Peel (Regional Municipality) v.
Great Atlantic & Pacific Co. of Canada Ltd.
Regional Municipality of Peel v. Great Atlantic & Pacific Co.
of Canada Ltd., Loblaws Supermarkets Ltd., Steinberg Inc.
(c.o.b. Miracle Food Mart) and Oshawa Group Ltd.;
Hudson's Bay Co., Respondent Intervener
 O.J. No. 1073
73 O.R. (2d) 289
71 D.L.R. (4th) 293 at 296
90 CLLC 12205
90 CLLC para. 14,023 at 12205
21 A.C.W.S. (3d) 959
Action No. 2536/89
High Court of Justice
June 22, 1990.
Bryan Finlay, Q.C., and George H. Rust-D'Eye, for the Regional Municipality of Peel.
M.W. Bader, Q.C., Elizabeth C. Goldberg and Hart Schwartz, for the Attorney General of Ontario.
Timothy S.B. Danson and Julian N. Falconer, for the Great Atlantic & Pacific Co. of Canada Ltd.
R.S. Russell and Freya J. Kristjanson, for Loblaws Supermarkets Ltd.
Robert J. Arcand and Sharon M. Addison, for Steinberg Inc.
(c.o.b. Miracle Food Mart).
John B. Laskin, Mary Eberts and Kent E. Thomson, for Oshawa Group Ltd.
F.J. Kovach, D.C. Hodson and Angus T. McKinnon, for Hudson's Bay Co.
1 SOUTHEY J.:-- At issue in these proceedings is the constitutional validity of the Retail Business Holidays Act, R.S.O. 1980, c. 453 (the Act), as amended in February 1989.
2 The Regional Municipality of Peel (Peel) and the Attorney General of Ontario have applied under s. 8 [en. 1989, c. 3, s. 6] of the Act for an order that stores of the respondent supermarkets within Peel close on Sundays in compliance with the Act. The Hudson's Bay Company was granted leave to intervene as added respondent in that application. The respondent supermarkets, the Hudson's Bay Company, and a group of individual employees of one of the supermarkets have brought applications for declarations that most of the sections in the Act are constitutionally invalid. All of the applications were heard together.
3 The stores and the employees claim that sections of the Act prohibiting the carrying on of retail businesses on holidays (including Sundays) infringe the freedom of conscience and religion, the right to liberty, and the equality rights set out in ss. 2(a), 7 and 15 of the Canadian Charter of Rights and Freedoms, and guaranteed in s. 1 thereof.
4 The constitutional validity of the Act before the 1989 amendments was upheld by the Supreme Court of Canada in R. v. Edwards Books & Art Ltd.,  2 S.C.R. 713, 58 O.R. (2d) 442 [digest], 28 C.R.R. 1, 30 C.C.C. (3d) 385, 87 C.L.L.C. Paragraph14,001, 55 C.R. (3d) 193, 35 D.L.R. (4th) 1, 71 N.R. 161, 19 O.A.C. 239 sub nom. R. v. Videoflicks Ltd., and by the Ontario Court of Appeal in R. v. Paul Magder Furs Ltd. (1989), 69 O.R. (2d) 172, 45 C.R.R. 344, 49 C.C.C. (3d) 267, 33 O.A.C. 81 (C.A.) [leave to appeal to S.C.C. refused (1989), 45 C.R.R. 344n]. In the Edwards Books case, Chief Justice Dickson held that the prohibitions against Sunday business abridged the freedom of religion of retailers who observe Saturday as a rest day because of religion, but that the abridgment was justifiable as a reasonable limitation under s. 1 of the Charter. In the Paul Magder Furs case, the Court of Appeal affirmed or restored convictions for offences under the Act of a number of retailers on the ground that any infringement of religious freedom under s. 2(a) or equality rights under s. 15 of the Charter was justified under s. 1 of the Charter. The court agreed with the conclusions reached in the lower courts that new evidence advanced by Mr. Danson, who was also one of the counsel in the case at bar, was not a great deal different from the evidence before the Supreme Court of Canada in Edwards Books. It appears that the new evidence led by Mr. Danson in the Paul Magder Furs case dealt with many of the subjects canvassed in the extensive written and oral evidence placed before me. The Court of Appeal also held in Paul Magder Furs that s. 15 of the Charter did not apply to a corporate accused; expressed some doubts that distinctions involved in commercial regulation constitute discrimination contrary to s. 15(1); and said that the issue with respect to s. 2(a) of the Charter should not have been re-litigated only two years after the decision of the Supreme Court in Edwards Books. The court referred [at p. 358 C.R.R.] to the observation of La Forest J. in Edwards Books [at p. 803 S.C.R., p. 66 C.R.R.] that it is undesirable that an Act be found constitutional today and unconstitutional tomorrow "simply on the basis of the particular evidence of broad social and economic facts that happens to have been presented by counsel".
5 The Retail Business Holidays Act was substantially amended in February 1989, after the offences which gave rise to the Paul Magder Furs case. I do not question that the amendments justify re-litigating the issue of constitutional validity, despite the short period of time that has elapsed since the decision in Paul Magder Furs.
