STATUTORY HOLIDAYS - What is the Law?

Anthony Romanelli - Robins Appleby & Taub LLP Presented at the Law Society of Upper Canada’s Six-Minute Commercial Leasing Lawyer – February 13, 2008

OVERVIEW:

1. STATUTORY HOLIDAYS (a) The Holidays Act

(b) Employment Standards Legislation (i) Federal: Canada Labour Code (ii) Province of : Employment Standards Act, 2000

(c) Interpretation Statutes (i) Federal: Interpretation Act (ii) Province of Ontario: Legislation Act, 2006

(d) The Retail Business Holiday Act + the control of retail businesses (i) Retail Business Holiday Act (ii) Exceptions to the prohibition (iii) Enforcement

(e) Ontario’s new “” (i) Family Day + the Employment Standards Act, 2000 (ii) Family Day + the Retail Business Holidays Act + Legislation Act, 2006

2. SPECIAL ‘RULES’ FOR THE CITY OF (a) The City of Toronto - exempt from the Retail Business Holidays Act (b) The City of Toronto’s Holiday Shopping By-law (c) The City of Toronto – retail businesses exempt from Family Day

3. THE CIVIC HOLIDAY (a) The first Monday in (b) Statutory authority to create civic holiday (i) Municipal Act, 2001 (ii) City of Toronto Act, 2006

4. HOLIDAYS IN OTHER CANADIAN JURISDICTIONS 5. LEASING + HOLIDAYS 6. BEYOND STATUTORY HOLIDAYS 7. CONCLUSION ______1. STATUTORY HOLIDAYS

Not all statutory holidays are created equal – what constitutes a holiday and what impact that holiday will have (on employers, employees, landlords and tenants) depends on the statute that creates or makes reference to such holiday. Below is a sample of various provincial and federal statutes that create or refer to certain statutory holidays, together with an analysis of the impact of these holidays.

(a) The Holidays Act

An appropriate starting point is the federal Holidays Act, R.S., 1985, c. H-5. The Act provides statutory definitions for 3 holidays that are referred to in other federal and provincial statutes: , and . The Act is notable because Section 2(2) of the Act provides that Canada Day is celebrated on July 2 (and not July 1) when July 1 falls on a Sunday. The Act is reproduced below for your reference:

An Act respecting Holidays Short title 1. This Act may be cited as the Holidays Act.

Canada Day 2. (1) July 1, not being a Sunday, is a legal holiday and shall be kept and observed as such throughout Canada under the name of "Canada Day".

When July 1 is a Sunday (2) When July 1 is a Sunday, July 2 is a legal holiday and shall be kept and observed as such throughout Canada under the name of "Canada Day".

Remembrance Day 3. November 11, being the day in the year 1918 on which the Great War was triumphantly concluded by an armistice, is a holiday and shall be kept and observed as such throughout Canada under the name of "Remembrance Day".

Victoria Day 4. The first Monday immediately preceding May 25 is a legal holiday and shall be kept and observed as such throughout Canada under the name of "Victoria Day".

(b) Employment Standards Legislation

Certain days of the year are designated as ‘holidays’ under federal and provincial employment standards legislation. Under such statutes, workers are entitled to a number of common paid days of rest. These holidays are not applied universally, however, as the statutes prohibit certain classes of workers from refusing to work on designated holidays (e.g. hotel employees, nurses and workers in ‘continuous operations’). In exchange for working on such holidays, the statutes generally require the payment of premium pay to such employees.

2 Robins Appleby & Taub LLP (i) Federal: Canada Labour Code

The Canada Labour Code, R.S., 1985, c. L-2, applies to approximately 10% of the Canadian workforce, including (i) workers that perform a function or duty on behalf of the Government of Canada, including most federal crown corporations; and (ii) workers within a federal undertaking or business such as the operation of ports, air and transportation and banks. The Canada Labour Code provides for 9 statutory holidays, as follows:

Section 166: “general holiday" means New Year’s Day, , Victoria Day, Canada Day, , Day, Remembrance Day, Day and

Section 192: …every employee is entitled to and shall be granted a holiday with pay on each of the general holidays falling within any period of his employment.

(ii) Province of Ontario: Employment Standards Act, 2000

The Employment Standards Act, 2000, S.O. 2000, C. 41, applies to roughly 90% of the workforce in Ontario. The Act identifies 8 specific holidays but allows the addition of further holidays pursuant to Section 1(1)9 of the Act (see Ontario’s new “Family Day” below).

