Report for Action
Results of Consultation on Chapter 510, Holiday Shopping
DATE: October 6, 2017
To: Licensing and Standards Committee
From: Executive Director, Municipal Licensing and Standards and General Manager, Economic Development and Culture Wards:
On April 26, 2017, City Council adopted a report on the Holiday Shopping Bylaw review and directed staff to undertake further public consultations on the impact of expained the application of the prepared meals exemptions in the Holiday Shopping Bylaw to beyond restaurants to explicitly permit other retailers who serve prepared meals to operate on the public holidays.
CHAPTER 510. Holiday Shopping:
requires that retail stores that do not meet the exemption criteria are required to be closed on the following nine public holidays: NewYear’s Day, Family Day, Good Friday, Easter Sunday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day and Christmas Day. Currently exemptions for retail businesses to open on public holidays are based on the type of store and or services offered, restriction on the size of the store and the number of employees, and includes retail establishments selling “goods or services in the form of, or in connection with prepared meals”
The Changing Nature of business practices in Retail:
over time is now challenging the previously accepted convention of types of businesses that meet the prepared meals exemption. This is seen in cases such as the expansion of multi – purpose grocery store items, or pharmacies expanding into the retailing of groceries and meals.
Staff Report for action on Holiday Shopping Bylaw Consultation Results LS22.1
On September 2015, the City Solicitor submitted a report to City Council on a court ruling dealing with city’s Holiday Shopping Bylaw. The City was unsuccessful in prosecuting Longo’s under the Toronto Municipal Code, Chapter 510, Holiday Shopping for operating two locations on a public holiday. The City appealed that decisions, however, the court once again found in Longo’s favour. In both instances, Longo’s successfully argued to the court that they met the exemption provided in the Bylaw for premises “selling goods or services in the form of or in connection with prepared meals”. The City had historically taken the position that this exemption applied solely to restaurants.
This report outlines the feedback regarding the potential impacts of expanding the application of the prepared meals exemption in the Holiday Shopping Bylaw. Feedback was received through public consultation and stake holder meetings with various groups. Stakeholder included business, industry and trade representatives from the Retail Council of Canada, Canadian Federation of Independant Grocers, Ontario Convenience Stores Association and Toronto Association of Business Improvement Areas, (TABIA). Staff Consulted with labour and union representatives including Unifor, Toronto and York Region Labour Council, United Food and Commercial Workers of Canada, and the Workers Action Centre.
Staff Also consulted with the Ontario And Toronto Coalition for Better Child Care:
Various veiwpoints were heard from stakeholders. However, those in attendance at the public consultation were largely against any changes to the ByLaw. Grocery Store Workers identified that if required to work on public holidays they nat not be able to find adequate childcare or reliable public transit because childcare centres are closed and there is a reduced public holiday transit service. Conversely, staff heard that business models continue to change, while the Ctiy’s Holiday Shopping Bylaw has not changed to meet new business realities.
Grocery Store industry representative supported changing the Bylaw to permit them to determine their operating hours to best cater to their respective communities. As directed by City Council, this report summarizes consultation feedback from the public and stakeholders on the impact of expanding the application of the prepared meals exemptions in the Holiday Shopping Bylaw. Expanding the prepared meals exemption would permit retailers beyond restaurants who serve prepared for action on Holiday Shopping Bylaw Consultation Results.
The Executive Director, Municipal Licensing and Standards and the General Manager of Economic Development and Culture recommended that:
City Council direct the Executive Director, Municipal Licensing and Standards in Consultation with General Manager, Economic Development and Culture and the City Solicitor, to expand the prepared meals exemption based on the direction of Council and report back to the Licensing and Standards Committee with recommended amendments to the Holiday Shopping Bylaw.
There are no financial impacts beyond what has already been approved in the current year’s budget. The Acting Chief Financial Officer has reviewed this report and agrees with the financial impact information.
At its meeting of April 26th, 2017, City Council adopted with amendments LS.18.3 Review of Chapter 510, Holiday Shopping- Next steps and directed the Executive Director, Municipal Licensing and Standards and the General Manager application of the prepared meals exemption on the Holiday Shopping Bylaw.