The Act as amended in 1989
6 I shall first describe the Act as it stands after the 1989 amendments.
7 The prohibition section of the Act was amended [S.O. 1989, c. 3, s. 2] in a way that is not relevant to the issues before me. It reads:
2(1) No person carrying on a retail business in a retail business establishment shall,
(a) sell or offer for sale any goods or services therein by retail; or
admit members of the public thereto,
on a holiday.
(2) No person employed by or acting on behalf of a person carrying on a retail business in a retail business establishment shall,
(a) sell or offer for sale any goods or services therein by retail; or
admit members of the public thereto,
on a holiday.
"Holiday" is defined as meaning New Year's Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, December 26, Sunday and any other public holiday declared by proclamation of the Lieutenant Governor to be a holiday for the purposes of the Act.
8 Section 3 [am. 1986, c. 64, s. 62; am 1987, c. 36, s. 1; am. 1989, c. 3, s. 3] continues to list a number of exemptions from the closing requirement. These exemptions include sales made in connection with the provision of meals and accommodation, small convenience stores, small drug stores, small stores selling books, newspapers and periodicals, service stations, vendors of nursery stock or flowers and vendors of fresh fruit and vegetables between April 1 and November 30. The sabbatarian exemption, which formerly was restricted to small stores and stores closed on Saturday, but was not dependent on religious beliefs, and which was the subject of careful examination by the Supreme Court of Canada in Edwards Books, was deleted from s. 3, and replaced in s. 5 [en. 1989, c. 3, s. 4] with a new sabbatarian exemption, quoted below. The new sabbatarian exemption is not restricted to Saturday observers or to small stores, but is dependent on the closing throughout another day of the week having been by reason of the religion of the owner. The other amendments to the exemptions contained in s. 3 are not material to the issues before me.
9 Section 4 [rep. & sub. 1989, c. 3, s. 4] had previously empowered municipalities to exempt classes of retail business establishments, where essential for the maintenance or development of a tourist industry. The tourist industry exemption was replaced in 1989 with a new section granting almost unrestricted powers to municipalities to permit retail business establishments to be open on any holiday, or to require them to be closed on any holiday. The new s. 4 is quoted in full below.
10 The position of lessees was protected by the following new section [en. 1989, c. 3, s. 4]:
5a. A provision in a lease or other agreement that has the effect of requiring a retail business to remain open on a holiday is of no effect even if the lease or agreement was made before the coming into force of this section.
11 The previously existing power of municipalities to regulate the closing times of businesses by by-laws under the Municipal Act, R.S.O. 1980, c. 302, or other statutes was restricted by a new s. 6 [rep. & sub. 1985, c. 3, s. 5], which reads, in part, as follows:
6(1) Subject to subsection (2), a by-law of a municipality passed under any other Act is invalid to the extent that it requires the closing of a retail business establishment on a holiday.
(2) A by-law of a municipality that was in force under this or any other Act immediately before the coming into force of this subsection and that relates to the opening or closing of a retail business establishment on holidays continues in force until the 1st day of January, 1994 or until repealed, whichever occurs first.
12 The maximum penalty for a conviction under the Act was increased from a fine of $10,000 to a fine of $50,000, or an amount equal to gross sales on the holiday on which the contravention occurs.
13 Provision was made in s. 8 for compliance orders as follows:
8(1) Upon the application of counsel for the Attorney General or of a municipality to the Supreme Court, the court may order that a retail business establishment close on a holiday to ensure compliance with this Act or a by-law or regulation under this Act.
(2) An order under subsection (1) is in addition to any other penalty that may be imposed and may be made whether or not proceedings have been commenced in the Provincial Offences Court for a contravention of section 2 or of a by-law or regulation under this Act.
Freedom of conscience and religion
14 The Act, as it stood before the 1989 amendments, was held in Edwards Books to abridge the freedom of religion of Saturday observers who were unable to comply with the employee and square footage limits of the previous sabbatarian exemption. The court held that the infringement occurred because the effect of the Act was to make it more expensive for such Saturday observers to practise their beliefs. The court pointed out that such Saturday observers were obliged to close on two days each week: on Saturday, because of their religious beliefs, and on Sunday, because of the Act. Sunday observers, on the other hand, were obliged to close on Sunday only, because the statutory requirement coincided with their majoritarian religious requirement. Persons observing a day other than Saturday as their rest day were subject under the old Act to the same burdens as Saturday observers who could not comply with the size limits of the former sabbatarian exemption.
15 The obvious purpose of eliminating, in 1989, the employee and square footage requirements and the restriction to Saturday in the sabbatarian exemption was the elimination of the abridgment of religious freedom described in Edwards Books. Ms. Goldberg submitted that the amended Act now contains no abridgment of freedom of religion, so that it is unnecessary to consider the question of justification under s. 1 of the Charter.
16 I am unable to accept that submission for several reasons.
17 First, the new sabbatarian exemption does not alleviate the burden of Sunday closing on non-Sunday observing consumers. The existence of that burden was recognized by Dickson C.J.C. in Edwards Books at p. 766 S.C.R., p. 39 C.R.R.:
Finally, I note that the Act also imposes a burden on Saturday-observing consumers. For single-parent families or two-parent families with both spouses working from Monday to Friday, the weekend is a time to do the things one did not have time to do during the week. The Act does not impair the ability of Sunday observers to go shopping or seek professional services on Saturdays, but it does circumscribe that of the Saturday observer on Sundays. Although there is no evidence before the court of the degree to which shopping variety is restricted on Sundays, I am prepared to assume for the purposes of these appeals that the burden on Saturday-observing consumers is substantial and constitutes an abridgment of their religious freedom.
