CONTENTS
Tuesday 29 October 1991
Retail Business Establishments Statute Law Amendment Act, 1991, Bill 115 / Loi de 1991 modifiant des lois en ce qui concerne les établissements de commerce de détail, projet de loi 115
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: Cooper, Mike (Kitchener-Wilmot NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Carter, Jenny (Peterborough NDP)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Winninger, David (London South NDP)
Clerk: Freedman, Lisa
Staff: Beecroft, Doug, Research Officer, Legislative Research Service
The committee met at 1554 in room 228.
RETAIL BUSINESS ESTABLISHMENTS STATUTE LAW AMENDMENT ACT, 1991 / LOI DE 1991 MODIFIANT DES LOIS EN CE QUI CONCERNE LES ÉTABLISSEMENTS DE COMMERCE DE DÉTAIL
Resuming consideration of Bill 115, An Act to amend the Retail Business Holidays Act and the Employment Standards Act in respect of the opening of retail business establishments and employment in them.
SUITE DE L'ÉTUDE DU PROJET DE LOI 115, LOI MODIFIANT LA LOI SUR LES JOURS FÉRIÉS DANS LE COMMERCE DE DÉTAIL ET LA
Loi sur les normes d'emploi en ce qui concerne l'ouverture des établissements de commerce de détail et l'emploi dans ces établissements.
The Chair: I call this meeting to order. We are debating Liberal motion 3.
Section/article 1:
Mr Chiarelli: Just to review very briefly where we left off, we are dealing with section 1 of the bill, and my colleague Mr Sorbara moved an amendment. His motion was that subsection 4(1) of the act, as set out in subsection 1(1) of the bill, be struck out and the following substituted:
"(1) Despite section 2, the council of a municipality may by bylaw permit retail business establishments in the municipality to be open on holidays for the maintenance or development of tourism, for economic development purposes or for any other purpose prescribed by the regulations made under this section."
I want to compliment my colleague for moving this particular amendment, because what it does is put the whole issue of Sunday openings or Sunday closings into proper perspective. As I mentioned yesterday, when one looks at the history of this type of legislation, when you look at the pre-1988 or -1989 law, which had been there for a number of years and was established by the Conservative government, there was not really a significant disruption in the marketplace and there was not a lot of lobbying and it was not a high-profile political issue. There were representations made from time to time to the government of the day looking for improvements or changes to that legislation, as with many others, but the fact is that the law was not a perfect law and had flaws in it, and the marketplace adjusted to the law, which was not very precise.
In effect, it provided for a tourism exemption, but there were no criteria to define "tourism" and we had what amounted to the local option. The local option basically permitted municipalities right across this whole province to have Sunday openings. For example, in Ottawa-Carleton, under the old Conservative law, a bylaw was passed to open up the Byward Market on Sundays. It worked very well and there were not any further openings. For Ottawa, that was fine. It amounted to an opening in that area that really went way beyond anything that could be defined as a tourism exemption. Many municipalities, as we all well know, opened on Sundays through that particular legislation.
When the Liberals came into government, we looked at making changes to this law. We did make changes to the law. We took the tourism exemption, which was being widely abused, and we got rid of the fiction that there really was a tourism exemption. We said, "The tourism exemption is being used as a local option, so let's call it the local option," and we legislated the local option.
The marketplace continued to work; the sky did not fall. Some people were unhappy, as some people are unhappy with just about any piece of legislation that any government enacts. Of course, some of the people who were unhappy decided to take court proceedings. They did so, and the law was struck down by the Supreme Court of Ontario. What happened when the law broke down? The sky still did not fall, the world continued and we had some people in some communities who opened on Sundays and some who decided not to open. In effect, what you had, again, was the local option.
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Now we are looking at a new set of rules, if we can call it that. What do these rules do? These rules pander to special interest groups. There was a principle: to have a common pause day. That was a principle of the New Democratic government's election promises, and it was the promise when legislation was introduced. The fact of the matter is that you introduced legislation, you went out and consulted with the people, and what did the people tell you? Can you decipher what they told you? You deciphered the special interest needs of a group of people and you are at a loss what to do with it. In fact, you did not know what to do with it and so you came to this committee and you said: "Let's adjourn it indefinitely because we don't know what to do with clause-by-clause. We have to consult further and assess the situation."
Really what you had to do was resolve your internal differences in your caucus, because you know that you had a very active debate in your caucus on this particular issue. I can remember specifically talking to Peter North, the Minister of Tourism and Recreation, and he was saying: "I'm the advocate of broadening openings for the business community. I'm doing the best I can in cabinet for this particular issue, but there are some people on the other side of the issue. I'm sorry, but this is the best I can do."
So we know that you had very significant internal problems. At the same time as you had those internal problems your phones were ringing off the hook. We know what it is like when you are in government, when you are in a constituency office and the lobby groups start: the common pause day people, the large drugstore people -- you name it; it goes on for ever -- The border communities that wanted wide-open Sunday shopping, mayors from various municipalities. It started. So what you did was try to take a bill and patch it up to meet all the special interest groups. What you have created is a total can of worms that is ineffectual, illogical and will never work. The amendment my colleague has moved is an attempt to alleviate that somewhat, because you are creating a legal fiction once again.
As I mentioned, there was a legal fiction with the Tory bill. We tried to get away with our bill by calling it what it really amounts to in practice, local option, and now you are going back to what is going to amount to a different type of local option, if we can figure out what you mean, because you can change the rules any day by regulation. That is something I want to address as well.
I can remember quite specifically, when I sat on this committee on the government side and we travelled around the province with our legislation, a member from the New Democratic Party caucus, Mike Farnan, who became the Solicitor General and who had something to do with introducing this particular legislation. Some of you may have seen it, some of you may have chuckled when he brought his little chicken around with him and he put it up here.
Actually, I just bumped into Mike in the washroom and I asked him if he still had his chicken and he said, "Yes, I do." I said, "Can I borrow it?" He said: "No. That is a piece of history and I'm not going to let it out of my possession." I wanted to borrow that little chicken because, believe me, you guys are taking the chicken way out. You are taking the chicken way out because you finished your cross-province hearings and you sat down and you could not come to clause-by-clause analysis because you had all these competing forces in your caucus and you had all these competing forces lobbying. Then, all of a sudden, you decided internally: "My gosh, we do have the answer to the common pause day people. We will let them set up vigilante committees." These vigilante committees can go around appealing every bylaw to the Ontario Municipal Board. Not only can they do that, but they can raise funds and take to count any little shopkeeper who may misinterpret the law, may feel that he has the right to some civil disobedience because this law does not even give him or her the right to appeal, which is appalling. They can go around in their vigilante groups and take these people to court.
Interjection: Take them hostage.
Mr Chiarelli: Take them hostage, somebody said.
The Solicitor General brought in some amendments. In the news release September 27, 1991 -- that is a month ago, plus a couple of days -- he did not say a darn thing about opening in December.
I remember he stood up in the Legislature and said: "We are ready to proceed now. We've got our act together." We raised some questions about his amendments. Before we could even deal with these amendments he came in and said, "We have a new answer." I guess there were a few more phone calls made by people like Dylex, and this government is so paranoid over its position with business that it takes a little concession to Dylex working with the business community, forgetting about all the other people who are concerned about different aspects of this particular legislation.
Mr Morrow: On a point of order, Mr Chair: I would appreciate it if the member would come back to the amendment. It is nice that we are listening too to the government, but I would appreciate it if he would come back to the amendment.
Mr Chiarelli: I am speaking to the amendment in some detail.
Mr Morrow: Is 4.3 the amendment? This is the amendment.
Mr Chiarelli: I am speaking to Mr Sorbara's amendment. I really believe that last interjection is an indication that the government wants to get this bill through very quickly without debate. The issues that are raised by amendments which are foisted upon the public and this committee -- the implications are very significant. The issues should be dicussed and should be debated in some detail.
The amendment says "the council of a municipality may by bylaw permit retail business establishments in the municipality to be open on holidays for the maintenance or development of tourism, for economic development purposes or for any other purpose prescribed by the regulations made under this section."
The purpose of that particular amendment is to move beyond merely a tourism exemption. I want to relate my experience in the Ottawa area with the legislation that has existed and how this particular amendment might affect it.
