MINISTRY OF THE
SOLICITOR GENERAL
MINISTRY OF LABOUR
MINISTRY OF TOURISM AND RECREATION
HOTEL ASSOCIATION OF METROPOLITAN TORONTO
CANADIAN SHOE RETAILERS ASSOCIATION
CONTENTS
Monday 29 July 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
Ministry of the Solicitor General, Ministry of Labour, Ministry of Tourism and Recreation
United Food and Commercial Workers International Union, Canadian Region
Tourism Ontario, Inc
Hotel Association of Metropolitan Toronto
Chinese Community for the Freedom to Work
Canadian Shoe Retailers Association
Regional Municipality of York
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: White, Drummond (Durham Centre NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Gigantes, Evelyn (Ottawa Centre 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)
Substitutions:
Daigeler, Hans (Nepean L) for Mr Chiarelli
Haslam Karen (Perth NDP) for Ms Gigantes
Lessard, Wayne (Windsor-Walkerville NDP) for Mrs Mathyssen
McLean, Allan K. (Simcoe East PC) for Mr Harnick
O'Connor, Larry (Durham-York NDP) for Mr Winninger
Owens, Stephen (Scarborough Centre NDP) for Mr Morrow
Clerk: Freedman, Lisa
Staff:
Campbell, Elaine, Research Officer, Legislative Research Service
Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1308 in committee room 1.
RETAIL BUSINESS ESTABLISHMENTS STATUTE LAW AMENDMENT ACT, 1991 / LOI DE 1991 MODIFIANT DES LOIS EN CE QUI CONCERNE LES ÉTABLISSEMENTS DE COMMERCE DE DÉTAIL
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.
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.
MINISTRY OF THE SOLICITOR GENERAL
MINISTRY OF LABOUR
MINISTRY OF TOURISM AND RECREATION
The Chair: I would like to call this meeting of the standing committee on administration of justice to order. We are here to hear initial submissions in regard to Bill 115, an act to amend the Retail Business Holidays Act. As our first witnesses we have Mr Farnan, the Solicitor General, Mr Mackenzie, the Minister of Labour, and Mr North, the Minister of Tourism and Recreation, who will be making some brief introductory comments. I understand Mr North and Mr Mackenzie will only be with us for the first hour, and in consequence we should possibly think of the initial questions going to those honourable members. We have time for initial comments. Would you like to make them separately or together at the witness box, gentlemen?
Hon Mr Farnan: Good afternoon. I want to take the opportunity, first of all, to thank the committee for the opportunity to be present and to address the committee this afternoon. You have a key role to play in bringing to fruition the Retail Business Establishments Statute Law Amendment Act, otherwise known as Bill 115.
This legislation is important to the citizens of Ontario because it will further ensure a common pause day for retail workers and thereby help strengthen family and community life in the province. At the same time, it will maintain and enhance Ontario's tourism industry by allowing tourist-based businesses to operate on Sundays and other holidays. But it will also protect retail workers who do not wish to work on Sundays or other holidays and it will establish a provincial-municipal partnership in allowing municipalities to determine their special tourism industry needs within province-wide guidelines.
As you know, Bill 115 was introduced in the Legislature on June 4, 1991, and received second reading on June 17. The provisions of this bill include amendments to both the Retail Business Holidays Act and the Employment Standards Act. The proposed amendments to the two acts included in Bill 115 will improve the effectiveness of both these laws.
Principally, the amendments to the retail business holidays law will ensure that retail business holidays are common pause days throughout the province. Municipalities should not use their exemption power to permit retail stores to open on Sundays or other holidays except to maintain and develop tourism.
The amendments to the employment standards legislation would give employees the absolute right to refuse Sunday and holiday work. It would also guarantee 36 hours of continuous rest in every seven days and strengthen the role of employment standards officers in dealing with employee complaints.
I would like to offer now a brief historical overview to the committee. Like any sequence of historical events, it is useful in defining where we are today, and indeed where we are going tomorrow.
The issue of retail activity on Sundays and other holidays has been a topic of frequent debate, indeed often heated debate in this province since 1845. That was the year Upper Canada passed a law banning just about every Sunday activity except churchgoing. The history of related legislation tends to mirror the evolution of our society. It reflects both tradition and change. It chronicles our long-standing values and our evolving attitudes.
During the 1880s, for example, streetcars were not allowed to run on Sundays. Sunday shopping, or the transaction of any business for that matter, was made illegal by the federal Lord's Day Act of 1906. In 1943, Toronto movie theatres were first permitted to open on Sunday, but only to members of the armed forces. This privilege ended in 1945 and was only restored in 1961, and professional sports were banned on Sundays until 1950, when municipalities were permitted to pass enabling bylaws.
While the history of Sunday and holiday shopping laws may seem marked by quaint anachronisms, the strong thread that runs through it and pulls us towards our purpose here today is a strong desire on the part of Ontarians for some structure or framework to their working week.
Our government's commitment to support that desire was expressed in the throne speech last November. Our promise to support legislation which provides for a common pause day while protecting the rights of retail workers was sincere, and indeed a priority for us during the recently completed session in the Legislature.
A closer look at the recent history of the Retail Business Holidays Act will help put the importance of Bill 115 in proper perspective. In June 1990, the Supreme Court of Ontario declared the existing legislation to be unconstitutional, due primarily to the virtually unrestricted powers delegated to municipalities. That decision was appealed and was heard by the Ontario Court of Appeal in September 1990.
The court's ruling in March of this year reinstated the Retail Business Holidays Act as the law of the land. In doing so, it recognized the pressing and substantial concerns for a common pause day addressed by the legislation. After the court's decision, I promised to introduce amendments to improve the legislation and to make it more effective. It was decided that amendments to both the Retail Business Holidays Act and the Employment Standards Act were necessary to achieve this.
I should point out that the amendments to the Employment Standards Act do not apply to the hospitality industry, which includes hotels, motels, tourist resorts, restaurants, amusement parks and museums. These enterprises are exempt from the current legislation regarding the right to refuse Sunday work and will continue to be exempt.
I must emphasize here that both acts are in effect in their entirety at this time. The existing provisions are in force and their basic principles -- that is, worker protection and the common pause day -- are not up for negotiation.
My ministry administers the Retail Business Holidays Act, and I think it would be useful if I briefly reviewed its provisions as they exist today.
Mr McLean: On a point of order, Mr Chairman: The fact is that Mr North and Mr Mackenzie are here for one hour, from 1 to 2. My understanding is that Mr Farnan is here until approximately three. Perhaps we should be listening to the other two ministers, who are leaving at 2 o'clock, before time runs out.
Mr Sorbara: On the same point of order, Mr Chairman: Perhaps the Solicitor General might just give us an indication of how much longer his opening remarks are going to be, either in pages or time, and then we could determine whether or not we have to express any concern that we will not get a chance to question either of the other two ministers.
Hon Mr Farnan: I am just over halfway through my remarks.
Mr Sorbara: That gives me a little cause for concern.
The Chair: Which means Mr Farnan would be finished before half past.
Mr Sorbara: Might I suggest perhaps that the Solicitor General proceed as quickly as he can through his remarks and then that we hear quickly the remarks from the other two ministers, and then have an opportunity to question the other two ministers, inasmuch as they have to leave, and then ask the Solicitor General to return for questioning after 2 o'clock. Would that be agreeable?
Hon Mr Farnan: Yes. I will try and move through this as quickly as possible to facilitate that.
The current act essentially calls for most retail business establishments to be closed on Sundays and other holidays enumerated in the legislation. Most exemptions are based on providing flexibility to small businesses which sell certain types of goods and on recognizing on the need for important or essential services to carry on in response to public need.
There is also a Sabbatarian exemption which accommodates owners of retail businesses who observe a religious day other than Sunday. In addition, activities which seem to be conducive to the concept of a common pause day are accommodated. For example, subsection 3(6) provides an exemption for businesses of an educational, recreational or amusement nature.
The great shortcoming in the act lies with section 4. It provides that municipalities may create bylaws which can further restrict or exempt holiday retail activity. The unrestricted scope of the authority given municipalities under this section presents the potential for a patchwork of inconsistent holiday retail practices across the province. Through Bill 115, a revised section 4 has been proposed which allows municipalities to pass bylaws to accommodate local tourism-dependent areas and businesses.
While the administration of this process is the responsibility of municipalities, they are required to ensure that provincial criteria, in the form of accompanying regulations, are met before they can grant the tourism exemption. This will ensure that genuine tourism-based needs are addressed with uniformity and fairness across the province.
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Municipalities would be empowered to make the final decision on applications for exemption, and develop their own procedures for dealing with applications and establish fees to cover the costs of this process. Municipal councils are not compelled to grant such exemptions, even if the criteria are met by an applicant. In fact, in the text of the bill, councils are reminded of the importance of maintaining holidays as common pause days when considering the passage of a bylaw.
The focus on tourism in the proposed new section 4 of the act is a key component of Bill 115. As a cornerstone of our provincial economy, the unique requirements of the tourism industry must be addressed. Permitting municipal councils to administer the tourism exemption ensures that local needs will be met and legitimate tourism-based businesses will be protected and promoted in co-ordination with local economic development plans.
The other proposed change to the Retail Business Holidays Act establishes minimum fines for violations of the act. The significance of this is clear, since it reflects the seriousness with which our government views the purpose of this legislation. We believe strongly in the need for effective and fair legislation which provides for a common pause day for Ontarians while protecting the rights of retail workers and recognizing the unique requirements of the tourism industry.
As I have said, Ontarians have also expressed, through a long history of related legislation, that this kind of law is a vital component in our society. It is part of our Canadian heritage to place a high value on the quality of life and community values. We Canadians seek to achieve a balance between the interests of the individual and the interests of the community at large. Our government remains resolved to support this vital component in the quality of life for the people of Ontario.
Before I conclude, I would like to address the importance of consultation. I commend the members of this committee for the role you will play in this important process. Your committee provides an opportunity for Ontarians to voice their opinions on the proposed legislation. This is an important part of our open and accessible system of government. The committee's objective analysis of public input will play a significant role in determining the final shape of Bill 115.
I think it is important, however, that the fundamental principles of this legislation remain intact. These are the principles of a common pause day, the principle of protecting retail workers, the principle of allowing a tourist exemption and, finally, the principle of partnership with the municipalities that allows for local needs to be met within the context of provincial guidelines. Our government believes, and I feel quite strongly, that a responsive government is a responsible government.
I thank the committee members for their efforts in reinforcing the process of open and accessible government in Ontario. I am pleased to advise the committee that members of my staff and ministry staff will be attending the hearings of the committee around the province and will be available at all times to assist the committee.
I have with me today Mr David Spring from the legal branch of the Ministry of the Solicitor General. I will be asking him to join me here after the other ministers have made their presentations. At this stage, I would hand over the floor to the other members of the delegation.
Hon Mr Mackenzie: I will try to be as brief as I can so that there is some time for questions.
Before I begin my remarks, I would like to say that I am very pleased that this legislation has come before this committee for public deliberations of a most important issue.
I would also like to inform the committee that my staff and ministry staff will be monitoring these hearings closely and reporting back to me. They will also be available to assist the committee on any questions that may arise as you travel across the province.
As my colleague the Solicitor General has mentioned, a common pause day is essential if we are to maintain and improve the quality of family and community life that we enjoy here in Ontario. In order that thousands of retail workers in this province are able to participate in this quality of life without the fear of losing their jobs, this government proposes to amend the Employment Standards Act as part of Bill 115.
Retail workers, full-time and part-time, will have the absolute right to refuse work on a Sunday. No reasons for the refusal will have to be given to the employer.
Employees who agree to work on a Sunday but subsequently decide not to will be able to refuse, once again without giving a reason, with 48 hours' notice to the employer. This notice may be either verbal or written.
In addition, retail employees will also be guaranteed 36 hours of continuous rest in every seven days. Workers who volunteer to work on a Sunday will still be able to enjoy a regular day of rest.
Under Bill 115, retail employees will be able to exercise these rights with the protection of additional provisions of the Employment Standards Act. These will prohibit employers from dismissing the employee or taking other punitive measures, such as discipline, suspension, layoffs, threats, intimidation or coercion.
There have been some concerns raised about the enforceability of the proposed new provisions of the Employment Standards Act.
The amendments outlined by the Solicitor General for the Retail Business Holidays Act will ensure that most retail workers will not be forced to work against their wishes on a Sunday since the majority of retail establishments will be closed.
The amendments give retail workers the absolute right to refuse work on a Sunday with no reasons required. This will provide a right without qualification as in the current right to refuse unreasonable work.
Also, under the amendments to the Employment Standards Act in Bill 115 employment standards officers will be able to issue orders for compensation or reinstatement if an employer takes action for refusal to work on a Sunday. Employers and employees will retain their right to appeal any order issued by an employment standards officer.
Other amendments to the Employment Standards Act outlined in Bill 70 provide for an accelerated appeals process for employers and hearings by independent adjudicators for employees. This bill is currently under deliberation by the standing committee on resources development. Appeals will be heard within 45 days of filing, with a decision within 90 days of the initial hearing. Neither employers nor employees will be tied up in lengthy and protracted appeals procedures.
The amendments to the Employment Standards Act outlined in Bill 115 relate solely to retail workers. Generally speaking, these are workers who are for the most part unorganized and least able to fully exercise their rights. Workers from the hospitality industry businesses, such as hotels, motels, restaurants, tourist resorts, amusement parks and museums, will be exempted from these amendments, just as they are under the current provisions for unreasonable Sunday work.
The principle of a common pause day is an important one. It is a principle that we have fought for for years and it was directly outlined in the speech from the throne.
I urge the committee members to listen carefully to the points that are raised during the public hearings into Bill 115. I urge you to make your report in a thoughtful and thorough fashion, keeping in mind that the underlying principle of Bill 115 is to give retail workers a right that most of us enjoy, and that is the right to a day of rest.
I thank you for the opportunity to make this presentation.
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Hon Mr North: I will try to be as brief as I can. I am delighted to appear before your committee as you begin the important task of reviewing Bill 115. During the next few weeks, you will hear presentations from a wide variety of interest groups. You will need to carefully consider and balance their views when preparing your final recommendations for changes, if any, to Bill 115.
I am pleased that Bill 115 recognizes the importance of the provincial tourism industry by providing an exemption for legitimate tourism businesses in the retail sector. I hope that after consultations your committee will recommend we keep this provision.
Bill 115's major objective is to balance the importance of providing a common pause day for workers and their families in Ontario with the need to recognize the impact tourism has in communities throughout our province. I have met with representatives from the tourism business across Ontario. I remain convinced that maintaining this balance is important.
Tourism and recreation play an important role in the growth of Ontario's economy. Tourism is Ontario's fourth largest export industry. In 1989, it created 160,000 jobs province-wide. In 1990, tourists travelling throughout Ontario spent a total of $15.5 billion.
The current act requires most Ontario retail businesses to close on Sundays and holidays. Many people use these days to travel, visit friends and relatives and enjoy Ontario's natural and man-made attractions.
Today, travel and other leisure activities are more than frills. Many people are able to reduce the stress they face in their everyday lives by relaxing and sharing activities with their families. In that sense, quality leisure activities help people to lead healthy, productive and fulfilling lives.
For many people, shopping can be an important part of a tourism experience. In fact, Sundays and holidays are the very days when most tourism-dependent operations and communities do the majority of their business. They should have the opportunity to remain open. Businesses dependent on tourism actually enhance the common day of rest by providing leisure services Ontarians need and enjoy.
Our balance must consider the needs of a diverse workforce. It must also consider the needs of diverse communities. Each region of Ontario has distinctive tourist attractions and strengths. They include historical sites, ethnic and cultural festivals, natural attractions such as lakes and rivers and a large variety of recreational activities. Given this regional diversity, flexibility in the treatment of businesses dependent on tourist attractions is essential.
The provisions of Bill 115 would give municipalities the opportunity to establish an exemption for retail establishments closely associated with the local tourism industry. Municipalities could then cultivate the major economic and social benefits tourism can provide.
After Bill 115 and the draft regulations have been finalized, our ministry will provide guidelines and work with municipalities and representatives of the tourism industry to assist in the implementation of the new legislation. I am confident your committee's report will help us towards a fair and workable balance that will allow for continued development of Ontario's tourist industry.
The Chair: Thank you, Mr North. We have approximately half an hour for questions, which will be, I believe, on a rotating basis, starting with the official opposition.
Mr Sorbara: It is nice that we are all back together again on the great ship Sunday Shopping, which leaves Queen's Park every three years without fail. I want to direct my first question -- there are three parts to it -- to --
The Chair: The questions are rotated.
Mr Sorbara: That is right.
The Chair: The first question, the second question, the third question.
Mr Sorbara: I appreciate that.
The Chair: Thank you.
Mr Sorbara: I want to direct the first question that I ask in the rotation to the Minister of Labour, Mr Mackenzie, and there are three parts to the question. The first part refers to the final words of his statement, in which he says he would like "to give retail workers a right that most of us enjoy, and that is the right to a day of rest."
Might he point to the place in the statutes of Ontario where non-retail workers, that is, workers in any other sector of the economy, have a statutory right to a day of rest, with the exception of the One Day's Rest in Seven Act, which does require one day of rest in seven to workers in the hotel industry? Do workers other than retail workers have special statutory provisions giving them what he says most of us enjoy, and that is the right to a day of rest?
The second part of the question has to do with the substance of the legislation itself. As he knows, the current act provides for a retail worker to refuse an unreasonable assignment of Sunday work and at the same time provides a mechanism to make a judicial determination whether or not an assignment of Sunday work is unreasonable. That is the pith and substance of Bill 114, the predecessor of Bill 115.
Could the minister tell this committee why in his view it is more reasonable to give a retail worker the absolute right to refuse an assignment of Sunday work, that is to say, to give the retail worker the right to agree on Monday morning with an employer that he or she or they -- let's take a workforce of five people -- agree with the employer, perhaps in writing, that they will be available for Sunday work, and Thursday evening, having decided for some reason or another that they choose not to work on Sunday, have an absolute and statutory protection to advise the employer that they are refusing to work that Sunday?
The third part of my question to the minister is this: The provisions in Bill 114, the predecessor bill, which prohibited the employer from taking any retaliatory action against a worker who refused an unreasonable assignment of Sunday work, were on perhaps 15 or 20 occasions described by the minister when he was in opposition as "not worth the powder to blow them to hell." In his speeches, most of them very eloquent, he said that most employers when they saw that provision would just laugh and would find other means and mechanisms of retaliating against their employees if they refused an unreasonable assignment of Sunday work. In his words, those provisions were "not worth the powder to blow them to hell."
I have compared the provisions in his bill with the provisions in my bill, and the prohibition sections and the penalty sections look surprisingly similar. I am not surprised to say that, because they were drafted by the same competent bureaucrats who advised me and are now advising the minister. But I am wondering if the minister can point out specifically what provisions there are in his bill which will ensure that his provisions are "not worth the powder to blow them to hell."
The Chair: There were three parts to that. Is there any particular choice you have in terms of which of those questions you would like the minister to answer?
Mr Sorbara: Let's see if the minister might wrap it all up in one comprehensive answer, with the indulgence of the committee.
The Chair: As we have agreed to rotate questions, you should probably choose which of those three questions you wish to pose to the minister.
Mr Sorbara: I think that ruling this early in these committee hearings poisons the nature of how we are going to go. I am not going to choose. I will let the minister choose.
The Chair: It was the subcommittee that agreed to that, and you are part of that subcommittee.
Mr Sorbara: The minister can answer one or all of the questions. In fact, the minister does not have to answer any of the questions.
Hon Mr Mackenzie: I am going to answer some of this and some of it I may have Ron Saunders, who is the assistant acting director of policy, answer for me as well.
On the last one, with regard to my comments in the past about "not worth the powder to blow them to hell," I grant that one of the few regrets I have from time to time is some of the words I used in opposition. In fact, the employment standards officers now can issue an order if they wish, even directly. We have given a credibility and an enforcement value to the orders that we just do not think was there prior.
Mr Sorbara: We could argue about that.
Hon Mr Mackenzie: It is not a statutory right to refuse which we have had in the past. We now have a statutory right for retail workers to refuse and they do not have to give any justification for their reason. The fact that they can refuse without any justification at all is a clear indication that the decision is theirs, and that the common pause day, the right of rest, is the right of the employee himself in any event.
Mr Sorbara: But under the existing law, they have to explain their reasons. They ultimately have to justify. Someone has to decide whether it is unreasonable. Under your law, if they get tickets to the ball game on Sunday afternoon, they can say, "I'm not coming in."
Hon Mr Mackenzie: Under our law, if they are a retail employee, they do not have to give any justification at all. They can just decide they want the statutory right to take the Sunday off.
Mr Sorbara: Until the issue is resolved.
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Mr Carr: First, I very quickly want to thank all the ministers for appearing here today and answering our questions.
