operation? Are you telling me that the strings up here at Queen's Park and the eyes and ears of the world are going to be watching every one of these little things that takes place and are going to prosecute them to the full extent of the law? Balderdash. Any of us who has been on municipal council has watched his councils pass bylaw after bylaw,and we know damn well they will never be enforced because we do not have enough inspectors to enforce them. We are the laughingstock of our communities for putting them forward, because you cannot enforce them.
That is precisely what you are doing here: You are inviting people to break the law. You are inviting elected representatives to break the law for whatever reason. It could be because they like the guy or the lady who came in front of them. Maybe they were supporters of theirs in the previous election. Maybe they like their retail store where they get their garments; they want to have it opened up. You are opening up such a can of worms in terms of favouritism being applied to individuals who come before that council.
I was joking, but I thought the Solicitor General said these inspectors actually will be the Premier's appointments. But you are going to have to have an awful lot of them and even catching them. Okay, we have this separate force that is going to catch them. Then you have to get court space to try them. If you have ever seen what happens in courts where they try to do parking bylaws or speeding or Highway Traffic Act offences, they are jammed to the rafters. Howie Hampton will probably roll over in his grave when he finds out, if he does not already know, about this special force, this special prosecution. You are just going to backlog the courts something unbelievable.
It is just an invitation to let people cheat and just wink at it. Every time you pass a law that has no effective way of being enforced, you weaken the entire principle of the rule of law, because what you tell people is that here we are, the most august body -- some people probably disagree with that; I think many -- in the province making laws that we wink at, that we cannot possibly enforce because Floyd Laughren says we do not have the money to hire more of these brown-shirt inspectors to enforce the law. So we laugh at it, we wink at it.
Mr Winninger: They are not wearing brown shirts.
Mr Callahan: Well, whatever -- green. I would prefer green because it is Irish. But think about it. You are walking down the line towards disaster. You are creating a bill you think is going to solve a problem, or you are doing it to satisfy, as was suggested -- I would not be so offhanded as to suggest ulterior motives, but you are trying to placate a particular interest group. You are going to find that you are going to lose the respect of those good, law-abiding people out there who do not see this bill working.
Just take an example. I am sure you would agree with me that you would object as a municipal council person to someone speculating in real estate, in other words, coming before a council and getting a property zoned to one level, and rather than building anything on it at all, just trading it off and selling it to the next person who then comes forward and gets a higher density and increases it and the net result is that the cost to everybody of that development is much greater.
Let me refer you to section 4.2, which I think will be helped by this amendment, where you allow municipalities to apply the standard to "one or more retail business establishments or to one or more classes of retail establishments; (b) may apply to all or any part or parts of the municipality in case of a bylaw or to all or any part of a territory....(c) may limit the opening of retail business establishments on holidays to specific times...." Do you not see what you are doing? You are stepping into decisions and you are enhancing the value of those decisions.
If I were the guy owning that business, I would not work for a living. Probably some people say we do not work for a living now. What I would do is go out and find a business and take it before the municipal council and convince them that this should be a tourist operation, maybe because I was eloquent and was able to convince them, or maybe because it did fit in the scenario of tourist, or maybe because I had helped a couple of these people get elected and I could convince them they should say this is a tourist operation.
It never gets to Queen's Park. I have this picture of this person sitting down here scrutinizing every bylaw that comes in through the door; you know, pushed under the door to him. He or she will be the decision-maker as to whether or not this fits into the Lieutenant Governor in Council's regulations as to what a tourist zone is.
But let's say they do not get down here. You could sell that business. That business now becomes worth money. It is like, I have a QC. We tried to abolish QCs. All we did really was stop giving them out, so my QC now is worth a hell of a lot more than it was when I got it. That is what you are doing. Once you limit a commodity, you enhance the value of it. If that is what you want to do, if you want to have somebody trafficking in businesses, that is what you are creating with that section.
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If you look at the amendment we have put forward, I think Mr Sorbara has put it forward not because he endorses what you are trying to do, but it is an effort, a last-ditch stand, as it were, to try and hold the economy together. We are starving to death. We are going down the tube. I think the Treasurer is going to find that out when he starts looking at the revenues that are coming in. They are not coming in. There is no land transfer tax; there are no registration fees; we are no longer collecting the special -- what was it? -- victim surtax we brought in in the courts. We are no longer collecting this, that and the other thing; retail sales tax.