I can recall very specifically when the standing committee on administration of justice, discussing the previous legislation in its travels around the province, came to Ottawa-Carleton. As I mentioned, there was only one provision for Sunday openings under the Conservative legislation, and for an extensive period of time, in fact up until today, that was in the Byward Market. There was no expansion of Sunday openings whatsoever in Ottawa-Carleton in any way, shape or form under the Conservative legislation.
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We called the Conservative legislation what it was: a local option. Additionally, there was no further expansion under the Liberal legislation. The courts struck down the Liberal legislation. I think it is important to look at the dynamics of what happened in Ottawa-Carleton when you look at the implications of expanding the tourism exemption to include the other areas which indicate "for economic development purposes or for any other purpose prescribed by the regulations made under this section."
It is really very instructive to look at what happened in the marketplace after the law had been struck down. There are a number of major shopping centres in the Ottawa-Carleton area, as there are in all the urban areas across this province. What happened, particularly with the Bayshore Shopping Centre, which is among the largest if not the largest, was that the landlord, sure enough, was trying to cajole and push the tenants into opening on Sunday. The tenants, small business people, retailers, were very unhappy. They did not want to open on Sunday under any circumstances. Some of them did open, perhaps because they felt intimidated by the landlord, and some of them did not.
After a number of Sundays on which the Bayshore Shopping Centre had been open, the manager of Bayshore called on the managers of the various shopping centres to agree collectively to close on Sunday because they were losing money and it did not make economic sense for them to be open on Sunday. The market circumstances, namely, the de facto local option, were telling these major shopping centres, these major landlords, who a few weeks before were saying, "We want to open," and tried to force the retail tenants to open, to turn around and reverse themselves. They were losing money on Sunday openings. Mr Belanger in particular, who was the manager of the Bayshore Shopping Centre, tried to get the manager of the St Laurent Shopping Centre and the Carlingwood Shopping Centres together to close, to force the closings. In fact, the major shopping centres, with no legislation in Ottawa-Carleton, were voluntarily closing on Sunday because of the market conditions, because of the representations that were coming from the retailers in the area.
I believe that if the legislation were still struck down these shopping centres and the retailers in them probably would be opening as we come into the Christmas season. As I mentioned before, when we look at the context of this legislation through the Conservative administration, through the Liberal administration and when there was no law whatsoever, we find that the market seems to look after itself, and there was no domino effect. In fact, the domino effect was in the other direction, towards closings.
What I am trying to say is that you have taken a bill and you are trying to play God with it. You are trying to placate this group; you are trying to placate that group. You have the common pause people who are saying, "Give us something to hang our hats on," so you say: "Fine. You can be a vigilante group. You can appeal them all to the OMB." If some little retailer feels he is being unfairly dealt with by this legislation and decides to stay open, by gosh, one of these common pause day groups will simply take that small business person to court and force him to close, force him to pay a fine. We have to put more logic and more common sense into the process.
I will come back to the issue of the Ontario Municipal Board a little later, but there is an issue that is reflected in your legislation, which provides for establishing tourism exemption criteria by regulation.
We all know what regulations can do. They can drive people to insanity almost. For example, the member for Welland-Thorold on his cable show a couple of weeks ago talked about some ninnies who passed a regulation eliminating or changing the oath to the Queen for the OPP. That was done behind closed doors. It was done basically without any public consultation.
By saying you are going to establish the tourism exemption by regulation, I want you to understand what you are saying to the common pause day people who take you at face value. You are saying to the representatives of these coalitions, the people who want to maintain a common pause day, that in the dead of night you, by regulation, can effectively create wide-open Sundays. You can also say to the other people who want some semblance of openings that you are going to close them down cold by regulation. Cabinet can meet and cabinet can pass an order in council.
You can say: "We will deal with it reasonably. We will deal with it as a wise emperor would deal with it." But the fact is that you can deal with it by regulation. You can turn around next month or next year and say to these common pause people, "There is an economic crisis -- there are all kinds of reasons -- we are going to change the criteria," and you can change the criteria to effectively create a wide-open local option. They would have nothing to say about it because you can do it without consultation. You can do it by regulation. If you want to create a common pause day and you want a tourism exemption, you can do it simply by --
Mr Mills: On a point of order, Mr Chair: I would like to ask a question. I have been led to believe, Mr Chiarelli -- correct me if I am wrong -- that both your party and the third party have agreed to get this bill through quickly. This is my understanding. I wonder where we have gone wrong.
The Vice-Chair: That is not a point of order, Mr Mills.
Mr Chiarelli: I would like to respond quite directly to Mr Mills on that particular point. Mr Mills, I would like you to listen to my answer; you asked a question. You have two or three courageous people in your caucus who are prepared to stand up and publicly disagree with their party. The member for Welland-Thorold has publicly disagreed with his party on the cable show and in other circumstances, and the Vice-Chairman, Mr Morrow, did in the Hamilton Spectator, I believe, with respect to the implications for the OMB.
I am not a puppet for my party, and when I talk about these issues, I talk about them with conviction and I mean what I say. If I am long-winded, it might be that I am trying to get some of the people on this committee to understand, over a period of time, that there are some very serious implications.
Mr Mills: The retailers are looking for us to get on with it.
Mr Chiarelli: You might think that all the retailers are, but they are not. I have not received very many calls in my constituency office from the time you introduced your legislation until now, even at the time our legislation was struck down. There is a lot of activity in the media but very little in -- maybe because we are in opposition now they do not call the opposition members but only call the members on the government side.
It was not until the last few days that my constituency office started receiving phone calls from retailers who do not want to open on Sunday even in December. Even though Dylex might be lobbying you and you might be pandering to another lobby group, there are other retailers out there who do not like what you are doing in terms of opening up in December.
Mr Mills: Listen to your whip.
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Mr Chiarelli: I am debating this issue on the merits as I see them. I am not in here doing anybody's bidding, including my whip's. I might even be the whip now, I do not know. Somebody talked about changing the whip in this committee. But in any case, that is the answer to your question. I do not know of any decision to expedite this particular decision.
I want to remind you, Mr Mills, and I think it is very significant, that I spoke to this issue at some length after the news release of the Solicitor General talking about the Ontario Municipal Board appeals and the appeals to the court. If you will read Hansard carefully, you will see that I said, with respect to that provision of the bill, that I would see this pass over my dead body, because I thought it was bad administration and bad government. I am going to deal with that as well, because it has something to do with this particular amendment.
The fact that you would make a compromise for retailers for three Sundays in December does not make me make a compromise to that component of the bill dealing with the appeal process, which is contrary to civil liberties in the grossest possible way, giving some people a right to appeal and not others, and totally imposing a matter on an agency that cannot handle the volume of business it has at present.
So to answer your question, I have not agreed as a member of this committee to anything and I have not agreed to pander to my whip or my party on this particular issue, because I think there are some issues which go well beyond that type of issue in this particular case.
Beforehand I was talking about the provision in the bill which gives the Solicitor General or a cabinet committee the right to create wide-open Sunday shopping or to create a 100% common pause day. This bill does that. I see some people sitting here in the committee room who are very concerned about a common pause day.
As I said before, I respect that position, I respect it very much, but I also respect their right to be treated fairly, and they are not being treated fairly by this bill. They are not being treated fairly by this bill because they are going to walk out when this bill is passed, if it is ever passed, and they are going to think they have won some concessions. All they have won is the right of this government to act like a dictator and emperor in the dead of night, to change the tourism criteria, to create wide-open Sunday shopping or to turn around to the Dylexes and next year close down Sundays because they have decided that maybe the phone is ringing more than it was two weeks before and some lobby group is looking for something.
They will just get the cabinet together -- actually, the cabinet will not get together until the caucus does a hammer job on them, because this cabinet obviously responds to the caucus. The caucus comes in and makes representations and takes decisions and cabinet goes back and deals with them. Every time the caucus makes a decision and flexes its muscles and the cabinet gets together, out comes the Band-Aid. The Band-Aid goes on the bill. You figure you are going to come in and do a hammer job on the opposition because we are real mean people, we are going to frustrate you every step of the way. It does not matter what we say and what we do, that is how you are going to characterize us. In fact, I think people are a lot more objective than perhaps you make them out to be.
