The battle over Sunday shopping
“Some citizens in Ontario believe that a Sunday shopping law may be inappropriate to the needs of Ontario society in this period of the 21st century. Others feel that Sunday shopping law is valuable because it enshrines non-sectarian social values of an important kind designed to enhance family and community life. The Liberal Government believes that in the democratic process, as laws are considered for modification or amendment, all views should be heard.”—1990 Liberal Party document outlining the David Peterson government’s record.
As strange as it may seem to some now, Sunday shopping was one of the most troublesome issues the Peterson government faced. Attempts to revise the Retail Business Holidays Act (RBHA) led to battles between those who held a traditional view that Sunday should be an enforced day of rest and those who believed such attitudes no longer reflected modern economic and social realities.
Traditionally, local “blue” laws placed strict restrictions on Sunday activities in the belief among most Christian denominations and organizations like the Orange Order that it should be a day of rest or religious devotion. Some of these blue laws now seem absurd, such as municipalities which locked down playground equipment to prevent children from using it.
These laws slowly loosened in the decades following the Second World War, as the sway of large Christian faiths decreased, and Ontario’s cultural diversity grew. Allowing Sunday shopping would benefit many Ontarians, from shift workers who had few other options to run their errands to retailers in border areas such as Windsor and the Niagara peninsula who were tired of losing business to their American counterparts.
But change occurred in baby steps, as old attitudes proved hard to shake off. Such was the case with the RBHA, which was enacted in 1976. It provided Ontarians with common days of rest on statutory holidays and Sundays. A limited selection of products, including antiques, food, and tobacco, could be sold in retail spaces under 2,400 square feet with four or fewer employees. The act earned little respect, as exemptions were made for tourist areas, and some retailers discovered profits from opening illegally during the Christmas holiday season were worth the fines they earned. Purveyors of higher-end merchandise, especially Toronto furrier Paul Magder, earned headlines for their violations of the law.
While the Ontario Court of Appeal upheld its constitutionality in September 1984, there was an increasing sense that the RBHA required revisions to reflect changing economic and social realities. Shortly after the Liberals assumed office, a poll conducted for the government by Goldfarb Consultants in September 1985 showed that 69% of Ontarians favoured Sunday shopping.
Defenders of the status quo
The law had its defenders. A Progressive Conservative task force conducted in early 1986 found numerous business, labour, and religious groups who opposed widening Sunday shopping on grounds ranging from fears of worker exploitation to preserving a traditional day of rest for families.
As retailers increasingly defied the law, police ignored most violations. Attorney-General Ian Scott feared that those who disobeyed the RBHA were setting a bad precedent that was a slippery slope towards chaos.
“Uncomfortable about threatening its progressive images by resorting to heavy-handed reactionary measures,” Graham White observed in the Canadian Annual Review of Politics and Public Affairs, “the government attempted with limited success to use moral persuasion on the larger retailers while awaiting an imminent court ruling on the constitutionality of the long-standing ban on Sunday shopping”
The opposition pressured the government to protect any workers forced to work illegally on Sundays, only to accuse it of hollow posturing whenever they vowed quick legislative action.
A favourable decision from the Supreme Court
By a 6-1 vote, the Supreme Court of Canada ruled on December 18, 1986 that the RBHA was, despite some infringement on religious freedoms, constitutional. “The infringement is not disproportionate to the legislative objectives. A serious effort has been made to accommodate the freedom of religion of Saturday-observers insofar as that is possible without undue damage to the scope and quality of the pause day objective,” observed Chief Justice Brian Dickson. He felt the act’s intent was to offer uniform holidays for retail workers.
The decision inspired the government to introduce two sets of amendments. The first, to the Employment Standards Act, would reinstate any employees fired for refusing to work on Sundays and offer up to $4,000 compensation. The second, to the RBHA, would make retail store owners or managers liable for criminal prosecution for “counselling” workers to come in on Sundays. Peterson noted he personally didn’t have a strong opinion on the issue and believed the responsible thing to do to sort out the contradictions and inequities of the law was to hold public deputations.