The question I have is for Mr North and deals with the tourism criteria. Those tourism criteria are so broad that virtually any municipality could look at that and say, "That includes our area," so virtually we could have every part of the province open if the municipalities so choose. One of the allegations that has been made is that these tourism criteria were so broad to enable the government to get off the hook on its election promise of having a common pause day. First, I wanted to see if that was the reason they were made so broad, so that virtually every place could be open. If not, I would like to see how you came up with these criteria, what groups were consulted and why you came up with this set of guidelines.
Hon Mr North: I appreciate the question. I would like to say we are not in the business of trying to make criteria broad enough to get off the hook from anything. My job in this particular bill was to develop some tourism criteria that would underline the fact that we were trying to develop something that was workable for the tourism industry from a small business standpoint and which had consideration for workers and which had consideration for what they call the "common pause day."
We feel we have developed criteria that will enhance the tourism industry, giving municipalities an opportunity to decide at a local level, rather than have a paternalistic attitude from the province. We would like to try to do it at a local level, give areas such as the east, the north, the southwest and the northeast opportunities to look at their particular tourism industry, as it may, as I said earlier, diversify and be different from what would be in the southwest as compared to the northwest as compared to the southeast, but still keep them somewhat, as you say, general enough so they could be used province-wide. I believe we have come up with criteria that are general enough to be province-wide but still specific enough so that municipalities can administer them within their own municipality.
Mr Mills: My question is for the Minister of Labour. What I would like clarified is that if an area is designated under the tourism criteria and included in that area there happens to be the type of establishment that employs a retail worker, even though the area has been designated as a tourist area will that worker still have the opportunity to refuse work as a retail worker?
Hon Mr Mackenzie: They would still have the right to refuse, unless they were in one of the tourist industries themselves.
Mr Sorbara: I have a question that could perhaps be answered by any of the ministers, but I will direct it to the Minister of Tourism and Recreation. This bill, the two bills together, has been described in some quarters as an élitist bill which caters directly to the rich and the affluent and is a slap in the face to the typical, average Ontarian who simply might want to go out and do some shopping on Sunday. I will tell you why that is. If, for example, I am relatively affluent and I have a cottage at Lake Simcoe, on Sunday morning I can get into my car, and on my way up to my cottage I will be able to stop at the most luxurious of fruit markets and grocery stores and do virtually all of my shopping for the week, because I am travelling a distance and I am getting into a tourist area. If, on the other hand, I live under much more meagre circumstances in downtown Toronto and do not have any way of getting out of downtown Toronto on Sunday, you are going to close all the stores I might otherwise have done my shopping in, even if I happen to be working the other six days of the week.
Why is it that we have made this distinction in tourism? We acknowledge, of course, that most of the tourists to whom you are catering are local, indigenous Ontario tourists, that is, people who are driving from, let's say, Sudbury to Sault Ste Marie for the weekend, or cottaging or visiting downtown Toronto for the weekend, or something like that, people who have money to spend. But the rest of us, the rest of the people of the province, are going to find that the stores in their neighbourhoods are going to be closed. Do you think that is an appropriate distinction to be making in 1991 in Ontario?
Hon Mr North: First, I think it is a distinction you are making. I do not think it is a distinction --
Mr Sorbara: It is a distinction people are making when they read your bill, that the stores in their neighbourhoods are going to be closed and the stores in the places that are inaccessible to them are going to be open.
Hon Mr North: Perhaps I can clarify that. We have an opportunity here for municipalities to decide within their own municipality an area they would decide is a tourism area. They have an opportunity to decide the stores that should be open and the stores that should not be open.
Mr Sorbara: Peter, perhaps I can just stop you for a second.
The Chair: Perhaps you would allow him to finish his response, Mr Sorbara.
Mr Sorbara: Tourism implies that you go from A to B, not that you go around the corner, and that you have the money to be on vacation or touring.
Hon Mr North: I understand perfectly what you are saying. If you use Metro as an example, there are various ways in Metro to use transit to get to other locations in the province. I wonder if you --
Interjection
Mr Sorbara: My colleague says, "Take the subway to Collingwood."
Hon Mr North: I wonder if you are saying that what we are doing is eliminating the poor from travelling or eliminating the poor from shopping.
Mr Sorbara: What I am saying is, if I am not rich enough to be a tourist on Sunday I am likely not going to be in an area where I can do some shopping on Sunday, and if I am wealthy enough to be a tourist, then I probably will be, or if I want to be, I can make arrangements to be.
Hon Mr North: My understanding of the bill, and perhaps it is different than yours, is there is an opportunity for each municipality to have certain segments of its area, core or east or west, whichever you prefer to call it, open under the tourism criteria.
Mr Sorbara: Yes, if they comply with your tight tourism guidelines.
Hon Mr North: If they comply with the tourism guidelines that have been put in place, the criteria that are set. I think most people will have an opportunity, as you say, to shop or purchase what they need in various locations. There are going to be stores that were open before these criteria were put in place that will be open afterwards. Those are convenience stores and such.
Mr Sorbara: Becker's where the milk is the most expensive and the orange juice is the most expensive. Again, you are making a distinction between --
The Chair: Mr Sorbara, would you please allow him to answer your question.
Hon Mr North: I appreciate your concern and I understand you will be able to raise this question in a number of different locations in the province and perhaps you will give us some information and we can work on clarifying it for you.
Mr Sorbara: That would be great. That is a good idea.
Mr Carr: I have another question for Mr North. It is kind of interesting that he says he wants to leave it up to the local people to decide, because our friend the Solicitor General, during the last hearings, said that was taking the chicken way out. I notice the Solicitor General does not have his little mask on, that little chicken that he took around with him, this time. Actually, I asked him if I could borrow that, but I guess it is long gone.
One of the questions I have relates to the classification of businesses by using the square footage. I went to a press conference this morning and heard where that will probably make it open to a legal challenge that we are discriminating against certain groups. One of the larger groups this morning said that it will more than likely be taking this legislation to court and saying that what you have done is something it feels discriminates against it. I wondered why that was put in there, why the difference in footages. If you are talking about tourism exemptions and so on, how did that come about? What was your rationale for putting in the different sizes like that?
Hon Mr North: I was just having some discussion. That was not a decision, I would say, that was come by easily. There was a lot of discussion that centred around square footage, workers, a lot of things, and some very difficult decisions were made. We felt that to use criteria based on square footage was reasonable. There was an opportunity for smaller stores and larger stores, based on the tourism criteria at the first level, to be open. When you come to the second level of more stringent criteria, I guess it gives larger stores that are in fact tourism based, tourism oriented, dealing specifically with consumers that I would say are tourists -- they will still have the same opportunity, so I do not think it is discriminatory in that sense. If it is based on tourism it will in fact be open.
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Mrs Haslam: This is very interesting. I was a sub on the justice committee and I am learning that what you do is preface your question with the background, depending on whether you are running for anything or not, how long you talk. I find it --
Mr Poirier: You're learning.
Mrs Haslam: Not me. I want to talk again to Mr North about tourism, because it is an area I find very applicable to my own riding. I appreciate what Mr North has done for tourism because I think it is very important, especially in my riding. I want to look at the minimum fines for the violations and I wondered if there was a possibility that, should the committee decide we did not feel those were strong enough and we brought back some other recommendations -- or how you came to that type of fine. I know I have been discussing fines. The second part to my question is, will these fines be applied to employees or someone who has been admitting the public into a particular business?
Hon Mr North: I am going to do something rotten to you.
Mrs Haslam: Never.
Hon Mr North: I am going to pass this question to Mike, if I can, because that is not my bailiwick, so to speak.
Hon Mr Farnan: First of all, on the question surrounding the fine, the determination and the proposal before the committee has stipulated fines. You ask the question, can the committee come back with recommendations? I suggest this is an active listening committee. This is a very tough issue. There is a lot of controversy around a whole variety of clauses within the legislation. We have given it considerable thought and we have presented what we believe is a reasonable piece of legislation, legislation we can be proud of.
What is the committee process about? You are going to tour the province, you are going to listen to delegations and it is meaningless unless in listening to those delegations there is the possibility of change. As I pointed out in my presentation at second reading, the principles of the legislation are not negotiable. The fact that there would be a common pause day that would strengthen family and community values is not negotiable. The fact that we want to protect retail workers is not negotiable. The fact that we want to enhance tourism through a tourism exemption is not negotiable.
But as to details of the legislation that have been raised, I think the committee has a responsibility to listen, and I would point out to my friend Gary that the chicken is alive and well and sitting on my desk. As we went around the province during the last hearings three years ago, I had a sign tied around the neck of the chicken that read: "We're not deaf. We're just not listening to you." That was the attitude of the previous government. "We're not deaf. We're just not listening to you." We went through the process and it was cast in stone. What I am saying to this committee is that indeed we expect this committee to involve itself in an active open process, to listen carefully. I certainly will be doing the same thing and I suggest to you that the possibility remains for fine-tuning of the legislation in areas such as you have pointed out.
Mr Poirier: I seem to recall that you said the municipalities might retain the right, or will retain the right, to refuse a tourism designation to a business, even though it does seem to meet all the minimum requirements for it to be so designated. Did I hear correctly? That being the case, I seem to recall that in the days of the previous Tory administration the law was also partly based on the tourism designation and we know where that got us. It seems to me you are coming full circle and I can just see the great debate and discussions, the great core debate as to which businesses will be awarded a tourism designation and which ones will be designated and accepted by each municipality. In one municipality a certain type of business may be designated, whereas in the municipality next door it may not. This seems to me, if I can paraphrase your great expression, Bob, to provide the power to blow the bloody dossier all the way to hell.
As Minister of Tourism and Recreation, sir, do you not see a hell of a mess coming up with that particular type of provision?
Hon Mr North: I look at this bill from the tourism aspect, as you have just described. What I see and what we tried to develop was an opportunity for tourism, an opportunity for tourist operators and municipalities, and a stronger interest, perhaps, from chambers of commerce and from local business. I see an opportunity here for the enhancement of the relationship between those people, and also between operators and labour and, again, business.
My feeling is that, sure, the opportunity is there. There is no question it is a challenge. I think if we can get in, go through the committee hearings, have an opportunity to get good, solid information through committee hearings, take it back and finish the development, finish our work, and come up with something through which we as a ministry have an opportunity to work with the municipalities and with the operators, we can overcome, we hope, a lot of these barriers. We would perceive that municipalities look at tourist operators as a source of provincial revenue and as a source of revenue in general for the area.
There is certainly an opportunity here for the ministry to develop a stronger relationship with the municipalities and for the operators to develop a stronger relationship with the municipalities. There will have to be some give and take; there is no question about that. I will say, in all fairness to your question, that there is the opportunity to challenge.
Mr Poirier: And that can go on for quite a long time, for years to come?
Hon Mr North: I cannot disagree with you, sir.
Mr McLean: Section 2 of your bill lays out the criteria for establishing a tourist area. The city of Orillia, the town of Collingwood and many others have passed bylaws now to have Sunday shopping with the approval of the chamber of commerce, which indicates that they support shopping in that city or town for every business. Will that still qualify under Bill 115, that those councils can pass bylaws with a public meeting which meet the criteria you have set out and that every business in that town which is tourism-based would be able to open?
Hon Mr North: There are a couple of different situations here. From the information I have, one situation is that bylaws that are passed by June 4, 1991, the date the bill was introduced, will be repealed on the date the bill comes into effect.
At a second juncture, municipalities that designate certain areas or can substantiate the perimeter of the area that they have designated through public meetings, through criteria, can in fact open a broad sort of area. The question will remain: Will all the businesses that are within that area be able to open? Those will have to go through the scrutiny of the criteria and will already have gone through the scrutiny of public meetings. That is the best information I can give you, sir.
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Mr Fletcher: My question is for Mr Farnan. I am just wondering, after what you were saying about the previous bill and the previous legislation, exactly how different is this from the Liberal legislation?
Hon Mr Farnan: Let me link your question to a comment that was made in putting forward a question just a moment ago. The presumption was made by Jean that there was no difference. Of course the reality of the matter is that this legislation is significantly different.
If you look back at the history of the legislation surrounding the common pause day and go back to the Conservative version, they did have a tourism provision within the bill, but there was absolutely no definition of what tourism was, so in fact it was relatively useless and provided no guidance, no direction.
During the more recent administration, that of the former Liberal government, its legislation simply passed on this issue to the municipalities. Gary is quite correct that the then Solicitor General had said this was the chicken way out, that to hand it over to the municipalities was the chicken way out. I still agree with that. The reality of the matter is that when you give this issue to the municipalities with an absolutely unbridled and unrestricted opportunity to have the area wide open, certainly that is not conducive to a common pause day. I think the principle we are attempting to enshrine here is that there be a common pause day. Not only have we accepted the fact in going back to the tourism exemption; we have actually undertaken the very difficult process of making those definitions.
The Minister of Tourism and Recreation and his staff are to be commended for the extraordinary work they have done in this area: very difficult, very challenging. There is no doubt that as you tour the province you will receive considerable input on the definitions of "tourism." Of course, that is precisely what these hearings are all about, that we do get some input. In the course of the hearings there may be some very positive and constructive refinements that can be made. As I have already indicated to the committee, that sits very comfortably with this government, which wants to take an open approach and an active listening approach to these hearings.
Mr Daigeler: Mr Chairman, a quick question to the Minister of Labour, since he has to leave.
The Chair: Do you have time for?
Hon Mr Mackenzie: This is what I have been waiting for, the wage protection stuff that has started, but I will hang on for this question.
Mr Daigeler: Under the previous legislation, both Liberal and the Conservative, how many cases have there been of people who were forced to work on Sundays and have lodged a complaint about it? How successfully generally has that worked before, to the knowledge of your ministry? I do not know whether you want to answer that or have someone else within your ministry do so.
Hon Mr Mackenzie: I will answer part of it and I may have Mr Saunders answer the rest. There have been a fair number of calls, but very few actual charges or complaints laid. A lot of it was the reasonableness of the request, which was very difficult.
Mr Daigeler: There were no specific complaints?
Hon Mr Mackenzie: There were only a small number that actually ran to complaints. Under current provisions concerning the right to refuse an unreasonable assignment of Sunday work, a total of 16 claims have been filed with the ministry. Of these, six have been sent to the referee. Two were upheld by the referee in favour of the claimant, one was denied and one claim was settled prior to the decision. The number of calls the ministry had over the right to refuse was considerably larger than that. The reason for my calling the previous legislation and the authority you had under it not worth the powder to blow it to hell is the fact that proving something was an unreasonable request was extremely difficult.
Mr Sorbara: With respect, there was a prima facie presumption in the law that it was unreasonable.
Hon Mr Mackenzie: That is your response, not the way I was looking at it.
Mr Sorbara: No, that is what the law states. You are wrong on that, Bob. Sorry.
Mr McLean: I have a final question for the minister. It is just a simple question with regard to tourism.
The Chair: Mr North, do you have time?
Hon Mr North: Yes.
Mr McLean: Mr Michener is the chief executive officer of Tourism Ontario. I just wanted to know if he had any input into this meeting with you and into this legislation.
Hon Mr North: We had an opportunity to meet with a lot of different groups. This is my assistant, Marion Joppe.
Dr Joppe: Tourism Ontario definitely was one of the groups we have consulted with. We have also consulted with other tourism organizations, but in the original go-arounds, consultation into possible criteria for tourism exemption, they were definitely consulted.
Mr McLean: My question is, did you meet with Mr Michener?
The Chair: Excuse me. Could you introduce yourself for the purposes of the reporter.
Dr Joppe: I am sorry. The name is Marion Joppe.
Mr Sorbara: And you are?
Mr McLean: She is an assistant to the minister. The basic question is, did you meet with Mr Michener to have input? That is what I wanted to know.
Hon Mr North: I have met with Mr Michener a number of times on a lot of different issues; I will not say specific to this issue, but on a lot of different issues.
The Chair: A couple of people here have requested an additional question as well.
Mr Lessard: I wondered whether anybody else had a final question for the Minister of Tourism from our party, because my question is for the Solicitor General. I see that everybody else has asked one more question to the ministers who are leaving.
The Chair: Mr O'Connor, was your question for the Minister of Tourism?
Mr O'Connor: Actually, I would not mind if the minister could please answer one more question. I would just like some response towards the municipality. The act applies to the upper tier of government in a regional government where in a tourist area the whole region of government would not be affected. Why has the decision-making been left up to the upper-tier government?
Hon Mr North: I will say to you very frankly that this is a question that has been asked by Tourism Ontario; it has been asked by a number of different people. We are going to have to, again, go through these meetings and listen at length to what has been said and try to work out, by the time we finish with the bill and regulations, something that is amenable to everyone, so to speak. As frank as I can be with you, it is a question that has been asked by a lot of different people, and I am hoping we can come to some resolution of it.
Mr Sorbara: My question is for the Solicitor General. I understand the beleaguered Minister of Tourism has to leave us now. We regret to see him depart.
Hon Mr North: Thank you.
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Mr Sorbara: We will have other questions later which support the proposition that this is a bill that favours the rich and patronizes the poor, but my question at this point for the Solicitor General has to do with his assertion during his opening remarks that this bill was the subject of broad consultation on the part of his ministry. I direct the attention of the Solicitor General to the draft regulations which he submitted as part of this bill. In clause 3(1)(4)
he provides that an application of a business entity to come within the tourism exemption and therefore have the right to be open on Sunday must get the Good Housekeeping seal of approval from a chamber of commerce or a similar bureau. I will quote the section:
"If there is a chamber of commerce, a convention and visitors' bureau, or a similar organization serving the area being considered, a letter indicating that the organization, or if there is more than one of them, one of those organizations, supports the opening of the retail business establishments in that area on a holiday."
The local chamber of commerce, which is a voluntary body in a community, is set up, by virtue of this draft regulation, as the arbiter as to who gets to open on Sunday, because if you do not have that Good Housekeeping seal of approval from the local chamber of commerce, then your application is not complete and you do not qualify. This puts the chamber of commerce right in the middle of the fiercest retail debate that is going on in our province right now, save and except the debate on cross-border shopping.
The executive director of the Ontario Chamber of Commerce wrote to us, wrote to the Premier and wrote to you after this measure was introduced by you and said that he had not heard one word from you or your ministry about setting the chamber up as the decision-making body as to who should and should not open.
The Chair: Do you have a question?
Mr Sorbara: Yes, I do.
What is even worse is that since the bill was introduced, you still have not contacted the Ontario Chamber of Commerce to ask whether it would be interested in taking on this terribly delicate role. How is it, I ask the Solicitor General, that you have put them right in the middle of the debate as to who should and should not open in a community, and you do not even have the respect, never mind the determination to consult, to ask them whether they are interested in that role? By the way, they are not interested and they will not do it. Why have you not contacted them since you introduced the bill to at least begin discussions about what you might be asking them to do under clause 3(1)(4) of your draft regulations?
Hon Mr Farnan: I want to add a comment to this. As it is an area that falls under the tourism section, I am going to ask the member of the Tourism ministry to respond.
Mr Sorbara: I am sorry. If I just might interject, these are draft regulations under the Retail Business Holidays Act and you are still the Solicitor General responsible for the Retail Business Holidays Act.
Hon Mr Farnan: Believe me, I am going to respond to you in some considerable detail. I am going to allow the representative of the Ministry of Tourism and Recreation to make a contribution.
Dr Joppe: If I may just read the first sentence of clause 3(1)(4) in the regulations, it says, "If there is a chamber of commerce, a convention and visitors' bureau, or a similar organization serving the area." It does not say a chamber of commerce must. If a chamber of commerce wishes not to help the retail business establishment making an application, any of the other business organizations in the community or in the area that applies for a tourism exemption is equally eligible to support that application.
Mr Sorbara: I am sorry. My question was, why did you not consult with the chamber before incorporating it in the legislation? Their position is that if they are forced to do this, there will not be any chambers of commerce because that sort of decision will tear them apart.
Dr Joppe: I would suggest that they are not forced to do anything in this regulation.
Mr Sorbara: They are already making a decision if they refuse to do it, because if the entity, like the local craft jewellery store, does not get the seal of approval and does not meet the criteria, it will not open. Even by refusing to participate in this silly little scheme, they are making a decision because they are refusing to do it. My question is about consultation.
Hon Mr Farnan: The member continues to make a fundamental error in presenting his question.
Mr Sorbara: No, I am not, Mike.
Hon Mr Farnan: In both the initial question and in his interjection following he used that the chamber did not want to be the decision-making body as to who opens or closes. In fact, this legislation does not give the chamber of commerce that kind of power. It has been very clearly pointed out that any one of a number of groups can lend its support to an application. However, the authority to grant or not grant an exemption lies with the municipality.
As a former alderman of the city of Cambridge, I can tell you that I can hardly recall an issue that affected the economic life of my community in which the local chamber of commerce did not have a very substantive presentation to make to council. I admired them for that. I certainly admired the chamber of commerce for its involvement in local communities, contributing its expertise, contributing its sensitivity to local community needs.
Mr Sorbara: On a point of order, Mr Chairman --
Hon Mr Farnan: Mr Chairman, if I may be allowed to finish, I would be very grateful.