For example, I have this little sheet of paper in my hand which indicates an advisory group of the tourism exemption regulation. It has chair, Mr Andrew Faas, executive vice-president, National Grocers Co Ltd; members: Mr Barry Agnew, vice-president, sales and promotion, the Bay; his worship Stephen Clark, mayor of Brockville; Mr John J. Finlay, executive vice-president, Canadian Retail Hardware Association; Ms Diane Karabinos, executive director, Ontario Hotel and Motel Association; Ms Sharon Maloney, president, Canadian Shoe Retailers Association; Ms Pearl MacKay, Ontario Federation of Labour; Mr Gerald Vandezande, executive director, Fairness for Families, and Mr Brian Williamson, president, Local 1977, United Food and Commercial Workers International Union.
I think it should be understood that this advisory group can be changed next month, can be changed next January, could be changed, abolished or whatever. Not only that, this group, to my understanding, and perhaps the Solicitor General can clarify, has not met yet. If it has met, it may have met for an organizational meeting.
Mr Mills says, "I understand that you people have agreed or there's some tacit understanding that we're going to whip this thing through so that the people who are interested in three days of sales in December will be appeased." I think the issues go way beyond appeasing retailers for three days of sales during the month of December because perhaps people are not fully cognizant of what these regulations can do.
We have a number of people whose names I have read, who represent the advisory group on tourism exemption. I say to the people who are interested in this particular issue, what if the majority of people on this committee, or the restructured committee, or the expanded committee, decides it wants to have more open Sunday shopping? This government is very concerned about its reputation and perception in the business community. Let's say there is tremendous pressure brought to bear on this government and it wants to look at a way to pander to the business representations that it is getting, because it might be down to 26% in the polls, they might have another major rally out here. So in the dead of night this advisory group on the tourism exemption regulation is expanded; a few more people are put on to it. They look at the tourism criteria -- there are drafts around here -- they just decide to play around with it. The tourism advisory committee decides, "Well, let's try to open up Sundays a bit." They open up --
Mr Mills: You are putting them to sleep.
Mr Chiarelli: No, they are walking, they are not asleep. They are getting tired of the interjections.
I can still see one gentleman who is very interested in hearing what I have to say, because he has seen this issue come and go through governments and lobby groups and so on and so forth. I respect the fact that he has the consistency to be there year in and year out. He also knows how governments operate and he also knows how governments play games.
Under circumstances where there might be a tremendous amount of pressure, more pressure, put on the government to widen retail sales on Sunday -- for example, what if the mayors or the merchants in border communities say: "I've looked at that advisory committee and there's insignificant representation for border communities. There is nobody from Windsor, there is nobody from the northern border communities. All we have is one representative, his worship Stephen Clark, mayor of Brockville." So a few more people get added to this advisory group because they felt left out. They start monkeying around with the tourism criteria. Again, you have to understand, it could be changed by regulation any time. It does not even have to go into the Legislature, no notice, no nothing. Order in council, bang, it is the law -- the same as you changed the oath, regardless of who wanted to do it. That is how it was done, and that is why people were surprised.
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Mr Gerald Vandezande on January 4, 1991 calls a press conference here and he is upset. He is upset because they have expanded this committee and put people on from border communities and they want in effect to expand Sunday openings by way of changing the tourism exemption. He feels totally doublecrossed. Like Chamberlain he was waving the pact, "Peace in our time," and in four months Hitler has come in. He has been totally betrayed, because they are expanding Sundays as a result of the advisory group.
This government can with legitimacy then say: "We have this bill that is passed, Bill 115. It provides for a tourism exemption. We are a good government, we have really consulted the people. We have even expanded the committee, and the committee is recommending this type of regulation." Your common pause day, poof, is gone. That is what happens.
This regulation should be made a section of the bill. I say to you on the government side and I say to people who want some semblance of a common pause day, why are the criteria not in the bill? Why? Answer the question, why are the tourism criteria not in the bill? So they can be changed. And why should they be changed? They would be changed to pander to the lobby groups, and because you are playing politics with the issue. The Solicitor General and his chicken introduced this bill and introduced this chicken way out, because you know darned well that once this bill is passed and you have the regulations, you are going to play around with them until the cows come home. There is no way you are going to want to bring an amendment into the Legislature and come before this committee and have these people here cross-examining you on what you are doing with the regulation.
There is a body of legal thought, which is growing every day, that deals with the issue of regulation. It says governments at every level are hijacking the Legislature by regulation. You have heard the argument. This is a prime example of a hijacking of legislative authority from the Legislature and from the people, because you can, without going back to the people, without going back to the Legislature, without coming back to this committee, create wide-open Sunday shopping by changing the criteria. You can put some semblance of consultation on it by restructuring your advisory committee.
It is the most blatant, chicken way out of an issue I have ever seen. It is appalling that the members of this committee would sit there and accuse me of filibustering and delaying this legislation and hurting those retailers who want to sell for three days. They say I ought not to be able to bring this issue to the attention of the people who care about it, on both sides. This legislation is worth that, as long as you have a regulation that allows you to create wide-open Sunday shopping.
The Solicitor General knows what I am talking about. And his predecessor, the architect of the chicken, knows more about the chicken way out than anybody else. I do not think anybody else on the government side should knock anybody on the opposition side for taking the time to debate this type of issue in detail and at great length, because it is very significant. We are not going to play to your political agenda, because your history with this bill is nothing but a political patchwork, Band-Aid solutions created by panicking caucus members and a panicking cabinet.
Mr Mills: It says here that you are going to get on with it. That is wrong? Okay, as long as we know.
Mr Chiarelli: I will ask Mr Mills, does Mr Kormos speak for you?
Mr Mills: I can still get into the process. The whip is running it and he said we are going to get on with it, and I am just wondering where it all fits in, as a newcomer.
Mr Chiarelli: You guys are doing a good job of trying to manipulate the public and manipulate the media. Thank God there are some honest, straightforward, straight-talking people in your caucus like Mr Kormos, who calls a spade a spade. I am going to try to call a spade a spade. My whip is not going to tell me what I should or should not say, because I think these people here are interested in knowing what a sham it is that you can create wide-open Sunday shopping simply by changing a regulation. That is the reality. You cannot deny that you have the absolute authority to create wide-open Sunday shopping without notice, without committee, without Legislature. True or false? You have a solicitor sitting here. You have the Solicitor General here -- he knows it can be done, I know it can be done, the people have to know it can be done.
I want to make a couple of additional points. I think it is very relevant to the amendment that my colleague Mr Sorbara has moved that in addition to simply reading "for the maintenance or development of tourism," he would add "for economic development purposes or for any other purpose prescribed by the regulations made under this section." What we are talking about here is provincial criteria for Sunday openings.
We are not talking strictly about passing a bylaw such as a zoning bylaw for municipal purposes. We have taken a municipal council, or every municipal council across this province, and we have expanded their legal authority in how they deal with issues. They will normally pass bylaws in the normal course for zoning, etc. What we have now done is make municipal councils into quasi-judicial bodies, because they evaluate tourism exemption applications against the provincial tourism criteria.
I see there is a quorum call in the House and I guess there is as much interest on the government side in listening to the opposition in the House as to this committee.
Mr Mills: You are killing me.
Mr Winninger: Yes, show some mercy.
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Mr Chiarelli: Can you guys hear me over the bells? Excuse me -- you guys and gals.
What we have done is take municipalities and expand their legal authority so that they now have to assess provincial criteria when they make the decisions. It also creates the legal effect that their decisions can probably be appealed to the courts, so it is possible for all decisions to end up in court, at great expense to retailers, the municipality, and ultimately the taxpayer.
Just to make perfectly clear what I am saying, when a body has some legal authority to make decisions based on criteria such as these imposed by the province, you open it up for appeal and review to the courts. The Solicitor General's amendments providing appeals to the Ontario Municipal Board and expanding access to the courts for enforcement will not only impact very significantly on the communities across this province, but will also have the very decisions made in council subject to the courts.
Why should this be permitted? I ask members of this committee on the government side, have you discussed that technicality in caucus? Does your caucus understand the implications of your criteria?