At its meeting of September 30th, 2015, City Council adopted CC9.5 Report on the Recent Court Decision dealing with the City’s standards to conduct a review of Chapter 510, Holiday Shopping and report back to Licensing and standards Committee on options available to address the concerns raised in the court ruling. At its meeting of November 27, 2012, city Council received for information ED18.6.
Holiday Shopping, a report from the General Manager, Economic Development and Culture to City Council with proposed recommendations the the By-Law following extensive consultation on Chapter 510, Holiday Shopping.
At its meeting of May 11, 2010, City Council referred ED. 29.4 Holiday Shopping, a report by the General Manager, Economic Development and Culture for further consultation.
At its meeting of December 6, 2006, City Council passed Bylaw 8-2007 (now Chapter 510 of the City of Toronto Municipal code) under the authority of the City of Toronto Act, 2006, S.O. 2006, C. 11
At its meeting of November 24th, 2006, City Council adopted Regulation of Holiday Shopping upon proclamation of the City Solicitor to introduce a bill regulating holiday shopping and directed the General Manager of Economic Development and Culture to undertake a consultative process and to report back on policy options on the regulation of holiday shopping.
Chapter 510, Holiday Shopping prior to 2006, the Retail Business Holidays Act (RBHA) a provincial legislation, regulated holiday shopping in Toronto. Through the enactment of the City of Toronto Act. (COTA) the City was given the authority to enact int own Holiday Shopping Bylaw. On December 6, 2006, the City enacted a Holiday Shopping bylaw, Chapter 510. The new Bylaw copied the regulations found in the RBHA. Under municipal code Chapter 510, Holiday Shopping, retail stores that do not meet the exemption criteria are required to be closed on the following nine holidays: New Year’s Day, Family Day, Good Friday, Easter Sunday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, and Christmas Day. Currently exemptions for retail businesses to open on the above noted holidays is based on type of store and /or services offered, restrictions on the size of the store and the number of employees, and includes retail establishments selling “goods or services in the form of or in connection with prepared meals”. Restaurants have always been exempted from the Holiday Shopping ByLaw through this “prepared meals” exemption in line with the provisions of COTA. Other exempted premises include retail businesses with less than 2400 square feet and no more than three persons serving the public and business selling tobacco, foodstuff or fresh fruit, magazines, books, antiques or art, laundromats nurseries, gas stations and businesses that repair boats of vehicles are also permitted to open. Business licensed under the Liquor License Act may also open, as well as pharmacies less thatn 7500 square feet and accredited under the Drug and Pharmacies Regulation Act.
The Holiday Shopping bylaw also includes “Tourist Area exemptions “, which were enacted prior to 2006 under the Provincial
RBHA. These exemptions were granted for businesses that are within a defined area and who met the RBHA tourism criteria and include; Queens Quay West, Toronto Eaton Centre and the Hudson’s Bay, Downtown Yonge Street Business Improvement Area, Bloor -Yorkville Business Improvement Area, and Distillery Historic District. There have been no additions to this list since the Bylaw was enacted. Staff report for action on Holiday Shopping Bylaw Consultation
Challenge to “Prepared Meals” Exemption Criteria The City Solicitor prepared a report for Council at its meeting on September 30, 2015 headed ” Recent Court Decision Dealing with the City’s Holiday Shopping Bylaw “. The report outlined a recent appeal decision of the Ontario Court of Justice regarding the exemption provisions found in the Municipal Code, Chapter 510, Holiday Shopping. The City lost an appeal of the trial judge’s ruling, dismissing charges against Longo’s. On September 2, 2013, Longo’s was charged with two counts of offering goods or services for sale on a holiday. It was charged under the Municipal Code, Chapter 510, s.2
Longo’s did not dispute that two of their locations were retail establishments open on Labour Day, a designated holiday. It argued that the establishments were permitted to remain open for business on a designated holiday because they satisfied the exemption provided in the Bylaw for premises “selling goods or services in the form of or in connection with prepared meals”.
