Businesses and shoppers in York Region may rejoice, but retail workers maybe not so much. On November 16, 2017 the Regional Municipality of York passed the controversial Holiday Shopping Bylaw (“Bylaw”), which permits retail businesses in York Region to remain open on public holidays. The Bylaw will be effective as of January 1, 2018.
The Bylaw establishes that the Retail Business Holidays Act (“RBHA”) does not apply to retail businesses in the York Region. The RBHA sets out the public holidays on which retail business must remain closed to the public. By stating that the RBHA does not apply, the Bylaw is allowing retails businesses in the region to remain open to the public on those holidays.
The Bylaw does, however, outline a one day exemption; retail businesses must still remain closed to the public on Christmas Day. The Bylaw also provides for fines upon conviction for persons who contravene (or coerces, requires, or counsel a person to contravene) the requirement to be closed on Christmas Day.
There are also exemptions for certain retail businesses to the requirement to stay closed on Christmas Day for:
- Small stores – If the retail business does not have more than 3 people serving the public, has a square footage of less than 2,400, and sell mainly foodstuffs, tobacco, antiques, or handicrafts;
- Necessary Services – If the goods or services are prepared meals, living accommodations, laundromats, vehicle or boat rentals, or vehicle or boat repair;
- Special services – Retail businesses that sell gas or motor oil for vehicles, and other vehicle-related goods, nurseries and gardening supplies, or books, magazines, or periodicals when there is a staff of no more than 3 people and the square footage of the store is less than 2,400;
- Liquor stores;
- Art galleries – Where there is a staff of no more than 3 people and the square footage of the store is less than 2,400;
- Tourist establishments or attractions; and,
- Businesses that are open to the public for education, recreation, and amusement purposes.
The Bylaw notes that Part XVII of the Employment Standards Act, 2000 (“ESA”) applies to all retail businesses in the York Region. Under Part XVII, the ESA states that an employee has the right to refuse work on a public holiday. Further, if the employee agrees to work on the public holiday, and then changes his or her mind, he or she must give the employer at least 48 hours’ notice that he or she intends to decline working that public holiday.
An unfortunate consequence of the Bylaw is that employees who exercise their right to refuse work on a public holiday may be pressured into doing so and experience reprisal by businesses if they do not. Whether reprisal by businesses will lead to employees being wrongfully terminated and wrongful dismissal cases, only time will tell.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
Sign up for our e-Newsletter for the latest updates and case studies in employment law.