To add to my previous comments on the hijacking of legal authority on this particular issue by way of regulation, there are people in Ontario today, and there may be people in this room today, who think they have a certainty emanating from this legislation. Nothing could be further from the truth. The regulations heralded with great fanfare when the former Solicitor General, Mr Farnan, introduced the legislation and the draft bylaws on tourism criteria looked good to a lot of people. They do not mean a hill of beans. They are not incorporated in the bill which this government wants to pass tomorrow or the next day.
The tourism criteria still must be fixed. Thus, several days ago there was no Dylex amendment and now we have a Dylex amendment -- three days of Sunday shopping have wormed them into the bill. What the people of Ontario do not know is what will worm its way into the draft regulation.
How will the advisory committee change? What battles will take place on that advisory committee? What will happen if, after the second or third meeting of this so-called advisory group and before the regulation is passed, Barry Agnew, vice-president, sales and promotion of the Bay, and perhaps one of the other members of the group call a press conference at Queen's Park and indicate that the group is a sham and is not going to work, and demand that it be properly structured?
What you then have is a bill and no regulation. You have a political football put out there in the open again. You have the counsel to the ministry sitting there scratching his head -- I think he has less hair than the last time I saw him when we were going through this committee -- particularly when all these regulations are brought back to him time and time and time again.
Mr Winninger: We are all losing our hair.
Mr Mills: I am losing my hair.
Mr Chiarelli: Maybe you will be able to buy a hairpiece on a Sunday somewhere, some time.
Mr Winninger: I think you are splitting hairs.
Mr Chiarelli: That is a bald-faced lie.
I lost my train of thought here, Mr Chairman. I want to get back to my notes.
MPPs in the last Legislature, I relate it back to my community, because, like all we went through a very harrowing experience with this legislation. The government of the day did not perhaps deal with the issue from a communication point of view as well as it could have. Perhaps there were some aspects of the bill which could have been done differently.
At the time we were dealing with this in the last government, the people in my community of Ottawa-Carleton were absolutely opposed to wide-open Sunday shopping, and I agreed with them. First, they did not understand that under the tourism exemption of the Conservative legislation, the city council of Ottawa could have passed a bylaw declaring the whole city a tourism location or destination, which surely it is. We have people coming to Ottawa from all over the world. It is an international destination in many respects.
There are all kinds of attractions over the whole area of Ottawa and Ottawa-Carleton which relate to Ottawa as the capital of Canada, so the council of the city of Ottawa had every justification, under the pre-Liberal legislation, to pass a bylaw declaring Ottawa a tourism destination. It did no such thing. It passed one minor bylaw which declared that the Byward Market area of downtown Ottawa, a whole four or five blocks in behind Parliament Hill near the Chateau Laurier, could be open on Sundays. There was no movement of the business community, in any way, shape or form, to expand that. There was, in effect, no domino effect.
Mr Mills: You said that three times already.
Mr Chiarelli: Twice.
Mr Mills: This is the third.
Mr Chiarelli: This is the third time, but it is in a different context. I am doing it in the context of the pre-Liberal legislation. I am trying to create some historical context for the present amendment.
When later the Liberal legislation was passed, or while it was being considered, there was a resolution of the council of the regional municipality of Ottawa-Carleton which said, "There is no intention or desire to expand Sunday openings in Ottawa-Carleton," even though they were about to get the legislative authority to do it under the local option.
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They could have done it under the tourism exemption, and chose not to. They could have done it under the local option of the Liberal legislation, and chose not to. As a matter of fact, one application was made to regional council by a small neighbourhood in my riding of Ottawa West, the Westboro area, where they have what is called Westboro Days one weekend of the year. The retailers in that community, which represents three blocks, both sides of the street, made an application to regional council to open one Sunday a year and they were turned down cold by the regional municipality of Ottawa-Carleton; no expansion whatsoever.
I want to tell people who are interested in a common pause day what happened in Ottawa-Carleton when the Solicitor General made his announcement of the NDP initiative. It is all on record. I went through it as a member of the standing committee on administration of justice when the Liberal legislation was going through. I had representation after representation coming to my constituency office. I know the facts and I know the dynamics of this issue in Ottawa-Carleton.
When the Solicitor General introduced his new legislation saying we are going to have a tourism criteria and tourism regulation, lo and behold, all of a sudden all these business people started coming out of the woodwork -- these neighbourhood trade groups. All of a sudden you had people from the Sparks Street Mall authority saying: "You are going to have a specific tourism exemption. Why don't we have a tourism exemption for the Sparks Street Mall?" We had people in Nepean coming out and saying, "Why don't we have a tourism exemption for this particular geographical area?" We had people from the Rideau Centre in the downtown core saying, "Why don't we expand it?" One of the morals of the story is, let a sleeping dog lie.
We had the tourism exemption under the Conservative legislation which created no expansion of Sunday shopping. We had the Liberal legislation which created the local option, which created no expansion of Sunday shopping; none whatever. In fact one neighbourhood, for three hours one Sunday a year, was turned down cold.
When this was introduced I was absolutely flabbergasted. They were coming out of the woodwork looking for tourism exemptions. I was absolutely mind-boggled that this community, which was prepared to respect the whole regional municipality of Ottawa-Carleton -- 650,000 plus, 11 municipalities, every single one of which wanted to have a common pause day and have the Byward Market as the only opening on Sunday, were coming out of the woodwork looking for exemptions.
The media was going to them and asking what they thought of the Solicitor General's legislation. They were all saying, "I think we should do this tourism exemption and that tourism exemption." You had a domino effect coming from the Solicitor General's common pause day legislation.
The biggest moral to this story is --
Mr Winninger: You are running out of dominoes.
Mr Chiarelli: I am not talking dominoes.
Mr Chairman, I represent the people of Ottawa-Carleton. The comments I have just expanded on reflect the dynamics, feelings and the thoughts of the people in my constituency of Ottawa West and my broader constituency of Ottawa-Carleton. The 650,000 constituents in Ottawa-Carleton are getting zero representation from this government because your member, Evelyn Gigantes, is like a mouse in the corner on every damned issue the people are concerned about.
I defy you to find one darn quote in any media or electronic media on what Evelyn Gigantes is saying on Sunday shopping, housing or on all these issues of concern to the people, because she is hiding in the corner and because she has written off Ottawa-Carleton and she is only looking after her Ottawa Centre riding, which incidentally, because the Solicitor General introduced this legislation, is going to have a hell of a lot more Sunday openings which it did not have before.
You want to shut me up from representing the constituents of Ottawa and Ottawa-Carleton? Well, forget it, chums. I am going to be here and I am going to talk about it and I am going to continue to talk about it because it is important to people that they be represented if they are not going to be represented, particularly, by your mouse in the corner, Evelyn Gigantes. There is no representation in this government for the NDP in Ottawa-Carleton.
Mr Mills: I am not trying to shut you up. I just want to know, what is the point of view?
The Chair: Mr Chiarelli has the floor. You will have your opportunity later.
Mr Winninger: Did you attend the Greg Sorbara school of debating?
Mr Chiarelli: It might have something to do with our ancestry. I am just testing the equipment here, because it does not always get tested.
I want to get back to the issue of the quasi-judicial nature of the decisions that are being requested from municipal councils across the province. The issue is certainly that because there is a certain set of provincial criteria which must be adhered to, the decisions of councils will be subject to review in the courts. That is number one. Perhaps that was even the rationale for the Solicitor General's amendments, which he referred to on September 27.
Yesterday I was starting to refer to the significance of those amendments, and I understand through certain whisperings from Mr Mills and from the Solicitor General that the issue of the workload of the Ontario Municipal Board will be dealt with. Nothing has been said in the House and nothing has been said on the record anywhere that issue will be dealt with, and until it is dealt with it is something that must be dealt with in this committee as being extremely objectionable.
I want to get back to that particular component because the tourism criteria which you have required municipalities to adhere to, and the expansion of those tourism criteria in Mr Sorbara's amendment, deal with the judicial nature of the proceedings in a significant way. Mr Sorbara's amendment expands the criteria by saying that in addition to having criteria "for the maintenance or development of tourism," they are "for economic development purposes or for any other purpose prescribed by the regulations made under this section."