Hence the all-party Select Committee on Retail Store Hours. Chaired by Terrance O’Connor (PC, Oakville), it held public hearings across Ontario in early 1987. Among the deputants was Toronto bookseller Edward Borins, who was “insulted” that corner stores could sell porn while bookstores, unless they had a tourist exemption like he did, were prevented from selling literature. Among those opposed to Sunday shopping, Windsor labour leader Gary Parent argued that workers who refused to work Sundays could be punished by losing hours or being assigned unusual shifts.
The committee’s report, tabled in the legislature on May 21, 1987, recommended that Sunday should remain a common day of pause. The committee unanimously believed that widening Sunday shopping was “inappropriate to the enhancement of family life and recreational pursuits.” Among the suggested exceptions were plant nurseries, flea markers, bookstores, record stores, video stores, photo studios, and commercial art galleries.
Peterson supported the idea of a pause day. “We owe it to the people,” he told the press, “to tell them exactly what the law is and make it enforceable.”
The government backed a private members bill introduced by George Ashe (PC, Durham West) which allowed the Sunday sale of books, newspapers, and periodicals and the opening of all art galleries as long as they were under 2,400 square feet. Bill 188 was proclaimed on June 29, 1987.
The difficulty in enforcing closures
But enforcing the RBHA remained difficult, especially in urban areas. Stores roped off sections to meet floor space restrictions, while some department stores declared themselves drug stores.
On December 1, 1987, Solicitor-General Joan Smith announced that the responsibility for regulating Sunday shopping would shift to municipalities, to better recognize local realities. Smith felt the committee’s recommendations were “unworkable” and that “any tinkering with the law tends to create more unfairness than it eliminates and adds to the degree of uncertainty and confusion that already exists.” She feared that entire municipalities, such as North York, were preparing to declare themselves tourist areas.
Opposition formed on several fronts, with a common theme of the destruction of family time. Among the loudest opponents was furniture retailer Gerrit de Boer, who bought a full-page ad in the Toronto Star in January 1988 that asked Peterson how his family would feel if he spent the entire weekend working in the legislature. Other retailers across Ontario adapted the ad. Union leaders warned of loss of free time, worker exploitation and higher prices. Opponents quickly coalesced around the banner of the Coalition Against Sunday Shopping.
Others doubted that the momentum building towards wider Sunday shopping could be stopped. It’s ridiculous that you can go to the horse races and bet your brains out, but you can’t make a living,” North York Mayor Mel Lastman told the Toronto Star.
The Association of Municipalities of Ontario (AMO) believed Sunday shopping was a provincial, not local, responsibility. Among the few members to disagree was Kingston Mayor John Gerretsen, who believed communities were “mature enough to start making our own decisions about these things”
Let municipalities set the rules
Two bills were introduced to the legislature in April 1988: Bill 113, An Act to Amend the Retail Business Holidays Act; and Bill 114, An Act to Amend the Employment Standards Act. The government believed that shifting responsibility for Sunday shopping to municipalities as a local option would create conditions to better enforce new laws, as not all communities had the same desires and needs. It was felt that these laws would make it easier to, for example, allow a border community to permit Sunday shopping to help retailers bleeding business to the United States.
The opposition, primarily the NDP, stalled the bills by reading hundreds of anti-Sunday shopping petitions and forcing the division bells to ring in the legislature. Negotiations ensued between the parties, which led the NDP to drop two demands: no limitations on debating time for the bill, and no limits on the amount of money and time expended on studying the bills in committee. One NDP request the government agreed to was more public hearings, which occurred over the summer of 1988.
But it wasn’t enough to prevent the opposition from causing mischief when it came to the provincial budget. The NDP initially threatened to stall its presentation in the legislature unless introduction of the Sunday shopping bills was delayed by a week. When they weren’t satisfied by the progress of negotiations, they prevented Minister of Finance Robert Nixon from delivering the budget speech. Instead, Nixon tabled the budget as part of the public record. This move may have backfired, as because the budget became a sessional document instead of a motion, no debate on it was required. Peterson told the Toronto Star that it was “the most irresponsible use of rules I’ve ever seen.”