Who do you think is going to pay for the cruise? We are all on the cruise. Who is going to pay for it? You are in fact striking one more dagger into the economic sickness of this province by enacting this legislation.
However, if you go with the amendment, you will get a bucket to bail the boat out a little bit, because it says "be open on holidays for the maintenance or development of tourism" -- whatever that is -- "for economic development purposes" -- ie, if Windsor or Niagara Falls or Sault Ste Marie and so on are going down the tube -- "or for any other purpose prescribed by the regulations made under this section." I guess the only thing I would disagree with is that it should not be a regulation. But it has been concluded that is what it should be. Again, they are silent laws and you get no input from the legislators.
If you really look at it, you are going to realize that you are creating a monster. You are creating Frankenstein, and you had better know how to destroy Frankenstein, because we all know what happened when Frankenstein was created. He got out of control, and that is exactly what you are doing here.
I might add also, on the definition of "retail business," that there are retailers and there are wholesalers. What if I decided to become a wholesaler? What if I opened up a business where I was selling wholesale, not retail? I question whether or not you have governed that under this act. So suddenly we all go from retailers to wholesalers and we bring people in to work on the common pause day, just like they would with the retailers, instead of addressing, as was suggested, through the Employment Standards Act the issue of protecting the worker, giving him or her the right to say, "No, I don't want to work," or "If you want me to work, you're going to have to pay me to do it."
In my community, as I am sure in your communities, if you are active and you go around and take a good look at them, people are suffering. People want that extra work. People need that money to survive. People need that money to meet their housing needs. They need it to put food on the table for their kids. You are taking that away from them. You are saying to them, "Sorry, we know better than you do." It is, "Let them eat cake," except that in this case it is: "Let them eat nothing. Suffer, because we have a political agenda that has to satisfy this one powerful group that says, `We want this type of legislation,' and we're going to try to do it by sleight of hand. We're going to try to tell the religious groups, `Hey, we looked after your Sunday for you.'" At the same time, you are kicking sand in the face of the Jewish community, and the Muslim community. You explain that to your constituents when you go back out on the campaign trail.
Finally, this bill is a lawyer's delight. It is going to make lawyers very rich at the expense of the taxpayers. I would be willing to bet that there are at least five holes in the amendments you are suggesting that will win the day in the Supreme Court of Canada.
Do you know how long it takes to get to the Supreme Court of Canada? You go through the various levels, probably before a justice of the peace first, then to perhaps another level and another level, or you go to the Ontario Municipal Board. You are just creating a delight for lawyers. You are going to have big legal bills. I would love to be in the estimates of the Attorney General the year after this bill is passed, just to go through how much money has been spent by the Attorney General directly or through secondment to the other ministries. You are going to find megabucks, dollars that could be spent in a much more productive way to help people.
I really urge you to think about it. I know you have probably been given your marching orders, but as I said today in the House and I say every chance I get somebody to listen to me, if you got elected, if you are going to take the opportunity and the -- I use the words "sacred trust," but I think equally you could say the fact that people worked hard for you to get elected, that they voted for you, that they are depending on you, and if you are going to allow the government's agenda to drive your decision and drive your vote, then this place might as well close the front door, all of us go home and save the money. We will get the Lieutenant Governor, who is always a good person and well respected by the people of Ontario. He can get into his carriage and, instead of opening the Legislature in that landau, he can throw money to the people. That will be a better way of distributing it than having 130 of us down here thumbing our noses at the taxpayers, and that is precisely what we are doing with this.
I am not naïve. I know what I am saying to you is just going into deaf ears.
Mr Winninger: We do not use the term "deaf," remember?
Mr Callahan: Sorry about that. It is going into ears that are not going to allow a decision to be made according to the way you believe or the way your constituents want you to believe; you are going to play the party line and you are going to march to the drummer of those spin doctors and those unelected people and those people who have no say in it at all.
The Solicitor General is gone, but I feel sorry for him. I do not believe he has control of this bill in cabinet either. I think they are being told: "This is what you're going to do. To hell with the taxpayers; they don't mean anything. They're incidental. They're not bright enough to know what's good for them, so we'll just tell them what's good enough for them." If you have to go back to your ridings and defend that, you have problems.