Mr Sorbara: I am sorry. I do have a point of order. I asked a question about consultation with the chamber. I do not need a lecture on the important role the chambers play. I want to know about consultation.
The Chair: That is not a point of order.
Hon Mr Farnan: The member asked much more than the area of consultation and made many insinuations in his question that need to be rectified. I am in the process of doing that and I would certainly appreciate it if the member would allow me to complete my comment.
Mr Sorbara: I would like you to begin to answer the question.
The Chair: Mr Farnan, please do so.
Hon Mr Farnan: As I suggested to you, local chambers have expertise, have knowledge like other groups. It is my experience that chambers of commerce are very community-minded and are willing to make that contribution. Should an individual chamber not wish to be involved in that process, there are other groups. Indeed, during the process of these hearings I suspect we will have representatives of chambers of commerce who will come forward and make the case that Mr Sorbara has made.
However, the reality of the matter is that within the legislation is an effort to be sensitive to the local community. When we go to the chamber of commerce we are saying to it: "We want to work with local communities in order to do what is best for that community. As a chamber, you have your finger on the pulse of the community; you have your finger on the needs of the community; you have a contribution to make."
My own belief is that as we become more familiar with the legislation people will feel more comfortable, but certainly I am very interested in listening to the dialogue that will take place during the committee consultation. It is an area we can discuss.
Mr Carr: Just a general one on your statement of June 4: You said, "Our purpose is to provide for a common pause day for Ontario." I will read a couple of comments I have read in some of the papers:
"Sunday Business As Usual Under the New Law.
"The new provincial legislation on Sunday shopping shouldn't change things in Sault Ste Marie. It should allow Sault Ste Marie to stay open like it has in the past four years."
The mayor of Windsor says, "`All of Windsor would qualify as a tourist area allowing stores to open on Sunday under the Ontario government's proposed law,' said Mayor John Millson."
You say your purpose is to provide a common pause day, and yet mayors of two rather large municipalities say that will not happen, that there will not be a common pause day, that in fact they will be open, business as usual.
My question is this: How do you reconcile these differences to the public, that on the one hand you say something and yet other major, well-thought-of people in the community say something else?
Hon Mr Farnan: That is one of the dangers when we take little pieces of the puzzle in isolation. When we talk about a common pause day and leave that in isolation, then of course you run into difficulties.
The purpose of this legislation is to produce a common pause day that will strengthen families and communities, protect retail workers and enhance tourism within the province, which we recognize as a significant cornerstone of our economy. Obviously, there is a balance there. If you were to take the common pause day and close the lid, everything closes, but that is not what we are talking about. We are talking about a balance in terms of protecting retail workers, allowing the opportunity for legitimate tourism exemptions. Of course, there has been the occasional headline in the newspaper that gets things out of whack.
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Mr Lessard: I just wanted to tell the Solicitor General that as a member of this committee I plan to be an active listener and make some constructive criticisms at the end of these hearings. However, there are some fundamental principles that I realize are not going to be changed, one being that there will be a common pause day for the citizens of Ontario.
As a member from a large border city, that being Windsor, one of the arguments or questions I can anticipate is that there need to be stores open there so they can compete with stores that are over the border. It is a community that has suffered the impact of cross-border shopping to a great extent. I wonder if the Solicitor General can address those concerns that I anticipate we will hear in the city of Windsor, that stores need to stay open on Sundays in order to compete with stores in the city of Detroit.
Hon Mr Farnan: I think it is very clear that there are two separate and distinct issues. I had meetings with the mayor of Windsor concerning this matter and he recognizes that fact. The seven-day-a-week, cross-border shopping issue is one issue. I think we have to be sensitive to the concerns of communities that are being affected by cross-border shopping, and this government has demonstrated that by involving itself in what we would call trilateral discussions with the federal government, with the local government and with the provincial government. But everybody is in agreement that a lot of the levers that most significantly affect cross-border shopping -- the high interest rates, the GST, the failure to collect the provincial sales tax -- lie within the hands of the federal government. There is no doubt that there has to be an ongoing determination by all politicians at every level to address real concerns of border communities.
In terms of the issue of a common pause day, the reality of the matter is that in British Columbia, for example, when there is wide-open Sunday shopping, there has been, I believe -- I stand to be corrected -- an increase by 400% in the cross-border traffic in terms of shopping, so they are two distinct factors. I think we would all accept that. Certainly the mayor of Windsor accepts it and accepts the fact that there have to be specially addressed programs geared to the cross-border shopping issue, but you know, this is the issue of common pause day legislation as it affects the entire province.
Mr Daigeler: My question is on the same point. I was going to ask you how you react to the link between cross-border shopping and the Sunday shopping legislation and you addressed it a little bit. However, you are saying that there may have to be some special arrangement. Are you referring also to special arrangements with regard to your legislation? Are you open to that? After hearing from the public on this matter, are you willing to make certain exemptions with regard to areas that are close to the borders, or were you referring to the broad government initiatives.
Hon Mr Farnan: I was indeed referring to the broader initiatives that refer to the border communities, but let me point out further that in the legislation we talk about not only maintaining tourism, but you will note the phrase in the legislation "to maintain and promote tourism." Tourism in Ontario is in excess of $15 billion a year. As I pointed out already, it is a significant cornerstone of our economy, and that is why we recognize this as a significant exemption.
Mr Daigeler: So as a follow-up, what you are saying --
Hon Mr Farnan: Let me complete this thought. The same opportunities exist for border communities to take advantage of the legislation by enhancing their tourism, by developing within their areas legitimate tourism exemptions. I think any community, be it a border community or any other community in the province, but certainly a border community, has good reason to be constructive and creative in developing that tourism exemption.
Mr Daigeler: I see. So you are proposing they create tourism attractions so that they can in fact be open on Sundays and compete with the United States. Is that what you are saying?
Hon Mr Farnan: I think the way the legislation is constructed, it is designed to allow legitimate tourism exemptions to exist. I think all of us in Ontario who are concerned about our economy in a very competitive market, knowing that tourism is a competitive market and particularly competitive if you are in a cross-border community, want to enhance any advancement that would give a competitive edge to our border communities. I think that goes without saying.
The Chair: Mr McLean.
Mr Daigeler: I find this quite interesting and would like to refer to this. This involves what the minister just said.
The Chair: Thank you. Mr McLean.
Mr Daigeler: Mr Chairman, it has been tradition in these meetings that the opposition be given a reasonable opportunity to ask questions.
Mr Fletcher: On a point of order, Mr Chair: We agreed at the beginning that it would be one question and one question only and that we would go in rotation. I think the member was here when that was stated.
Mr Daigeler: I think it has been the tradition, unless the member opposite would want to change that and he had better be prepared to back it up, that there be flexibility towards the opposition members, especially when the ministers are here for a relatively short time. There have been flexible arrangements, with the two ministers sitting here for almost an hour.
The Chair: Mr Daigeler, you asked two questions and there was a previous agreement to rotate questions. Mr McLean.
Hon Mr Farnan: I would be happy to meet with the member after to clarify that.
Mr McLean: Minister, let's call a spade a spade. If the city of Windsor wants to pass a bylaw to allow Sunday shopping year-round, then there is no common pause day in the city of Windsor. Would that be right?
Hon Mr Farnan: The city of Windsor can in fact pass a bylaw under the current legislation that will open it wide open. Under this particular legislation it would have to do so bearing in mind that it would have to be addressing the criteria contained in the legislation, specifically the tourism criteria. It would have to be, in their view, a legitimate tourism exemption, and for those stores that did not meet certain specifications, they would have to be dealt with on an individual basis. So I would say even if it took the approach you suggest, there would be a lot of individual applications that they would have to deal with.
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Mr Fletcher: I heard from the member opposite about this bill protecting and benefiting the rich. Would you agree that a bill that gives workers the right to refuse work is one that benefits the rich? As number of people in Ontario I know who travel around the province go camping, go to a trailer, which is usually called the working person's cottage. Again, is your bill one that is going to benefit just the rich?
Hon Mr Farnan: I think you have hit a real nerve when you ask the question and I think you have in fact answered it. The reality of the matter is that retail workers are very much unprotected, have to a great degree received remuneration that has not been very -- not a particularly well-paying occupation; let me say that. It is a group that is significantly vulnerable, in many instances is non-unionized and has little protection. I would agree with you that you are talking about a group of workers who certainly would benefit from this legislation.
I would point out two things: There has been the presumption as the questioning has taken place today that people simply want to shop. When I talk to people, there are many people who say to me, "I do not want to work on Sunday," and there are other individuals who suggest that they would like to have time with their family. It is not a black and white issue, as some members of the committee have tended to present the opening case. Neither should any member of the committee presume that it can be a black and white issue.
The reality of the matter is that there are many people who will feel this legislation is too wide open. Other people will feel it is too restrictive. There are different shades of opinion within the province. The reality of the matter is that I think the legislation does move towards a balance with a certain sense of addressing significantly important principles that we believe the majority of the people of Ontario endorse, and those are a common pause day, protection for workers who need protection and the recognition that tourism is an important aspect of our economy.
Mr Sorbara: I want to deal with the assertion from the member for Guelph and the minister that this is very great news for retail workers. This, I reiterate, is a bill that favours the rich and patronizes the poor.
Let us take, as a preamble to my question, the assertion that for the first time retail workers will -- I am quoting the minister now -- "be guaranteed 36 hours of rest in every seven days." I want to tell the minister that if his government really wanted to do something, he could figure out a way to guarantee workers in this province 36 hours of work in every seven days. That is what workers are looking for -- an opportunity to work full-time.
You cannot fool me on this one. I was the minister for two years. The real issue for retail workers is that they are being forced to work part-time. They cannot get 36 hours of work. They are split-shifted and they have all sorts of other problems. Their major problem is not, I reiterate, that they are unable to get 36 hours of rest in every seven-day period.
Let me just point out another example to you.
The Chair: Do you have a question?
Mr Sorbara: Yes, I do. Your legislation continues the distinction for drugstores between those that are under 7,500 square feet, which will continue to be allowed to be open, and those like Payless and Hy and Zel's, which are over 7,500 square feet, which are not going to be open. I suggest to you, sir, that those are the very discount drugstores you are going to require to be closed with your legislation, those where the poorer in this society can go and get real value. With the powerful entities in our society, like the Shoppers Drug Mart chain, all of its stores are going to be allowed to remain open. It is your legislation that is going to do that. It is your legislation that is going to make the choice.
How is it that in creating the common pause day the reality is that those of us who are affluent are going to have Ontario as our playground on Sunday, with much less traffic, and those who do not have cars are going to stay home? For them the province is closed down, but for those of us who are affluent, who can afford to be tourists, your common pause day makes Ontario our playground for a day.
Hon Mr Farnan: There are two aspects to the question. The first aspect, again, is when a member takes a narrow window in examining the issue. The member talks as though you can only shop in a large discount store on Sunday. That, of course, is not the truth. The reality of the matter is you can shop in these stores all week.
Mr Sorbara: The thing is the expensive stores are open, but the stores where people of less means have to shop are closed, and you are doing that. So the presumption again is based on a false premise. Certainly, we are looking at a common pause day --
Mr Sorbara: For whom?
Hon Mr Farnan: -- so that it will strengthen families and community values in Ontario, so that it will protect retail workers.
The member may want to take the point of rich and poor. There is a reality in life, and I do not dispute for one moment that there is a certain lifestyle. The member talks about going off to his cottage and enjoying the drive and stopping in a residential tourist area. Other people may have to do some shopping in a designated tourism area closer to home, and many people do that. Many people visit a flea market. We all try to do the best for our families in terms of providing them with a quality of life, but the key essential in providing that quality of life for a family is that all the members of the family have the opportunity to share it together.
It is one thing to be able to say, "My son will be working here and my daughter will have a part-time job here," or whatever, "and the family will work a cycle of seven days a week." I think there is a reality in this that suggests the purpose of the common pause day is to support family and community values, not simply dollars. Dollar issues are important, but there are other principles at stake. That is why when I talked to Gary earlier I said that I do not think it is possible or fair to look at this legislation and take one piece of the puzzle and say, "We'll stick that piece over here and we'll just examine it," and then suggest that in examining it we can be critical. You have to put the pieces of the puzzle together. Then you have a balanced piece of legislation and then criticism is fair.
That is the kind of criticism I think I am most open to respond to, where people look at the legislation in a fair manner, look at the balance we have tried to achieve, look at the partnership we have tried to achieve with the municipalities, and then, if you are making constructive criticism of that balance and that fairness, I think your active listening during this process will help you to come forward with constructive suggestions.
Mr Carr: One of the concerns I know you have about the present legislation is how to protect the workers. I was reading another article where it said, "The Ontario government will have trouble enforcing the guarantee that a retail worker can refuse work on Sunday, admits Solicitor General Mike Farnan." I do not think this is a case of the headlines being wrong, because I happened to see the Focus Ontario show where you basically said that you were working to strengthen it. I guess that was back in June.
Hon Mr Farnan: I have to interrupt you. If you say you watched Focus Ontario, then you know that --
Mr Carr: That you agreed with them. You said there is no question about it.
Hon Mr Farnan: You know that the thrust of the program -- you want to isolate one line in that program.
Mr Carr: So you are not worried about it. You think the protection for workers is fine. Is that what you are saying?
Hon Mr Farnan: Let me finish. If you want to isolate one word, that is fine.
The Chair: Perhaps Mr Farnan --
Mr Carr: Yes, finish his answer, okay.
The Chair: Then you could respond to him and correct his assumption.
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Mr Carr: I will go further. I will say that if you disagree with that, then obviously you think the protection is fine and you are not going to do anything. The question I had, in light of the fact that you are concerned about the protection and in light of the fact that this was back on June 8, is whether you have come up with any other ideas since that time to strengthen the protection for the workers, or are you satisfied that that is it, the protection is there. If you disagree with what you said on Focus or if you agree, it is up to you. If you do not think there is enough protection, what are you going to do to increase it, and if you do think there is enough protection, then I guess you are not going to do anything. I will leave it up to you. Go ahead.
Hon Mr Farnan: I would like to repeat what I have said, that of course I think we have to accept the fact that there will be difficulty in enforcement, but I want to reiterate very clearly that because something is difficult does not mean you do not do it. This would be ludicrous. We could have no progress in society if you said, "This is going to be hard to do; therefore we are not going to do it." The reality of the matter is that you can look at any piece of legislation and come to the conclusion and say: "Should we remove apartheid in South Africa? That is going to be difficult to do." Does that mean you do not do it?
Let me suggest to you then, as the Minister of Labour has pointed out, that there are provisions within this legislation that go beyond what was there previously and there is a very firm commitment, a very firm political will on the part of the government that the employment standards provisions of this legislation will be enforced. Workers are going to know they will be enforced, because this government will enforce them. Employers will know they are going to be enforced because this government is going to enforce them. When employers and employees understand that this government is determined to enforce those aspects of the legislation, I think they will work constructively to that end.
Mr Mills: Minister, the thrust of this bill is the protection of the retail worker, so I am applying for a job in a retail store --
Mr Carr: You are resigning your seat, Gord?
Mr Mills: Not yet. The owner of it comes to me and says, "Gord, I want you to promise me that you're going to work on Sundays." I need a job and I say, "Yes, I'm going to work on Sundays." For the first Sunday that comes up, 48 hours before the Sunday I say to my employer: "Guess what. I've had a change of mind. I don't want to work on Sundays."
Mr Poirier: You wouldn't do that, Gord.
Mr Mills: I would not. This is a hypothetical situation to understand this bill better. Would I then, as that employee, have the protection of the retail workers act? Even though I had agreed to work, can I give you 48 hours' notice and get out of working? Would I be safe with my job and would I have the protection?
Hon Mr Farnan: I am going to ask the representative of the Ministry of Labour to answer the question.
The Chair: Could you identify yourself?
Mr Flanagan: My name is Brendan Flanagan. I am with the policy branch of the Ministry of Labour.
In answer to the question, an employee is free to refuse Sunday work with 48 hours' notice once the person has been hired. Before they are hired the Employment Standards Act does not apply to them. Generally speaking, employers and employees are free to arrange voluntary Sunday work and in most cases both parties will agree to a voluntary arrangement. Where the employee wishes to exercise his or her right under the act, having been hired, then he or she is free to do so with 48 hours' notice.
Mr Mills: Excuse me, Mr Chair. It is a follow-up. Is it not allowed?
The Chair: Mr Daigeler.
Mr Daigeler: I did not say anything. I was quite prepared to grant you your follow-up, even though I am a little bit confused about the questions you are asking. If I am not mistaken, you are the parliamentary assistant to Mr Farnan, are you not?
Mr Mills: That is right.
Mr Daigeler: In that case, I would expect you to provide the answers, rather than ask questions. I would expect, and I ask the minister, over the hearings, will Mr Mills be representing you and listening to people, or will you be travelling with us?
Hon Mr Farnan: I will not be travelling. There will be members of my staff travelling. I would like to put forward the offer to the committee that my ministry and my staff want to facilitate the work of the committee as much as possible in the sense that if there are some statistics that you as a member of the committee would require -- there is a significant database of information that was collected around specific issues that were dealt with in the previous legislation and that re-emerge in some form here.
Mr Daigeler: I certainly expect that staff representatives of your ministry will be travelling with us and will be available for these kinds of questions, but I think in terms of the political representation it has been the tradition that the parliamentary assistant is there somewhat to play the lead role when it comes to questions and policy. I presume that will be the case and certainly I will be addressing any questions I may have to Mr Mills.
Hon Mr Farnan: I would say the same thing, that we have great confidence in the contribution that Mr Mills will make, but I think the reality here has to be that we want to be open and positive and helpful in this process to every member of the committee. We want whatever information you feel is necessary to do your job. The resources of my ministry are there to try to provide that information.
The Chair: With that point clarified, and Mr Mills having no further ability, after Mr Farnan leaves, to ask questions, do you have anything else, Mr Daigeler?
Mr Daigeler: To Mr Farnan? Yes, actually I have, in follow-up to the previous question, where you said that --
Interjections.
Mr Daigeler: The chairman gave me the floor and, with your permission, I will ask my question.
You answered earlier that there is also interest in providing tourism promotion and that it may be an avenue under which municipalities can pursue tourism exemptions. Would you elaborate a little bit on this? Would it be possible for municipalities to say, "This area has tourism potential and therefore we should designate it as a tourism area"?
Hon Mr Farnan: The ultimate decision as to a tourism exemption lies with the municipality. The municipality will make that determination based upon the criteria that are eventually worked out and agreed upon in third and final reading. The municipality would have to work towards legitimate tourism exemptions. Now, whether it is a tourism and convention bureau, I think there are always creative ideas at work about developing a local community's tourism potential. If this legislation were to act as an impetus to tourism in the province, I do not think that would be a side-effect I would have problems with at all.
Mr Carr: I too, like most of the other members of the committee, am concerned about some of the workers in this industry. I am concerned for one reason even more so. That is the fact that many of our retail businesses are facing a very precarious situation and many of them are going out of business. The Canadian Federation of Independent Business has called the new rules "a knife between the ribs for small business," because the struggle to meet the tourism criteria will add to the government red tape they already face. What would you say to a small operator of a retail business who is now going to have to go through the process with these various municipalities to get his exemption, and go through the chamber of commerce? What would you say to that small individual running a business that now is facing more government red tape because of your legislation?
Hon Mr Farnan: I believe that many small businesses actually want to close on Sundays. Many small businesses are caught in the tail-stream of the larger stores, department stores, etc, which may be opening. It has been expressed often enough that, "If we did not feel our market share was just being absorbed, we would be quite happy to close." The reality of the matter is that when we had the period when there was wide-open shopping, many small businesses expressed concerns that they were being forced to open against their will and were happy when some of the larger stores decided there was not a profit margin at a particular moment in time and decided to close.
I am sure we will hear a great deal during the course of the committee hearings. I suspect much of it will be in favour of the legislation, although I do not doubt there may be some that will question it and I would like to listen to those people. I am sure you will have input you might want to consider in the final summation.
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Mrs Haslam: It was during the comments of one of my colleagues across the way that this question kind of cropped up. He was talking about the affluent going to cottages and shopping, and then commenting on the poor, the ones who need the drugstores open. To my way of thinking, it is the affluent who have the time and the resources who want to shop on Sunday. It is the poor who end up working on Sunday so the affluent can shop on Sunday.
I really question this idea of "leave the big drugstores open so the poor can shop on Sunday." They are working. They cannot shop on Sundays. The interrogatory part of my question is, I wanted to know if you felt that this proposed change in the legislation would give adequate protection to the retail workers.
Hon Mr Farnan: What is very important is that there has to be the political will. Very clearly, this government is determined to provide protection to the greatest degree possible for workers in this regard. Whether that can ever be totally absolute I think will remain a topic that continues to be open for discussion. The question really is, is it worth protecting workers? I do not think there is any doubt about the answer to that. These are workers who are underprotected, whose benefits are not significantly high, and who have to a great degree to work some extraordinarily difficult hours. Retail workers I think deserve protection, and that is why it is enshrined as a cornerstone of this legislation.