On the issue of the quasi-judicial decisions that councils are going to have to make on the tourism exemption and the possible opening up of review in the courts, Mr Sorbara's motion expands that reality very significantly. That is a component of the bill that is not acceptable. In other words, if you are going to have your tourism criteria and if Mr Sorbara's expanded mandate for these decisions is going to be adhered to, you are going to have to make the municipalities the final arbiters of this decision, because you are looking at very significantly expanded access to the courts even on the basis of the decisions and the process internally at council and at council meetings as opposed to simply appealing the decisions that council has taken at the Ontario Municipal Board.
I particularly want to bring to the attention of the newspaper-reading Solicitor General in the back corner of the room some comments that had been made. He is not listening, because he did not lift his head when I mentioned his name, and he still has not lifted his head.
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Mr Mills: You have put him to sleep.
Mr Chiarelli: As usual, he is reading with his eyes closed. That is the extent of his education.
The quote from the standing committee on government agencies, page A-63 of January 22, 1991, indicates that Mr Kruger said the following:
"The state of the board is that we are making our best efforts. Our members are working very hard. Their productivity per member is increasing, but it is just the reality. Our hearings are getting longer and longer in numbers of days. What a lot of people do not realize is that anything that touches land use gets into socioeconomic questions, for instance, when Mr Farnan, the minister, announced he was going to have group homes rather than incarcerate people. Fine idea; nothing wrong with it." Are you listening, Mr Solicitor General? I am quoting something that is very significant. "I shuddered, because every group home hearing -- you can imagine what it is like in a community. If it is 12 days of hearings, it is two days of evidence and 10 days of emotion. One of the members sitting here can tell you all about that up in Sault Ste Marie, where we have just been through that."
We are talking about an issue like Sunday shopping, which can be very emotional and very volatile. What is going to happen to the Ontario Municipal Board? We have here Mr Kruger, who is the chairman, talking about referring emotional socioeconomic issues to the Ontario Municipal Board, but what you get is two days of substance and 10 days of emotion. What does that do to the pocketbook of small business people?
Are you guys trading? Who is coming over here? I note, Mr Morrow, that you, Mr Cooper and Mr Kormos made a little venture into the Conservative and Liberal lounge yesterday. I think you were exploring new territory for possible future activities. We always have an open door policy in our party. If you look at Mr Ramsay, someone who came across from your party who has done great things in the Liberal Party, and at Mr Morrow, who has been seen to be quite critical of some of the initiatives of his own government, and at Mr Kormos, I am glad to see that you are exploring the fresh, clean air of the Liberal lounge beside the Legislature. I think they also prefer the refreshments that exist in our members' lounge as opposed to the NDP lounge.
In any case, I will get a little more serious here because we are dealing with a very serious issue. I think it is very important that we think about Mr Kruger's words. He is saying: "Our hearings are getting longer and longer in numbers of days. What a lot of people do not realize is that anything that touches land use gets into socioeconomic questions, for instance, when Mr Farnan, the minister, announced he was going to have group homes rather than incarcerate people."
I think the key there is the socioeconomic issue that Mr Kruger is saying ought not to be before the Ontario Municipal Board. He is saying, "If it is 12 days of hearings, it is two days of evidence and 10 days of emotion."
We have had in this committee a very detailed investigation into the whole issue of alternative dispute resolution, and I want to refer to that. What we are talking about here is a government that is going backwards into the 1960s and the 1950s, that is basically saying, "In a socioeconomic issue which previously was not part of the quasi-judicial system, we are going to take virtually every bylaw that's passed by a municipality and throw it into the quasi-judicial forum."
What you are going to have is the people who support a common pause day across this province appealing cases to the Ontario Municipal Board. What you are going to have is businesses who want some semblance of openings taking various legal steps and actions in order to get what they feel are their rights.
The standing committee on administration of justice in June 1990 reported to the House on the whole issue of alternative dispute resolution. It indicated that there should be major initiatives taken by the government of the day, whichever one happened to be there. It indicated that there is a better way to do things. One of the better ways to do things that was recommended by all parties in the House who participated in this committee was that legislation that is created by this House should look at alternative dispute mechanisms, different ways to resolve problems. They were saying that in the 1990s and through the year 2000 we have to be more reasonable, we have to be more rational, we have to be more understanding, and we have to find better ways to build consensus.
About 12 months after this committee recommended to the province of Ontario that mediation, arbitration, new systems of fact-finding, etc, be incorporated in legislation, it happened in some legislation. In the automobile insurance legislation we have a system of alternative dispute resolution, a system of mediation and a system of arbitration that has been written into the legislation. The reason for that is that they want to get people out of the courts. We all know that on that particular issue it was costing the province $700 million or $800 million a year in legal fees, to say nothing of the costs to the taxpayer and the government and the province inside the court system.
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If you look at the system of alternative dispute resolution that was incorporated in legislation, it is working 10 times better than anyone ever anticipated. Even many people in the New Democratic Party government realize that the system of no-fault, putting the disputes into mediation and arbitration, makes a lot of sense. We know that the Treasurer, Mr Laughren, is a no-fault person, and we know therefore that he supports the legislation that would put dispute resolution on the automobile insurance issue into mediation and arbitration.
We have all parties on this committee reporting to the Legislature in the alternative dispute resolution report of June 1990, saying that legislation which is created by our Legislature should create new ways of alternative dispute resolution to solve problems. So when we look at this Bill 115, and when we look at the amendments that are being recommended and suggested by the Solicitor General to provide more access to the courts and more access to the Ontario Municipal Board, you are going absolutely, totally against the thrust of thinking in the Ministry of the Attorney General, which has a group looking at alternative dispute resolution. You are going against the recommendations of this standing committee on the administration of justice and you are going against the recommendations of the best legal minds in the country and internationally. I refer you to the group of witnesses who came before our committee and recommended not appeals to the Ontario Municipal Board and not vigilante groups being created to take people to court; they recommended in the strongest, most rational, reasonable way that new legislation create alternative dispute resolution mechanisms.
I do want to indicate the people who recommended that in legislation of this type, such as Bill 115, you should be looking at alternative dispute resolution. I want to go through and indicate them to you because I think it is significant. I think it is significant for a number of reasons, not the least of which is that I cannot see any member on the government side in this room today who was in the Legislature at the time this committee was reported or at the time the justice committee was considering this issue, including the Solicitor General.
I am going to take a bit of time to tell you who came before this committee and said: "Do not send things to the Ontario Municipal Board for resolution. Do not make access to the courts, the adversary system, the rule of the day." Your clause-by-clause amendments are very significantly enhancing the adversarial nature of our system, and these people said you ought not to do it.
Dr Gary Austin is co-ordinator of the London Custody and Access Project and psychologist with the London Family Court Clinic. He teaches in the department of psychology at the University of Western Ontario, has published widely and was a member of the Attorney General's Advisory Committee on Family Mediation.
Robert A. Blair, QC, is chair, Canadian Bar Association-Ontario subcommittee on alternative dispute resolution; partner, Stockwood, Blair, Spies and Ashby of Toronto; and founder of the Private Court, a service providing experienced counsel as adjudicators in largely commercial disputes.
Again, at the risk of going on, as some of the people in the room would consider, ad nauseam, I want you to understand that this standing committee on administration of justice, which included Mr Kormos at the time, and I believe Mr Farnan, recommended unanimously that alternative dispute resolution mechanisms, as opposed to access to the courts, be incorporated in all new legislation. I am telling you the people whose advice we relied on for that, and am therefore telling you why this committee should consider alternative dispute resolution mechanisms. If you are going to assess any tourism or other criteria, as Mr Sorbara is recommending, you should be looking at the alternative dispute resolution mechanisms these people are recommending.
Martin Campbell of the firm of Beard, Winter in Toronto was with the Ministry of Health and on the staff of the Macaulay report on government agencies, boards and commissions. Again, this was a report commissioned by the government of Ontario which recommended very strongly that alternative dispute resolution mechanisms be devised in legislation and that you not provide access to the courts as the means of solving problems -- that there are better, friendlier, more agreeable ways of doing it.
