Her Majesty the Queen v. Hy and Zel's Incorporated et al.; Neath, on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, Intervenor [Indexed as: R. v. Hy and Zel's Inc.]
77 O.R. (3d) 656
[2005] O.J. No. 3788
Docket: C39374
Court of Appeal for Ontario,
Rosenberg, Moldaver and Goudge JJ.A.
September 13, 2005
*Application for leave to appeal to the Supreme Court of Canada was dismissed without costs March 30, 2006 (LeBel, Fish and Abella).
Charter of Rights and Freedoms -- Freedom of conscience and religion -- Holiday closing -- Retail Business Holidays Act not infringing freedom of religion -- Canadian Charter of Rights and Freedoms, s. 2(a) -- Retail Business Holidays Act, R.S.O. 1990, c. R.30.
Charter of Rights and Freedoms -- Equality rights -- Retail Business Holidays Act not discriminating against retail employees contrary to s. 15 of Charter -- Canadian Charter of Rights and Freedoms, s. 15 -- Retail Business Holidays Act, R.S.O. 1990, c. R.30.
Twenty-five retail employees were charged with working in a retail business establishment on a holiday contrary to s. 2 of the Retail Business Holidays Act, and three corporate retailers were charged with carrying on a retail business on a holiday contrary to s. 2 of the Act. The trial judge found that the Act violated the Canadian Charter of Rights and Freedoms and could not be saved under s. 1 of the Charter. The charges were stayed. On appeal by the Crown, the appeal judge concluded that binding authority required him to uphold the constitutionality of the Act. He allowed the appeal and found the defendants guilty. The defendants appealed.
Held, the appeal should be dismissed.
The Act does not violate s. 2(a) of the Charter. The purpose of the Act is the secular one of providing common pause days for retail employees. The Sabbatarian exemption does not infringe religious freedom by requiring a declaration of one's religion either by word or by deed. The fact that there are eight holidays for which no Sabbatarian exemption is available does not significantly impede the religious observance of retailers, employees and consumers of minority faiths because they are pressured to treat their own religious holidays as business days to make up for the eight days when they are unable to sell, work or shop because of the legislation. There was nothing in the record to indicate that any consumers feel significantly constrained in practising their religion because of the prohibition on retail shopping on those eight days. Nor did any employees or retailers testify that the Act interferes with their ability to pursue their religious beliefs or practices. On the contrary, the retailers' stated desire was not to close on their own religious holidays but to keep their stores open 365 days of the year. The defendants failed to demonstrate that the Act infringes religious freedom in any way.
The Act does not infringe the guarantee of equality in s. 15 of the Charter. The defendants claimed that retail employees who are prohibited from working on the designated holidays should be compared either to their colleagues working in pharmacies and food stores who can work on those days because of the exemptions in the legislation, or to employees in the service sector as a whole, or to the workforce at large. However, any differential treatment accorded to the defendants by the Act was not based on any enumerated or analogous ground of discrimination. Rather, it was based on where the defendants work, which in the context of this case was something far removed from the kind of immutable, or constructively immutable, personal characteristic that engages scrutiny under s. 15 of the Charter. The Act does not impose differential treatment on the basis of the enumerated grounds of age and sex and the analogous ground of education level. Rather, the Act is an attempt to alleviate one of the pressures associated with the unique dynamics of the retail sector itself. Retail workers remain some of the lowest-paid employees in the workforce. They have far lower rates of unionization, and are far more likely to work part-time. These challenges are not due to the age, sex or education level of retail employees, but rather are attributable to the economic characteristics of the retail sector in general. The Act does not exacerbate a disadvantage based on a prohibited ground. Rather, it seeks to remedy a disadvantage arising from economic circumstances of retail sector employees by according them a common pause day.
APPEAL from the conviction by McCombs J. of the Superior Court of Justice, dated November 30, 2000, allowing an appeal from a decision staying charges under Retail Business Holidays Act, R.S.O. 1990, c. R.30, and from the sentence imposed by McCombs J., [2000] O. J. No. 4522, 194 D.L.R. (4th) 375 (S.C.J.).