At least originally by our bill of putting it to the municipalities -- AMO did not like it. I do not hear one word from AMO these days. AMO thinks that was pretty good. You do not hear it as a specific issue in the municipal elections, because people wanted to have that opportunity to address their local representatives and to have a say and to be able to have accountability in the whole process.
What you have done is given it back to Big Brother. You have tied the strings to Queen's Park, just like it was during the Conservative days with the definition of tourism where they could open up a fruit store and call it a tourist attraction because the fruit store was being charged constantly and people liked to get their fruit there on Sunday, believe it or not. That is how it happened. People laughed about it; it was a big joke. "If you want to open up, you've got to become a tourist operation." It got to the point where anything was a tourist operation. That is really sick.
I believe the amendment being offered is not going to solve this piece of legislation, but it certainly is going to at least put some protections in there and perhaps allow our economy to limp back to some degree of vibrancy, because it certainly is going down the hill, and we are helping it. We are throwing dirt in the hole and we had better decide not to do that, or we can go and blow up the bridge, as I suggested, because that may be another alternative.
That is what happens. When the economy gets so bad, desperate measures are resorted to. Your government is now resorting to a measure that is going to require more desperate means by people so that they can survive, so that they can have presents for their kids at Christmastime, food on the table and so on.
You go talk to some of your constituents, women and men and students who want that work, and do not listen to the powerful lobby groups that tell you that you have to do this.
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The Chair: I would like all members of the committee to note the time. That has not been changed. It is actually only 10 to 5.
Mr Chiarelli: I want to make some detailed comments on this particular issue and, again, I want to try to make them in the context of being helpful and perhaps having some reasonable debate. I am sorry the Solicitor General is not here, because I wanted to speak to him quite directly.
First of all, I want to raise for some of the committee members, particularly on the government side, the question of why there is any imperative at the present time to pass this legislation. We know that over the last period of time we had the Conservative government legislation, which had a tourism exemption. The tourism exemption, in effect, was a local option. Many municipalities passed bylaws which permitted them to be open, which could be done without reference to any particular criteria, and the province survived.
Obviously there were a lot of special-interest groups lobbying the government for particular reasons, and then we embarked on a review of the legislation. We amended the legislation and put the legislation in place. It was de facto a local option. The province continued to survive. Politics thrived. The politics of this issue are absolutely unbelievable. Special-interest groups, union groups, church groups, retail groups, border communities -- it was a political whipping boy for every special-interest group imaginable.
Then of course we had the Supreme Court declaring the Liberal legislation unconstitutional, and we had wide-open shopping. There was no restriction whatsoever. The province survived. There were no major calamities that occurred, and yet the politics thrived.
Now we have the New Democratic government coming in and wanting to impose a new political imperative that says, "This legislation can be improved." The real reason for the legislation is to satisfy a number of special-interest groups, because the politics of this issue continue to thrive.
I think it is important to put this current legislation into perspective: The province has survived, it has continued, but the special-interest politics have also survived and have gone through this whole process. When the government comes in and says, "We must have this legislation because," the "because" is not that the province is going to survive or not survive; the "because" is that we have told special interest groups we are going to pander to their particular lobbying. That is the reality of it. This legislation is made to order for special-interest groups.
If you look at the issue logically, you should be saying that everything is closed except the real emergency operations -- emergency transportation, health care, etc -- or, logically, everything should be open. It should be province-wide or it should be local option. To put all the permutations and combinations to try to appease one religious group versus another, to try to accommodate one group of workers versus another group of workers is illogical and is unfair.
The whole history of this legislation is a pandering to special-interest groups and has no relationship whatsoever to what is happening in the marketplace, other than that this legislation and legislation like it impacts very negatively on certain special-interest groups. It is unfair and it is discriminatory in many respects. So when we in the official opposition saw the government take initiatives on this particular issue that it wanted to legislate, we said: "Great. They are going to drown in it. It is a no-win situation." You jumped into it with all fours and you jumped into a can of worms, which you ought not to have done. You are now in a political jackpot, a political mess which you have to try to extricate yourselves from, and you are groping for ways to extricate yourselves from, really, a political mess.
I respect the fact that you are a new government, you have new ministers, and you had an agenda which you wanted to get to as quickly as possible. But I think in many of the initiatives that the government has taken, it has put the cart before the horse. What you did was take a political decision, a political initiative, draft legislation which represented what you collectively in caucus thought was your platform or your ideology and, after the fact, consulted and took advice.