18 There was evidence of that burden in the record before me.
19 Next, the new sabbatarian exemption removes the burden only from the owner of a business and the persons engaged in the business who have the same religious beliefs as the owner. The exemption now contained in s. 5 of the amended Act reads as follows:
5(1) Despite any other provision of this or any other Act or the by-laws or regulations under this or any other Act, a retail business may be carried on in a retail business establishment on a Sunday if the retail business establishment is always closed to the public throughout another day of the week by reason of the religion of the owner of the retail business.
(2) For the purpose of subsection (1), "religion of the owner" means,
(a) in the case of a sole proprietorship, the religion of the sole proprietor;
(b) in the case of a partnership, the religion named in a written agreement between the partners which is the religion of one of the partners;
(c) in the case of a corporation, the religion named in the by-laws of the corporation.
(3) The exception set out in subsection (1) does not apply to a corporation that is the affiliate of another corporation unless all the retail business establishments in Ontario of the corporation and its affiliates close on the same day.
For the purposes of this section,
(a) a corporation shall be deemed to be affiliated with another corporation if one of them is the subsidiary of the other or both are subsidiaries of the same corporation or each of them is controlled by the same person; and
(b) the affiliates of every corporation shall be deemed to be affiliated with all other corporations with which the corporation is affiliated.
(5) For the purposes of this section, a corporation shall be deemed to be controlled by a person if,
(a) securities of the corporation to which are attached more than 50 per cent of the votes that may be cast to elect directors of the corporation are held other than by way of security only by or for the benefit of that person; and
(b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the corporation.
(6) For the purposes of this section, a corporation shall be deemed to be a subsidiary of another corporation if,
it is controlled by,
that other and one or more corporations each of which is controlled by that other, or
two or more corporations each of which is controlled by that other; or
(b) it is subsidiary within the meaning of clause (a) of a corporation that is that other's subsidiary.
20 It is apparent that the new sabbatarian exemption provides no protection for employees whose religion requires them to observe a day other than one on which their employer's business is required to be closed under the Act. For example, a Jewish employee observing Saturday, who is employed by a corporation that declines to name a religion in its by-laws, would have the opportunity of working on only five days in each week because of the Act, whereas a Christian employee of such corporation could work on six days.
21 These first two reasons were recognized by the British Columbia Court of Appeal in R. v. Canada Safeway Ltd. (1988), 37 B.C.L.R. (2d) 199,  5 W.W.R. 122, in which a Sunday closing Act was held to be constitutionally invalid because it infringed on freedom of religion and could not be justified under s. 1 of the Charter. Seaton J.A., giving the judgment of the court, described [at p. 124 W.W.R.] the reasoning of the Crown in support of the Act based on evidence as to the practice of retailers as "flawed" because "[i]t overlooks customers and employees whose rights as well as the retailers' rights must be considered".
22 Finally, the amendment does not alleviate in any way the burden on non-Christian retailers of being compelled to remain closed on the Christian religious holidays of Christmas Day and Good Friday, as well as on their own holy days. Similar considerations apply to the compulsory closing under the Act on December 26, which is related to the celebration of Christmas, and on New Year's Day, which has counterparts in non-Christian religions on days other than January 1. I am not persuaded that the burden of closing on four additional days each year is trivial or insubstantial.
23 For the foregoing reasons, it is my opinion that the Act as amended in 1989 does infringe on freedom of conscience and religion and is constitutionally invalid unless the infringement can be justified under s. 1 of the Charter.
Justification of infringement of freedom of religion
24 The next question is whether the infringement of freedom of religion contained in the amended Act is a reasonable limit that can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter. The question is to be determined in accordance with the rules stated by Dickson C.J.C. in Edwards Books at p. 768 S.C.R., pp. 40-41 C.R.R.:
It has been held that the onus of proof is on the party seeking the limitation, and the standard of proof is the civil standard, proof by a preponderance of probabilities.
Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.
25 I am quite satisfied that the objective of the amended Act is the secular one of providing retail workers with a pause day in common with others, as was accepted in Edwards Books and Paul Magder Furs.
26 I turn then to consider whether the promotion of that object has been shown to be of sufficient importance to override a constitutional right, and to bear on "a pressing and substantial concern'' in light of the evidence placed before me.
