WEEKLY REST-DAY AND SUNDAY CLOSING
HISTORICAL BACKGROUND
It is important to distinguish between two types of legislation when discussing the
weekly rest-day: first, provisions of a secular nature normally included in the employment
standards laws, the purpose of which is to provide a uniform day of rest from labour, or to limit the number of hours which may be worked in any week; and second,
the Lord's Day legislation, which appears to have a religious purpose (i.e., to protect
Sundays as the universal day of Sabbath) and is less directly concerned with employees' rights or employers' obligations. With respect to employment standards legislation
per se
...
"...the notion that provincial weekly rest legislation is strictly secular has been
accepted for purposes of the delineation of constitutional legislative authority,
but in fact the legislation of at least five provinces [to be precise: six provinces
and both territories] provides that the weekly rest day is to be on Sunday, "if possible".
(...) In every jurisdiction the weekly rest law is also subject to the same sort
of exceptions, either in the statute itself or by regulation, as is every other part
of the labour standards legislation."16
The predominant statute in the second area is the federal Lord's Day Act. Because
it makes the non-observance of Sunday as a day of rest a criminal offence, it has
been deemed a valid exercise of the federal's power over criminal law. But the subject
of the weekly rest-day falls into the same general category as holidays and vacations,
thus coming within the provincial power over "property and civil rights" and within
the concurrent federal power over the domains of its exclusive jurisdiction.
The origins of this Act date back some 200 The Act in its present form remains substantially
unchanged from the 1907 version when it was first adopted. But even prior to the
turn of the century, legislation of this nature has existed. Traces of "An Act to
prevent the Profanation of the Lord's Day in Upper Canada" are to be found in the
statute books of the "Provinces and of Canada", dating back to the eighth year of
Queen Victoria's reign, 1845. That Act was modelled after the laws of Great Britain
on the same matter. These laws, by their true nature and character of the domain of criminal
law, were, by virtue of constitutional law, "continued" in Quebec in 1774, and in
Upper Canada in 1792. That Act made it unlawful "to do or exercise any worldly labour,
business or work of one's ordinary calling", words that are still used exactly in today's
Lord's Day Act. In addition, that Act excepted "conveying travellers or Her Majesty's
Mail, selling Drugs and Medicines, and other works of necessity, and works of charity" in much the same way that a somewhat longer list of "works of necessity" are
exempted under the terms of today's Lord's Day Act.
The Lord's Day Act, because of its criminal nature, had always affected the constitutional
powers of both levels of government in the labour law field. As mentioned previously,
the weekly rest-day would otherwise normally have fallen within the meaning of "property and civil rights", an area of legislative activity exclusively reserved
to the provinces. In the 1907 version of the Lord's Day Act, the federal government
chose to recognize permissive provincial legislation on Sunday work and to re-establish
the normal balance of powers, to the extent that the provinces could purposefully "disembowel"
the Act by adding to the long list of exemptions already contained in it.
"The recognition of permissive provincial legislation in s. 4 of the Lord's Day Act,
in effect, reverses the normal supremacy of Acts of Parliament over the statutes
of the provincial legislature."17
This delegation of power to the provincial legated to municipalities.
Moreover, the question of Sunday closing has come to the fore since the adoption of
the Canadian Charter of Rights and Freedoms. Under the Charter, it may be considered
unlawful and discriminatory on the basis of religion to protect Sunday as the universal day of Sabbath. This had provided some impetus to change laws during the mid-1980s,
there has brought about , in some jurisdictions, more permissive practices relative
to the operation of commercial establishments on Sunday.
In addition, since the late 1980s, there has been increasing economic imperatives
to liberalize Sunday shopping, free trade, and the recession has prompted many jurisdictions
to review once again their legislation pertaining to Sunday closing.
Since 1985, many legislative changes have occurred which tend to confirm the trend
toward the repeal of the Lord's Day Acts, or the equivalent legislation, and their
replacement with provisions that permit commercial activities on Sundays. Provincial
legislation and municipal by laws have become increasingly permissive, as more jurisdictions
attempt to make reasonable accommodations for freedom of conscience or of religion
while stimulating the economy and reconciling these aims with protecting the Sabbath. Governments have proceeded with amendments in this matter with caution, often using
a phased-in approach in order to maintain public support for, and gain eventual acceptance
of Sunday Shopping.
THE PRESENT SITUATION
Generally, employment standards legislation provides one full day of rest per week,
on Sunday, wherever possible. These provisions, coupled with the Lord's Day legislation,
still effectively promote Sunday as the uniform day of rest from labour in most sectors of the economy. Normally, only employers whose sphere of activity falls within
one of the exceptions (usually retail businesses of one kind or another) provided
by federal or provincial Lord's Day, or by municipal by law, or those covered by
Retail Businesses Holiday Closing Acts which no longer list Sunday as a holiday on which shops
must be closed, may operate their retail businesses on Sunday. Moreover, if they
do, they must still meet their obligation under the employment standards legislation
to make Sunday the uniform day of rest, wherever possible.