Section 1(1): "public holiday” means any of the following: 1. New Year's Day. 2. Good Friday. 3. Victoria Day. 4. Canada Day. 5. Labour Day. 6. Thanksgiving Day. 7. Christmas Day. 8. December 26. 9. Any day prescribed as a public holiday;

Section 26(1): If a public holiday falls on a day that would ordinarily be a working day for an employee and the employee is not on vacation that day, the employer shall give the employee the day off work and pay him or her public holiday pay for that day

(c) Interpretation Statutes

Both the Federal and the Ontario governments have enacted statutes to assist the interpretation of their respective legislation, including how to deal with statutory ‘deadlines’ that fall on a holidays.

(i) Federal: Interpretation Act

The Interpretation Act, R.S., 1985, c. I-21, describes each Sunday as a holiday and names 8 specific holidays. It also allows for the proclamation of further holidays and the recognition of holidays created by the provinces and municipalities. 3 Robins Appleby & Taub LLP Section 26: Where the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday.

Section 35(1): "holiday" means any of the following days, namely, Sunday; New Year’s Day; Good Friday; ; Christmas Day; the birthday or the day fixed by proclamation for the celebration of the birthday of the reigning Sovereign; Victoria Day; Canada Day; the first Monday in September, designated Labour Day; Remembrance Day; any day appointed by proclamation to be observed as a day of general prayer or mourning or day of public rejoicing or thanksgiving; and any of the following additional days, namely,

(a) in any province, any day appointed by proclamation of the lieutenant governor of the province to be observed as a public holiday or as a day of general prayer or mourning or day of public rejoicing or thanksgiving within the province, and any day that is a non-juridical day by virtue of an Act of the legislature of the province, and

(b) in any city, town, municipality or other organized district, any day appointed to be observed as a civic holiday by resolution of the council or other authority charged with the administration of the civic or municipal affairs of the city, town, municipality or district;

(ii) Province of Ontario: Legislation Act, 2006

The Legislation Act, 2006, S.O. 2006, C. 21, replaced the Interpretation Act, R.S.O. 1990, c. I.11, which was repealed in July 25, 2007. The Act describes each Sunday as a holiday as well as naming 11 specific holidays. In addition, the Act allows for the addition of further holidays by proclamation by the Governor General or Lieutenant Governor.

Section 88(2): The following days are holidays: 1. Sunday. 2. New Year’s Day. 3. Good Friday. 4. Easter Monday. 5. Victoria Day. 6. Canada Day. 7. Labour Day. 8. Thanksgiving Day. 9. Remembrance Day. 10. Christmas Day. 11. Boxing Day. 12. Any day fixed as a holiday by proclamation of the Governor General or Lieutenant Governor

4 Robins Appleby & Taub LLP (d) The Retail Business Holiday Act + the control of retail businesses

(i) Retail Business Holiday Act

The province’s Retail Business Holiday Act, R.S.O. 1990, Chapter R.30 prohibits retail business establishments from selling goods or admitting the public on designated holidays. The Act designates 8 days as holidays and permits the Lieutenant Governor to proclaim new holidays under Act.

Section 1(1): In this Act, “holiday” means, (a) New Year’s Day, (b) Good Friday, (c) Victoria Day, (d) Canada Day, (e) Labour Day, (f) Thanksgiving Day, (g) Christmas Day, (h) Easter Sunday, and (i) any other public holiday declared by proclamation of the Lieutenant Governor to be a holiday for the purposes of this Act … “retail business” means the selling or offering for sale of goods or services by retail;

“retail business establishment” means the premises where a retail business is carried on.

Section 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.

(ii) Exceptions to the prohibition

The Retail Business Holiday Act contains certain exceptions to the above prohibition which allows a number of retail business establishments to remain open during designated holidays, including, inter alia:

• stores that sell foodstuffs, newspapers, tobacco, prescription drugs, antiques and handicrafts, providing they have a floor space of less than 2,400 square feet and have a staff of three or less;

• pharmacies under 7,500 square feet, flower shops and gas stations; and

• locations established as tourist areas by specific municipal by-laws.