On virtually every initiative that has been taken, you have had to reverse yourselves, including Sunday shopping legislation. The reason you have had to reverse yourselves on every major initiative is that you took the decision before you consulted and before you took the professional advice of the bureaucrats, the lawyers and the technical people in your various ministries. When you look at the initiatives that were taken -- for example, the employee wage protection program -- you took the initiative and then you consulted and took advice, and you had to make a very significant retreat.
On the environmental bill of rights, the minister promised to introduce it, was going to introduce it. She put it on a short time line. After the fact, she took advice and consultation and had to back down: The cart before the horse.
Bill 4 on rent control, the same thing: You brought in legislation and then you consulted and took the advice. Then you had even your own constituents, the landlord and tenant groups, saying it was a major betrayal.
Bill 70, the gas guzzler tax.
On Sunday shopping, you introduced the legislation, you went out to committee, you consulted people and you found, "My God, we do not know where we are going with this thing." So what do you do? You adjourn the committee, suspend it indefinitely. Then what do you do? You decide you are going to bring it back in. The minister issued a press release with respect to the Ontario Municipal Board appeals and access to the courts and said that is going to solve the problem. You went out and took more advice and consulted more, and you decided, "Hey, why don't we open up Sundays in December?" Another major retreat and a major change of position.
It all points to one basic flaw in the process of decision-making in this government. You take a decision based on a cursory ideological propensity to do something and then, after the fact you consult and you take advice, and you find that you have to change your position. That is exactly what has happened in the case of Bill 115.
If I can go back and just refer to the second-last set of amendments that were being proposed by the Solicitor General -- I am talking about the communiqué or the news release of 27 September -- I just want to refer very briefly to what the Solicitor General was saying at that point in time, a month ago. He says, "We are making good on our long-standing commitment to provide common pause day legislation that protects the rights of retail workers and recognizes the unique requirements of the tourism industry."
He could have made that statement any time -- at the time he first introduced Bill 115; he could be saying that today -- but the fact of the matter is that the bill was very lacking at the time he made this statement on September 27. At that time, when the opposition raised some objections that the bill still was not good, the members of this committee, cabinet and caucus said the opposition was being unrealistic, it was being obstructionist. Yet several weeks later, we are coming in with what appear to be major compromises and major changes in the legislation again. So I think it is fair comment to say that there are significant political pressures at play in the caucus, in the cabinet and by special-interest groups, which keep moving this issue around and making it very dynamic.
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As I said before, the province survives our political wanderings, the political wanderings of the Conservatives, of the Liberals and of this New Democratic Party. So I take some exception when people come in at this point and say, "There is a political imperative to get this through within two weeks," because there are significant defects in the government amendments which must be addressed, which we want to try to address as the opposition, and I think we are entitled to take the time to address these.
If I can get back once again to the Solicitor General's communiqué of September 27, he indicated that the amendments would include "an appeals mechanism through which tourism exemption bylaws could be challenged. This would be administered by the Ontario Municipal Board which will be obliged to make its best efforts to conclude the appeal process within 90 days." We all know that is a virtual impossibility, and it is a gross misrepresentation to the people of Ontario when the Solicitor General indicates he feels they can meet this 90-day deadline. I will address this in some detail later in my comments.
The Solicitor General also indicated that "at the request of chambers of commerce, there would be no reference to them in the final text of the regulation under the bill which sets out the exemption criteria." He is choosing to let the chambers of commerce off the hook, but what about the Ontario Municipal Board? The Ontario Municipal Board no more wants this than it wants a hole in the head. What is the rationale for letting the chambers of commerce off the hook but not the Ontario Municipal Board, which has such an onerous responsibility to help any government of this province manage development in this province? There is no logic and there is no rationale. We all know once again that this is strictly a political dynamic which has no reference whatsoever to what is really substantively required or needed in the marketplace.
The other point which the Solicitor General indicated in that particular communiqué was the provision which would allow any member of the public to take steps to enforce what are felt to be contraventions of this particular legislation. Once again he let the chambers of commerce off the hook. How, under the present circumstances, can anyone justify dumping Sunday shopping issues on the courts? Surely it will happen.
You people in the NDP caucus know what discussions and comments took place in your caucus. You know why these particular provisions were put in. They were put in there as a concession to people who support an absolute common pause day. You went into your caucus and you said, "We have all these people to whom we made a promise that we were going to have a common pause day and now they are very upset with us because the process is not tight enough."