Michael Cochrane is counsel with the policy development division, Ministry of the Attorney General, and was also the chairman of the Attorney General's Advisory Committee on Family Mediation.
Christiane Coulombe is the lawyer in charge of the Montreal office of the Service de médiation aux petites créances, the publicly funded voluntary mediation service attached to Quebec's small claims courts.
Carole Curtis is a family law practitioner with the family law section of the Canadian Bar Association.
Paul Emond is a professor at Osgoode Hall Law School. He has written very extensively and recently edited Commercial Dispute Resolution (Canada Law Book, 1989). He is an expert in commercial, environmental, resource development, public and native dispute resolution, and is editor of Canadian Environmental Mediation Newsletter, published by Conflict Management Resources, a joint enterprise of York University's environmental studies faculty and Osgoode Hall Law School.
Joan Fair is director of the Ontario region of the Canadian Dispute Resolution Corp.
Mary Lou Fassell is a member of the steering committee of the Family Law Reform Coalition.
Gordon Henderson, OC, QC -- I am skipping some of them; I am not going over everything -- is a partner at Gowling, Strathy and Henderson in Ottawa. Among his many other affiliations, he is chairman of the board of governors, Foundation of the Arbitrators' Institute of Canada, and a member of the Canadian Institute for Conflict Resolution.
I see the counsel for the Solicitor General and I see the Solicitor General here, and I want to know, in drafting this legislation, did you consider alternative dispute resolution means of looking at the tourism criteria so you are not forcing people into an adversarial system across this province? Do you think it is responsible to force people into an adversarial system, to force municipalities looking at these criteria and the criteria of Mr Sorbara's amendment into a quasi-judicial process that will open up disputes in the courts? I want to go on and continue to indicate the number of people who told this very justice committee that you ought not to be doing that in creating new legislation.
Howard Goldblatt is a partner in the labour law firm of Sack, Goldblatt and Mitchell. He has reviewed the use of labour arbitration for the federal government, is an experienced practitioner and has written extensively on dispute resolution in the labour context.
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Are you, as a government, trying to tell me that you did not have the resources of these people on contract as advisers to say: "We've got a problem on the issue of Sunday shopping. We have people who are at odds with one another, people who want a common pause day. We want to establish criteria. Can you draft something that makes sense for alternative dispute resolution?" Or do you come out of a caucus and issue an ad hoc press release saying, "Aha, we want to appease some people so we will give them access to the courts and the Ontario Municipal Board," an irresponsible thing to do based on the advice of all these legal experts who came to this committee 15 or 18 months ago to say that what you are doing is exactly what you should not be doing.
Professor Howard Irving teaches at the faculty of social work, University of Toronto. He is an expert in the field of family mediation in general and court-linked conciliation in particular. He has been director of the Centre for the Family Dispute Resolution since 1981 and was research director of the first court conciliation project in Ontario.
We look at William R. McMurtry, QC, counsel and senior partner, Blaney, McMurtry, Stapells, and chair of the Advocates' Society committee on alternative dispute resolution.
Jack R. Miller, a partner in the law firm of Fasken Martineau Walker, is probably the best expert in Canada and one of the best experts in North America. He has given seminars on this very issue at Harvard University. He is saying: "This is not the way to go. Solve disputes in a reasonable way; create an alternative dispute resolution forum."
Mr Winninger: You had five years to introduce ADR. Why are you holding up our bill?
Mr Chiarelli: I am saying this bill should be amended to include ADR, and you should take it out of the courts. You guys do not want me to debate the issue of the amendments of the Solicitor General which he announced on September 27. You just want to run this thing through because you have a caucus, a cabinet and a political expediency to deal with and you are not dealing with the legislation. This legislation should be deep-sixed. It should be more than stalled: It should be deep-sixed until you come to your senses.
Mr Morrow: Stop stalling and let's move on then.
Mr Chiarelli: If I can go on with the very experienced people who said that Bill 115, particularly the amendments of the Solicitor General and the implication of Mr Sorbara's amendments in terms of creating a quasi-judicial body and decision-making process -- these people say you ought not to be doing it.
Roberta Jamieson, Ontario's Ombudsman, is basically saying, "Go the ADR route on virtually all legislation that is introduced." Her brief is available. Go over to the standing committee on administration of justice. Lisa Freedman, the clerk, can pull all these briefs out and put them on the table for this committee. As a matter of fact, as a member of this committee, I am going to make a request of the clerk that she make available the transcripts for committee members on alternative dispute resolution which were presented by Robert Blair; Dr Gary Austin; Michael Cochrane from the Attorney General's office; Gordon Henderson, former president of the Canadian Bar Association; Professor Howard Irving, and Roberta Jamieson.
Mr Winninger: Don't forget Goldblatt.
Mr Chiarelli: Certainly, Howard Goldblatt. You can have him if you want him.
I would really recommend to you probably the best submission I have ever heard, as a practising lawyer who practised law for 18 years before I was elected, probably the most reasoned approach to legal disputes that I have ever heard in my adult life, education or work experience -- and he would not support Bill 115 and the amendments that are recommended by the Solicitor General -- Dean Peachey.
Norman Sherman, the Arbitrators' Institute of Canada. Oh, and another one, Ernest Tannis. He is an Ottawa lawyer, co-founder of the Dispute Resolution Centre, Ottawa, and executive director of the Canadian Institute for Conflict Resolution.
I would really triple underline for members of this committee -- if Ms Freedman can provide copies to them -- the brief and the answers to questions of Bonita J. Thompson, QC, partner at Singleton, Urquhart, Macdonald in Vancouver, chair of the Canadian Bar Association's task force on alternative dispute resolution, and founding and past executive director of the British Columbia International Commercial Arbitration Centre, one of only two in Canada, the other being in Quebec. The centre's services are paid for by the users and include arbitration and mediation of commercial disputes between Canadian parties and arbitration of international commercial disputes. It also deals with motor vehicle insurance matters. She drafted the centre's rules of procedure and co-edited certain models of alternative dispute resolution processes.
There are a number of others who came before the justice committee in the spring of 1990 and I believe the fall of 1989, and really in a very non-partisan sense told this Legislature where it was going wrong. I might say that the justice committee of the time dealt with this issue in a totally non-partisan way. I want to say it was the first issue under the rules that were established in 1988, I believe, which permitted so many hours on issues that are initiated from the committee. I forget the standing order.
Clerk of the Committee: Standing order 106.
Mr Chiarelli: Under standing order 106, that particular provision. We had a subcommittee meeting of the justice committee at that time and we agreed, in a very non-partisan way, that this whole issue of alternative dispute resolution was way too much on the back burner. We were dealing with issues and legislation in a way that was the 1950s and the 1960s and we wanted to get a handle on it and look at it in a very forward-looking way. The clerk of the committee and the research people did an excellent job.
Those people whose names I mentioned are experts second to none in the world and they basically said: "When you draft legislation, don't provide access to the courts. It's the wrong way to go. You could do it a better way and there is a better way."
The Chair: Pardon me, Mr Chiarelli. These transcripts are available to all committee members right now in the clerk's office. Because of the public demand, she knows exactly where they are and they are available for anybody that wants them.
Mr Chiarelli: Thank you. If I can refer to Mr Sorbara's amendment again, I will be wrapping up my comments in a couple of minutes, because I believe my colleague Mr Poirier is next on the speakers' list and does want to say some things.
If I can just get my hands on that amendment which I keep misplacing, it says: "Despite section 2, the council of a municipality may by bylaw permit retail business establishments in the municipality to be open on holidays for the maintenance or development of tourism, for economic development purposes or for any other purpose prescribed by the regulations made under this section."
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The draft regulations I have commented on create a quasi-judicial decision on municipal councils. The amendments proposed on September 27 by the Solicitor General basically create additional quasi-judicial procedures by requiring an amendment for some people but not others. I might add that appeals to the Ontario Municipal Board and more access to the courts for people who want to try to prosecute transgressions, and now Mr Sorbara's amendment, would further expand the quasi-judicial component of municipal decision-making. I say to this committee that it is a mistake. It goes against the best legal advice this committee could obtain, and I might add, almost free of charge.