27 The only evidence available to the court in Edwards Books regarding s. 1 of the Charter was the Report on Sunday Observance Legislation of the Ontario Law Reform Commission published in 1970 (Toronto: Department of Justice). It was recognized by the Supreme Court of Canada that more recent evidence would have been preferable. The Crown sought to adduce such evidence at the last minute in that case, including attitudinal surveys or public opinion polls, and various submissions to a provincial task force looking into Sunday closing laws, but the evidence was not received because of the possible prejudicial consequences of admitting it at such a late stage. (Both of those types of evidence were placed before me in the case at bar.) Dickson C.J.C. quoted in Edwards Books from the report of the Commission as to the need for a common pause day, but went on to conclude that the desirability was self-evident. He said, at p. 770 S.C.R., pp. 41-42 C.R.R.:
The opinion of the commissioners in reaching this conclusion was influenced by a number of studies summarized in c. 6 of the report, but in my view it is unnecessary to resort to these studies in order to understand the importance of a common pause day. I regard as self-evident the desirability of enabling parents to have regular days off from work in common with their child's day off from school, and with a day off enjoyed by most other family and community members. I reiterate the view expressed in Big M Drug Mart at p. 110 C.R.R., p. 353 S.C.R.:
"I accept the secular justification for a day of rest in a Canadian context and the reasonableness of a day of rest has been clearly enunciated by the courts in the United States of America."
A family visit to an uncle or a grandmother, the attendance of a parent at a child's sports tournament, a picnic, a swim, or a hike in the park on a summer day, or a family expedition to a zoo, circus, or exhibition -- these, and hundreds of other leisure activities with family and friends are amongst the simplest but most profound joys that any of us can know. The aim of protecting workers, families and communities from a diminution of opportunity to experience the fulfilment offered by these activities, and from the alienation of the individual from his or her closest social bonds, is not one which I regard as unimportant or trivial. In the context of the "fast-growing trend toward wide-scale store openings" (report, p. 267), I am satisfied that the Act is aimed at a pressing and substantial concern. It therefore survives the first part of the inquiry under s. 1.
28 In moving on to consider the rational connection requirement, he considered the fact that the legislation related exclusively to the retail industry and the exemptions within the Act as between different types of retail business. He found both aspects of the legislation to be justifiable. At p. 778 S.C.R., pp. 47-48 C.R.R., he quoted with approval the following passage from the report (pp. 103-04):
The peculiar position of the retail employees deserves comment here because an open commercial Sunday would probably extract the highest toll from these people. It has already been shown that less that 10% of this total group are unionized, and this percentage would be even lower if food store employees were not included. ... The retail work force is distinguished by the fact that the people are older, more likely to be female and more heterogeneous than other labour groups.
. . . . .
The concern, then is mainly for low-skilled, non-union and poorly educated employees whose continued earnings are critical for family support, people who have the least mobility in terms of job alternatives to redress their grievances. Particularly in times of high unemployment, these people are susceptible to economic coercion and would unlikely be in any position to offer effective resistance to Sunday employment dictated by management, even though they were given a "legal choice" as to whether or not they wanted to work Sundays.
29 Dickson C.J.C. rejected as inadequate the protection that would be afforded by giving workers the right to refuse to work on Sunday. He said at p. 773 S.C.R., p. 44 C.R.R.:
But such a scheme would in my view fall far short of achieving the objectives of the Retail Business Holidays Act. It would fail to recognize the subtle coercive pressure which an employer can exert on an employee. The vulnerability of retail employees makes them an improbable group to resist such pressures. A scheme which requires an employee to assert his or her rights before a tribunal in order to obtain a Sunday holiday is an inadequate substitute for the regime selected by the Ontario legislature.
30 Counsel for the respondents based their submissions that I should arrive at a different conclusion in this case regarding the justification under s. 1 of the infringement of freedom of conscience and religion on three new matters:
the extensive new evidence placed before me regarding public opinion and the preferences and lack of vulnerability of retail employees.
the amended sabbatarian exemption; and,
the amended municipal exemption.
1. New evidence
31 A considerable amount of evidence was placed before me. Seventeen binders of affidavits with exhibits and cross- examinations were filed on the applications, and the oral evidence of witnesses called by Mr. Danson occupied the first week of the hearing.
32 The evidence of Martin Goldfarb of Goldfarb Consultants, a well known Toronto-based marketing and behaviour research consulting firm, was that a clear majority of residents of Ontario (54 per cent) are in favour of Sunday shopping. This majority is higher in urban areas (65 per cent in Toronto). The survey was done before the enactment of the 1989 amendments to the Act. I accept as accurate the following opinions expressed in a report prepared by Goldfarb Associates in February 1989:
The survey findings indicate that given the kind of protection that now exists for store workers, support for allowing stores to open on Sunday rises to 66% in Ontario and 75% in Toronto. This data clearly indicates that a large majority of Ontario residents want Sunday shopping, if appropriate legislation is in place to protect workers as the new legislation is designed to do. It also suggests the new legislation is in tune with public opinion in this regard.
Support For Sunday Shopping If The Majority Want It
It is also important to note that there is a significant minority (37%) of Sunday shopping opponents who are prepared to endorse Sunday shopping if the majority of the population wants it.
What this means is that only 26% of the Ontario population would oppose Sunday shopping if the majority of the population wants it. Or, conversely, 69% of Ontario residents either support Sunday shopping outright or would endorse it if the majority wants Sunday shopping. And, as the preceding data indicates, a majority of Ontario residents do want Sunday shopping.
In the case of Toronto, the same analysis indicates that only 20% of Torontonians would oppose Sunday shopping if the majority of the population wants it. Or, conversely, 70% of Toronto residents either support Sunday shopping outright or would endorse it if the majority wants Sunday shopping.