Alberta's, British Columbia's and Quebec's employment standards legislation provide
a specified number of consecutive hours of rest each week, but do not specify on
which day. Other jurisdictions specify a day's rest, preferably on Sunday. In addition,
Ontario's and Manitoba's legislation provide that an employee may refuse to work on Sunday,
in certain circumstances.
There are no restrictions on Sunday shopping in Alberta, where there is no Act to
regulate the opening or closing of retail establishments on Sunday. Though municipalities
have the power to regulate store openings on Sundays, they generally permit Sunday
shopping. The Northwest Territories also have no specific legislation on Sunday closings.
Similarly, no restrictions have existed in British Columbia since the striking down,
by the British Columbia Court of Appeal, of the provisions of the Holiday Shopping Regulation Act
which declared Sunday a holiday.
After experimenting with Sunday shopping on a trial basis, Manitoba's Retail Businesses Holiday Closing Act
now provides that a retail business may be open for business may be open for business
on a Sunday if the establishment was closed on the immediately preceding Saturday,
and if no municipal by law issued pursuant to the Shops Regulation Act
prevents it. Certain types of establishments are exempt from the requirements to
close on Sunday (and other holidays) or the preceding Saturday. Establishments may
also be open on Sunday if they operate with no more than four persons, including
the owner. Establishments where five or more persons are ordinarily employed may open on Sunday
(as well as on Victoria Day and Thanksgiving Day, but not on other holidays), between
noon and 6:00 p.m.. Employees of the latter kind of establishments have the right
to refuse to work on Sundays if they exercise this right 14 days prior to being assigned
work on a Sunday.
In New-Brunswick, the Days of Rest Act
and its Exemptions Regulation
were amended several times in recent years, resulting in the progressive expansion
of Sunday shopping. The Act requires several exceptions, businesses to close on Sunday
and on holidays. However, in addition to the exemptions from the requirement to close, retail businesses or parts of them may be permitted, by regulation to operate on
the weekly day of rest. Such a regulation permits Sunday shopping in most retail
establishments from the first Sunday after New-Brunswick Day to the Sunday immediately
preceding Christmas, excluding the Sunday on which may fall Remembrance Day. Where a retail
business establishment is exempted from the application of the Days of Rest Act
, and opens on Sundays the employees have the right to refuse to work on a Sunday
with a 14 day notice to their employer.
Nova-Scotia also experimented with Sunday shopping in the period from October 1 to
December 31, 1993. A temporary exemption was granted under the Retail Business Uniform Closing Act
in respect of a Sunday, other than Boxing Day, which fell in this period. Retaliation
against an owner or operator, or against employees who refused to work on Sunday
was prohibited. However, those provisions are no longer in force and the requirement
to close, with exceptions, applies again. Nova Scotia municipalities have the power to
further restrict
Sunday activities.
Ontario has amended its Retail Business Establishment Holidays Act
in 1991 to permit Sunday shopping during December, preceding Christmas. This Act
was again amended in June 1992 to completely liberalize Sunday shopping. Only Easter
Sunday and other holidays which may fall on a Sunday remain as retail business holidays.
The Ontario Employment Standards Act
also provides that employees of retail business establishments have the absolute
right to refuse to work on Sunday.
Prince Edward Island's Retail Businesses Holidays Act
permits retail business establishments to be open on Sundays, from the last Sunday
in November to the Sunday preceding Christmas. The Act sets out the principle that
retail business is prohibited, with exceptions, on a holiday and on a Sunday, except
during the period mentioned above. The Act also allows retail businesses to be open on
Sunday if the person operating the establishment, on grounds of conscience or religion,
observes another without labour and closes the establishment on that other day each
week.
In Quebec, the Commercial Establishment Business Hours Act
was replaced by the Hours and Days of Admission to Commercial Establishments Act
in 1990. The new Act first established that commercial establishments could not be
open on Sundays, except during the weeks preceding Christmas, or on the grounds of
liberty of conscience or religion, in certain circumstances. The Act was amended
several times to progressively liberalize Sunday shopping. The Act now allows access to commercial
establishments between 8:00 a.m. and 5:00 p.m. on Saturdays and Sundays, and between
8:00 a.m. and 9:00 p.m. on the other days of the week, except on specified holidays, some of which may occasionally fall on a Saturday or a Sunday. The situation with
respect to Sunday shopping in Quebec is now practically the same as in Ontario.
In Saskatchewan and in the Yukon, the respective Lord's Day Act
require retail establishments to close on Sunday, with exceptions. Municipalities
have the power to permit Sunday sports, movies, theatrical performances, concerts
or lectures after 1:30 p.m., or other activities connected to these. The law provides
that municipalities must hold a referendum before adopting or repealing such a by-law to
determine if a majority of the local population support the initiative.
The continued relevance of the Lord's Day Act
to Sunday shopping seems questionable in Saskatchewan, where the more recent Urban Municipality Act
, 1984 provides that municipalities may regulate, among other things, hours during
which stores must be closed, during the whole or portion of any two days of the week,
or exempt stores from the requirements to close on specified holidays.
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