So you said, "Well, we will fix that political group up" -- because that is what it is, a political lobby group. "We will say to them: `You can run around the province like a bunch of vigilantes and you can oppose every single bylaw that is passed by any municipality and bring it to the Ontario Municipal Board. Not only that" -- this to the special-interest group that has lobbyed us in the NDP caucus -- "but if you think we are not enforcing it, you will have the right to take it to court and you can enforce it yourselves. You can go to all your common pause day groups, your church groups, you can have fund-raisers and you can have a legal fund to fight Sunday openings in municipalities.'"
It is absolutely conceivable, and perhaps likely, that the common pause day coalitions will have regular fund-raising and, as a matter of course, a policy of filing objections to every bylaw in the city. I am not making what I feel is an irresponsible statement when I predict that is a likelihood or a strong possibility. If it is not carte blanche across the province, it will be in pockets, but it will be organized and it will be well funded.
You have to ask yourselves what that will do to the small communities where you have small retailers, mom-and-pop operations, which are going to have to hire lawyers and consultants to go to the Ontario Municipal Board and defend them in court. Where is the NDP fairness for the little guy?
The Bay, Eaton's, Pharma Plus and Shoppers Drug Mart will have their lawyers and their consultants and they can handle the Ontario Municipal Board, but what are you going to do for your constituents, the little guy in Prescott and Russell, your small motel? Are you going to provide subsidies now so they can defend these matters at the Ontario Municipal Board?
What you have done is to make a very strategic political mistake by jumping into this issue with all fours. You know yourselves -- and your caucus and your cabinet knows -- that you have been floundering all over the place trying to appease this group and that group, raising one objection or another. You are going around with a bunch of Band-Aids trying to fix this legislation. The issue is, how responsible are you being as a government? By taking this legislation and trying to whip it through full of Band-Aids, when we know particularly the provisions which require appeals, which give a right to appeal to the Ontario Municipal Board --
Mr Mills: Dylex will phone you tomorrow. It was delayed. You will get the message.
Mr Chiarelli: I am happy to hear messages from anybody, but if you want to defend the interests of Dylex, Mr Mills, that is your prerogative. If you are gloating in your NDP caucus because Dylex has issued a press release saying it loves this amendment, you can have the Dylex constituency, but there is a whole constituency, namely the people in the province of Ontario, who are going to be tied up in knots.
They are going to be knocking down your doors. If you think there is a problem at the Ontario Municipal Board now, and if you think that to get affordable housing on market now you are trying to expedite matters at the Ontario Municipal Board, you can put another six or 10 months on every single affordable housing project going to the Ontario Municipal Board because you are going to be inundated with Sunday shopping bylaws. You are going to so devastate the process at the Ontario Municipal Board that you will have to throw millions of dollars at it.
Mr Mills made an off-the-record comment that it will be under $1 million to subsidize the Ontario Municipal Board to handle this type of issue. You are dreaming in Technicolor, and you are going to have to dream in green Technicolor, because there will have to be so many greenbacks to go to Mr Kruger to satisfy his concerns and the concerns of every mayor.
I cannot believe the Solicitor General, as a former mayor of a municipality, does not understand. I am glad the Solicitor General is walking back in, because as a mayor of a municipality, he knows the concerns of people in every walk of life with respect to the problems at the Ontario Municipal Board.
1710
I do not know whether the Solicitor General has taken the time to read Mr Kruger's comments before the standing committee on government agencies on Tuesday, January 22, 1991. That is this year. I just want to bring to the Solicitor General's attention some of Mr Kruger's comments at that time. I am reading from page A-61, the Hansard of Tuesday, January 22, 1991. The chairman of the Ontario Municipal Board, Mr Kruger:
"When I became the chairman of the board, the first thing that we called for was a consultant's report. We saw that there were difficulties. This was recognized by the board and that produced this report. It was done by an outside consulting firm, the Coopers and Lybrand group, and it took a look at every single thing the board did.
"There were some criticisms of that. They said: `Some of the methods and procedures you've got, you've got a terrible backlog. You've got to change some of your procedures and the way of the past. You have to change some of these things.' They also highlighted that the backlog was not going to go away and in fact it was going to get worse.
"It takes 18 months to train a member of the board."