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1991), [2 O.R. (3d) 65, [1991] O.J. No. 378, 44 O.A.C. 179, 78 D.L.R. (4th) 333, 5 C.R.R. (2d) 204, 91 C.L.L.C. 14,013, 4 M.P.L.R. (2d) 113 (C.A.) [Leave to appeal to S.C.C. discontinued (1992), 11 C.R.R. (2d) 383n]; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, [1986] S.C.J. No. 70, 19 O.A.C. 239, 35 D.L.R. (4th) 1, 71 N.R. 161, 28 C.R.R. 1, 30 C.C.C. (3d) 385, 87 C.L.L.C. 14,001, 55 C.R. (3d) 193 (sub nom. R. v. Longo Brothers Fruit Markets Ltd., Magder v. R., R. v. Videoflicks, R. v. Videoflicks Ltd.); R. v. Paul Magder Furs Ltd. (1989), [69 O.R. (2d) 172, [1989] O.J. No. 531, 33 O.A.C. 81, 45 C.R.R. 344, 49 C.C.C. (3d) 267 (C.A.) (sub nom. R. v. Magder (Paul) Furs Ltd.), apld Other cases referred to Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, [1999] S.C.J. No. 43, 176 D.L.R. (4th) 513, 244 N.R. 33, 66 C.R.R. (2d) 14, 99 C.L.L.C. para. 220-066 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 2(a), 15 Retail Business Holidays Act, R.S.O. 1990, c. R.30 Retail Business Holidays Amendment Act, 1989, S.O. 1989, c. 3, s. 5(2) Retail Business Holidays Amendment Act (Sunday Shopping), 1993, S.O. 1993, c. 14, s. 2 The Retail Business Holidays Act, 1975, S.O. 1975 (2nd Sess.), c. 9
Timothy S.B. Danson, for appellants Hy and Zel's Incorporated et al. Eric Siebenmorgen, for respondent. Fay C. Faraday, for intervenor.
The judgment of the court was delivered by
[1] GOUDGE J.A.:-- In 1975, Ontario enacted The Retail Business Holidays Act, 1975, S.O. 1975 (2nd Sess.), c. 9 (the "1975 Act") to regulate retail shopping on Sundays and other holidays. In 1989, it amended the Act (the "1989 Act") to loosen a number of the regulatory constraints on holiday retail shopping. In 1993, it again amended the Act (the "1993 Act") to further relax the constraints and to essentially open up Sunday retail shopping in Ontario.
[2] Representatives of the retail industry have mounted constitutional challenges to each iteration of the Act. The first two failed. For the reasons that follow, I conclude that this challenge to the latest iteration, the 1993 Act, also fails.
Judicial and Legislative History
[3] The current challenge arises in the context of charges laid against the appellants. Twenty-five of the appellants are retail employees who were charged with working in a retail business establishment on a holiday contrary to s. 2 of the 1993 Act. The other appellants are corporate retailers, two drug store companies (known as Hy & Zel's and Herbies) and one food convenience company (known as The Kitchen Table). They were charged with carrying on a retail business on a holiday contrary to s. 2 of the 1993 Act.
[4] By agreement, the charges were consolidated and tried together. At trial, the appellants conceded that the retail businesses were open on the dates alleged, and that the employees charged were working in them. The only issue was the constitutional validity of the 1993 Act. The appellants conceded that if their constitutional challenge failed, they must be found guilty.
[5] In the Ontario Court of Justice the trial judge found, essentially without elaboration, that the 1993 Act contravened the Canadian Charter of Rights and Freedoms and could not be saved pursuant to s. 1 of the Charter. He therefore stayed the charges.
[6] On appeal to the Ontario Superior Court of Justice, McCombs J. concluded that binding authority required him to uphold the constitutionality of the 1993 Act. He therefore allowed the appeal and found the appellants guilty as charged. He sentenced the corporate appellants to modest fines and suspended the sentences of the individual appellants.
[7] This court granted leave to appeal the question of whether the 1993 Act infringes s. 2(a) or s. 15 of the Charter and, if so, whether it can be saved pursuant to s. 1. Leave to appeal sentence was denied.
[8] The arguments of the appellants must be assessed in the context of the Retail Business Holidays Act, the various amendments to it over the last 30 years, and the jurisprudence that has confirmed its constitutionality over the course of that evolution.
The 1975 Act
[9] As enacted in 1975, the Act established Sundays and a number of other days as holidays on which retail business could not be conducted, and created an offence for doing so. The 1975 Act included a "Sabbatarian exemption" permitting retail businesses that closed on Saturday to be opened on Sunday, provided that no more than seven employees were working and no more than 5,000 square feet was used. It also permitted a pharmacy to be open on a holiday, provided that no more than four persons were serving the public at any time.