The evidence of the case established that several hundred prepared meals options were available for sale (such as sushi, pizza, salad bar, sandwiches, ready-to-serve meat, seafood, and one location had a full service restaurant). However, evidence also indicated that non- food items were made available for sale, such as lottery tickets, magazines, flowers, detergent, and light bulbs.
The Justice of the Peace interpreted the meaning of the exemption for premises selling “goods or services in the form of or in connection with … prepared meals” contained in section 4. In doing so, the court concluded that the exemption extended to a range of establishments that offer prepared meals and “connected goods or services”. The City appealed the decision to the Ontario Court of Justice and argued that the court should give a broad and purposive interpretation, consistent with the purpose of the Bylaw.
The court dismissed the City’s appeal citing the ambiguity in the exemption City of Toronto Act and the “Prepared Meals” Exemption Section 97 of the COTA, prevents the City from regulating the operating hours, including the closing times, of business establishments involved in the selling or provision of “goods or services in the form of or in connection with prepared meals or living accommodations”. This exemption historically had been interpreted to mean only restaurants and hotels were permitted to operate on public holidays.
No definition of “prepared meals” exists in the COTA or the RBHA . Changing business practices in retail over time are now challenging the convention of what types of businesses may be the purveyors of prepared meals. This change has been seen with the expansion of multi-purpose grocery stores with extensive prepared meals for sale alongside other more traditional grocery store items. Further, pharmacies are now moving towards a similar model and providing items that could be considered prepared meals. This is presenting challenges on how to interpret what retailers fall within the prepared meals exemption.
Staff report for action on Holiday Shopping Bylaw Consultation
Regulatory Approaches in Other Jurisdictions Staff conducted research into other jurisdictions on the question of “prepared meals” exemption and found that most holiday shopping in Canada is regulated by provincial and territorial governments. Regulations vary across the country, with no restrictions on retail business hours on holidays in Saskatchewan, Alberta, British Columbia, Yukon, Northwest Territories, and Nunavut. All types of retail businesses in these jurisdictions are permitted to operate on public holidays. Retail businesses are required to be closed on public holidays in Central and Eastern Canada. This includes Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador.
Exemptions are provided in these provinces based on the type of business, the number of employees, or the size of the business.
Exemptions are also provided for sellers of groceries and prepared meals in Nova Scotia, Prince Edward Island, New Brunswick, Manitoba, and Quebec.However, there are limitations on the number of employees working and maximum retail size of business permitted.
In Ontario, the RBH currently permits fifteen categories of retail business to remain open on holidays including: small pharmacies, smaller stores, stores of convenience, and art galleries. In addition, the RBHA exempts “goods or services sold or offered for sale by retail in the form of or in connection with, prepared meals”.
As of January 1, pm 2017 the RBHA enables Ontario municipalities to pass their own Bylaws governing retail business hours on public holidays. Municipalities within the Greater Toronto Area , such as Mississauga, have approved exemptions for some larger specialty grocery stores, under the RBHA tourist exemption provision. Worker’s protections under the Employment Standards Act Retail business workers have protections under the Employment and Standards Act, 2000 ( ESA), which is a provincial statute that provides the minimum standards for most employees working in Ontario. It sets out the rights and responsibilities of employees and employers in most Ontario workplaces. The ESA covers a wide range of employment standards including: minimum requirements for employment; public holidays; minimum wage, pay; hours of work; and mechanisms for compliance, and enforcement.
The ESA prescribes employee’s rights to public holidays and public holiday pay. Most employees of a retail business have the right to refuse to work on a public holiday even if the employee does not qualify for the public holiday. The City of Toronto does not have a role in investigating or enforcing potential breaches of the ESA.
Transformation of Grocery and Supermarket Sector Grocery and supermarket industry is an important economic sector for the City. According to the 2016 Toronto Employment Survey (TES), over 400 grocery stores are located in Toronto and they employed close to 25,000 people. The Holiday Shopping Bylaw impacts almost 136,000 employees or approximately 41% of all retail jobs.
Grocery store workers represent 18% of workers impacted by the Bylaw. Staff report for action on Holiday Shopping Bylaw Consultation