I think it is important to keep in mind that when the chairman of the Ontario Municipal Board says it takes 18 months to train a member of the board, you have to ask yourself, even if this government makes dollars available to the Ontario Municipal Board to cover appeals which are going to be emanating immediately -- you are saying you want this legislation through before Christmas; in fact, before December starts. That means the appeals will start in December, January or February. That means the backlog at the Ontario Municipal Board is going to be very significantly increased long before any of these people are trained with the moneys that you might give the Ontario Municipal Board. You are going to have a tremendous backlog, at least for 18 months, as all these Sunday shopping amendments add on top of the current backlog.
In any case, to go on further and indicate what Mr Kruger was saying on that particular day:
"It takes 18 months to train a member of the board. They have to be trained and they have to understand rules of practice and procedures and so forth. Being a lawyer is of some help, but if you do not have skilled municipal experience, it is not much of a help. So it takes 18 months to get them on stream, and within the next two years we are going to have six members retire. One member retired on December 31 and has not been replaced. I have another member whose time is up who will retire in June. I have another member who retires in September of this year. I have another member who will probably retire in June because the 90-and-out has the pensions. I have a member who will retire early in 1992 and I have one other member who is ill and we are not too sure if that member is not wanting to retire towards the end of this year.
"We have suggested to the government that we want to increase our complement of 30 so that we can get these people trained and then within two years we will be back to 30."
Without Sunday shopping appeals at the Ontario Municipal Board, Mr Kruger, who is the chairman, is saying he hopes to be able to get back up to speed within two years. We have to keep in mind that Mr Kruger was making this statement before these amendments were introduced.
I see Mr Morrow over there. He knows what I am talking about. He knows that I have seen the Hamilton Spectator article and his concerns about the Ontario Municipal Board. But the fact of the matter is that Mr Morrow is correct and I am correct and Mr Kruger is correct, and the Solicitor General knows the Ontario Municipal Board is not going to be able to handle these unless you have an answer from Kruger as to what amount of resources he needs to get up to speed. That is an issue, as you well know, quite apart from appeals from Sunday shopping bylaws. There is a tremendous backlog at the Ontario Municipal Board.
As a municipal politician, as a mayor, you know the problems, and you know you are dumping Sunday shopping on to them. You know how many people and resources you are going to have to add to the Ontario Municipal Board for you to legitimately respect your promise and undertaking to try to have these appeals dealt with in 90 days, and you are not saying how many because you do not want to scare the dickens out of everybody.
You know what Kruger thinks. I will be very surprised if you have not heard from Kruger. If you have not heard from Kruger, you should make it your own business to get on the phone and talk to him about these amendments and what resources he will need. He said here on January 22, 1991, that significantly increasing his complement, he might get up to speed in two years, without any reference to Sunday shopping.
There is a strong element of politics and irresponsibility in dumping this issue on the Ontario Municipal Board. You have a commitment as a government to affordable housing. You as caucus and cabinet members have decided to fast-track any affordable housing issue at the Ontario Municipal Board. You are going to slow down your affordable housing initiatives. There is no question. It is so clear that someone with the experience and the credibility of John Kruger will stand up and say that without Sunday shopping in effect, it will take two years to get up to speed. Even the commitment to speed up affordable housing is not being met now because they do not have the resources to do so. It is on record all over the place from people who are experienced and knowledgeable. You know you cannot do it. You are being very political and very irresponsible to the process.
If you can come in here and tell this committee, the people of Ontario and all the planners, municipalities and councillors across the province that you are going to streamline the Ontario Municipal Board and you are going to give it resources, then that is fine, that is part of the equation and I would not be here debating the issue the way I am. But unless and until you have an answer to the Ontario Municipal Board process, you are being totally irresponsible, illogical and unfair to the people of this province, because it simply will not work.
If you go to caucus and you basically have made a decision that in order to appease the common pause day coalitions you are going to throw this in, then it is a very bad and sad day for the province of Ontario.
Interjection.
Mr Chiarelli: It has been suggested to me that there are some other activities which are going on in the Legislature today and there seems to be a consensus that we should adjourn today at 5:15. I think I have overstayed my welcome by at least four minutes, if not 44 minutes. In any case, I move adjournment of the debate until tomorrow at 3:30 or the end of routine proceedings. I intend to continue at that time, Mr Chairman.
The Chair: We are adjourned until 3:30 tomorrow.
The committee adjourned at 1719.