[10] In R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, [1986] S.C.J. No. 70, the Supreme Court of Canada considered a challenge to the 1975 Act based on the alleged violation of the freedom of religion guaranteed by s. 2(a) of the Charter. It concluded that the legislation was constitutionally valid. The court found that while the 1975 Act infringed the religious freedom of large retailers who closed on Saturdays for religious reasons and whose businesses were too large to allow them to take advantage of the Sabbatarian exemption, this limit was justified under s. 1 of the Charter.
[11] In R. v. Paul Magder Furs, (1989), [69 O.R. (2d) 172, [1989] O.J. No. 531 (C.A.), this court dismissed a challenge to the 1975 Act based on s. 15 of the Charter, finding that the infringement of s. 15 (which was conceded by the Crown) was justified under s. 1. Leave to appeal from this decision was refused by the Supreme Court of Canada.
The 1989 Act
[12] In 1989, the 1975 Act was amended in two ways germane to this chronology. First, the Sabbatarian exemption was varied to permit a retail business to open on a Sunday if it closed on another day of that week because of the religion of the owner regardless of size or number of employees. Section 5(2) set out how the "religion of the owner" would be established. In the case of a sole proprietorship, it was the religion of the sole proprietor. In the case of a partnership, it was the religion named in a written agreement between the partners that was the religion of one of the partners. In the case of a corporation, it was the religion named in the by-laws of the corporation.
[13] Second, the pharmacy exemption was revised by removing the four-employee limitation and substituting a requirement that no more than 7,500 square feet could be used to serve the public on a holiday.
[14] In Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1991), [2 O.R. (3d) 65, [1991] O.J. No. 378 (C.A.), a five-judge panel of this court concluded that the 1989 Act did not violate the freedom of religion guaranteed by s. 2(a) of the Charter or the right of equality guaranteed by s. 15 and, if any Charter right was infringed, the limitation was justified pursuant to s. 1. While the Supreme Court of Canada granted leave to appeal on both issues, it ultimately dismissed the appeal without deciding the merits, because it found that the appellants lacked standing to raise them.
The 1993 Act
[15] In 1993, the Act was amended to permit retailers to open on all Sundays except Easter Sunday. This reduced the number of defined holidays from the 60 (52 Sundays plus eight additional holidays) to nine (Easter Sunday and the same additional eight holidays). Thus at the time of trial in this matter, the list of holidays specified in s. 1 of the Act was as follows:
- New Year's Day
- Good Friday
- Victoria Day
- Canada Day
- Labour Day
- Thanksgiving Day
- Christmas Day
- the 26th day of December
- Easter Sunday
[16] The removal in 1993 of 51 Sundays from the definition of "holiday" in the Act was the only change made to the 1989 Act that had been considered by this court in Peel. In particular, the revised Sabbatarian and pharmacy exemptions were unchanged. The prohibition section, s. 2, remained the same and reads as follows:
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
(b) 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
(b) admit members to the public thereto, on a holiday.
[17] Though not relevant to this appeal, the Act was again amended in December 1996, after the trial in this matter, to remove Boxing Day from the list of designated holidays upon which retail business is restricted.
Analysis
[18] The appellants challenge the constitutionality of the 1993 Act, arguing that it infringes the freedom of religion guaranteed by s. 2(a) of the Charter and the right of equality guaranteed by s. 15 and that these violations cannot be saved under s. 1. I will deal with each of these issues in turn.
Freedom of religion -- Section 2(a)
[19] In order for the appellants to establish an infringement of s. 2(a) they must show that the 1993 Act burdens the exercise of religious beliefs or practices in a way that is more than trivial or insubstantial, and that it does so purposely or through its effect: see Edwards Books, supra, at pp. 757-59 S.C.R.
[20] The appellants' first submission is that the purpose of the 1993 Act must now clearly be seen as religious. They acknowledge that in Edwards Books the Supreme Court of Canada rejected the argument that the 1975 Act had a religious purpose, namely, the promotion of the Christian faith. In coming to this conclusion, that court considered the title and text of the legislation, the legislative debates, the underlying Ontario Law Reform Commission Report, the inclusion of a number of clearly secular holidays among the prohibited days and the various exemptions provided. All of these considerations continue to be relevant to the 1993 Act.
[21] However, the appellants argue that the court in Edwards Books found the secular purpose to be the provision of a weekly common pause day for retailers, and that since Sundays have now been removed from the list of defined holidays, this purpose must have changed. They say that if the purpose of the legislation is no longer to provide a weekly common pause day, the only remaining possibility is that the legislation has the religious purpose of promoting Christian observance, particularly of Christmas, Good Friday and Easter Sunday.