By the time the bills resurfaced on January 10, 1989, they had been discussed for 58 legislative days among MPPs, committees, and hearings. More opposition stalling ensued, which provoked a government motion for time allocation (one day) for debate followed by forcing a vote on the two bulls. Speaker Hugh Edighoffer approved the time allocation on January 23, which the legislature approved on January 30. NDP leader Bob Rae saw these moves as setting a dangerous precedent and vowed to continue stalling, while other called it heavy-handed.
As the final vote neared, Peterson vowed not to give in to “emotional hysteria.” He told students during a Q&A session at a high school in Picton that the legislation “reflects the size and diversity of our country.”
“To me it makes such good common sense. I don’t understand the kerfuffle.”
Legislature passes amended bills
The amended bills were passed by the legislature by an 82-35 vote on February 8 and were finally proclaimed on February 27.
In its final form, Bill 113:
- Required most stores to close on Sundays and holidays unless they were specifically exempt from the RBHA or a municipal bylaw allowed stores to open on those days.
- Gave municipalities the right to determine Sunday openings, with the provision that a public meeting be held before any related bylaws were passed
- Raised the maximum fine for violating the RBHA to $50,000.
- Indicated the provincial tourism exemption would be phased out within five years, as municipalities decided whether to allow Sunday shopping
- Provided a stronger “Sabbatarian exemption” to protect business owners whose pause day did not fall on Sunday.
As for Bill 114, it:
- Allowed retail workers to refuse to work on Sundays and protected them from employer reprisals.
- Encouraged retail employers to work out arrangements for Sundays that took into account those who did and didn’t want to work that day
- Provided mediation via an employment standards officer. If no agreement was reached, the matter would be referred to an independent referee.
- By 1990, the practice of roping off space to meet space restrictions would not be allowed.
Despite the new legislation, more retailers violated the RBHA. A coalition of major supermarket chains lobbied to open on Sundays. Scott criticized them as “bad corporate citizens” out to blackmail municipalities, warning they would be prosecuted with maximum fines of $50,000. The supermarkets insisted that the province prosecute smaller retails who opened illegally, going as far as sending managers out to find stores who ignored the law. Peel Region sought an injunction against the grocers.
On June 22, 1990, the Supreme Court of Ontario ruled that the revised RBHA was unconstitutional, as it didn’t protect freedom of religion for employees who observed their faith’s day of rest on days other than Sunday. The application from Peel Region was also rejected on the grounds. The Attorney-General’s office appealed.
Retailers and anti-Sunday shopping activists urged the government to create new legislation, to which Peterson responded by saying it was a judicial matter. The following month, the Ontario Court of Appeal refused a government request to allow the law to remain in effect, which led the government to instruct police to stop laying charges.
Sunday shopping was effectively wide open.
No political consensus on supporting Sunday shopping
Going into the 1990 election, the Liberals believed Bill 113 was “a fair and balanced law that responds appropriately to the social, economic and cultural reality of Ontario in the 1990s” while recognizing some flexibility was required to ensure both a day of pause and respect Charter freedoms (“what is good for Niagara Falls might not be good for Kenora”).
The Tories were divided, with new leader Mike Harris supporting full Sunday shopping while some MPPs like Dianne Cunnigham felt it should only be permitted in border towns and tourist areas. Harris suggested that he would pass a law allowing workers to choose which day they took for rest. On the NDP side, Rae claimed Peterson had sold out families and promised to legislate a common pause day, which he felt should be Sunday, with some exemptions for religions that didn’t recognize Sundays. “What we’re trying to do is keep a little area of time when you don’t have to dance to the boss,” he told reporters.
Following the NDP’s victory in the election, Rae, now premier, promised to enact a new law but decided to let the legal appeals play out. New attorney general Howard Hampton viewed regulating Sunday shopping as being “in the interests of working people.”
Though the Ontario Court of Appeal upheld the RBHA in April 1991, the genie was out of the bottle. Further attempts to curb Sunday shopping failed. Finally, on June 3, 1992, the NDP government announced that it would allow retailers to open any day other than stat holidays. Premier Rae indicated a free vote would be held. “The government has an obligation to listen and learn from a changing public attitude,” Rae observed.
In the end, Sunday shopping became a normal part of Ontario’s retail landscape. Many businesses shifted their off day to Mondays or Tuesdays. Today, hardly anyone believes it caused society to unravel.