5 Robins Appleby & Taub LLP A sample of exceptions is described below:

Section 3 (1) Section 2 does not apply in respect of the carrying on of a retail business on a holiday where, on that day,

(a) the only goods available for sale by retail in the retail business establishment are, (i) foodstuffs, (ii) tobacco or articles required for the use of tobacco, (iii) antiques, or (iv) handicrafts,

or any combination of them, or where the principal business is the sale of goods referred to in subclauses (i) to (iv), or any of them, by retail and no other goods are available for sale except as sundries; and

(b) the number of persons engaged in the service of the public in the establishment does not at any time exceed three; and (c) the total area used for serving the public or for selling or displaying to the public in the establishment is less than 2,400 square feet.

(2) Section 2 does not apply in respect of the carrying on of a retail business on a holiday in a pharmacy accredited under the Drug and Pharmacies Regulation Act, where, on that day, (a) the dispensing of drugs upon prescription is available to the public during business hours; and

(b) the principal business of the pharmacy is the sale of goods of a pharmaceutical or therapeutic nature or for hygienic or cosmetic purposes and no other goods are available for sale except as sundries; and

(c) the total area used for serving the public or for selling or displaying to the public in the establishment is less than 7,500 square feet.

(iii) Enforcement

The Retail Business Holiday Act provides for minimum fines for the opening of retail business establishments on designated holidays: $500 for the first offence, $2,000 for a second offence and $5,000 for a third or subsequent offence. The maximum fine is the greater of $50,000 or the total amount of gross sales for the holiday. The Retail Business Holiday Act is enforced by local police services.

Sample of enforcement provisions - Section 8: (1) Every person who contravenes section 2 or a regulation under section 4 is guilty of an offence and on conviction is liable to a fine of not more than the greater of, (a) $50,000; or (b) the gross sales in the retail business establishment on the holiday on which the contravention occurred. … (3.1) The minimum fine for an offence under this Act, other than for a contravention of subsection 2 (2), is $500 for a first offence, $2,000 for a second offence and $5,000 for a third or subsequent offence. 6 Robins Appleby & Taub LLP (e) Ontario’s new “Family Day”

A new statutory holiday called “Family Day” was celebrated in Ontario for the first time in 2008. Family Day falls on the third Monday of each February and was created pursuant to a number of statutes, as described below.

(i) Family Day + the Employment Standards Act, 2000

Family Day was created as a “public holiday” under the Employment Standards Act, 2000 pursuant to Ontario Regulation 547/07. The Regulation provides as follows:

Section 1.1: Family Day, being the third Monday in February, is prescribed as a public holiday for the purpose of the definition of “public holiday” in section 1 of the Act.

(ii) Family Day + the Retail Business Holidays Act + Legislation Act, 2006

Family Day was also created as a holiday under the Retail Business Holidays Act and the Legislation Act, 2006 by way of a proclamation by the Lieutenant Governor made October 12, 2007 (The Ontario Gazette, Vol. 140-43 Saturday, 27 October 2007), The proclamation provides as follows:

Family Day, the third Monday of February of every year, is declared a holiday, pursuant to the Retail Business Holidays Act, R.S.O. 1990, Chapter R.30 and of the Legislation Act, 2006, S.O. 2006 c. 21 Sched. F.

2. SPECIAL ‘RULES’ FOR THE CITY OF TORONTO

Torontonians regard their city as the centre of the universe. Perhaps it is befitting, then, that the City is subject to some special “rules” pertaining to the opening of retail business establishments during statutory holidays.

(a) The City of Toronto - exempt from the Retail Business Holidays Act

Pursuant to the proclamation on January 1, 2007 of Schedule B of the Stronger City of Toronto for a Stronger Ontario Act, 2006, S.O. 2006, c. 11, the Retail Business Holidays Act no longer applies to the City of Toronto:

Section 1.1(1) of the Retail Business Holidays Act:

This Act does not apply to the City of Toronto and it does not apply in respect of any by-law of the City or any retail business establishment located in the City

7 Robins Appleby & Taub LLP (b) The City of Toronto’s Holiday Shopping By-law

Prior to this amendment to the Retail Business Holidays Act coming into force, the City of Toronto adopted By-law No. 8-2007 (Chapter 510 of the City of Toronto Municipal Code). By-law No. 8-2007 generally re-applied the existing holiday provisions contained in the Retail Business Holidays Act to the City of Toronto, as noted in the definitions described below:

§ 510-1:

As used in this chapter the following terms shall have the meanings indicated:

HOLIDAY — Includes New Year’s Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day and Easter Sunday.