[22] I do not agree. While the court in Edwards Books does refer from time to time to "weekly" common pause days, that simply reflects the fact that the 1975 Act included Sundays as holidays. The court's fundamental finding, referred to in explicit terms on a number of occasions, was that the purpose of the 1975 Act was simply to provide common pause days to retail workers. The court found this to be a clearly secular purpose. Dickson C.J.C. summed this up at p. 744 S.C.R. of his reasons:
I agree with Tarnopolsky J.A. that the Retail Business Holidays Act was enacted with the intent of providing uniform holidays to retail workers. I am unable to conclude that the Act was a surreptitious attempt to encourage religious worship.
[23] In my view, the secular purpose of providing common pause days for retail employees remains the purpose of the 1993 Act. I cannot see how the removal of 51 Sundays from the Act could transform the purpose from a secular one into a covert attempt to prefer Christian religious observance. The continuing inclusion of Christmas, Good Friday and Easter Sunday in the list of defined holidays does not alter this conclusion now, any more than it did for the 1975 Act.
[24] The appellants' second submission is that the revised Sabbatarian exemption infringes religious freedom by requiring a declaration of one's religion either by word (for example in a partnership agreement or corporate by-law) or by deed (for example by closing on another day because of the religion of the sole proprietor).
[25] Again I disagree. The court in Peel upheld this very exemption. At that time, the Sabbatarian exemption applied to all 52 Sundays, and yet it was found not to represent a significant burden on religious freedom. That is surely even truer now when it is applicable to only one day of the year, Easter Sunday. Speaking for the five-judge court in Peel, Dubin C.J.O. put the point this way at p. 77 O.R.:
In my opinion, it can hardly be said that the religious freedom of a retailer, who seeks to take the benefit of a provision of an Act expressly designed to accommodate such retailer for his or her religious beliefs, is significantly infringed if that retailer is required, if called upon, to state why he or she is entitled to the exemption.
[26] The appellants' final submission concerning freedom of religion addresses the impact of the eight holidays for which no Sabbatarian exemption is available. The appellants say that the requirement that retail businesses be closed on these holidays significantly impedes the religious observance of retailers, employees and consumers of minority faiths because they are pressured to treat their own religious holidays as business days to make up for the eight days they are unable to sell, work or shop because of the legislation.
[27] Again, the court in Peel answered this argument. The same holidays were at issue in that case, along with the additional 51 Sundays. In assessing whether forced closing on these holidays created any significant pressure on retailers, employees or consumers to alter their religious observance, the court carefully considered the record and concluded that it did not. Dubin C.J.O. summed up this conclusion at p. 84 O.R.:
Again, as was the case with retailers and consumers, there was no evidence from any employees that the impact of the Act was to increase their cost of practising their religious beliefs, or that they were under any pressure by reason of the Act to forgo their religious practice.
[28] Similarly, there is nothing in the record of this case to indicate that any consumers feel significantly constrained in practising their religion because of the prohibition on retail shopping on these eight days. Nor did any employees testify that the 1993 Act interferes with their ability to pursue their religious beliefs or practices. The same is true of the retailers who testified. On the contrary, their stated desire is not to close on their own religious holidays but to keep their stores open 365 days of the year.
[29] In summary, I conclude that the appellants have not demonstrated that the 1993 Act infringes religious freedom in any way.
Equality -- Section 15
[30] The appellants also argue that the 1993 Act infringes the guarantee of equality in s. 15 of the Charter.
[31] One answer to this submission is found in Peel, in which this court found that the 1989 Act, which as it then stood included all Sundays, did not violate s. 15. The only change since then has been the removal of 51 Sundays, thereby removing holidays of importance to Christians and making it even less likely to offend s. 15, at least on the basis of a distinction based on religion.
[32] However it is true that the s. 15 jurisprudence has evolved considerably since Peel was decided in 1991. It is therefore appropriate to address the appellants' argument afresh.
[33] Quite properly, the appellants seek to structure their argument in accordance with the approach laid down in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12. The first step is to determine whether the 1993 Act imposes differential treatment between the claimants and others, in purpose or effect, and then to determine whether this is done on the basis of the grounds enumerated in s. 15 or ones analogous to them. The final step of the analysis is to determine whether that differential treatment amounts to discrimination.
[34] To begin, the appellants assert that the claimants are retail employees who are prohibited by the 1993 Act from working on the designated holidays. They submit that this group should be compared either to their colleagues working in pharmacies and food stores who can work on those days because of exemptions in the legislation, or to employees in the service sector as a whole, or to the workforce at large.