I say "free of charge" because these people came for expenses. Bonita Thompson from British Columbia feels so strongly about the Bill 115 type of legislation, the Solicitor General's type of amendments, including Mr Sorbara's type of amendments -- they came here because it is almost a religion to them that we have to do them in a new, improved way.
We have the recommendation of this committee from June 1990 which says to the Legislature, "Don't legislate like Bill 115." You are doing it at your risk and you are doing it in a way that will result in harm and damage to the people of Ontario, to the institutions we have, the boards, tribunals, courts and municipal councils across this province.
If you think I am filibustering and just trying to fill in time, I wish you would consider the substance of some of the things I am pointing out, because it is not me saying them. I am repeating the comments and advice of a lot of very experienced people who took time to come to this Legislature and tell us a better way to deal with issues.
I am going to ask Mr Poirier to continue because I believe he is next on the speakers' list, but I do intend to get back to some of these issues the next time we meet.
The Chair: Thank you, Mr Chiarelli. Mr Poirier, continuing on the Liberal motion.
Mr Poirier: The Liberal motion, yes. Merci. I am quite impressed with what my colleague had to say. I know he could have gone on for many more hours, if not days, pertaining to this point. Actually, he was very short about this.
Interjections.
Mr Chiarelli: You are not a monopoly at the NDP. As a matter of fact, your monopolistic morality is quickly evaporating.
Mr Poirier: Now that I have the floor again, I know some of my colleagues will state, "You are adding to the time where this could be passed and should be passed," and whatever. In part, that may be true, but we are doing this today when we were supposed to have done it the week of September 16, when I drove 515 kilometres from my riding to participate in clause-by-clause only to be told by my friends of the NDP that they wanted to postpone this to a leter date without any further reasons given.
As we are now doing this at the end of October, I do not feel complexed whatsoever by the fact that I will take maybe half an hour to explain to the people of my riding my observations at the end of the work, just as we are doing clause by clause on Bill 115.
I wish the Solicitor General were here so that he could listen directly to what I would like to say. I will tell my good friends from the NDP caucus we may have a difference of opinion on this, but I respect them no less, or whoever came forward to make a presentation throughout the summer in Toronto or elsewhere in the province. When I look at that Liberal motion, I sit here with a very strange feeling of wanting to try to bring it closer to what we had before. Why would that be? Because of what I have heard through the summer.
My good friends from the government caucus, some of whom are sighing, I presume in anticipation of listening to what I have to say, will have learned through the summer -- if I can judge from the Solicitor General's request on September 16 to postpone discussion on this because they wanted to look at it further -- that the golden rule of government and politics is that you can never please everybody all of the time.
I guess what they could have found out, even to our surprise as Liberals, was how much society's perspective has changed with particular reference to this dossier on openings on Sundays and holidays. After discussion of the subject in private with many lobby groups and in front of the committee over the summer and even since last spring, it was most interesting to see how rapidly society in Ontario has changed on a dossier that has been with it for a very long time. The fine research people of the Legislative Assembly, especially Ms Swift, has provided us with a great historic list of this dossier from the 19th century onwards.
With the bill as we have it, I respectfully put forward that we are going to be discussing this dossier for years to come because of the modification the NDP government wants to bring, courtesy of Bill 115. I say this respectfully. I do not say this in spite of or whatever. I am just saying that because of the nature of this bill, it is going to cause us a lot of problems.
Some very patient, very diligent people who have been with us throughout the summer wanted a very strong stoppage of the practice of Sunday shopping and/or Sunday working. These people have been listening to this and have made some presentations. I think of the Lord's Day Alliance and of our good friends the United Food and Commercial Workers International Union, who brought some very interesting and very good points forward, especially where they were noting and describing cases where some of the bosses were not very straightforward with some of the employees pertaining to the employees' obvious right to refuse work on Sunday and the possible consequences.
Throughout the summer, I have mentioned very clearly that I strongly supported the right of workers to be able not to work on Sunday, but I will expand that in a little while.
I spent the summer listening to people who wanted to shop and who did not want to shop, people who did not want to work and people who wanted to work. I was impressed by the long list -- I did not expect that initially -- of people who wanted to work because they wanted to or felt they had to. I will remember the store owners, small, medium, and even large-sized, who presented long lists and said they had lists of 200 or 300 people who wanted to work on Sundays. I remember the people who said that since stores had been opened on Sundays, shopping was their way of spending time with their family, a new-found way. This came as a surprise to them and others, I guess, to spend some time together with the family going shopping on Sunday.
Others, and I respect that very much, absolutely did not want to work on Sunday or shop on Sunday, and I have no problems with that. People wanted protection to be able to refuse to work on Sunday and people deserve that protection. But, as I said earlier, I will expand on that particular point.
With the immense change of attitudes on this dossier, generally speaking, in the last year, and the way it was described to us by a lot of individuals and groups, many people wanted the freedom of choice. I strongly supported the Liberal law that closed everything on Sundays and holidays but allowed a local option to open, because I realized how different Ontario was from region to region. Your region might be close to the border or further inland, a large municipal area, a very touristic area, or a small hamlet in mid-Ontario very far away from huge economic pressure. I thought the Liberal bill represented the difference very well, the "vive la différence" attitude we saw across Ontario.
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With what has happened to the socioeconomic context of Ontario in the last year, and from a global feeling of all the testimonies we heard in the last few months, especially on our travels throughout Ontario, one thing that comes forward is the freedom of choice. I have come to the conclusion that even though we cannot please all the people all the time -- and now I know for sure that my NDP friends in government are cognizant of that -- I think the best way is no law at all, the freedom of choice, as long as the workers have a protection choice not to work on Sunday, if that is their religious day of the week, or for others of other faiths to choose their day of faith and have the freedom to say no to having to work on their day of religion.
The other anomaly that I have seen throughout the summer is the government trying to impose a definition as to what is common. I think it is extremely important that when you look at the definition of "common," it means at least, if not to everybody -- the totality of the population -- the majority. The statistics I have heard through the summer indicate that at the most we are talking about 12% of the workers of Ontario who work in retail sales who could be affected by Sunday work. I have come to ask myself the question, what is common about that definition of "common"?
Also, the definition of "tourism": It is one of the widest definitions of the word "tourism" I have ever seen in my life, being at the source of the creation of the Prescott and Russell Tourism Association. Tourism is a dossier I know very well, having worked in that specific sector in the last 20 years on and off, directly and indirectly. When I look at what is proposed in the regulations for the definition of "tourism," I think of a Swiss cheese because this law will have as many holes as a Swiss cheese. There are some people, I found out, in society whose national sport is to find the loopholes in laws. They will find so many loopholes in this regulation as to the definition of "tourism" that my good friends in the government caucus will be playing with this law and this regulation right up to and including the next provincial election campaign three or four years hence.
When I heard the Solicitor General say he would allow any so-called interested party to come forward with objections and bring them to the OMB -- I have heard of the expression "vigilante groups." Since they are going to be able to qualify themselves as an interest group and be able to do that across the province for any other area -- they just have to plead they are an interest group, and there it is, ladies and gentlemen -- they are going to become the Hezbollah of the Sunday shopping issue.
If I were one of the lawyers really objecting to the Liberal law on car insurance, and I saw that the NDP maintained the refusal to have victims sue for damages and whatever, I would be smiling all the way to the bank, I guess, because they are going to be making a heck of a lot of money going to and from the OMB to defend, oppose, protect or attack particular points of Bill 115. By the time the next provincial election comes along the OMB is going to be completely bogged down with an overload of objections from these so-called interested parties. This should be a most interesting thing to see.
I think this whole law, with all due respect to the very fine person who is the Solicitor General -- and I have told that to my friends in the NDP in private and I tell him publicly -- will be an albatross around your neck for many years to come. You are going to be dealing with this issue and we are going to be dealing with this issue, because you will not have dealt with it in the years to come and in the next provincial election for sure. Whichever party is going to form the government after you will have to deal with this issue, because it will have a lot of fence mending to do. If the attitudes in Ontario change as rapidly as they have in the past year, we definitely have not seen the end of this yet, believe me.