Mr Poirier: As I see a healthy debate coming up inside municipalities, and from one municipality to another, to designate what qualifies and what does not qualify to be a tourist service, are you not afraid this is going to take years of debate, in the courts even, before it is decided which gets that? I honestly try to see a law that will facilitate the designations, but I am sure that for a lot of businesses that want to be designated tourist, it becomes very subjective as to what is tourist or not.
With 839 municipalities across the province, I presume you are going to get quite a broad sector of different definitions as to what is and what is not tourist. How many municipalities have the capability, really, even if there is a will to designate what is tourist, to be able to do this? Once tourist operators see this variety of definitions that will creep up across the province, I presume, if I were in the justice system, I would see a hell of a field day coming up for a heck of a long time in Ontario before the dust settles and you have some kind of clear guidelines, if you ever can have clear guidelines as to what is tourist or whatever. How do you feel about that? Do you really see some short-term solution to all this incredible mess that is about to come up?
Hon Mr Farnan: What we are attempting to do, with the positive contribution of all members of this committee, is to develop an objective test by which these decisions will be made, and not a subjective test. Obviously, if it is simply subjective, of course that becomes a difficulty. When I suggest to you that this is an open committee that is prepared to listen -- perhaps there will be discussion around regulation and around definition -- I think that is a very healthy and productive discussion and one in which the community and the public can have meaningful input. To the best of our ability, I think we have to determine objective criteria that can be measuring rods.
Mr Carr: I know some of the municipalities were a little concerned that this is now going to be thrown in their laps. I was reading what the regional chairman from Hamilton-Wentworth said. He said: "Under the criteria that the province has outlined, we'd be hard-pressed not to grant an exemption. This is so vague, practically anyone can qualify." One of the concerns we have is that his region obviously, he feels, is going to be open, and that we might have another region, for whatever reason, that is not.
Are you concerned about the patchwork effect we are going to have, with one region open and one region not open? People will not know. It is going to be a confusing situation for anyone coming as a tourist from another jurisdiction. Are you concerned about the patchwork effect, that we are going to have some places open and some not, and that no one is going to really know? Is that a concern of yours, and if so, how do you see that being addressed?
Hon Mr Farnan: Well, is the glass half full or half empty? The reality of the matter is, would you like to see, as we would like to see, a sensitivity to local communities, to a degree, shaping community life within their borders?
However, we have attempted to bring to this issue a sense of uniformity across the province. The significant difference in this legislation as opposed to previous legislation is that what we have presented are provincial guidelines. Under the current legislation there are no guidelines. Under the old Conservative legislation there were no definitions. New Democrats and this government have stepped in with courage and said, "We will attempt this difficult task of definitions, and we will attempt to build in this sense of some guidelines so we can bring a sense of uniformity across the province."
It is not a small task, by any stretch of the imagination. I think we have gone a long way. I think it is very significant that this was mentioned in the throne speech. It has become part of the legislative agenda that completed first and second reading during the first 10 months of the new government. It certainly is a very clear commitment of this government to common pause day legislation and protection for retail workers, and to support tourism in our economy. This is very different from a patchwork quilt that would exist under the present legislation.
Mr Owens: I think the second question Mr Mills was attempting to ask was around the issue of probationary employees. The Employment Standards Act does not kick in until 90 days have elapsed, and some employers have probation periods even longer. How will this legislation protect that worker in the event that he or she decides he does not want to work on Sundays?
Hon Mr Farnan: Again, I am going to ask the representative from the Ministry of Labour to respond.
Mr Flanagan: Could you repeat the question?
Mr Owens: How will this legislation protect workers who are in probationary periods who do not want to work on Sundays? That is the bottom line. If their probationary period is 90 days and the employer decides he wants the employee to work Sundays and he wants to refuse, is there a method where, prior to probation ending or the employment standards legislation kicking in -- how will he be protected?
Mr Flanagan: The employee will have the same rights as any other employee. When an officer is investigating, he can review the situation and order whatever actions the employer should or should not take to ensure the worker can exercise the right to refuse work that this proposed legislation has in it. The officer can ensure that the employee can exercise the right to refuse Sunday work.
Hon Mr Farnan: May we wish the committee well on its travels? I hope they have as good a time as I had when I toured the province.
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UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, CANADIAN REGION
The Chair: We now have a presentation from the United Food and Commercial Workers International Union. Mr Clifford Evans is the Canadian director. We have approximately half an hour. Usually that time is divided up with a quarter of an hour for presentation and a quarter of an hour for the questions which are presented in rotation from the various caucuses. Please feel free to start when you are comfortable. As well, could you please introduce yourselves into the microphone for our recorder.
Mr Evans: Today, making the presentation on behalf of the United Food and Commercial Workers International Union is Tom Kukovica, the service sector director, and I am Cliff Evans, the Canadian director of the United Food and Commercial Workers International Union. We are pleased to have an opportunity to appear before the standing committee on administration of justice to present our views on Sunday shopping and Sunday working.
Our organization is the largest private sector union in Canada, representing some 180,000 members in this country. Our members are employed in more than 20 sectors of the economy, including the retail, service, meat packing, food processing, brewing and beverage production and distribution, fishing, general merchandise, health care, shoe and leather and banking industries. We represent more than 70,000 working people in Ontario.
In addition, we are affiliated to the Ontario Federation of Labour, which represents more than 800,000 workers in Ontario. The OFL fully supports the efforts and views of UFCW Canada with regard to the matter of Sunday shopping and Sunday working. We believe our organization and the labour movement in general appreciate the government's efforts in bringing forth legislation aimed at enshrining a common pause day in Ontario and providing the needed restrictions on both Sunday shopping and Sunday work.
While this proposed legislation is an important step forward, the UFCW has five main areas of concern with the proposed amendments to the Retail Business Holidays Act. These concerns are related to the intent of the act itself, the municipal option, drugstores opening on Sunday, enforcement of the legislation and the definition of a "retail business." In this presentation we will present our members' views on each of these concerns and we will also address three other issues related to that of Sunday shopping and Sunday working.
The intent of the Retail Business Holidays Act is the first area of concern. The present act fails to recognize the right of workers to a common pause day. The proposed amendment in the legislation recognizes the need and importance of a common pause day in part I. The wording in the proposed amendments such as "shall take into account" and "should be maintained" is, however, too general. This achieves only a watered-down version of what is required.
Our recommendation is that to ensure that the intent of the act is consistently followed, the amendment of subsection 4(2) regarding municipal power should read, "The council, in passing a bylaw under subsection (1), must maintain the principle that holidays are to remain as a common pause day; that is, to ensure that they remain days on which most businesses are not open; days on which most persons do not have to work."
The second area of concern deals with the municipal option. The legislation implemented by the previous Liberal government provides that municipalities have full control over the decision to allow stores to open on Sundays or other holidays. There are no regulations, no criteria and no principles to guide municipalities in the making of decisions. The will of municipal councils simply predominates. The provincial government has no way of stopping wide-open Sunday shopping and working. One only has to look at the high rate of applications for exemption that are presently in the hands of municipalities for proof of the extent of the problem.
In the amendment as proposed, the decision-making process would remain in the hands of the municipalities. In addition, the regulation and criteria of the tourist exemption as set out in sections 1 and 2 and subsection 4(1) of the new amendments are so broad as to effectively restrict no one.
As reported in a June 6 article in the Toronto Star, Metropolitan Toronto Councillor Paul Christie stated, "Almost any of the city's busiest shopping areas would qualify for exemption from the Sunday shopping ban under the proposed tourist exemptions." The same article reported that lawyer Tim Danson has already been contacted by a significant number of stores from the Beaches area and from other parts of Metropolitan Toronto and the province to arrange a tourist exemption.
Under the proposed rules, decisions of the municipalities would be final, and the province, including the Solicitor General, would not be able to challenge this decision. In the view of the UFCW this proposal would lead to wide-open Sunday shopping and working, and as a result would fail to enshrine the common pause day as intended.
Our recommendations dealing with the recreational, entertainment and cultural pursuits of tourists as well as the goal of enshrining the common pause day can both be accommodated by the law. To accomplish this the UFCW recommends the proposed amendments be changed to reflect the following: a new subsection 4(1) to read:
"Notwithstanding section 2 and subject to the provisions of clauses 4(1)(a) and (b) below, the council of a municipality may by bylaw permit retail business establishments in the municipality to be open on holidays where it is essential for the maintenance and development of a tourist industry and where it is essential to meet the educational, cultural, leisure and recreational needs of the tourist; and
"(a) only retail business establishments in which the total area used for serving the public or for selling or displaying to the public in the establishment is less than 4,000 square feet; and
"(b) the number of persons engaged in the service of the public in the establishment does not at any time exceed four."
The government must establish a committee of the affected stakeholders that will prepare and recommend a new set of viable tourist criteria, the regulations. The stakeholders shall include representatives of the affected groups such as retailers, unions and government.
According to the amendment, the tourist criteria as proposed would not form part of the legislation. However, we recommend that the new set of viable regulations established by the stakeholders mentioned above be integrated into the legislation.
Subsection 4(8) must be modified to state, "The council's decision may be appealed by any interested party to the tourist exemption board."
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The third area of concern deals with drugstores opening on Sunday. Under the present act, drugstores with a square footage of 7,500 square feet or less may open on a holiday. Currently, these drugstores must dispense drugs and the principal business must be the sale of goods of a pharmaceutical or therapeutic nature or for hygienic or cosmetic purposes. No other goods are allowed for sale, with the exception of sundries.
Unfortunately, there is a widespread problem with these drugstores selling soft drinks, potato chips, candies and other foodstuffs which are considered sundries. In many cases, up to 80% of the sales in these stores consist of products of a non-pharmaceutical nature. This occurs in spite of ample opportunity to purchase such non-pharmaceutical products provided through the numerous convenience stores that are allowed to open on Sunday. To compound the problem, the absence of a restriction on the number of employees working on a Sunday or holiday allows some drugstores to dedicate extra help for the benefit of sales of these non-pharmaceutical products.
In the proposed amendments that have been introduced, the government has not addressed the problem of large drugstores opening on Sundays. The proposed legislation also fails to put a restriction on the number of employees allowed to work on a Sunday. These drugstores in all practical terms have turned themselves into general stores selling lawn furniture, lawnmowers and a wide variety of other items.
The recommendation of the UFCW is that clauses 3(2)(c) and 3(2)(d) of the present act be amended to read as follows:
"(c) the total area used for serving the public or for selling or displaying to the public in the establishment is less than 2,400 square feet.
"(d) the number of persons engaged in the service of the public in the establishment does not exceed at any time the number four, including the pharmacist, who must be present in the establishment during all of the business hours."
Currently, there are many drugstores with a square footage of 2,400 square feet or less in many communities in Ontario that provide ample opportunity for the population to receive needed medication or other prescription products, particularly in the case of emergency. Additionally, prescriptions and other medications can be obtained at various hospitals and clinics where an on-site pharmacy is open on Sundays.
The limitation of four persons including the pharmacist to be engaged in service to the public would allow the prescription or other medication needs of the people of Ontario to be fully met. Our recommendation would require a pharmacist to be present during business hours in the establishment in order to attend to the prescription and other medication needs of the people, which addresses the real reason for drugstores remaining open on Sunday.
The fourth area of concern is the enforcement of the legislation. Under the present act, there is a provision for maximum fines of $50,000 upon conviction for illegal Sunday opening. Also, municipalities or the Attorney General of Ontario can apply to the Supreme Court of Ontario for an injunction to close an establishment that is opening illegally. However, there are no minimum fines. In many cases, the courts are imposing fines of $300 upon conviction. This is hardly a deterrent.
Under the present act, only two parties, the Attorney General of Ontario and the municipalities, are allowed to file for an injunction. Unfortunately, these two parties are in many cases not aware of violations or are not interested in filing for an injunction.
The proposed amendment by the government would impose a minimum fine of $500 for the first offence and $2,000 for the second offence. We fully support the principle of a minimum fine; however, the proposed fines are far too low. We believe the amount of the proposed minimum fines will not deter retailers from opening on Sundays. In fact, a retailer's profit for one day could easily surpass the amount of the fine.
Under the proposed legislation there would be no change with regard to who can apply for an injunction. As a result, we foresee the same problems of little enforcement and no action continuing. In order to address problems relating to the minimum fine being an insufficient deterrent and the lack of enforcement, we recommend the following.
The proposed amendment of the minimum fine under subsection (3.1) be modified to include, "For first offences, the minimum fine for conviction be $10,000, and for subsequent offences, the minimum fine for conviction be $20,000."
Under subsection 8(1) we are proposing that it be amended to read, "Upon the application to the Supreme Court by any affected or interested party, the court may order that a retail business establishment close on a holiday to ensure compliance with this act or regulation under this act."
At present, legislation similar to UFCW's proposals exists in Quebec, allowing affected parties to apply for an injunction. This legislation has proved to be both workable and effective.
According to a report by the Metropolitan Toronto task force dealing with the issue on Sunday shopping, the cost of enforcement in a single case, beginning with the investigation of the retail business premises and concluding with the laying of the charge, was approximately $70,475 in 1989 in terms of personnel hours alone. The projected annual cost in terms of personnel hours for enforcement was approximately $109,762 for 1990.
We believe higher minimum fines, combined with the threat of an injunction filed by affected parties, would be an effective deterrent to retailers who want to open illegally on Sundays. As a result, effective enforcement and the threat of enforcement would reduce the costs as outlined above.
The fifth area of concern that we have deals with the definition of a retail business. Under the present act, the definition of a retail business does not include club warehouses such as Price Clubs. This flaw allows giant stores in the guise of membership clubs to be open on Sunday. The proposed amendment that the government has introduced has not addressed the existing problem relating to the definition of "retail business." As a result, club warehouses will continue to operate on Sunday.
It is our recommendation that in order to prevent the circumvention of the act by establishments such as Price Clubs, clauses 1(1)(b), (c) and (d) of the present act should be amended to reflect the following:
"(b) 'retail business' means the selling of goods or services by retail to any member of the public, including a member of a club or co-operative or any other group of consumers.
"(c) 'Retail business establishment' means the premises where a retail business is carried on. Any space or stall in markets, particularly in covered markets and flea markets, shall be considered to be a retail business.
"(d) 'Principal business' means that portion of the business which accounts for 80% of the retail business establishment's gross sales."
We would also like to bring to the committee's attention some general concerns that we have, and the first of those is to suggest strongly to the committee that Sunday shopping and Sunday working have nothing to do with cross-border shopping. Canadians are going to the United States in record numbers and these numbers continued to grow even during the period in which stores were open in Ontario on Sunday.
In British Columbia, where Sunday shopping and working has existed for a number of years, the existence of open Canadian stores has not slowed traffic to the United States. Cross-border shopping trips in British Columbia increased 400% between 1987 and 1991, in spite of widespread Sunday openings in the province. On a national basis, Statistics Canada reported a 15.2% increase in shopping in the United States in January 1991 over the same month in 1990.
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In reality, there are many reasons for the growth of cross-border shopping: the recession; the high level of the Canadian dollar; high taxes in Canada, especially federal taxes; the introduction of the goods and services tax; the promise of cheaper goods and easier border transit put forward by the federal government to boost the Canada-US free trade agreement, particularly during the 1988 election campaign; reduced duties on US-made goods under the free trade agreement; lower prices in the US resulting from economies of scale, razor-thin profit margins, currency advantages, lower taxes, restricted social programs, the absence of regulations and lower energy costs; lower gasoline prices in the United States; reduced enforcement of Canadian laws and collection of duty and taxes at the border; reduced confidence in Canada by many Canadians; and US investment in advertising designed to attract Canadian shoppers.
Cross-border shopping is causing the loss of billions of dollars' worth of economic activity for Canadian business -- sales of retailers, orders for manufacturers, and business for service companies coming from both consumers and other companies. Many thousands of Canadian jobs have been lost in the retail manufacturing and service sectors and countless other jobs are threatened.
While it is essential to stop or at least slow the flow of cross-border shopping as quickly as possible, it is important not to develop Band-Aid solutions or quick fixes that will not last. More importantly, wide-open shopping and working on Sundays will not solve the problem of cross-border shopping.
Sunday shopping and working and tourism is another point that we would like to raise. According to the proposed amendments to the Retail Business Holidays Act, the tourist exemption as proposed would be granted by the municipality only where it is essential for the maintenance and development of tourism. As previously stated, the proposed criteria for the tourist exemption are far too broad and far too general and would provide too much leeway for municipalities to operate as the sole decision-makers. As a result, the exemption as proposed would lead to wide-open Sunday shopping and Sunday working.
Clearly the government has not achieved a balance between the establishment of the principle of a common pause day and the development of tourism. However, by accepting our recommendations we believe the recreational, entertainment and cultural needs of tourists can be met without opting for wide-open Sunday shopping and wide-open Sunday working.
We also would like to leave with the committee our feelings concerning Sunday shopping, Sunday working and the family. The amendments provided by the government would lead to wide-open Sunday shopping and working, affecting a significant number of workers and their families in Ontario. We believe these workers and their families have a right to a common pause day. Retail workers and their families are directly affected by Sunday shopping and Sunday working. That is more than two million people in Ontario. In addition, police, transportation, public workers, maintenance staff, delivery drivers and other support services for retailing, which represent another 250,000 workers and their families, would also be affected by wide-open Sunday shopping and working on Sundays. Ontario needs a common pause day for workers and for their families.
In conclusion, our goal in the UFCW has always been the enshrinement of a common pause day for retail workers, for workers in related sectors and for their families. The amendments to the Retail Business Holidays Act proposed by the Ontario government, while representing a move in the right direction, would fail to ensure that this goal is met and would serve to open the door to a further erosion of the common pause day.
We firmly believe that by accepting our recommendations the maintenance of family values and the establishment of a common pause day can be realized. UFCW Canada is prepared to work with the government of Ontario and other groups to develop and implement lasting, workable solutions which serve to establish a common pause day and at the same time strengthen the economy of this province and benefit all the people of Ontario.
The Acting Chair (Mrs Haslam): I would like to offer our sincere thanks for coming here today. Looking at the time, I have two people already on the list. I am going to ask that each questioner keep his questions brief and we will ask that for the answers also, because we only have five minutes in which to complete this presentation.
Mr Daigeler: May I say that I am very impressed with your brief. I have been a member now for a little bit more than three years and quite frankly I think your brief strikes me as one of the best in terms of being very concise, very direct, identifying problems and putting forward very useful and precise recommendations on what you would like to see happening. I am not necessarily saying I am in favour of all of these things, but I think what you have done -- in fact, I am going to use your brief as an example for some other interest groups that may wish to make representations on other matters as well.
That being said, you referred to presenting your case obviously on behalf of your membership. Sometimes in the press, and I guess by others, it is said that it is the union leadership rather than the union membership putting these views forward. How do you consult with your membership so you can arrive at these proposals and say you are speaking on behalf of your membership?
Mr Evans: We have a number of local unions in Ontario that represent the 70,000 members we represent, and the locals range in size from 13, being the smallest, to 45,000, being the largest. They have different methods of doing it.
If you were to look at the largest, being the most difficult, they hold regional stewards' conferences, regional educational conferences. I have attended many of them, as has Brother Kukovica, and the Sunday shopping issue is always a major issue, and has been, particularly in the last eight or nine years. The membership is solidly behind these proposals.
I appeared on a television program recently, and they had sought out a part-time food store cashier whom I have never met in my life before that day. She, quite frankly, was a better spokesperson on behalf of the issue than was I.
The Acting Chair: I am just going to stop you there because I am trying to allow a minute. Mr Carr, I am trying to keep it to a minute, so if you can ask a question in a minute.
Mr Carr: Yes, I will be very brief. I want to thank you for taking the time to come and do an excellent presentation. I had a chance to listen to Tom for I guess about two hours at our last Conservative convention, and I appreciated his help at that time as well. He was there to give input. I see him laughing. He probably did not tell too many people he went to a Conservative convention, but he was there to help out, and I thank you.
The Solicitor General said the purpose is to provide for a common pause day in Ontario. Very simply, do you think he has succeeded in doing that?
Mr Evans: With the proposed legislation?
Mr Carr: With his legislation.
Mr Evans: Not unless these amendments that we are recommending are adopted.
The Acting Chair: That was great.
Mr Evans: And I might say --
The Acting Chair: It was almost okay. Fine, go ahead.
Mr Evans: I might say that our organization believes we are not in the business only of identifying problems but also to attempt to identify solutions.
The Acting Chair: That was very good.
Mr Fletcher: Cliff, thanks for being here. It is an excellent presentation. It is nice to hear from the people who are going to be affected by this legislation, primarily the working people of the province.
I have had an opportunity to talk with many of your members at labour council meetings and also at the UFCW walkathon, and what you are saying is what I have heard from many of the members.
You raised an interesting point; you raised many interesting points. I really enjoyed the recommendations and I can support many of them, and we are going to be listening as we go around the province. One of the things you did raise was the cross-border shopping issue, and I would like to tackle that right on. I know that many members of the opposition, when we were forming our committee to travel, wanted to hit many border towns to try to show the correlation between the two.