33 I cannot think that such evidence is irrelevant to the question of whether the legislation bears on a pressing and substantial concern, but I note the doubt regarding such evidence that was expressed by the Court of Appeal in Paul Magder Furs at p. 185 O.R., p. 358 C.R.R.:
In any event, we recognize that attitudinal studies may not be a suitable criterion for assessing the justification of a Charter limitation, particularly when the result would have the effect of denying statutory protection to a vulnerable segment of society.
34 It would be convenient for the shopping public in Ontario to have unrestricted Sunday shopping, but the group for whose benefit the legislation was intended was retail workers, not the shopping public. The issue before me, however, is not whether unrestricted Sunday shopping would be a "good thing", or whether it would result in "the greatest happiness of the greatest number". I am concerned with constitutional validity. It is for the Legislature to balance the possible conflict between the interests of shoppers and those of retail workers and, in so doing, to give the weight it considers appropriate to expressions and surveys of public opinion.
35 Notwithstanding the Goldfarb surveys, there was evidence of significant opposition to Sunday shopping. An uncontradicted affidavit from an employee of the Ministry of the Attorney General reported that an overwhelming majority of the approximately 465 submissions to the Standing Committee on Administration of Justice in 1988 with respect to the amendments to the Retail Business Holidays Act and the Employment Standards Act, R.S.O. 1980, c. 137, opposed wide- open Sunday shopping. These submissions were written by individuals, churches, retailers, municipalities, chambers of commerce, citizens groups, business improvement associations and others. Of 117 submissions by retailers and retail associations, 93 opposed open Sunday shopping, five supported Sunday shopping, 17 were unclear and two were missing.
36 During the first day of oral evidence, Mr. Danson called three interesting witnesses. The first was Mr. H. Allan Leal, who was chairman of the Ontario Law Reform Commission in 1970, when the Commission produced its Report on Sunday Observance Legislation that figured so prominently in the decision of the Supreme Court of Canada in Edwards Books. The second was the Honourable Gregory Sorbara, who was Minister of Labour in 1989, when amendments to the Employment Standards Act to protect workers from unreasonable Sunday work were enacted in Bill 114 [Act to Amend the Employment Standards Act, S.O. 1989, c. 4] as a companion to Bill 113 [Act to Amend the Retail Business Holidays Act, S.O. 1989, c. 3], containing the amendments to the Retail Business Holidays Act. The third was the Honourable Joan Smith, Solicitor General in 1989, who was responsible for guiding Bill 113 through the Legislature.
37 The following statistics were put to Mr. Leal by Mr. Danson: that one-third of the retail work force is liable to work on Sunday; that there are 218,400 employees under the One Day's Rest in Seven Act, R.S.O. 1980, c. 326, who are eligible for Sunday work; and that there are approximately 1.6 million workers as a whole in Ontario who are eligible for Sunday work. Mr. Leal surmised that his Commission would have found such figures surprising. It was his opinion that the Commission would have recommended "either to tighten up the legislation to restrict still further the numbers who could be compelled to work, or indeed, give serious consideration to whether the game is worth the candle at that stage". Mr. Leal said he did not feel that the present legislation accomplished in any material way the objective of the common pause day enunciated in the 1970 report. He specifically disagreed with the municipal option, which he described as a carte blanche. I did not take Mr. Leal to mean that the objective of the Act was not a common pause day, but rather that it has not sufficiently achieved that objective. His forthright expressions of opinion on this and other aspects of the matter command respect, but require legislative action to be of much significance to the issue before me.
38 Mr. Sorbara said he was satisfied that Bill 114 achieved its objective of protecting workers against involuntary and unreasonable Sunday work and of providing a mechanism to resolve disputes regarding such work assignments. It is clear, however, that the amendments to the Employment Standards Act do not provide complete protection for workers against unwanted Sunday work, and that the Retail Business Holidays Act is not superfluous for that purpose. The Employment Standards Act provisions protect only against unreasonable Sunday work. Although the employee may make the decision in the first instance as to whether a work assignment is unreasonable, the employee must stand up to his employer in refusing to work. The procedure under the Employment Standards Act may be as unreal in its expectation of effective protection as the suggestions rejected by the Ontario Law Reform Commission in its report in passages approved by Dickson C.J.C. in Edwards Books.
39 Counsel for the stores referred repeatedly to Mrs. Smith's statement in the legislative debates that the Retail Business Holidays Act had been overtaken by the times. She did not back away from that position in the witness box. She explained that changing attitudes towards Sunday work and abuses of such former provisions as the tourist area municipal exemption had led to the 1989 amendments. She made clear her rejection of suggestions that family life, or religious practices would be disastrously affected by a move toward Sunday shopping. But nothing in her testimony raised any question in my mind that the objective of the Act after the 1989 amendments, as had been the case previously, was a common pause day for retail workers.