We heard some very fine representations throughout the summer, throughout our travels, and I want to say thank you to them. I want to say that I respect them very much, from whichever side of the story they wanted to look to this issue. It is not because we may have a disagreement as to what should be done with this issue or with Bill 115 that I will say that I do not respect them. Of course, for these fine people to take the time to prepare a presentation and to take some time off and come and make this presentation in front of a committee like this is quite commendable, and I want to say a very sincere thank you to them.
There are three particular points I have retained specifically that I would like to address right now -- that does not mean the other points I have heard about and respected throughout the summer are not important whatsoever; I am sure they will understand -- that prove to me that the current law is extremely out of whack and extremely unfair, if only for these three groups. Of course, I believe that this law is unfair to a lot of other groups, but I will take a bit of time to talk about these three points.
First, I remember a fine group of people who came to us in Peterborough. They were planning to open in the future a multistore complex in an area of town that has been traditionally a tourist area. Of course, their project was not completed; it was still at the planning stage. They exposed to us the dilemma they had. If they wanted to attract businesses that would come forward and sign a long-term lease with them to be a tenant of that complex, these tenants would have wanted to know if they had a chance to open on Sundays. What they wanted to do, they felt, was a tourism-oriented type of business, whatever it was.
Of course, that firm that was developing that piece of property wanted to come forward to the municipal council in Peterborough and ask for an opportunity to see if its future project, still at the planning stage, would merit the designation "touristic."
Of course, the law as it stands right now is very silent on the possibility of those who want a future touristic designation for their future tourism project. They have no recourse to be able to find out, to be able to know, to let their potential tenants know that, "Yes, this has been a designated tourist area and these tourist-oriented businesses that we want to do in this specific area will be able to open on a Sunday."
How in the heck can we expect a potential tenant to come forward, sign a lease for a complex that remains to be built, to be opened, in an area to be or not to be designated touristic depending on the whims or whatever, and depending on how all the different criteria for the so-called tourism regulation would be put forward by the municipality and accepted by the government, and contested by the so-called interested groups -- Hezbollah of Sunday shopping? How can you sell this and how can you buy it?
We made a lot of representation to the Solicitor General to bring this particular point forward to the caucus and to cabinet. By looking at the proposed government amendments, it is pretty obvious that the government has no intention to respect and understand and have a feeling for those who are trying to create jobs in Ontario, for those who have the initiative to create better socioeconomic conditions in Ontario, for those who dare invest and have a confidence in the economic context of Ontario.
We are telling those people, "I guess you'll have to take a chance and try and tell your potential clients" -- and we do not need a doctorate study to find out how difficult it is to get some tenants in a business right now in Ontario. I guess we do not have the courage to tell those people, "Yes, your project in that specific area will definitely be designated touristic," because we do not care enough about them and they are still on the outside.
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To this day, since the government has refused to amend the law, to take into consideration the future tourism-oriented businesses, I do not know what that fine group of presenters is going to do in Peterborough, how they will be able to interest and convince some potential tenants to sign a lease for a tourism-vocation business where they might not ever get the chance to open on a Sunday. I find that extremely inconsiderate of the government, to just blow away fine tourism-oriented developments like that in Ontario.
Is the government telling the tourism sector of Ontario that there is enough current development that we do not have to deal with or give an answer to those who want to develop, who have plans for future tourism development in Ontario? That seems to be the message the government wants to give those people who are interested, who still have faith in the tourism sector in Ontario.
I am appalled and I regret that the Solicitor General -- I assume he tried to push this in caucus and/or cabinet. I will give him the benefit of the doubt, but I can only state that I regret that the NDP government did not see fit, as a way of respecting those who want to develop the tourism sector of Ontario in the future -- especially since in Bill 17 you have and you will have some regulations to have a tourism exemption -- was unable to say, "We salute you ladies and gentlemen who have plans to develop the tourism sector in Ontario," but "You will have to wait till your project is actually officially open with a ribbon-cutting and whatever, then apply and we will see what we can do then." To me, it is completely illogical.
The second point of three that I wanted to concentrate upon is the whole status of the Ontario discount drugstores, and I think there are something like 35 across Ontario, those larger stores, those over 7,500 square feet, those stores that employ 3,000 people in Ontario. I was talking to some of these owners recently. I was talking recently to some of the MPPs who have some of these large discount drugstores in their ridings.
I still cannot believe that as soon as Bill 115 comes forward, 3,000 Ontarians risk losing their jobs because of this. It is beyond me, from a government that comes in at a time when industrial jobs are being lost in record quantities across Ontario, a government that in its own budget statement said it cared about job creation, that it was going to bust its buns trying to create even more jobs in a very difficult context, that it will be kissing goodbye 3,000 Ontario jobs just by pushing its magic wand on Bill 115.
I cannot believe that this government, this New Democratic Party that says, "We're going to be a lot more sensitive," that it would listen a lot more, that it would be a gentler and kinder government, is about to kiss off 3,000 jobs, 6% of the people working in drugstores, but that is still 3,000 people. And it is no bluff, because they have offered to open their books to any accountant the government would choose to prove this is the case.
One of these persons was talking to me this very morning, and I said, "How much of a discount place are these places, by the way?" Again, the NDP government has said it was very sensitive to the poor. They wanted to try and eliminate poverty and the food banks and whatever. I was hearing some people say that they cannot afford to go shop anywhere else. I asked one of these people who is cognizant what the difference in price is that you can see there -- and I do not have any conflict of interest, because I do not have any of these large discount drugstores in my riding. I am in the far east. In Prescott and Russell there is none. I have heard the lobby and whatever, but I have no personal interest.
They were stating, for example, for the pads diabetics have to use, the regular price in the regular type of drugstores is $4.99 per package and in those discount drugstores it is 99 cents for the same package -- $4.99 versus 99 cents.
It says here, "Far more than 50% of the prescriptions filled on Sunday are emergency or new prescriptions, and 75% to 80% of all goods sold in these stores are traditional drugstore items." What will my NDP friends tell their constituents or other Ontarians who live below the poverty line who have told us they can only afford to shop in these large discount drugstores when these stores close down because of the fine level of understanding from this NDP government? What the hell are they going to tell them?
When these clients who live below the poverty line, who have a hard time putting ends together, have all of a sudden to start to pay $4.99 again for the same medical pads that diabetics need after having paid 99 cents for the same package, what will they answer these clients? Is that the gentler, kinder, more attentive, more respectful party that said it was going to listen more to the poor people? Will you eliminate food banks by this? No, you will not.
What are you going to tell the 3,000 Ontarians who might and will probably lose their jobs because these large discount stores will be forced to close?
Apparently 91% of the goods in these stores are sold between 5% and 35% cheaper than traditional drugstore chains and the dispensing fees are $2 to $3 cheaper than those of the competition. That is rather interesting.
I have four questions from the people who work and the people who own, the Ontarians who own these 35 discount drugstores. The first question: Why should the public be denied access to discount drugstores whose average prices for goods and services are 20% to 40% less than those of conventional drugstores?
The second question: Why should students and others needing this income be denied the opportunity to do the same work employees of conventional drugstores smaller than 7,500 square feet are allowed?
The third question: Why should multinational corporate drugstores of 7,500 square feet be allowed to operate on Sunday when larger, independently owned, Ontario-owned drugstores selling the same products are restricted from operation?
The fourth and final question: Why is the common pause day being applied to only 3% of drugstores in Ontario?
That fourth question echoes my concern as to the definition of "common." When this law applies to something common, the size of drugstores, it represents 3% of drugstores in Ontario. This whole fallacy of size does not make sense. Who am I to state that a multinational corporate store under 7,500 square feet should be allowed to open whereas an independent, Ontario-owned store over 7,500 square feet has to close? It does not make sense. I have been trying my very best to understand the logic in this and I see none. Hence, I think you are just going to hang yourself with this ridiculous situation.
The owners and the employees are going to come in tomorrow and try one last time to knock some sense into you pertaining to this situation.
I realize it is 6 o'clock. I would like to be able to continue next week with my third and last point. I move the adjournment of the debate.
The Chair: Mr Poirier has moved the adjournment of the debate. Seeing it is 6 o'clock, this committee will stand adjourned until Monday, November 4, at 3:30.
The committee adjourned at 1759.