Stores are open in the US. You have already partly answered this quite well. Is it going to have an effect on Ontario retailers as far as Sunday shopping is concerned?
Mr Evans: Fortunately or unfortunately, I have been in this business and in this union and its predecessors for going on 40 years. Cross-border shopping was never an issue until the high dollar, the high interest rates and the programs developed by the current federal government were imposed on the people of Canada. I cannot factually tell you that I have done an exhaustive survey and have a finite answer, but I think in many instances the cross-border shopping, especially in the province of Ontario where I talk to people on a regular basis, is a revolt against the GST. Now, if you go cross-border shopping you will find out that dairy products are cheaper, children's clothes are cheaper, booze is cheaper, gasoline is cheaper, and they attract them across the border with those loss leader advertisers. So the federal government is well in control of the solution to the problem to bring cross-border shopping to a grinding halt and, as a matter of fact, to turn it around and go the other way.
The Acting Chair: I believe Mr Poirier wanted to just end with 15 seconds.
Mr Poirier: Yes, thank you, Madam Chair. Congratulations, it was an excellent presentation, and being a francophone, I was impressed that you would do it in both official languages of Canada. I was intrigued by the Tory blue and the Liberal red, I must admit. Thank you very much.
Mr Evans: Jean, we were running out of paper, that is what happened.
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TOURISM ONTARIO INC
The Acting Chair: We would now ask that a submission from Tourism Ontario, Mr Roly Michener and Mr Bill Biggs, would come forward.
Mr Michener: Thank you, Madam Chair. Regrettably Mr Biggs could not be with us today. He operates an integrated retail business establishment in northern Ontario and, fortunately, he has been very busy of late. So I am here to represent Tourism Ontario.
Tourism Ontario is a private non-profit federation of tourism and hospitality associations whose more than 7,000 member businesses account for a sizeable portion of the commercial lodging, food service, hospitality, recreation, travel, and transportation services available in Ontario. This submission is supported by the following member associations of Tourism Ontario: Attractions Ontario; Hotel Association of Metropolitan Toronto, whom you will hear from immediately following this presentation; Motels Ontario; Northern Ontario Tourist Outfitters; Ontario Convention and Visitors Association; Ontario Hotel and Motel Association; Ontario Marina Operators Association; Ontario Motor Coach Association; Ontario Private Campground Association; Ontario Ski Resorts Association; Resorts Ontario; and 11 Ontario travel associations.
The social and economic importance of the Ontario tourism and hospitality industry is very substantial indeed, and I would refer you to that page in the submission which outlines just how important it is to the economy of this province. Our federation believes that in a free and democratic society the public should have the unrestricted right and freedom to choose whether and where they wish to shop any day of the week and at any time of the year. Thus retail shopping should be permitted throughout Ontario where and when retail business establishments perceive the need to provide it.
Similarly, Ontarians should have the unrestricted right to work, earn incomes, and profit from the production and sale of goods and the provisions of services any day of the week.
Retail shopping is an integral part of the tourism experience, and represents a significant portion of the value of all tourism expenditures in Ontario. Most retail shopping, dining out, touring, sightseeing, and recreation takes place on weekends. Clearly, the majority of Ontarians and visitors to Ontario favour unrestricted retail shopping on Sundays and holidays as part of family activities, and I would underline that.
Tourism Ontario is of the firm opinion that unless and until the government of Ontario is prepared to recognize these fundamental rights, freedoms and marketplace realities by abolishing the Retail Business Holidays Act, Ontario is destined to continue to lose billions of dollars worth of annual tourism and retail sales to bordering American jurisdictions which are wide open for retail business on Sundays and holidays.
Further, whereas we see some merit in Bill 115 and commend the Ontario government, particularly the minister and Ministry of Tourism and Recreation, for endeavouring to recognize the value and importance of tourism in this legislation, in the end analysis we fear it will result in costly and time-consuming administrative burdens and litigation as municipalities, retail business establishments and organizations endeavour to interpret, comply with and apply the proposed provincial tourism criteria in the context of a common pause day.
Regrettably, the inconsistencies, confusion and conflicts outlined in the proposed amendments to the Retail Business Holidays Act and pursuant regulations may not result in the desired positive interface and co-operation between the public and private sectors to realize and capitalize on the tremendous economic and social benefits of retail shopping as an integral part of tourism throughout Ontario.
Therefore, we would respectfully request that members of the standing committee on administration of justice seriously consider the following changes which should be made to the proposed Retail Business Holidays Act amendments and regulations in this regard. They are as follows:
Under regulations:
Tourism criteria: Subsection 1(2), tourist area characteristics: The list of characteristics for a qualifying geographic area should be expanded to include the following tourism criteria: tourism in the area has historically been an important part of the local economy, and provides goods or services necessary to tourist activities in the area.
Subsections 2(1) and (2), retail business restrictions: This whole subsection is redundant and blatantly discriminatory and should be removed from the proposed regulations. The number of persons serving the public and the floor space occupied by a qualifying retail business establishment should have no bearing on its ability to meet common tourism criteria.
Paragraph 3(1)2, tourism season qualifier: These time periods will vary within a designated tourist area, as will the length of tourism season for various types of qualifying retail business establishments for a wide variety of market-driven circumstances. Therefore, we recommend that this qualifier be removed from this subsection.
Subsection 3(2), exemption application procedures: Again, we would make the same comment as we did for subsections 2(1) and (2), namely, that they are openly discriminatory.
Retail Business Holidays Act amendments:
Empowerment of local municipal councils: Clause 1(1)(aa) of the Retail Business Holidays Act, 1989, should be amended to permit all local municipal councils within a district, county, metropolitan or regional municipality to enact bylaws to permit retail business establishments in each local municipality to be open on holidays for the maintenance or development of tourism. It is duplicative, unnecessary and unfair to burden metropolitan or regional municipal councils with applications from local councils regarding designated tourist area exemptions, as is currently the case.
Council's obligations, subsection 4(7): Municipal councils should not be granted discretionary power through which they can refuse to pass a designated tourist area bylaw permitting any or all retail business establishments which meet the provincial tourism criteria and that apply for exemption to be open on Sundays and holidays.
Council's decisions, subsection 4(8): To make a given municipal council's decision final on whether or not it wishes to pass a bylaw to permit retail business establishments in a municipality to open on Sundays and holidays for the maintenance and development of tourism defeats the whole purpose of it having such authority in the first place. That is to suggest unequivocally that no legitimate reasons or causes could ever be presented to a municipal council which had refused to designate a tourist area under a tourist area bylaw exemption, regardless of merit, including future development of tourism infrastructure or ventures within said municipality. Surely, in a democratic society, which the government of Ontario is committed to for all of its citizens, such a draconian clause should be withdrawn.
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Procedures of councils, clause 4(9)(d): Municipal councils should not be granted the power to limit the number of applications from retail business establishments that they will consider in a given year. Businesses should be free to apply for the exemption at least once every calendar year.
Cabinet regulations, clause 4(10)(a) to 4(10)(d): The provincial cabinet should clearly articulate these regulations as part of Bill 115. It is unfair and unreasonable for public and private sector interests to be asked for comment on this bill without the benefit of clarity in this regard. We see no reason for the Ontario government to usurp or duplicate the authority accorded municipal councils under this act except to provide direction and simplicity in the required content of applications and the capping of fees for the processing of applications.
Classification of retail business establishments, subsection 4(11): We are unalterably opposed to any such vague and discriminatory authority being granted to the crown or municipalities under this act.
Contents of bylaws and regulations, clause 4.2(a) to 4.2(f): The Retail Business Holidays Amendment Act, 1989, established similar parameters which were arbitrary, potentially discriminatory and altogether unworkable for many municipalities and retail business establishments in them. We would strongly recommend that clauses (a), (d) and (f) be withdrawn from this section of the amended act because they are inconsistent, undemocratic, discriminatory and unfair.
Transitional rules: Whereas Bill 115 purports to support and protect Ontario's tourism industry through the provision of province-wide tourism criteria to exempt qualifying retail business establishments from Sunday and holiday closing requirements, it also establishes a minefield of obstacles and potential obstacles to the realization of these laudable objectives as previously articulated in this submission. Therefore, it is completely unreasonable to require that all municipalities in Ontario comply with the transitional rules laid out in Bill 115. Rather, we would forcefully recommend that subsection 6(2) of the Retail Business Holidays Amendment Act, 1989, as constituted by the former government, be retained as transitional rules for the purposes of the Retail Business Establishments Statute Law Amendment Act, 1991.
Common pause day: The concept of a common pause day in Ontario is outdated, outmoded, unnatural and misplaced. In our contemporary and pluralistic society tens of thousands of Ontarians must work at all hours of the day and night throughout the week in resource industries, in the processing, manufacture, packaging and distribution of all manner of products, and in the provision of a broad range of goods and services to our citizens and others. While some people rest, others conduct business and provide services.
The Ontario tourism and hospitality industry must provide value-for-dollar quality products and experiences and good service on an uninterrupted basis to patrons from domestic and foreign markets 7 days per week and 365 days per year, with some seasonal and geographic limitations. The market appeal of our industry is driven by the demand created for its products, experiences and services in an extremely competitive international market, and the supply of them by willing entrepreneurs, professional management and staff, and to a very substantial extent by various Ontario government ministries and agencies. We must provide these products, experiences and services to our patrons when they want them or risk losing them to other competing jurisdictions. Thus the concept of a common pause day is totally alien to our industry and to many other segments and sectors in our economy.
Tourism values: We are often asked what constitutes tourism. Tourism is the direct supply of goods and services to facilitate business, pleasure and leisure activities 40 kilometres or more away from the home environment. It covers a broad range of products and services including: transportation, that is, airline, auto, motor coach, rail and marine; accommodation; food and beverage services; live and participatory entertainment, ie festivals, events, culture and the arts, athletic competitions, business and social gatherings; conventions, meetings and symposiums; amusement activities, including those of a leisure nature, recreational and educational; and to a very significant extent, retail shopping in all of its dimensions.
All manner of activities are encompassed by tourism, such as visiting friends and relatives, urban and country touring and sightseeing, soft wilderness and wilderness lodging, camping and leisure pursuit, historic and heritage site visitations.
The Ontario Ministry of Tourism and Recreation, with assistance and support from the private sector in tourism, has carefully segmented its substantial tourism marketing initiatives to create the greatest possible public awareness of and demand for the products, services and experiences offered by our industry in our target markets throughout the year.
Retail shopping is a major tourism activity in Ontario. In virtually all of the research which has been conducted of resident and foreign visitors' travel in Ontario, retail shopping constitutes one of the top three tourism-related activities. In 1988, for example, retail purchases represented $2.2 billion of all tourism expenditures in Ontario. Direct jobs in that year created by the retail sector amounted to the equivalent of 29,000 full-time jobs or 14% of the total direct employment in the tourism sector. The total impact of tourism-related retail purchases in 1988 on tax revenues generated by the province was $366 million for Ontario, $134 million for Ontario municipalities, and $602 million for the federal government.
The majority of all tourism-related activities, including retail shopping, takes place on weekends.
The Ontario government, through the Ontario Ministry of Tourism and Recreation, invests a substantial portion of its multimillion-dollar annual tourism marketing budget in the active and aggressive promotion of retail shopping and touring in the province. Non-resident visitors are encouraged to shop and to stay in Ontario through a very productive provincial sales tax refunds for visitors to Ontario program, which was established by the province in 1977.
Sunday and holiday shopping has become an economic necessity for many thousands of Ontarians as they struggle to balance working realities with personal and family responsibilities. It is also a primary tourism activity for families and individuals who travel to and within our province, and who combine shopping with entertainment, sightseeing, touring, dining, recreational activities, festivals, and events.
The province of Ontario and all municipalities in the province benefit directly and considerably from tourism expenditures. Both levels of government are constantly searching for new and incremental sources of revenue to fund all manner of social services, enhanced and enriched education for our citizens, better health care, improved roads, and affordable housing. Government recognition and protection of tourism values and the operational realities of our industry at both the provincial and municipal level will enhance significantly the ability of government to provide said services for our citizens.
While we commend, once again, the efforts of the minister and the Ministry of Tourism and Recreation to recognize the value and importance of tourism in Bill 115, we are very concerned that the full potential of our industry as it relates to Sunday shopping as a major tourism activity will not be realized unless significant amendments are made to the Retail Business Establishments Statute Law Amendment Act.
We respectfully recommend therefore that you, the standing committee on administration of justice and the government of Ontario, seriously consider all of the facts and recommendations which we have rendered in this submission.
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Mr Poirier: What very direct, to-the-point recommendations pertaining to the definition of "tourism" -- what do you expect to see if things remain the way they are proposed as per who decides what and where and with whom pertaining to what is a tourism-related business?
Mr Michener: In this bill, sir?
Mr Poirier: That is right, yes.
Mr Michener: We expect to see a hodgepodge. We expect to see ongoing litigation in the courts as retailers endeavour to force their rights. We expect to see municipalities wrestling with this interminably and having a great deal of difficulty in ascertaining just what they should be doing in all of this to enhance tourism in their respective jurisdictions. I would bring you back, once again, to one of the recommendations we made, and that is that specifically this committee consider granting local municipal councils the right to make the determination as to what constitutes a tourist area exemption, and hearing deputations directly from, hopefully, qualifying businesses within the local municipality. As things now stand, for example, in the municipality of Metropolitan Toronto, if one of the cities within Metropolitan Toronto wishes to enact a tourist area exemption, it would have to go to Metro council. This is going to create enormous problems for a metropolitan council in a city the size of Toronto, and we would strongly urge that you consider making that a local option in the truest sense and permitting local councils, ie, the city of Toronto, the city of North York, etc, and franchising them to make these determinations locally.
Mr Carr: One of the concerns I had that I expressed to the minister just before this is, what would happen if we end up with a patchwork effect, if one municipality opens and another one does not? From your perspective, what would happen to a tourism business that was adjacent to an area that was possibly open and his was not? What impact do you think that would have on the tourism industry in the municipalities that were closed?
Mr Michener: Very good question. I think it would have a very direct impact and it would be to the detriment of tourism in the adjoining municipality. There is no question about it, because we do know very well, as I mentioned in the brief, that retail shopping activity constitutes one of the top three tourism-related activities of people who are travelling and visiting with friends and relatives and so on throughout Ontario, so it would have a very direct and unfortunately a detrimental impact on businesses in the affected municipalities.
Mr Fletcher: Just before a question, I have a comment. Looking at your brief on page 8: "It is worth while noting that of more than 10,000 inquiries and complaints with the employments standards branch...fewer than 15 were related to the right of retail workers to refuse work." Knowing the workplace, with the present legislation, I do not think I would have complained either. I would have been put under a lot of strain and stress. That is one of the things that I am trying to get at: the employment standards changes that protect the rights of workers to refuse work have been strengthened, and I know your group is not happy with it. Your brief is very good. It is to the point, and I do sympathize with some of your concerns, but not all, and the one that I am having a problem with is the right of workers to refuse.
You make some assumptions in your brief. On page 15, you are talking about people who are available for work and they want to work. They want to have the right to work. "Many of these people and others are or would be happy to work in a retail business or retail business establishment on Sundays and holidays." That is hard to accept as an assumption, that that is a way a lot of people do think.
The Chair: Do you have a question?
Mr Fletcher: I am just going on like Mr Sorbara. "If employees in our industry are treated with dignity and respect by employers whose businesses are so dependent on staff attitude" -- I agree with you that whenever I am in a tourist area, that is what usually does sell the place to me, but not all employers are benevolent and not all employers are going to treat their people with respect, and I think that is one of the reasons that the Employment Standards Act has been changed, to protect employees in that way.
As far as your industry is concerned, as you do say that all employees are protected under the Employment Standards Act, would it have a great effect, having that piece of legislation in where employees are protected, if there are so few people who are going to complain and if the employers and the business people are so benevolent? That does not really matter, the changes to the Employment Standards Act. That is not going to kill the tourist industry.
Mr Michener: Well, let me put it to you this way: If you walked into a restaurant and there were an insufficient number of people available there to serve you at a given point in time, would you be happy? Would you be likely to return to that restaurant?
Mr Fletcher: Since you asked me the question, that is another assumption, that people are going to use the law in the way you see it. As you said before in your brief, people who are working in the tourist industry know they are there for that specific reason and their performance is what does bring the people back. So I am saying to you it is not a crucial factor in the tourist industry. I do not think you will --
Mr Michener: Well, we believe it is, and we also believe that management must reserve the right to schedule work and work schedules. That is a fundamental premise I think in any business, but particularly in our business. We have to be there when the customer calls. We have to have appropriate service available when the customer calls, and as we mentioned in our brief, people who work in our industry willingly accept the fact that they are going to be working variable hours throughout the week, including, in many cases, Sundays and holidays as well.
Mr Fletcher: If we have time, Mr Chair, I will come back to the question at the end.
Mr Daigeler: The minister when he was here earlier made much about consultation that has taken place. I just would like to hear from you to what extent and what way your federation has been involved in the preparation of this legislation. What was the consultation that has taken place before the drafting of this legislation?
Mr Michener: The consultation entailed the minister and ministry staff preparing a number of options for our consideration in terms of provincial tourism criteria that might be considered. Beyond that, we were consulted, as were most of the other groups that will come before you, by the Solicitor General's office directly. We met with the Solicitor General, met with tourism officials at the same time, and officials from the Ministry of Labour. We were presented by the Solicitor General's office with a series of criteria to consider, a series of options to consider in terms of employment standards. That was the extent of the consultation. We were asked for our views and we willingly gave them at the time.
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Mr McLean: When I saw Bill 115, I felt the criteria that are laid down with regard to tourism would include pretty near everything. I see today you have added a couple more, and I am not so sure they would be necessary. In your opinion, what stores would remain closed if a council wanted to pass a bylaw in the city of Windsor to have open Sunday shopping? Could they not do it now?
Mr Michener: No, nothing over 7,500 square feet would likely qualify under this bill.
Mr McLean: But everything under 7,500 would, whether it is a shoe store, clothing store, whatever?
Mr Michener: I am not sure. I could not say that with total authority either, but anything over probably would not.
Mrs Haslam: I was interested in your comments on page 5 about a council's decision and to make a given municipal council's decision final. What type of appeal process would you like to see in place if you do not like to see the municipal council's decision being the final one?
Mr Michener: I think that within the realm of municipal councils, if indeed the empowerment is with municipal councils, an appeals mechanism has to be struck.
Mrs Haslam: You would like the appeal process kept within the municipal council?
Mr Michener: If that is where the empowerment is going to be, yes. If the empowerment is going to be provincial, then it would be provincial responsibility.
Mrs Haslam: Could I ask for a clarification on that, please. Here you are saying, "To make a given municipal council's decision final defeats the whole purpose of its having such authority in the first place." What I am saying is, if you do not want the final decision left at a council level, are you asking for an appeal process, and if you are, I would like to know what kind of appeal process you want to see. You are saying the appeal process should still be at the municipal council level.
Mr Michener: I think it has to rest with the level of government which is responsible for enacting bylaws in this case, and that would be municipal council.
Mrs Haslam: For clarification, I am just asking what kind of an appeal process you perceive?
Mr Michener: I do not know. Perhaps you should go back to the Solicitor General's department and ask the people who drafted --
Mrs Haslam: That is what this committee is for, to ask you, and that is why I am asking you.
Mr Michener: We just think it is far too arbitrary to say that the decision of municipal councils is firm and final, however it is struck, one side or the other of this act. We think there must be an appeals mechanism struck within this legislation which permits municipalities to hear appeals. How frequently, how many, and from whom, I do not think anybody has thought their way through, but we just think it is far too arbitrary for municipal councils to be forced, in the first instance, to make a firm and final decision that is binding and non-appealable on an issue as important as this.
Mrs Haslam: But you would like an appeal process kept at that level?
Mr Michener: Sure.
The Chair: Thank you, Ms Haslam. Thank you very much, Mr Michener.
Mr Michener: Thank you.
Mr Poirier: How many subs was that, Karen?
Mrs Haslam: Not subs, clarification. It was the same question; I just wanted to make darned sure of the answer.
HOTEL ASSOCIATION OF METROPOLITAN TORONTO
The Chair: We now have representing the Hotel Association of Metropolitan Toronto, Mr Edward Robinson. Mr Robinson, I am sure you saw from the previous submission, we basically have about half an hour. Take that time whichever way you wish to. Typically it is half an hour for your presentation and half an hour for questions. Please commence when you are ready, sir.
Mr Poirier: Half an hour for everything, including questions.
Mr Robinson: I have not started and you are fighting about it already.
Mr Poirier: I say clarification.
The Chair: Clarification. Half an hour divided typically in half.
Mr Robinson: Okay, I get the message. We will make it half an hour.
Mr Chairman, ladies and gentlemen, my name is Edward Robinson. I am the executive vice-president of the Hotel Association of Metropolitan Toronto. We have 115 members and represent 30,000 employees in the Metropolitan Toronto area.