40 Much of the evidence was directed to the question of whether the comments regarding the greater vulnerability of the retail work force contained in the 1970 report of the Ontario Law Reform Commission, and relied upon by Dickson C.J.C. in Edwards Books, were still valid in 1990. The evidence related to the assertions in the 1970 report that retail workers were older and more likely to be women than other labour groups, and that they were low-skilled, non-union, poorly educated, critically dependent on earnings for family support, least mobile in terms of job alternatives and least capable of expressing themselves to redress their grievances. It appears that these characteristics had led the Ontario Law Reform Commission to conclude that retail employees would be unlikely to be in a position to offer effective resistance to Sunday employment dictated by management, even if given a "legal choice".
41 Mr. Danson led oral evidence from nine retail employees, all female, who had a wide variety of characteristics and family circumstances. All explained why they preferred to work on Sundays; that they did so without any pressure from their employers; and that the opportunity of engaging in such work was important to them. None of them felt the need for a union to protect her interests, and most expressed disagreement, in varying degrees of dismay, at the passage in Edwards Books at p. 778 S.C.R., pp. 47-48 C.R.R., regarding the inferior position of members of the retail work force. Many felt that individual Canadians should each have the right to choose for themselves the days on which they work, and found repugnant the fact that they could be prosecuted for working on Sunday, whereas Sunday shopping was non-culpable for the customers whom they served, and Sunday work was lawful for all other workers.
42 Similar viewpoints were expressed in affidavits, including that of the Executive Vice-President, Merchandising, for the Great Atlantic and Pacific Company of Canada Limited (A. & P.) and Dominion Stores, and of employees of A. & P. chosen to speak on behalf of the employees who are parties to one of the applications before me for a declaration that the Act is constitutionally invalid. Affidavits from employees of A. & P. and the other stores contained statements that employment on Sundays in stores where permitted in Ontario (because of the tourist area exemption) and elsewhere in Canada (because of the absence of any Sunday shopping legislation) was purely voluntary, was preferred by many employees, has had no harmful effects on family life, gives students and other part-time workers the opportunity to earn needed income, is popular with customers, is necessary to enable stores close to the border to compete with stores in the United States, and is no different in its social effect than Sunday employment in other industries which have not been restricted. Many of the affidavits state that there are more persons who want to work in the stores on Sundays than there are positions available.
43 Affidavits were filed by the Attorney General containing conflicting evidence regarding the wishes of retail employees respecting Sunday work, and the effect of Sunday work on family life.
44 I find on the evidence before me that there are many retail employees in Ontario who would like to be able to work on Sunday, and many who do not want to work on Sunday. The members of the former group are in favour of relaxing the laws against Sunday shopping, while many members of the latter group oppose such relaxation. It is obvious that despite the amendments to the Employment Standards Act and the protestations of the store operators that Sunday work would be voluntary that the employees opposed to relaxation of the laws fear that they will be obliged to work on Sunday to maintain their positions with their employers. No attempt was made in the evidence to determine the relative sizes of the groups of employees favouring and opposing relaxation of the Sunday shopping laws. It may be that no such determination could be made with any degree of reliability. But, even if it could have been made, I do not think that it would have been determinative of the issue of justification under s. 1 of the Charter, unless there was an overwhelming majority one way or the other. As mentioned above, the responsibility of balancing the conflicting interests of different groups is that of the Legislature, not the courts. The result probably should not depend solely on the relative sizes of the opposing groups.
45 The evidence as to a number of the conclusions reached in 1970 by the Ontario Law Reform Commission was that the situation remained substantially unchanged in 1989:
1. There is no question that the retail sector remains highly competitive, so that an individual retailer would have little choice but to open on Sundays if his competitors did so;
2. There is still a low rate of unionization among retail workers as compared with the overall rate for all industries; namely, not more than 11.8 per cent as against at least 32 per cent. The unions are opposed to Sunday retailing. I accept the evidence that unionized employees are in a better position to stand up to their employers than are non-union employees.
3. Workers in the retail industry earn substantially less than those in industry generally.
4. Despite evidence of exceptions, such as bakers and meat cutters, and the advantages of retaining dependable employees who relate well to customers, I am satisfied that a large proportion of retail employees are unskilled, or require only easily learned skills, so that they are easily replaceable by their employers.
5. Despite the evidence in the affidavits filed by the stores that Sunday work is entirely voluntary in Western Canada, and at locations in Ontario where now permitted, and the absence of any evidence from an employee of overt coercion, it would be unrealistic, in my opinion, to conclude that employees are no longer subject to subtle coercive pressure from their employers, as stated by Dickson C.J.C. in Edwards Books at p. 773 S.C.R., p. 44 C.R.R. If evidence of such subtle coercion is necessary, it can be found in the affidavits of the union representatives filed by the Attorney General.
46 For the foregoing reasons, I find that the additional evidence does not by itself provide a basis for concluding that the findings of justification under s. 1 of the Charter in Edwards Books and Paul Magder Furs are no longer valid.
The sabbatarian exemption
47 The new sabbatarian exemption quoted above is, in some respects, less restrictive than the one considered in Edwards Books and Paul Magder Furs. It has no limitation based on number of employees or square footage, nor is it limited to establishments that close on Saturdays. On the other hand, it now contains the requirement that the closing on another day must be "by reason of the religion of the owner" and it is this aspect of the exemption that counsel for the stores and employee applicants submitted was fatally objectionable.