[35] In my view, the proposed comparators reveal a fatal flaw in the appellants' equality analysis. Any differential treatment accorded to the complainants by the 1993 Act is not based on any enumerated or analogous ground of discrimination. Rather, it is based on where the complainants work, which in the context of this case is something far removed from the kind of immutable, or constructively immutable personal characteristic that engages scrutiny under s. 15.
[36] In Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, [1999] S.C.J. No. 43, the Supreme Court held that the fact that the claimants in that case worked for the R.C.M.P. did not qualify as an enumerated or analogous ground of discrimination. While the court in that case did not foreclose the possibility that in another case occupational status could constitute an analogous ground under s. 15, it held (at para. 44) that the professional status or employment of R.C.M.P. members "is not a matter of functionally immutable characteristics in a context of labour market flexibility". Similarly, in this case, the fact that the complainants work for employers who are forced to close on nine holidays by virtue of the 1993 Act when others work for employers who are permitted to remain open cannot constitute the basis for a finding of discrimination within the meaning of the equality guarantee. There is simply no differential treatment based on an enumerated or analogous ground.
[37] Alternatively, the appellants argue that if the effect of the 1993 Act is not to create differential treatment between the claimants and others based on where they work, the Act draws a distinction based on the enumerated grounds of age and sex and the analogous ground of education level.
[38] The appellants say that the impugned legislation treats retail workers differently than workers in other sectors by prohibiting them from working on the designated holidays because they are presumed (falsely, say the appellants) to be more vulnerable to employer pressure and therefore more likely to feel compelled to work on holidays. The appellants argue that this reflects a stereotypical and outdated notion that retail workers are older and more predominantly female, with fewer skills and less education than others in the workforce. They therefore submit that the Act imposes differential treatment on the basis of the enumerated grounds of age and sex and the analogous ground of education level.
[39] The appellants argue that this differential treatment amounts to discrimination because it does not accord with the actual needs, capacities or circumstances of retail workers. Contrary to the profile of retail workers that they say is reflected in the Act, the appellants submit that retail workers are actually high-skilled, well-educated, relatively young, and just as likely to be male as female. Their position is that while retail workers are not disadvantaged in reality, they are disadvantaged by the perpetuation of an outdated stereotype that characterizes them as vulnerable and in need of protection.
[40] I do not accept this argument. As Dickson C.J.C. found in Edwards Books, supra, the purpose of the 1975 Act (which remains unchanged) was to provide a common pause day to workers in the retail sector because of the particular sensitivity to competitive economic pressures in that industry. Then and now, the Act does not accord differential treatment because of the age, gender or other personal characteristic of retail workers. It does not differentiate on a basis prohibited by s. 15. Rather, the Act as it was from the beginning, remains an attempt to alleviate one of the pressures associated with the unique dynamics of the retail sector itself.
[41] As the intervenor explained, retail workers remain some of the lowest-paid employees in the workforce. Retail workers have far lower rates of unionization, and are far more likely to work part-time. These challenges are not due to the age, sex or education level of retail employees, but rather are attributable to the economic characteristics of the retail sector in general. In this way, the Act does not exacerbate a disadvantage based on a prohibited ground. Rather it seeks to remedy a disadvantage arising from economic circumstances of retail sector employees by according them a common pause day.
[42] Finally, there was some discussion in oral argument of possible discrimination against retailers, employees or consumers who are members of religious minorities because the 1993 Act prohibits all retail business on two holidays (Christmas and Good Friday) which are of significance to their Christian counterparts, but it does not accord the same protection for minority religious holidays. Since the appellants did not put their s. 15 case on this basis, the issue was not properly joined, which prevents a full analysis. Suffice it to say that there is nothing in this record to suggest that any participant in the retail industry who is of minority religious faith feels his or her human dignity to be diminished by the prohibition of retail business on two holidays of importance to Christians, but not on holidays important to minority religions. Indeed, the only evidence relevant to this issue is that the appellants who are members of a minority faith wish to be open 365 days of the year. They do not wish to have all retail business prohibited on their own religious holidays. The appellants have simply not established a breach of the equality guarantee on this basis.
[43] Thus I conclude that the appellants' arguments that the 1993 Act infringes s. 2(a) and s. 15 of the Charter all fail. I find no need therefore to turn to s. 1.
[44] The appeal is dismissed. No costs are sought by any party and none are ordered.
Appeal dismissed.