Our industry is, and remains, on public record as being in favour of unrestricted Sunday and holiday shopping as a vital and integral part of the entire tourism infrastructure. We also believe it is the inalienable right of every Canadian to work, earn income and profit from the production and sale of goods and services regardless of the day of the week.
We believe the government of Ontario in its wisdom is prepared in a positive and substantial manner to recognize the value and importance of tourism in this proposed legislation. By the year 2,000, if not sooner, tourism will be the largest industry in the world, bar none. It is already Ontario's largest private sector employer and the largest industry in the service sector, accounting for 70% of all new jobs.
Ontario has recently experienced and -- unfortunately, with the way the world is going, free trade with Mexico looming on the horizon -- will continue to experience substantial losses in industrial and manufacturing jobs. Tourism, if properly managed and nurtured, is the only industry poised to pick up the slack in this sorry unemployment scenario.
We urge you, the standing committee on administration of justice, to convince the provincial cabinet and government caucus that the diversity of factors which encourages tourism and travel to and within the province should be reflected in the proposed criteria for tourist area exemptions and permit substantial retail business activity within these areas on Sunday and holidays.
The committee heard and will hear from various tourism groups the importance and indeed the vital nature of tourism for our province and country. You have just heard from Tourism Ontario, a federation of which we are a member, all of the facts and figures relating to tourism and its extraordinarily positive effect on the province's economy as it relates to jobs, foreign exchange, etc.
Tourism Ontario, in this extremely well-thought-out brief, also addresses the regulations as they pertain to tourist area characterization, retail business exemption, etc. Rather than attempt to reinvent the wheel and reiterate its compelling analysis of why Sunday shopping must be allowed, I would like to briefly talk to you about tourism in general.
Tourism as an industry rarely receives a big level of public acceptance and recognition commensurate with its vital share of economic activity. One of the major reasons for this is the lack of hard statistical data on the true value of the industry. Indeed, most existing statistical systems, government and private sector alike, fail to adequately document the full scale, scope and impact of tourism-related activities.
This lack of documentation of tourism's broad impact on economies, societies and indeed tax revenues leads in turn to a lack of understanding and sympathy by politicians, public policy officials and the general public towards the industry. Similarly, privately or publicly funded entities dependent on tourism visitations may not receive adequate data about their industry or related tourism industry elements to plan, manage or market effectively.
Many nations, Canada being in the forefront among these, still place all their emphasis and their public policies on agriculture, mining, raw resources and manufacturing as the countries' major sources of economic strength, failing to further the economic power of tourism and the service industries in general. Indeed, most provincial governments and the federal government spend billions of taxpayers' dollars subsidizing agriculture, mining and manufacturing, while the tourism industry seldom requests and hardly ever receives grants or subsidies of any description. There are indeed some exceptions to this.
It is a well-known fact that the tourism sector has historically received far less extensive treatment in national statistical programs than the basic industries with which most politicians are familiar. It is therefore axiomatic that one gives short shrift to anything one knows little about. In fact, tourism activities are often perceived as being frivolous and therefore of low priority, regardless of their high employment levels and foreign trade earnings.
That Sunday shopping is an issue up for public debate at this time clearly proves this point and illustrates the lack of understanding and awareness politicians, civil servants and the general public have of tourism and the vital role it plays in both domestic economies and the overall world economy. It would be fair to say every Third World developing or fully developed nation in the world recognized long ago the vital importance of this ubiquitous industry.
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Sunday shopping is a very emotional issue. It conjures up visions of fathers and mothers being torn from the bosom of the family, of heartless employers holding guns to the heads and threatening the jobs of employees, of empty church pews, etc. Nothing could be further from the truth. Sunday work has been an acceptable and time-honoured profession for hundreds of thousands of hotel and restaurant workers in Ontario and Canada from the day the first inn opened its doors.
Hotels stay open 24 hours a day 365 days a year, usually only closing when the wrecker's ball comes to claim it. Thousands upon thousands of people, such as those employed in the running of essential services, telephone, hydro, airports, etc, also work on Sundays. The point is, the world does not come to a screeching halt on Fridays at 5 pm and reopen for business on Mondays at 9 am.
Between the middle of 1989 and today, at least 8,000 employees in my association of 30,000 have been laid off. Any one of these people would, I submit, gladly work at any job every Sunday in the year rather than accept unemployment insurance or welfare. We are the only industry capable of reducing welfare rolls significantly. Nurture, encourage and protect this industry and watch it perform miracles in reducing unemployment. Put up roadblocks, such as the elimination of Sunday shopping or tax us to death, and suffer the consequences.
We therefore urge all Ontario municipalities to work with our industry in recognizing the social and economic benefits which tourism in all of its dimensions, including Sunday or holiday shopping, brings to hundreds of communities throughout Ontario 365 days a year.
Mr Poirier: Mr Robinson, if the provisions go along the way the government wants to right now, what do you see happening in the tourism sector?
Mr Robinson: The problem as we see it at the moment is the ambivalence of a lot of the provisions proposed by government. As I say, we are in favour of wide-open Sunday shopping. Every survey ever conducted by the Metropolitan Toronto Convention and Visitors Association clearly reflects shopping as being in the top three things people want to do on Sunday in Toronto.
The name of the game is competition. We have to remain competitive in the tourism industry among the world, North America especially. The moment we become uncompetitive -- as we are now with the high dollar, with the GST, granted, and we have heard that -- we will lose untold jobs in the industry. We will also lose our industry.
The tourism dollar is extremely discretionary. It goes where the value is best, and we know that. Every time we take a vacation, we plan our vacation and we go where our money buys the better deal. This does not change province to province or country to country. So we are concerned with what is proposed, with the confusion which will result from a bill which is totally unclear.
Mr Carr: I want first to thank you for your presentation. I suggest with it now being left up to municipalities, you are going to have to be a part of doing this over and over again. Just in that regard, what is going to happen to a lot of members of your association is they are now going to have to go to municipalities and lobby for what they would like to see. Have you been able to piece together how much, in terms of time and manpower, that will cost to do that? How do you see it happening?
There have been some comments by the Canadian Federation of Independent Business that this is nothing more than red tape. I wonder what your comments are. How much effort will it be for members of your association to begin the lobbying process that will inevitably go across the province now?
Mr Robinson: Red tape, nightmare, passing the buck -- we see all of these things happening. It is going to be difficult. We have limited manpower and resources. We simply want governments at all levels to use their common sense about this problem called Sunday shopping. We do not want it to be further politicized. This is a political football. It is being passed around from province to municipalities. The federal government has been blamed for most of the ills of cross-border shopping, so we see it as being more a political football and a very emotional issue than one of reality.
The reality is that Sunday work and Sunday shopping are with us and will be with us for ever. The point I made in my brief is that every one of us enjoys, when we have Sunday off, somebody else's work on that Sunday, whether it is watching television or a ball game or going to see the Blue Jays. It does not really matter. It is here; it is to stay. No one forces people to work. So what I say is, let's remove the emotion from this issue and look at it the way you should look at it.
Mr Mills: My response is that I think our government recognizes the importance of tourism to a degree at the present time that has never been recognized before. You say governments do not care about tourism and I think that we really care. We do care and I think that is reflected in the proposed amendment to the legislation.
I would like to thank you for your presentation. We are here to listen to briefs, to people like you, with an open ear and hopefully to fine-tune the legislation further down the road. This is a draft amendment, and we are listening and we will be looking at everything. But I want to reaffirm that in our government one principle that is not negotiable is the fact that we are committed to a common pause day and that common pause day commitment was made prior to the last election and probably was a big issue in that election. We are here, so I will presume that most of the people who supported us are in support of the policy.
The Chair: Have you got a question, Mr Mills?
Mr Mills: The question I have is, and I am entitled to a preamble to get to that question -- judging by the flexibility that you give to our absent friend over there -- do you not see anything positive in the tourism criteria that we are proposing to introduce in this amendment? Does it not satisfy you in any way at all?
Mr Robinson: First of all, I think if you read my brief, I did not say that governments did not care. I said they did not understand tourism.
Mr Mills: Well, I think we do.
Mr Robinson: I do not really think you do. Really and truly, tourism is an extraordinary industry which is very little understood at all levels of government. So, having said that, what was your question?
Mr Mills: Do you see anything positive at all in the tourism criteria? There must be something.
Mr Robinson: In what is proposed in Bill 115?
Mr Mills: Yes. Can we make it work?
Mr Robinson: Well, from what I have seen of it, I would have to preface my remarks to say that I think it can lead to tremendous confusion. I think this business of a common pause day is anachronistic. It is outdated, it is old-fashioned. Maybe we have had it for ever in Ontario, but that does not mean it is not time to look at it again.
This bill protects only retail workers. What about the hundreds of thousands of other workers who work for government who must work on Sundays to provide essential services? Why do you not protect them or bring out a bill to protect them? Why only retail workers? You are totally inconsistent with this.
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Mr Mills: I can answer your question. We protect retail workers because we see in those folks the people who are most affected. They are not unionized. They really have not much protecting them. They are really low-paid, and they are really at the mercy of the employers.
Mr Robinson: I think that is nonsense, Mr Fletcher. That is absolute nonsense.
Mr Mills: No, Mills is my name. Fletcher is gone.
Mr Robinson: Mr Mills, I am sorry. I really think that is --
Mr Mills: Thank you very much. I am not going to get into an argument.
Mr Robinson: We do not take advantage of people. There are laws which prohibit that.
Mr Daigeler: Thank you for the presentation. I must say, though, coming from a European background, I am a little bit struck both by your presentation and the earlier presentation which see so little connection between tourism and what I consider to be the concept of pause and leisure, ease, enjoyment, beauty, not doing anything. Quite frankly, I would have thought that tourism is very much related to that, and that as people in the tourism industry you would see a tremendous role for moving away from that emphasis on work and perhaps re-emphasizing recreation and leisure and let's work less.
There is a tendency in Europe to shut all things down on Friday afternoon. I am really surprised. Some of my relatives stop working now on Friday afternoon, and they are off the whole weekend. We seem to be going in the opposite direction.
I must say I am wondering a little bit. You said that the third priority of tourists who come here is shopping. May that be because there is nothing else to do and is it perhaps our role to create some attractions that will bring tourists there?
Mr Robinson: But does that mean you do not want them here on Sunday because everybody goes on vacation?
Mr Daigeler: No, but I am saying I think there is a relationship between -- and I personally support the idea of a common pause day -- a pause day and tourism and leisure and recreation. I think there is a relationship. I do not think you can just say "Let's just throw it out."
Mr Robinson: I understand where you are coming from. However, you come from Europe, and I guess you are probably a skier and had some of your finest moments on the slopes on Sundays --
Mr Daigeler: Right.
Mr Robinson: -- which is a major day of activity in Switzerland or throughout Europe. Somebody has to provide those facilities. That does not mean that people work seven days a week. It means that they are off Mondays and Tuesdays instead of Saturdays and Sundays. It means they are off Wednesdays and Thursdays instead of Saturdays and Sundays. What I am saying is that the idea that Saturdays and Sundays are sacrosanct is long outmoded and outdated. Saturdays and Sundays are two days of the week where a tremendous amount of business, especially in the tourism industry, is conducted. You cannot close every hotel on Sundays. Most business people check into hotels Sunday evening to be ready for Monday morning's work. Somebody has to provide those facilities to cook a meal for them and to make their beds.
Most people go on vacation -- and I doubt anyone here would dispute this -- and include Sunday as a day of their vacation. Wherever they go, Disney World, Disneyland, Sunday is a big day. We make the most of it. Someone has to provide those services. Those people who work Wednesday through Sunday get Monday and Tuesday off. That is how it has been working in the industry for years. Nobody works seven days a week. That is against the law in any event. It compensates for it. Everybody loves weekends, but those of us in the industry who work weekends get another two days off. Families do not suffer. People who work Sundays are not bad, wicked, evil or perverse, contrary to some of the comments we have been hearing. They are law-abiding citizens who look after their families.
Mr Carr: I would take it one of the major competitors for the tourism dollar would be US citizens who potentially could come over here or go, for example, in New York state and stay in their own area. What are your statistics on the number of Americans as a percentage of the tourism that affects your association, and how do you see this affecting them if we were to remain closed? Do you have any idea? It might just be a guesstimate, but I wonder if you could fill us in. I guess the gist of it is, are we losing American tourist dollars because of being closed on Sunday?
Mr Robinson: I think it would be catastrophic. I really could not give you a figure, but as I mentioned earlier, for people who go away for a weekend, Sunday is 50% of their weekend. The Eaton Centre is an attraction. It is a world-wide recognized attraction. People do not only want to shop there; they want to see it. It is like the CN Tower, perhaps Ontario Place, the dome: it has a name about it. If we remove these attractions then we limit again the number of people who want to visit Toronto.
It goes back to the old days where everything closes on Sunday. The visitors can go elsewhere. There are all kinds of other places competing successfully for the tourism dollar. This is what scares us: that every time we lose a customer he may go somewhere and like it better, find it cheaper and never come back, and spread the word. That is already happening. Our hotels are extremely hard hit this year. Thousands of people have lost their jobs. We just do not need anything else muddying the tourism waters and making it difficult for people to enjoy Toronto, which is what this may do. We know you all care, we know you are all responsive, otherwise you would not be here. We recognize that and appreciate it, but you have to see that it is not just an issue of Sunday shopping. It is far more than that and it is far greater than that.
Mr O'Connor: I want to thank you for coming here today and giving us your submission. There are quite a number of things I do not agree with -- in fact, perhaps even somewhere close to the majority of it. In the legislation we are looking at we are trying to come up with a piece of legislation that is going to protect the worker. You, in fact, on page 3 mentioned your workers. Your workers quite often are those single parents who would like to have that common pause day. What we are trying to do is come up with some legislation that enshrines that common pause day and that right for that individual. That is what we are looking at.
What I would suggest, and perhaps to you as a representative from the tourist industry, is help us in the tourist criteria and try to help us to find that area and maybe recognize the fact that we as legislators want to protect the worker. We have a role to play here and protection of the worker is important. That is something that we are seriously looking at.
As far as the tourism criteria, we are looking for some advice and we want to be serious about this and discuss this. You have not talked about the criteria an awful lot in here. Sunday shopping is not the issue, you are right; a common pause day is the issue. That is what we are trying to look at. In the tourist criteria, is there anything that you think can be used to enhance the protection of the tourist criteria that are there now? That is where I would like some creative thinking, because you have pointed out the people who are affected by it. We recognize that and we want to protect those people as well, but let's try to help the industry here; let's come up with something to designate the tourist criteria that need to be put in there.
Mr Robinson: My comment would be, why do you have to have a common pause day? I said it earlier: If an individual works in a hotel Wednesday through Sunday, he is given two other days off, Monday or Tuesday. Why does it have to be common? I said that was an outdated notion, and I believe that. People do have pause days. I said the idea of a common pause day, which is being floated here and is a political issue, is out of date.
By bringing in legislation which muddies the tourism waters, by bringing in stops which could affect the visitation of people to Toronto, you are not helping the employees. They are already at risk, and at high risk. Already at least 8,000 jobs have been lost directly because tourism is down in Toronto. I am just talking about Toronto in my little association of 30,000. You know the figures because you see them on your welfare rolls. All of those people moved to unemployment insurance and then on to the welfare rolls. That is where they are right now.
We are the biggest employers of minorities, women, youth, native people in Ontario. The minute the economy turns around and we start filling our hotel rooms, we bring all those people back off welfare immediately, because we employ them. So we want your help in supporting tourism, not in muddying the waters and bringing in common pause days and making it difficult for the visitors -- the tourists -- to enjoy themselves or have free access to the city, to do what they want to do.
Mr O'Connor: I sure hope that the members of the Legislative Assembly consider the fact that protection of the worker and 36 hours of rest is not outdated, because I think protection --
Mr Robinson: I never said that.
The Chair: Thank you, Mr O'Connor.
Mr Robinson: I never said that. You know I did not say that.
The Chair: Thank you, Mr Robinson.
Mr Robinson: Thank you very much, ladies and gentlemen.
1630
CHINESE COMMUNITY
FOR THE FREEDOM TO WORK
The Chair: Do we have the delegation from the Chinese Community for the Freedom to Work? Thank you. We have approximately half an hour, Mr Woo. Please feel free to use that time as you wish. Typically, people use approximately half for their presentation and then half for questions from the members of the committee. Please feel free to start when you are comfortable in doing so.
Mr Woo: My presentation will be simple, but some of the arguments may not be that sweet, at least to some of you, to hear. My name is K. K. Woo, organizer of the Chinese Community for the Freedom to Work, which is a petition movement asking the Premier to repeal the Sunday shopping law.
As of now, we have gathered over 40,000 Chinese Canadian signatures, signed, mostly, by the grass-roots people, such as homemakers, unemployed workers, students, restaurant cooks, waiters, waitresses, grocery cashiers, senior folks and garment and factory workers.
Though it started out as a grass-roots movement in the Chinese community, we ended up getting over 200 Chinese organizations' support, not just in the province of Ontario but also across Canada. For example, the Chinese Canadian National Council is in complete agreement with our emphasis on the freedom to work and the right to choose.
I am going to talk about our petition beliefs, because I feel it is very important so that you see where we come from. It is important also because, before we ask people to sign their names, they must understand what the petition is about. So for those who have signed the 40,000 Chinese individual signatures and the 200-plus Chinese organizations, here are the following beliefs:
1. The right to work: We believe that the right to work is a basic human right and no law should be made to infringe it.
2. The freedom to choose: We believe that the freedom to choose when to work is a basic individual freedom, that no law shall be made to violate it. It is good that we are seeing the proposed legislation which protects workers who do not wish to work on holidays or Sundays, but what about those who prefer and choose to work on Sundays? Can the government trust individuals' ability to choose and decide? That is the question.
3. The provision of subsistence: It is of utmost importance that we state this point, because we really believe that the provision of subsistence for ourselves or our family is regarded as something sacred and honourable in the Chinese culture. The less government interference, the better.
4. Family shopping days: We believe that Sundays and holidays are habitual shopping days for most Chinese families. We would not like to see a street like Yonge Street all closed.
5. Chinese community shopping needs: Since Sundays and holidays are important business days for Chinese workers and employers alike to make a living and to serve the shopping needs of the Chinese community, in our free economy we really would like to see the community needs and the marketplace settle the issue of Sunday shopping.
6. We believe that full employment enables us to be productive residents of Ontario contributing fully to the province.
7. During these difficult economic times, as we all know, the law, in our viewpoint, threatens our livelihood and employment. On this point, we do not question the motivation of the present government to put in such a law. We believe you started out from something well intentioned. But our perception and the feeling of the effects are that the law affects our livelihood. We all know that this is a time of unemployment and underemployment and not a time of full employment.
The last point is public opinion. We feel the government should respect the people's will and expressed opposition to the act, as shown in most public opinion polls.
Regarding the present status, if you come to our community you will find that we are nervous and confused about both the present and the proposed legislation. Even the police are making contradicting interpretations about the law. Right now in Chinatown you have police running around, playing the role of a judge they do not even know of, telling us what the law means. Some police will tell us, "If you close one weekday, then we'll let you open on Sundays." Some people say, "That's not so." Then we have some other police telling us: "If you're operating a bookstore it's okay to open, but don't let me catch you selling pencils and stationery. If you don't hide them, I'll give you a ticket." So that is the way it is now in Chinatown.
To conclude, I am here today to inform you of our viewpoints and position, because we believe an informed government is an enlightened government and legislation that reflects the people's needs is enlightened legislation. This is our way of supporting the government. We are grateful that you provide us this opportunity, and please feel free to contact me or other members of the committee if I can be of any further help. And one last note, if political realities dictate that there be some kind of Sunday shopping legislation, let's formulate it in a way that causes least inconvenience to our livelihood. Those are my comments and I am open for any questions.
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Mr Daigeler: Thank you very much for your presentation. I was wondering, in your tradition or in your community, is there such a thing as a concept of a common pause day?
Mr Woo: Not really, other than in the general statement we work hard and we play hard. Other than that, there is no such thing as specific. But we know the importance of having a balanced life. We believe that, and we place great value in family togetherness. But I am seeing some danger here that when we use the term "good for the family," if that is the case, maybe one day we will have a law banning divorce, which might even do better for the family.
Mr McLean: I thank you for your petition and your comments. Is Chinatown open now on Sunday, mostly, or just specific stores?
Mr Woo: Mostly, but nobody dares to say, "I am open because I have the right," or "I know the law so well that I can open." There were stories that some new residents or new immigrants were watching out for the police and then they were screaming that the wolf was coming, and then they found out it was only a taxicab driver with a cap or something who resembles a policeman. So that is the comprehension and it is a very nervous and tense atmosphere, and I urge members of the committee, if you have time, to come down on Saturday and Sunday, particularly on holidays, and come in and take a look at how nervous they are, and talk to them.
Mr Mills: I was under the understanding that certain segments of Chinatown now are designated a tourist area. Is that correct?
