Grocers fight to stay open Labour Day

Independent grocers say a recent court ruling gives them the right to stay open on statutory holidays in Toronto.

Thestar.com
Aug. 27, 2015
By Dana Flavelle

Independent grocery retailers in Toronto say a court ruling gives them the right to stay open for business on statutory holidays, such as Labour Day, which falls on Sept. 7 this year.

But they want assurances the city will stop issuing tickets that carry maximum fines of up to $50,000 against stores that choose to open for business.

“The way we’re reading (the ruling), any food retailer/supermarket in Toronto can be open on a statutory holiday,” Gary Sands, vice-president of the Canadian Federation of Independent Grocers, said of a recent decision.

In October, the Ontario Court of Justice ruled that Longo Brothers Fruit Markets Inc., one of the city’s largest independent food retailers, had successfully argued it met the definition of a business that sells “prepared food” and was therefore exempt from the requirement to close.

The city disagreed, saying the exemption was meant to apply only to restaurants and fast-food outlets. The city appealed the court’s decision, but lost is appeal in June.

The ruling could force city council to reopen the controversial debate about what should be opened or closed under its Holiday Shopping Bylaw, Sands said.

“We are hoping to use the court decision to push the city into changing this bylaw to make it more reflective of retail realities,” he said.

At the very least, the city needs to clarify the wording of the bylaw, said David Wilkes, senior vice-president of the Retail Council of Canada.

“It’s our belief the bylaw needs to change not only to reflect and honour the court ruling, but reflect the changes that have happened in the marketplace,” Wilkes said, noting many grocers now sell prepared foods.

A growing issue is the fact that online shopping is available at all hours, Wilkes noted. “You can wake up Christmas morning and if you’re disappointed in what you got, you can go online,” he said, adding that is part of a larger discussion.

City staff is considering “the appropriate next steps in light of the court’s finding, which may include a report to city council,” Tracey Cook, executive director, municipal licensing and standards, wrote in an email response to the Star.

In the meantime, the city plans to continue enforcing the bylaw on a “case by case” basis, Cook added. Businesses should seek independent legal advice on whether the recent court ruling applies to them, she said.

Previous efforts by retailers to loosen the restrictions on holiday shopping have met with stiff opposition from organized labour, which argues that working families need time off together.

Toronto’s holiday shopping bylaw requires most businesses to close on nine holidays, including Christmas Day, Easter Sunday, Canada Day and Victoria Day.

Several kinds of stores, and also business districts, are exempt. But many more retailers want to stay open, citing changing demographics, family lifestyles and competitive pressures. And some have done so in the past despite the threat of a fine.

Longo Brothers was charged on Labour Day, 2013, with violating the bylaw by allowing two of its downtown stores to remain open.

At trial, the family-run chain noted the bylaw exempts businesses that sell “prepared meals” and any products or services in connection with prepared meals and also businesses that are licensed to sell liquor.

Longo’s showed that both of its ticketed stores, at Maple Leaf Square and on Elizabeth St., carry prepared foods such as sushi, salads, and rotisserie chickens. As well, the store at Maple Leaf Square, next to the Air Canada Centre, includes a licensed sit-down restaurant, called Cork’s, a Yogurty’s and a Starbucks.

Longo’s also argued the bylaw definition of businesses that sell prepared foods contained no limits on the size, number of employees, or what other products the business offers.

The Ontario Court of Justice sided with Longo’s.

“There is no specific mention of the term “restaurant” in the exemption that applies to the sale of prepared foods. Therefore, the court cannot accept the prosecution position that the city of Toronto intended to permit only restaurants to be open on the defined holidays,” Justice Sheine M. Mankovsky wrote in her decision, released in October.

Longo’s was among several Toronto businesses, including furrier Paul Magder, which previously waged a prolonged battle with the province to permit stores to open for business on Sundays.

The provincial government under then Premier Bob Rae finally agreed to lift the Sunday shopping ban in 1992.

The province granted control of holiday shopping to the City of Toronto in 2006. Toronto city council passed a bylaw that mirrors the provincial rules as an interim measure while it consulted on a permanent bylaw.

What can stay open on stat holidays?

According to Toronto holiday shopping bylaws:

Your corner store: Small retailers under 2,400 square feet, with no more than three employees serving the public, and that sell food, tobacco, antiques, handicrafts, fresh fruit and vegetables, books, magazines or newspapers, and sundries.

Size matters: Drug stores up to 7,500 square feet that sell prescription drugs, cosmetics and sundries. And art galleries up to 2,400 square feet.

Life’s necessities: Gas stations, nurseries, laundromats and premises with liquor licences.

Specific exceptions: Premises in the education, recreation or amusement business that also sell related retail items. And premises that sell items related to prepared meals, or related to accommodation.

Ahoy: Vehicle or boat rentals, servicing or repairing vehicles or boats.

The right neighbourhood: Retailers located in the five designated tourist areas: The Eaton Center and Hudson’s Bay Co.; Queens Quay W.; Bloor-Yorkville Business Improvement Area; Distillery Historic District; and Downtown Yonge Business Improvement Area.