Should stores get to decide when they can stay open?

By Tim Alamenciak - Published on October 7, 2015
two women pushing grocery carts down store aisles
Grocery stores could be fined for opening on holidays, unless they fall under Retail Business Holidays Act exemptions.

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When is a grocery store no longer a grocery store, but a restaurant?

Many serve hot, ready-to-eat foods at their deli counters. Made-to-order food items like pizzas are increasingly available and there are tables to eat it at. Under the law, a restaurant doesn’t have to be called a restaurant—it just has to serve “prepared foods.”

That was the question before an Ontario court earlier this year, when Longo Brothers Fruit Markets challenged fines levied against two of its stores for being open on holidays. The court sided with Longo’s, agreeing that the hot food offerings allowed it to be open without facing a fine.

Provincially, stores must close on holidays unless they fall under exemptions defined in the Retail Business Holidays Act or they could face a fine as high as $50,000. The City of Toronto has its own bylaws, though every other municipality must follow the provincial guidelines. There are provisions within the act that exempt some businesses for predictable reasons (pharmacies, for example, so people can access medication) and to avoid punishing small businesses (art galleries with fewer than three employees are exempt).

However, as more major retailers find exemptions, the industry’s workers—most of whom already work evenings and weekends—are finding themselves working holidays that other sectors have off. Experts and industry leaders are quick to point to the Internet as a driving factor, but the changing shape of retail store offerings has put additional pressure on companies to find exemptions in the law.

“One of the biggest changes has been the change in the product line that we see specifically in drug stores—that specifically relates to Shoppers Drug Mart. They've incorporated pretty substantial food sections,” says David Soberman, professor of marketing at the University of Toronto’s Rotman School of Management.

Soberman says that, facing pressures from all sides, more will seek to get exemptions under the law.

“When it comes to standard retail categories it's going to be harder and harder for firms to respect the law because they're getting pressure not only from the Internet, but stores that find a way to get around the law,” says Soberman.

Derek Johnstone, Ontario regional director for the United Food and Commercial Workers (UFCW) says it’s important to recognize the need for retail employees to have time off.

“Our expectations as consumers may have changed over the years, but I think the importance that our families have in our lives is just as important as it ever was,” says Johnstone.

Johnstone says it’s essential that regulation exists to mandate closures on holidays.

“The interests between employers and workers are best balanced when there is statute, when the government is involved. If that's a tradition we want to maintain in Canada, the tradition is best served through the law,” says Johnstone.

The city of Toronto is currently studying what the ruling could mean for its bylaws and has ordered a report to be produced for the city’s Licensing and Standards Committee to that effect. David Wilkes, senior vice-president of the grocery division at the Retail Council of Canada, says the province needs to evaluate the changing retail landscape. He says the council supports a “level playing field” for retailers.

“As we look at how the consumer shopping behaviour is changing, where people are able to purchase online, we think this is a much bigger issue than it was before and governments need to step back and consider the impact of the omni-channel and how changing consumer patterns are affecting when stores should and shouldn't be open,” says Wilkes.

Who grows, sells and cooks your meals, and how can their jobs be made better? Each day this week, TVO.org will explore an issue on the intersection of food and labour in Ontario.

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