Mr Woo: That is the general notion. I think those people have a greater confidence opening, those people within that so-called designated tourist area and who are selling tourist-related material, which is very specifically defined. I guess you cannot sell shoes or clothing, even though one can claim it is for a gift. So it is pretty confused and we do not really understand the law, both the present and the proposed one.
Mr Mills: It was my understanding that there was an area designated as tourism, Chinatown, and all I was going to say to relieve any anxiety you may have about the legislation changing that is that what is in place now will stay as it is. There will not be an application needed to be made to get the tourist designation, because what is in place now is in place. If that is going to help you, your worrying about this, that you think the right to work, the freedom to choose a day, is in jeopardy, it is not.
I feel very restricted in this way of questioning. You ask the question and then you cannot say any more and it is not really conducive to good debate here.
The Acting Chair (Mrs Haslam): But I am giving you leeway right now, Mr Mills, and it is because I can see agreement from other members. So I appreciate what you had to say.
Mr Mills: I was going to say some more things too, but I cannot.
The Acting Chair: Well, no you cannot, not until I offer that same opportunity.
Mr Poirier: Mr Woo, with what is proposed, the way municipalities will have to decide what qualifies as a tourist business, what do you see happening in your community? You seem to point to confusion right now. Could you explain to me what you would see happen if the present propositions come forward so that municipalities decide, "Your business is tourist-oriented but not that one." What would you see happening? How would you react?
Mr Woo: I believe the criteria of tourism is a good step if the legislation has to be in place somehow, because it helps to reduce some confusion. At least there are some certain criteria, which we did not have before, thanks to the hard work of people in the Solicitor General's office, who have kindly met with us. I am giving them a compliment that I feel they deserve.
But the thing is that I cannot answer the question. For example, people say: "Okay, now we are in the tourist area and we are being approved by the city council or any municipalities, but can I sell clothing? Can I sell shoes?" That I do not know how to answer. I do not know whether anybody can tell me. Those are our concerns. We say, even though we are qualified as a tourist area, are we only limited to those "tourist-related merchandising services"? That is an example of confusion that I do not know how to answer. I do not know whether anybody in the room or any staff from the Solicitor General's office can shed any light. If we can, I think it would be acceptable, because then we can always try to apply. There is a way. We worry that there is no way to apply, because, stated clearly, we are out of luck, "Why did you choose to go into the shoe business or clothing business?"
Mr Carr: Thank you for not only taking the time but for the amount of work you must have done to get the signatures. I applaud you for trying to get the information out to the members of your community.
One of the questions I have is along the same lines, that if we make it a situation so that they are going to go before councils with regard to getting exemptions, we have heard from different associations that say the red tape is time-consuming and very difficult and they have better things to do with their time to try and survive in business than be sitting in front of politicians, which certainly can be very tough at times. What extra problems are there for your community -- I am thinking in terms of language -- in dealing with, say, Metro council? They are confused. Is part of it not knowing what to do or how Metro council will operate? Is that what you are trying to say the difficulty will be?
Mr Woo: That too. We really do not know who to contact. You will notice that in this case our organized groups in the Chinese community are not that vocal, I think partly because they do not know what to say or to be happy about or to be angry about. We just do not know. We find it difficult to understand the legislation. We find it more difficult to see whether we should apply to the Metro council or to city council. Unfortunately, most of us believe that: "Hey, we know the cops. They won't give us a ticket." I do not think that is really too valid a point.
Mr Carr: This is not another question, but if it would help, I know you offered to get together. I would be pleased to try and help you out as best I can afterwards. So maybe we could do that, depending on what happens with the legislation. I think all members would be willing to do that, but I would be pleased to help out.
Mrs Haslam: Or somebody from the ministry. I am sure he asked for a ministry clarification and the Chair --
Mr Carr: Well, no, if they have to go to Metro council, the ministry is not going to help them to go to Metro council and things like that.
Mrs Haslam: Oh, that too, yes, but right now for the confusion.
Mr Woo: So it is not city hall we are talking about now.
Mr Carr: Yes. I am saying when you do have to go city hall, if in fact so many members have to go before municipal council or whatever, we would help out and I am sure any of the members would be pleased to do that.
Mrs Haslam: Your local MPP.
Mr Woo: Also, I noticed -- I even flipped through the whole agenda -- there are very few participants from the Asian community, whether they are Koreans or Indians. I cannot read their minds, but I do know that probably some of us do not want to attract unnecessary attention. I think the fact I am here maybe hopefully would dispel some of that doubt. It is unfortunate that we are not more vocal, so we have our responsibility that we should bear as well. But I am very grateful for the opportunity to be here.
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Mr Owens: Mr Woo, I do not know if you can provide the committee with an answer today and you may want to go back and speak to your colleagues in the community, but I would be interested to know what kind of recommendations you would be wanting to see to help us make this legislation more culturally sensitive to groups like yours and other groups out there in the province that have expressed similar concerns such as you have.
Mr Woo: Two suggestions, one general and the other one specific. Let me go with the general.
I feel that it would really help if some members of this committee continued this kind of consultation process with members of the Chinese community by including coming on Sundays for dim sum and chatting informally about what they feel. Do they really feel that strong, or you might even find that some of them are really scared, thinking life is already difficult enough with the recession.
The other specific recommendation is that maybe we should put more attention to the local -- I think it is good to pay attention to protecting tourism. Maybe you people can also pay attention to the local community needs. I think that might help, or at least that might be productive in terms of being culturally sensitive.
It is really disappointing for me to see there is no Asian output there, even a more vocal output. We have so many organizations there and just everyone seems to be watching for, waiting for something more concrete. I think by this time you might be too late.
The Chair: Thank you, Mr Woo. Further questions? Mr Poirier.
Mr Poirier: Maybe they are like MPPs, Mr Woo; they always like to keep a low profile. Who knows?
I look at your petition beliefs here, and to follow up on the question that Mr Owens had, what I read in your petition beliefs, I see recommendations as to what you would like to see. Reading between the lines of your petition beliefs, it would seem to say that you do not believe, or maybe the principle of a common pause day does not, pardon the expression, rest well with the cultural traits of your community in the sense that for you a pause day does not necessarily have to be common with the Sunday. Do I read that correctly?
I am trying to interpret what you are asking us. I am trying to look at the possible recommendations following your request for how we can help to make it better. What do I see? Can you interpret for me your petition beliefs? If you had to write the law or rewrite the law or make some amendments, what would you add or subtract from what is proposed? Would you remove the common pause day provision? Would you give total freedom to choose whenever you want to open, whoever wants to open, wherever one wants to open? Is that what I read in your petition beliefs?
Mr Woo: Number one, to respond to your question, we believe it is important, as I said before, to have a balanced life, both work life and non-working life, to relax and to be with the family.
Number two, the "common pause day" is really a new concept because for most Chinese, although we have a lot of Christians and I am one of them, it is a new concept.
We are here to express our viewpoint. But we want to be part of the mainstream. We do not want the law to be specifically written to protect us as a group of Chinese. We believe that position is both dangerous and not conducive to national unity. We are open to any refinement so that there will be some kind of "common pause day" or some kind of rest if the community needs are being served. That is as specific as I can get without getting into partisan politics.
Mr Poirier: You still want the freedom to open on Sunday, though, do you not? Is that what I understand?
Mr Woo: Yes.
Mr Poirier: You want to decide if you open on a Sunday, yes or no?
Mr Woo: We prefer to be able to work on Sundays, yes, unless you or other members of the committee can tell me, that for the overall province it is just not fair or not viable or not proper to open on Sunday because it carries certain disadvantages which outweigh the freedom to choose and the right to work.
Mr Poirier: Okay, thank you.
Mr Carr: The only other question I had was with regard to when you put this 40,000 petition together, would that have been people who were in all segments of the industry? Did you go after specifically somebody in the tourism area, for example, or was it anybody in particular that you got? How did you get all these names?
Mr Woo: We mostly gathered those names from Chinese communities in Chinatown, the downtown district, in Mississauga, in Scarborough. Those are the major areas.
Mr Carr: So they were not just people in the industry, say, the tourism-related industries like hotels and so on? They could be in any industry?
Mr Woo: Yes, they could be in any industry. What we do is we tell people to sign their name if they agree with the petition letter which stated eight beliefs. Those people who do agree sign their name.
We do not really actively persuade people to sign it, for one thing, because of the lack of manpower and, second, we believe that our beliefs are so commonly shared that we really did not need to do that much. So nobody got paid to be a volunteer. We put up some tables in shopping malls and every time the police came and the shops closed, at least temporarily, we could see there would be an increase of signatures during that period.
Mr Mills: Mr Carr touched on a couple of things I was going to mention. The 40,000 signatures are not necessarily 40,000 signatures from people that are in small business. They would be perhaps people who are employed in the hospitality industry. Would that be correct?
Mr Woo: They might be.
Mr Mills: They might be. But they are not so-called bona fide businessmen, these 40,000 signatures?
Mr Woo: It is open to the public, so --
Mr Mills: The public, okay. Having said that, what are we talking about in the people that you are representing? My perception of the type of store you have is small, probably less than 7,500 square feet, and the people who work there are mainly family or relatives. Would I be correct in that assumption?
Mr Woo: Maybe half and half.
Mr Mills: Half.
Mr Woo: Yes, some are family --
Mr Mills: But they are not big store operators?
Mr Woo: No.
Mr Mills: Do you have any big ones over 7,500 square feet, bigger than a Shoppers Drug Mart?
Mr Woo: Maybe very few, Chinese supermarkets. I do not know. My mathematics or my judgement is just not that great.
Mr Mills: I am trying to help you come to grips with this amendment in that perhaps your perception of it is a little different than what it is all about. Perhaps that would explain why the Asian folks are not coming forward too much, because they do not see this as a threat to their way of life because they are all small, mainly family people.
What the thrust of this is, we are trying to protect the retail worker per se, and I do not think many so-called retail workers fit into the category of the type of business that you are representing here as opposed to what the general idea is: A&P, Loblaws, that type of thing. These are people who would be family, relatives and you would be a very close-knit group in a small store. Would that be the general idea of the type you are representing?
Mr Woo: I think we too employ people who are not relatives. But your statement is well taken. I guess I get your point.
Mr Mills: Yes. I just think, sir, in all fairness to you, that your concerns maybe are a little bit overrated, and that really explains the absence of your fellow compatriots here. Maybe I will talk to you afterwards. Thank you.
The Chair: Thank you, Mr Mills. Thank you very much, Mr Woo.
1700
CANADIAN SHOE RETAILERS ASSOCIATION
The Chair: We now have a presentation from Ms Sharon Maloney, who is the president of the Canadian Shoe Retailers Association. Ms Maloney, I notice you have been here with us for a little while, so you know what the routine is. Take as much time as you wish to. It is entirely your own, but typically it is half for your presentation and half for questions from the committee members. Proceed as soon as you feel comfortable in doing so.
Ms Maloney: Thank you, Mr Chairman. I would like to thank you and members of the committee for giving me this opportunity to meet with you today. My apologies. Unfortunately I do not have a brief for you because of very short notice. I will endeavour to provide you with a brief later this week, and if there are any questions that are not answered today, I would be happy to come back again or answer directly any questions you may have.
Perhaps I could just give you a brief history of our association. The Canadian Shoe Retailers Association is a national trade organization. We represent in excess of 2,500 footwear retailers across the country, with our largest membership being in the province of Ontario. Our membership is made up of family shoe stores, independent operators and chains. We do not represent discounters nor do we represent department stores.
The association has been actively involved, I would say, for approximately 50 years in this province in fighting Sunday shopping. I was past executive director of CAOSS, which is the Coalition Against Open Sunday Shopping. I am currently a committee member of Fairness for Families. As such, I have had alone probably five years' experience watching this issue, from the time when the Conservative government considered introducing new legislation to open up Sundays, to the time when the Liberal legislation was brought down, to date.
I think our members could be of interest to you. I have heard a lot of discussion today about workers. I have heard a lot of discussion about large employers. What I have not heard very much about is small employers, independent operators. The gentleman who was here from Tourism Ontario talked about the fact that there is no necessity for people to work seven days a week. In point of fact, with our membership, that is the very reason why they have been so aggressive in fighting this legislation. Most of our members' businesses are family-run businesses, which means they are already working six days a week. If they are forced to open because of competitive pressures, because there is Sunday opening, they will be forced to open seven days a week. It is very clear in their situation that they will not have the luxury of being able to stagger their hours because anyone who is aware of small business recognizes that one of the most important things to small business is the fact that the independent operator or the owner be in place, and that means even if they curtailed their hours, they still would have to be there seven days a week.
We applaud this government for making its attempt to bring in this new legislation. We recognize how difficult the issues are. That being said, we do have concerns with the legislation. We recognize that they have tightened portions of it by including in the preamble to the act the recognition of a common pause day. We recognize that they have made it tighter by introducing tourism criteria that were lacking in the previous legislation. We also recognize that only retail businesses can make application for a designation, which we think is positive.
That being said, the legislation in our view has two major flaws, the first being the retention of municipal option. It is our understanding that there is concern or there was concern when this legislation was being drafted with the recent Court of Appeal decision which endorsed the municipal option. We have always been proponents of provincial control on this issue, the reason being that we believe if you do not have some form of consistent application, you will end up with a checkerboard treatment of the issue because of the variety of interpretations which can be created and implemented by various municipalities. This in our view is particularly so when the tourism criteria which have been proposed are reviewed. Unfortunately, we feel that the tourism criteria are so broad you will in any case end up with a varied interpretation of the criteria. As well, in many instances, if not in most instances, you will end up with wide-open Sunday shopping across the province.
We believe that the intention of this legislation and this government is to preserve a common pause day. We believe it can be done, but it can only be done if those two areas are addressed and if the general guiding principle is tightened in the legislation.
I would like to comment as well on the fact that different communities have been telling the retail community it should be open on Sundays. I have heard today people from the tourism community. I have heard people from the development community. Unfortunately, rarely has the retail community been surveyed. The material I have provided to you today is the only survey we are aware of where the retail community itself has been surveyed. I think its results are quite revealing. I also would suggest to you that if the retail community was surveyed, the majority of the retail community would not be in support of wide-open Sunday shopping.
It is particularly important to note that our association is the only retail trade association that I can see you are going to be hearing from. There are a couple of reasons for that. Unfortunately, Retail Council of Canada, the association I am sure you are all aware of which represents retailers across the board, is not in a position to come and give a brief to you because of a conflict within its own particular association. Moreover, there are very few retail organizations which are trade specific, ours being one of the few. As well, because we are retail specific, we do not have the conflict within our membership which some of the other trade associations do, and our membership has been telling us overwhelmingly, I suppose for over 50 years, that they do not support Sunday shopping.
I might add that the membership we have in other provinces across the country is also of the same view. Unfortunately, because of the size of our organization we were not able to lobby as effectively as we would have liked in those other jurisdictions. But our members in Alberta and British Columbia, which are often held up as examples of the great success of Sunday shopping, have repeatedly told us both in polls and in conversations with me, my members and board members, that they are finding it extremely difficult to operate in that climate, especially if it is a family-based business and even if it is a franchise, because franchise operations are usually limited to three or four people. So despite what is being held out as being a wonderful environment, in our view it is not the case.
I hope, as you go through the province and you hear from the various trade and other organizations, that you bear in mind there is a community that you may or may not be hearing from, and that in some way you find out from that community, other than the footwear retail community, what its views are on this issue. Thank you.
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Mr Poirier: I read with interest this brief, which really is brief which is good. We are talking here -- correct me if I am wrong -- about the difficulty of opening seven days a week and the fear of even seven days a week and 24 hours a day. Obviously this is an extreme scenario.
If you are getting away from the principle of a common pause day, what prevents a family-run business like the ones you represent -- and from what I read in number 1 here, sales on Mondays and Tuesdays are virtually non-existent -- from closing on a Tuesday or Monday and not having the pause day to be common?
Ms Maloney: There are two problems, the first of which is competitive pressures. If your neighbour down the street is open, you are going to be open because I do not know a retailer who is not afraid of losing that possible sale.
The other problem is, if you are operating within a mall, you do not really have that luxury. Even if you have provisions in the law, which we currently have, which prohibit a landlord from using undue pressure to force you to open, the reality of the marketplace is such that if you do not open, either your lease will not be renewed or the amount of rent you have to pay or user fees that you are going to have to absorb are going to be increased. There are a variety of subtle pressures that can be brought to bear on retailers and force them to open.
Mr McLean: You have certainly brought a new perspective to this afternoon's committee hearing, and I am very pleased to hear it. I hear quite often in the riding that I represent it is the small business people that work six days a week already. There is only so much money to go around in the week, and they think six days a week is enough as well, and I think the same thing. The problem is with the legislation. It is not tight enough to make it fit with what we would like to see.
The city of Orillia passed a bylaw to allow Sunday opening. I am willing to say there are not 10 stores that have opened, although they could all be open. But there are not 10 stores, because most of the businesses are family.
You certainly have brought a different perspective to it, and I would like to see more follow-up on this very line because there are an awful lot of family businesses in Ontario that work six days a week and do not need the seventh one. I find that the legislation is not going to allow those people, when you get city after city declaring open -- it is going to filter down that those small businesses are going to finally have to open. That is where I see the problem.
Ms Maloney: I agree. I might add to that, especially if you start looking at the border communities, many of our members are located in the border communities, and I know there has been a lot of attention paid to the correlation between cross-border shopping and Sunday shopping. In our view, there is no correlation. You have all heard the variety of reasons and we agree about them. One of them specific to footwear is the differential in tariff treatment between ourselves and the United States.
That being said, we are of the view that one of the ways of enhancing border communities is to maintain those independent businesses, that it is really the independent operator who can have and has the potential of being more creative, of participating in the community. Traditionally they are very active in their communities. If they are lost, then you really are going to have a problem. To impose Sunday opening on them is to impose another operating expense where there will not be additional revenue, which we feel ultimately will mean that this market, which is already small -- the independents only have 25% of the overall national market -- is going to be further eroded, to the detriment of all of us, in our view.
Mr Fletcher: I will get myself organized here. Thank you, Sharon, that was a very good presentation. I understand the concerns you have with small business employees who mostly are family members. I am just wondering about the municipal option. When you are talking about it, would you like to see it totally thrown out, or do you have some suggestions on how to make it work, if it were up to you?
Ms Maloney: If there were a Santa Claus, frankly, I would prefer to see this kept at the provincial level. When I was part of CAOSS, that is really what we were advocating: leave it at the provincial level. That is the only way you can control the environment and be able to resist the variety of interpretations we think clearly would come with municipal option.
That being said, I understand the sensitivities that anybody would have in drafting legislation, given the current decision of the Court of Appeal. I am not in a position to argue the pros or cons on that. If we are working within an environment where there is going to be municipal option, then there has to be some kind of check to the powers that are created by doing that. That means either you have an appeal process from the municipal level up to a board delegated to deal with the issue specifically, or you have an appeal process to the OMB and you have certain people sitting on the OMB responsible for dealing with this issue.
Mr Poirier: On that very point, one of the difficult things legislators have to cope with is the provisions of the Charter of Rights and the Constitution, between what we would like to see and what we must write in a law. Because nobody, no matter which party, likes to sit down, spend a heck of a lot of time listening to people and whatever, then write down a law, only to get it chucked out of the court. Lord knows it is enough trouble to write it down. You do your best because these days every time you write a law you have to think, will it withstand the ultimate test of the Supreme Court of Canada?
In light exactly of what courts seem to have been deciding pertaining to this, it seems to become more and more impossible to think of a law that applies province-wide no matter what the issue is. What I am saying also in this particular domain -- and I gather from your initials you are a lawyer yourself and obviously must be familiar enough with the type of decisions that have come forward and probably will come forward even more directly from upper courts pertaining to this dossier. Do you honestly believe that a provision for a province-wide set of rules, whichever ones they are, would really stand a Supreme Court of Canada test pertaining to Sunday shopping?
Ms Maloney: Yes, I do.
Mr Poirier: On what are you based?
Ms Maloney: Again I will qualify my response, because my expertise does not lie in the Constitution. There are two reasons I say I think it could stand. First, I think there was room within the parameters of the decision that came down to allow for provincial authority on this issue. Second, I think the degree of change that has been created in this new amendment, especially with the attention now being placed on the tourism criteria -- in other words, we have gone from an act where we had a variety of distinctions being created in the retail community to an act which has said, "We're going to throw out a lot of these variations and some of the qualifications and what we're going to say is that it's based on tourism." That is a new peg on which your hat can be hung to justify the interpretation of this bill and allow it to withstand a constitutional challenge.
Mr Poirier: You think it will.
Ms Maloney: I think it could. I always qualify my answers.
Mr Poirier: You must be a lawyer.
Mr Carr: Thank you for taking the time to come here. One of the questions I have is how it will affect your members if in fact we end up with side-by-side municipalities, one open because it is classified under a tourism exemption and the other one closed. What do you see happening? Do you see the one that is open, your members saying, "We're still not going to open because the neighbouring one is closed"? Do you then see the neighbouring groups being hurt? How will that happen if in fact we do have competing municipalities, one open and one closed, side by side?