48 I accept the submission of Ms. Goldberg that, if the choice of a rest day other than Sunday was left entirely to the discretion of the owners of retail establishments, the pause day would no longer be a common one. The "common" feature is important, and should be relinquished only if required by another important consideration, such as religion.
49 The previous exemption accommodated Saturday observers only, which would have included Jews and Seventh Day Adventists, but was of no benefit to Hindus, Muslims, or groups observing days of the week other than Saturday or Sunday. I am satisfied that the Legislature was doing no more than was necessary to ensure the achievement of its objective, when it imposed the restriction of an actual religious requirement as the price of broadening the sabbatarian exemption to all days of the week, so that all religious minorities could be accommodated.
50 The possibility inherent in the 1989 sabbatarian exemption that the owner of a business may be obliged to declare his religion is an undesirable feature. But it seems clear from the reasons of Dickson C.J.C. in Edwards Books at pp. 779-83 S.C.R., pp. 48-51 C.R.R., that this aspect of the legislation is not of itself sufficient to render it unconstitutional. He concluded at p. 780 S.C.R., p. 49 C.R.R.:
Inquiries which are genuinely designed as a means of giving effect to religious freedoms will not therefore generally be unconstitutional.
In my opinion, the new sabbatarian exemption reflects a reasonable trade-off between different possible schemes, and is not unconstitutional.
51 I was not impressed by the argument of counsel for one of the stores that a Muslim who was required by his religion to spend several hours in prayer in the middle of the day on Friday could not claim the benefit of the amended sabbatarian exemption on Fridays, because his religion did not require him to close his business throughout the entire day. If there is a reasonable connection between the owner's closing of his store and his religion, and he remains closed to the public throughout the day, he is entitled, in my opinion, to claim the benefit of the amended sabbatarian exemption. It is not necessary that the tenets of his religion by their terms require him to be closed for 24 hours of the day.
52 The affidavit of Donald Carr, a senior corporate counsel, was highly critical of the provision in the amended sabbatarian exemption whereby a corporation can name a religion in its by- laws. That provision, in my view, does not indicate any misapprehension that a corporation can, in fact, have a religion. The provision is to enable proprietors of retail businesses that are incorporated, and who are non-Sunday observers, to take advantage of the sabbatarian exemption. It would probably be unnecessary for the directors or shareholders of a corporation with many employees to name a religion in its by-laws in order to protect the rights of non-Sunday observers to work on days other than the one on which their religion requires them to rest. It might not be possible to make such arrangements in the case of a retail business with a small number of employees. I cannot agree with Mr. Carr that it would be a sham for the religion of the principal shareholders of a small corporation to be named in the by-laws in order to obtain the sabbatarian exemption without which the business could not remain open for as many days in the week as if they were Sunday observers.
The municipal option
53 The new municipal exemption is contained in s. 4 of the amended Act, and reads as follows:
4(1) Despite sections 2 and 3, the council of a municipality may by by-law permit retail business establishments to be open on any holiday or may require that retail business establishments be closed on any holiday.
(2) Before passing a by-law under subsection (1), the council of a municipality,
(a) shall hold a public meeting in respect of the proposed by-law;
(b) shall publish notice of the public meeting in a newspaper having general circulation in the municipality at least thirty days before the meeting is to be held; and
(c) shall permit any person who attends the public meeting the opportunity to make representations in respect of the proposed by-law.
(3) The Lieutenant Governor in Council may by regulation, in respect of retail business establishments in territory without municipal organization, exercise the same powers that a council of a municipality may by by-law exercise under sub- section (1).
(4) A by-law or regulation under this section does not apply so as to prevent the sale or offering for sale of goods and services exempted under subsection 3(5) or (7) from the operation of section 2.
(5) A by-law or regulation under this section may be restricted to one or more retail business establishments or to any class or classes of retail business establishment as specified in the by-law or regulation.
A by-law or regulation under this section,
(a) may apply to any part or parts of the municipality or territory;
(b) may limit the opening of retail business establishments on holidays to specific times or to a certain number of hours;
(c) may permit the opening or require the closing of retail business establishments on certain holidays and not on others;
(d) may restrict the opening of retail business establishments on holidays to specific periods of the year or require the closing of retail business establishments on holidays during specific periods of the year;
(e) may classify retail business establishments by size, number of persons employed, character of business, geographic location or any other criteria.
(7) The council may establish a plan setting out the criteria to be considered by it in determining whether a by- law should be passed under subsection (1).
(8) If the council adopts a plan, it shall ensure that the plan is made available to the public by publishing it in a newspaper having general circulation in the municipality.
54 It will be seen that the council of a municipality now has the power to pass by-laws permitting retail business establishments to be open on any holiday, or requiring them to close on any holiday, provided the municipality has held a public meeting, has given public notice in a newspaper, and has permitted any person attending the meeting to make representations in respect of the proposed by-law. A by-law may be restricted to one or more retail business establishments, or to any class or classes of establishment. It may apply to any part or parts of the municipality; may be limited as to times, hours of opening and specific periods of the year. It may classify establishments by size, number of persons employed, character of business, geographic location or any other criteria. The only restriction is that the by-law must not apply to prevent the sale of goods and services exempted under the Act as necessaries or sold under licences from the provincial government.