Ms Maloney: That is a very negative and very real possibility with the legislation as it currently stands. That is why we were so opposed to the municipal option in the first place, because we knew once you started bringing in that type of legislation, you would set up a whole host of competitive pressures.
Mr Carr: Then it will snowball.
Ms Maloney: That is right. I think the intent of this legislation and the fact that they have brought in tourism criteria has certainly narrowed the field. It has not narrowed the field sufficiently and in order to prevent what you are suggesting, it has to be much tighter than it currently. Otherwise you will end up with that situation and it will put a lot of pressure on retailers, not just footwear retailers but any retailer who is residing in the jurisdiction who may not, frankly, want to open, but when he sees that he is losing sales is going to have to start agitating and ask his respective municipality to give him a designation as well. So in effect, if you do not draft it clearly enough and tightly enough, you will have not avoided the very problem you have set out to try to avoid.
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Mrs Haslam: I am so impressed. You seem to have such a handle on this. I have been looking at this and you really zero in on what is good in the legislation. You have certainly emphasized where you feel we should be tightening it up, and I would like to go into some of those things that you have been saying.
Mr Mills: One item; you said "some."
Mrs Haslam: Well, there are so many in the criteria and that is where I look. I come from Perth county and Stratford has a festival there. I am in a very tourist-oriented area, so these criteria are very important to me and how we write them up and how they allow exemptions in a particular area such as mine. So I will pick one area, and this is not the one I would maybe choose for my own riding but is one that seems to be batted back and forth here today, and that is, in particular, the size and the number of people. Now that is in your subsection, so that once you have met the main criterion of a geographical area and once you have met the main criteria for a tourist exemption, then you start looking at the size.
I wonder if you would like to comment on that. I will preface this with a few more remarks. One of the other recommendations, and this came from the UFCW, was for the drugstore to be 2,400 feet and four people, including the pharmacist. So I would be interested to know what you felt would be something we could look at in this area.
Ms Maloney: Let me divide, your question if I may. I would like to answer it.
Mrs Haslam: Oh sure, go ahead. I can only ask one question, though.
Ms Maloney: On the one hand dealing with pharmacies and on the other hand dealing with the other aspects of it.
Mrs Haslam: No, I am saying that is what has been said. I would like some input from you there.
Ms Maloney: Okay. My comment with regard to the pharmacies, first of all, would be that one way or the other we have to return to a level playing field in regard to the grocery sector. My recollection of this issue has been that the reason we have all ended up here today is the very large exemption which was given to the pharmaceutical sector, as well as the fact that in the current legislation, even as it stands, there is a broad definition of "sundries." That has allowed the pharmaceutical sector to go into an area that is hotly contested by the grocery sector.
One way or the other, be it by size or be it by a restriction of the definition of product which can be sold by the pharmacies, that has to be addressed, because I think until it is addressed, you are going to continue to have very strong lobby groups and with some merit, I think, given the clear differential that is operating between pharmacies and groceries advocating that there be a change and that there be a complete removal of common pause day legislation.
In so far as there is a size restriction within the tourism designation, I have difficulty with it from a retail perspective, and the reason I do is that it is very difficult to decide whether somebody is offering something for a tourist on the basis of how big it is. I do not think that retail breaks down on the basis of how large you are in providing certain services.
I also think that within these communities it could create a lot of difficulty. Suddenly we are going to have one store that is selling boxes, and it is 4,000 square feet, and the store across the street is selling the same commodity but it is 4,500 square feet, but it cannot open. I see that fraught with hazard.
You are shaking your head.
Mrs Haslam: I just need clarification, because that is not what I understand.
The Chair: Thank you, Mrs Haslam. Mr Poirier.
Mrs Haslam: Ask for clarification, Mr Poirier.
Mr Poirier: I would be willing, out of charity, to give my time so that she can ask her clarification point. I mean, she has such a way of putting it through. Go ahead. I will give my time to Mrs Haslam.
Mrs Haslam: That was interesting, on a clarification. Thank you, Mr Poirier. What a wonderful gentleman you are.
I wondered about clarification from the ministry, because that was not my understanding. There were other criteria to be met and size was not only that. What I wanted to know was clarification on that particular point. It was not that two stores of different sizes could sell the same product; there were other criteria to be met.
Ms Maloney: Okay. The proposal, as I understand it from UFCW, is that there be a limit within the tourism designations that only stores below 4,000 square feet could operate. What I am saying is that if you have a retailer who is operating within an area that has been designated as a tourist area, on top of that you are adding a new level of requirement, which is that you cannot operate if you are greater than 4,000 square feet.
In that situation I can see a lot of conflict developing between some retailers who are operating within that area but cannot open because they do not meet the size restriction. I see that as problematic, although I recognize perhaps from a drafting position why it is being introduced. But certainly for our members, I think, it would be problematic, because if I have a member who is selling footwear out of a location that is 5,000 square feet, and may be selling athletic footwear, he cannot open, but his colleague across the street is selling the same footwear but is only 2,500 square feet. That creates a lot of problems.
Mrs Haslam: Okay. Thank you for that clarification.
Mr Carr: One of the questions I have is one of your comments about the different retail groups that will not be represented here, presumably because they are divided on the issue; whatever percentage, they do not feel they speak clearly. As a result of some of the groups that are going to be affected and are not going to be represented here -- and you are lucky, I guess; in your group there is a consensus -- is there any way that you see getting around that, or are we just going to make the decisions? We wonder why it is a tough decision when the groups affected cannot even decide. Is there anything else you would suggest could be done, or do we just leave out a significant portion of the affected people who are not going to be represented? Having dealt with it yourself, how would be the best way to handle it?
Ms Maloney: I think realistically the only way you can deal with it is if you attempted to survey some of that community directly, because otherwise you are really not going to be getting any exchange. The Canadian Federation of Independent Business does have independent retailers within its membership, but it is again not specific. The retail council is specific, but it is not specific just to small retailers, or apparel and footwear, and it does have a conflict. I think really the only way you could achieve that is to have a survey or a poll done, either through the CFIB or through ourselves or some other group that has some liaison with them.
There are other sectors. For example, the apparel trade does have a trade association which represents the exhibitors and they interface a lot with the apparel retailers, so you could go that route in terms of their trade shows to be able to canvass them and find out what their position is on this issue.
Mr Carr: It is just that it is very difficult. I guess you have gone through a lot of problems and a lot of organizations are going through the same thing.
Ms Maloney: Alternatively, this last survey that was done is another source of polling again the retail community. I think what is important is that whoever is being used is objective and is not bringing to the survey positions on the issue.
Mr Owens: Ms Maloney, in your one-page handout, in point 3 you make a very interesting point about retail operations that take place in malls. This has been a problem that I have had in dealing with some of the small business people in my riding. If we were to pass this legislation as is with the tourism designation and a mall lobbies and is successful in winning an exemption for the area, then if you have your mom-and-pop operation, which I similarly agree is already open six days and does not want to be open the seventh day, what kind of protections could you see the committee recommending to ensure that this retailer is not going to be in violation of his leasehold provisions and have it cost him additional moneys?
Ms Maloney: I think the problem with that is that you can put very stringent restrictions into your legislation, but they will always and can always be circumvented. The only way of avoiding it was and continues to be to have common pause day legislation which is based more on the different retail communities than on tourism. Having introduced the tourism criteria into the equation, it is next to impossible, in my view, to safeguard it. You can tighten up the provisions that are already in the act, perhaps provide a fine process in the event that a landlord is shown to be abrogating or breaking the legislation, but the reality is that most retailers will not put themselves in a position, be they small or large, to go head to head with their landlord.
Mrs Haslam: Thank you very much, Ms Maloney. I was very impressed with your presentation.
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REGIONAL MUNICIPALITY OF YORK
The Chair: Mr Oakes, you have been with us a little while, so you will know a little bit about what is happening. We have your submission, so please feel free to read however much of it you wish to, and hopefully it will leave some time for questions from the committee members. Please proceed when you are comfortable in doing so.
Mr Oakes: Thank you very much, Mr Chairman. I would also like to thank the members of the committee who have stayed to this late hour. I hope I can make your dedication worth while.
I represent the regional municipality of York, which lies immediately north of Metropolitan Toronto. It extends from Steeles Avenue in the south to Lake Simcoe in the north, and from Durham in the east to Peel in the west. It is included in the area that is now known as the greater Toronto area. Obviously we are going to be affected by what happens in Metropolitan Toronto, as well as what happens to our neighbours on the east and west. I personally have been engaged in processing applications for exempting bylaws since 1975, when this legislation first came into effect.
I want to deal first with a couple of matters of principle. We feel that it is helpful to understand anything if it is accurately described. I must, with great respect, say that to describe this legislation as providing a common pause day is simply not accurate. A common pause day, in ordinary parlance, would mean a pause day available to all in common. This legislation does not do that at all.
I am not taking any position as to whether a common pause day would be a good thing or a bad thing. I am simply pointing out that this legislation does not accomplish it, and could not accomplish it unless the ambit of the legislation were very considerably widened. The legislation applies to only one area of economic activity within the province: retail businesses. It ignores all the others. It is simply intellectually dishonest to promote this legislation by saying it provides a common pause day.
The second point I want to deal with, again on principle, is workers' rights. The legislation purports to give workers in the retail business industry an absolute right to refuse holiday work. There are two points to be made here. First, following from the first point, the protection is given only to workers in retail business establishments. Workers in other areas of employment are not protected by the legislation.
Second, the act protects the rights of workers in the retail business area who do not wish to work on holidays. There are no doubt many workers in this category. Our municipality extends up to the Holland Marsh. Just to take one example, the Dutch Reformed Church is very strong in that area and followers of that persuasion are very much opposed in principle to religious holiday work, and they are protected by this legislation.
However, in the public hearings which our council conducted on this legislation it became apparent that there are many people who are willing to work on holidays. Many of them came before our council in support of applications by individual businesses and areas for the holiday opening permission. The rights of these workers are unduly restricted, in our submission, by the mandatory closing provisions of the legislation. I say that because the retail business is traditionally a business where people who wanted to work on holidays were afforded an opportunity of doing so. By closing certain of these businesses on holidays, these people who are prepared to undertake holiday work, are willing to undertake it and, in some cases, rely on it for income, are unduly restricted, in our submission, in the areas of employment that are open to them.
If the mandatory closing provisions were deleted but the right of workers to refuse holiday work retained, the legislation would protect the rights of both categories of workers. This would be in the spirit of the former One Day's Rest in Seven Act, which provided mandatory time off for workers and which also provided, if I recollect correctly, that -- I am not sure of the exact wording -- where possible or where practical, the time off was to be given on Sunday. It protected the rights of the worker in that regard, but it said nothing about making businesses close. So if this act could be structured along the same lines, it would be in the spirit of that former legislation.
In regard to the municipal option, I do not think our council particularly likes the way it is structured by this legislation. But our council, the York regional council, also feels that if there is to be a decision-making body which will decide which businesses can remain open, then it wants to be part of that process. It does not want to be excluded from it.
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The next point is floor area and staff numbers as providing criteria for holiday opening. I think even the most cursory examination or consideration will indicate that there really is not anything in the floor area of a store which argues in support of its being open or closed on a holiday. As soon as you put any floor areas into the legislation and establish them as criteria, you are going to have stores that have slightly more floor area and are not different in any way, shape or form, except for a few square feet, from the other stores and will be wondering why they are being discriminated against. I am not criticizing the 2,400 square feet, because if it were 2,500 or 5,000 or any other number, in principle you would be left with the same result.
Why should the employee in a store that has 2,400 square feet and who is willing to work on holidays be told he cannot do it when an employee in a store having slightly less than 2,400 square feet is afforded the right? It also makes a rather awkward enforcement problem for police officers in the stores that are on the borderline or the boundary. They do have a difficult problem which maybe has not been apparent to you people: they have to go in there with a tape measure. You are going to have to prove in a prosecution that the store is outside of the permitted square footage area. In an Eaton's or Simpsons department store, sure, it is easy, but in stores that are close to the border it is a very difficult enforcement problem.
The criteria, I might say just in passing, ignore ownership. You could have a chain operation with any number of stores. As long as they were all within the criteria, they could open, whereas a single family-operated business that was just slightly over the permitted floor space would be required to close.
The next point I wish to make is the effect of the law on medium-sized businesses. I should state the basis of my knowledge. For the past 16 years I have been getting telephone calls, letters, visits from people, invitations to go out and inspect their businesses. I have had to go out throughout the regional area and inspect a great many businesses where people have applied for the holiday opening. Over the 15 or 16 years that the legislation has been in effect, I have picked up some information on the subject.
Something that has been stressed to me is that the act has a rather severe effect on medium-sized businesses. Establishments that meet the floor space criteria are not very much affected because they are permitted to stay open. Similarly, the very large establishments have the physical size which enables them to do dollar-wise and customer-wise approximately the same volume of business in six days that they could accomplish in seven. If they can attract the customers, they have the physical size to handle them, enough cash registers, enough space so that they are not getting excessive lineups and the people are not unduly inconvenienced.
But the medium-sized businesses, and a number of them have pointed this out to me, are not in that category, especially in the food business. They simply do not have the floor space to enable them to accommodate seven days' business in six days. It seems to be a feature of your average retail customer that he or she will loiter for long periods of time in the aisles. But once they get to the cash register, they object to standing. They want to get through. If they have to stand what they regard as an undue length of time they will not come back. The point has been made to us that there are these medium-sized businesses with perhaps three or four cash registers that simply cannot physically accommodate the seven days' business in six days, and if they are required to close on the seventh day they will be adversely economically affected.
The point has also been made to us that some of these businesses cater to what is termed sometimes as the ethnic clientele. They sell specialty products, and the people who want those products will drive relatively long distances to get them. Some people will drive 20 miles to get the right bread they prefer, or the right cheese. They will not do it on a weekday; they simply have not got time after work. Apparently they are reluctant to do it on Saturdays, because there are so many other things they have to do on Saturdays. Sunday, for some of these people, becomes a more relaxed shopping experience, and they will take the drive with the family. If the business is not permitted to be open on Sunday, the customer is inconvenienced and the business will lose customers.
The next point relates to the public hearing, which is a requirement of the statute. The initial 1975 legislation had no requirement in it that the municipal council had to conduct a public hearing or a public meeting before it passed an exempting bylaw. Perhaps this was because the Legislature realized that in Ontario bylaws can only be passed by municipal councils at public meetings. The meeting of a council that passes a bylaw has to be a public meeting.
The 1989 amendment required a public meeting as a condition precedent for the passage of the bylaw. The present proposed amendment deletes that but requires a public hearing. Any lawyer will tell you that the two terms are not synonymous and that the legal requirements relative to a public hearing are much more onerous than the requirements relative to a public meeting.
This was the consideration that the Legislature was faced with in 1983 when it was considering the Planning Act. Initially it had been proposed that an official plan and a zoning bylaw could be adopted by a municipal council only after a public hearing, and as a result of the representations that were made, the word "hearing" was changed to "meeting." I do not know why the word "meeting" is proposed to be deleted in this current amendment and the word "hearing" substituted, but I would respectfully suggest that you go back, if you want to have any provision of that kind, to the word "meeting," because if you introduce the word "hearing," it is going to be productive of legal challenges based on procedural requirements that the law mandates when hearings are required.
The statute presently requires publication of notice of the public meeting at least 30 days before the meeting is to be held. There are two points I would like to make here: If you are going to have a public hearing or a public meeting requirement, it would be advisable to put in something about notice. Specify what notice has to be given, because if you do not, the legislation will be subject to challenges on the basis of insufficiency of notice.
I am not saying that the 30 days is a good requirement. It is perhaps appropriate if you are dealing with a very large-scale application for an exemption, say in the case of a large shopping mall. You would want to give adequate notice so that there would be a wide dissemination of the proposal, and people would have a chance to prepare their arguments for and against. But many of the applications that come before the council are for very small business establishments that have only a very limited local effect. In fact, a surprising number of applications are for one-day special event-type things: a charity promotion, or something of that nature.
These people uniformly are not aware of the 30-day limitation, and they come to you two weeks before the event or three weeks before the event or even 30 days before the event, and many of them are applications which I feel the council would consider favourably if they were permitted to do so. But these people have to be told, "Much as we like what you are trying to do, we cannot accommodate you because you have not come in time."
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The 30 days in practice for a municipality, when you look at the requirements for preparing an advertisement, putting it in the newspaper and then waiting for the next municipal council meeting, can stretch to almost two months. If a guy comes in today and says, "My meeting or my event is going to be 30 days from now," there is no way. Even if he gives you 40 days, it would be very, very tight. So it is much longer than 30 days, and I do not know what the answer is.
The suggestion I am making is that if you are going to have a meeting requirement, perhaps you could consider replacing the 30 days' notice with a requirement for newspaper publication of the notice to provide the public, in the opinion of the council, with reasonable notice, something of that nature, which would enable the council to discriminate. When they get, say, a large-scale application, it would give more notice, and when it gets a small application for a very limited time -- you know, the merchants in Stouffville want to be open on July 1 for the strawberry festival or something of that nature -- they could deal with that on shorter notice.
Charity functions: The statute makes no provision for permitting businesses to be open on holidays in connection with charity functions where the proceeds are to go to charity. I have had, by coincidence or not, four of these applications in the last 10 days, and in no case did they come with the required 30 days' notice. They were simply unaware of it, and we have had to tell those people, "We cannot do it for you." I do not know whether council would or would not have done it, but the point is it was not even able to consider it because the 30 days were not there.
I am wondering if perhaps you could give consideration, if you think it is justified, to exempt charity functions -- you would have to define it -- from the closing provisions of the statute, because it is a fact that in some of the malls or some of the business areas, the merchants do get together and say, "We will stay open on this Sunday or that holiday and donate the proceeds to some charity." It is not accommodated in the statute at present.
Flea markets: The act makes no provision specifically for flea markets. These bazaar-style events -- in the initial brief, my secretary spelled that "bizarre" but it has been corrected; there may be some argument as to which word is appropriate, but they are bazaar-style events -- are usually held on weekends and holidays, and in certain areas they become very popular. In our area, the Stouffville flea market has gained an almost province-wide reputation. We have had calls from as far away as Ottawa from municipalities wanting to know how we are dealing with flea markets. We are considered to be an authority on flea markets because the Stouffville flea market is in our area.
If the mandatory closing provision is to be maintained, perhaps consideration could be given to flea market exemptions. The stalls in the flea markets are usually quite small, well within the size limitations set out in the act, but the type of merchandise does not always correspond with the types of merchandise that are permitted by the act to be sold on holidays. You have people selling old coins, postage stamps, that kind of thing, jewellery, junk jewellery and things that the act does not permit to be sold on holidays, and if you take them all out of the flea market, sometimes the result is that the thing is not viable.
The tourism criteria: I would like to say here, in principle, that it has always been a mystery to me why the rights or privileges of the ordinary resident of a locality were dependent on what is perceived to be good for tourists or visitors. It just does not make any sense really, when you look at it dispassionately. If a thing is good or bad, it should be good or bad for the full-time resident of the area, and not because it is good or bad for a tourist. His rights should not be dependent on the tourist.
The initial statute in 1975 authorized the enactment of exempting bylaws where the exemption was deemed to be essential for the maintenance or development of a tourist industry. This provision produced litigation and, in the end, simply did not work. Its failure to work, in my submission to you, was not because municipal councillors did not know what a tourist was. They knew what a tourist was and they knew what tourism is, to the same extent as anybody else knows it. It did not work because the criteria were inappropriate, and I am not saying that any other criteria or condition would have been any more appropriate.
If you go back in time, you will recall that in the very early days the death penalty was mandatory for every offence, even the most trivial. Juries dealt with that by simply refusing to convict. You saw the same thing more recently in the case of the abortion prosecutions. In my submission, what municipalities did with the tourism criteria or condition was the same thing. They would get an application that the local people wanted to support, that they with their knowledge of local conditions wanted to support, and they simply strained the language and did violence to the language of the condition. They made the condition do what they wanted to do anyway, whether it was appropriate or not, and that kind of thing is still going to happen. I do not think the proposed regulations are going to change that at all.
The provision or the condition was taken out of the legislation in 1989, in my understanding, because it simply was not working and was bringing the law into disrepute. The 1989 legislation left it open to the municipal councillors with their knowledge of local conditions to make their decisions on whatever basis seemed to them to be appropriate. We are now introducing the tourism concept again, and I am afraid the result is going to be exactly what the result was in 1975. It is not going to work.
The Chair: Thank you, Mr Oakes. We have pretty well run out of time this afternoon, so I would like to thank you very much for your very considered presentation and, before closing, make a couple of announcements to the committee members.
They are very simply that the first stage of our cross-province tour will start on Wednesday. We should be ready at 4 o'clock. The clerk informs me that there will be a bus taking us to our next locale Wednesday at 4. If anyone is going by means of his own transportation, would he please inform the clerk of that, either there or at any other point in our committee's road show.
Thank you very much. We will be adjourned until 9:45 tomorrow morning.
The committee adjourned at 1759.