55 The reason for the new municipal exemption was that the previous one, which was limited by the Act to instances where an exemption from Sunday closing was essential for the maintenance or development of a tourist industry, had been abused. Some councils simply exempted the entire municipality from the prohibitions contained in the Act. Others exempted single stores or areas or classes of stores that had apparently no more connection with tourism than other stores in the same municipality that were not exempted. Some exemptions were said to depend on local politicking. The 1989 amendment eliminated possible hypocrisy in relating exemptions to tourism, but gave an unprincipled power to the municipalities, provided certain procedural requirements were fulfilled.
56 The effect of the new municipal exemption, in my judgment, is that the infringement on freedom of religion of owners, employees and consumers resulting from s. 2 of the Act cannot meet either of the requirements in the rules in Edwards Books for justification under s. 1 of the Charter. As to the first requirement, it is apparent that the Legislature did not regard the objective of a common pause day for retail workers as bearing on a pressing and substantial concern sufficient to warrant overriding a constitutional right, because it gave the municipalities the power to nullify the objective completely. As to the second requirement of proportionality, I can see no careful design or rational connection to the objective in a scheme which leaves it to individual municipalities to determine the criteria to be applied in granting exemptions or requiring closings, or to proceed without establishing any criteria. I agree with Mr. Leal's observation that the municipalities have been given a carte blanche.
Conclusion as to justification
57 For the foregoing reasons, Peel and the Attorney General have not satisfied me, on the balance of probabilities, that the infringement of the freedom of religion of owners, employees and consumers resulting from s. 2 of the Act is justified under s. 1 of the Charter. My decision is based primarily on the municipal option, but derives some support from the new evidence to which I have referred.
Section 7 -- the right to liberty
58 In accordance with the decision of the Supreme Court of Canada in Edwards Books at pp. 785-86 S.C.R., pp. 53-54 C.R.R., I find that the Act does not violate the right to liberty under s. 7 of the Charter.
59 Mr. Russell, on behalf of Loblaw's and Mr. Hodson on behalf of the Hudson's Bay Company both relied on the decision of the British Columbia Court of Appeal in Wilson v. British Columbia (Medical Services Commission); Arnason v. British Columbia (Medical Services Commission) (1988), 41 C.R.R. 276, 30 B.C.L.R. (2d) 1 sub nom. Wilson v. Medical Services Commission of British Columbia, 53 D.L.R. (4th) 171,  2 W.W.R. 1 [leave to appeal to S.C.C. refused (1989), 36 B.C.L.R. (2d) xxxvii, 92 N.R. 400] in which it was held that a statute excluding certain doctors from practising their profession as physicians in British Columbia deprived those doctors of "liberty" within the meaning of s. 7 of the Charter. I do not consider that authority to be of assistance in this case. The complete deprivation of a physician of his right to practise his profession is entirely different, in my opinion, from prohibiting retail businesses to operate on Sunday and their employees from working on Sunday. The distinction was drawn by the British Columbia Court of Appeal in the Wilson case itself at p. 301 C.R.R., p. 193 D.L.R.:
In our opinion, R. v. Quesnel and Edwards Books and Art (sub nom R. v. Videoflicks) ought to be regarded as cases involving the regulation of business. They established the principle that "liberty" in s. 7 is not synonymous with unconstrained freedom and that s. 7 does not extend "to an unconstrained right to transact business whenever one wishes". In our opinion they do not stand for the proposition that government may deprive an individual of the opportunity to pursue freely the practice of his profession.
Section 15 -- equality rights
60 The infringement of the right to [freedom of] religion found above is a result of the Act, not its purpose, and it applies to the minorities who observe days other than Sunday as their rest days for religious reasons. The result of the Act is discrimination against the members of such minorities on the grounds of religion, contrary to s. 15 of the Charter. Such discrimination cannot be justified under s. 1 of the Charter for the reasons given above respecting the infringement of the freedom of religion.
Disposition of the applications
61 For the foregoing reasons, I find that the effect of the Act as amended in 1989 is to infringe on the freedom of religion guaranteed under ss. 1 and 2 of the Charter of natural persons who are owners, employees and consumers, and to violate the equality rights of such persons under s. 15 of the Charter by discriminating against them on the basis of religion.
62 This is not a case in which part of the Act can be saved by severing an offending part. The negative implication of the new municipal option as to the importance of the legislative objective applies to the entire statute. Furthermore, having regard to the comments in the Legislature regarding the Act before the 1989 amendments, it cannot be assumed that the Legislature would have enacted the Act without the municipal option in some form. That being so, it would be wrong, in my judgment, to sever the municipal option contained in the 1989 amendments.
63 Ms. Goldberg acknowledged that it would be impossible to fashion an appropriate judicial constitutional exemption, if I held that there had been a violation of the rights of employees and consumers. I have so held.
64 Accordingly, there will be a declaration in the applications by each of the stores and by the employees of A. & P. that the Retail Business Holidays Act is constitutionally invalid and of no force or effect.
65 The application by Peel for a compliance order under s. 8 of the Act is dismissed, and the undertakings given by the parties at the time the application was adjourned on November 17 last, have now expired.
66 Counsel may speak to me on the question of costs on a date and at a time to be arranged with my secretary.