RETAIL BUSINESS — The selling or offering for sale of goods or services by retail.

RETAIL BUSINESS ESTABLISHMENT — The premises where a retail business is carried on.

Council’s intention at the time of passing By-law No. 8-2007 was to maintain the status quo regarding holidays pending a consultative review. Accordingly, City Council instructed the General Manager of Economic Development, Culture and Tourism to consult with various stakeholders and to report back to the Economic Development Committee by February of 2008. The report was released on February 6, 2008 and it recommended that all retail business establishments inside the City be allowed to open on all traditional holidays, except Christmas Day. The report was considered by the Economic Development Committee on February 20, 2007, and City Council will likely consider the report in March of 2008.

(c) The City of Toronto – retail businesses exempt from Family Day

The definition of “holiday” within By-law No. 8-2007 captures only the 8 statutory holidays specifically enumerated in Section 1(1) of the Retail Business Holidays Act.

Since Family Day is not listed as a “holiday” under By-law No. 8-2007, retail business establishments within the City of Toronto are free to open on Family Day. All other municipalities, however, are subject to the Retail Business Holidays Act and retail establishments within such municipalities are prohibited from opening for business on Family Day unless they fall under an exception under the Act.

8 Robins Appleby & Taub LLP 3. THE CIVIC HOLIDAY

(a) First Monday in August

The first Monday in August is generally observed as a “civic holiday” across Ontario. There is no standard “name” for this holiday and many municipalities have named this date in honour of notable historical figures. For example:

Brantford: Founder's Day : Day : McLaughlin Day : Colonel By Day Toronto: Simcoe Day

(b) Statutory authority to create civic holiday

When creating a civic holiday, municipalities are exercising a power granted to them pursuant to the Municipal Act, 2001 or the City of Toronto Act, 2006, (formerly Section 214 (8) of the Municipal Act, R.S.O. 1990, c.M.45).

A review of the provisions of the Municipal Act, 2001 and the City of Toronto Act, 2006, indicates that so-called civic holidays are not at all similar to the federal or provincial statutory holidays described above. Indeed, the power that municipalities are exercising is not the power to proclaim a new holiday, per se, but the power to close retail business establishments for a certain period of time.

(i) Municipal Act, 2001

Section 148

(1) Without limiting sections 9, 10 and 11, a local municipality may require that retail business establishments be closed to the public at any time

(2) In this section, “holiday” has the same meaning as in subsection 1 (1) of the Retail Business Holidays Act; “retail business establishment” means the premises where goods or services are sold or offered for sale by retail.

(3) Without limiting sections 9, 10 and 11, if a regional municipality has passed a by-law under subsection 1.2 (1) of the Retail Business Holidays Act providing that that Act does not apply to the regional municipality, the regional municipality may require that retail business establishments be closed to the public on a holiday.

(3.1) If a regional municipality passes a by-law under subsection (3), a by-law passed by a local municipality under subsection (1) respecting the closing of a retail business establishment on a holiday is of no effect.

(4) A by-law passed under this section does not apply to the sale or offering for sale by retail of, 9 Robins Appleby & Taub LLP (a) goods or services in the form of or in connection with prepared meals or living accommodation; (b) liquor under the authority of a licence or permit issued under the Liquor Licence Act; and (c) any other prescribed goods or services. (5) The Minister may make regulations prescribing goods and services for the purpose of clause (4)(c)

(ii) City of Toronto Act, 2006

Section 97 (1) Without limiting sections 7 and 8, those sections authorize the City to require business establishments to be closed to the public at any time.

(2) Despite subsection (1), a by-law described in that subsection applies to only those premises where goods or services are sold or offered for sale by retail.

(3) The by-law does not apply to the sale or offering for sale by retail of, (a) goods or services in the form of or in connection with prepared meals or living accommodation; (b) any other prescribed goods or services.

4. HOLIDAYS IN OTHER CANADIAN JURISDICTIONS

A review of provincial legislation indicates that provincial statutory holidays differ from province to province. For example, provincial employment statutes contain a range of different statutory holidays:

• All provinces have employment standards legislation that mandate the following as statutory holidays: New Years Day, Canada Day (Memorial Day in Newfoundland), Labour Day and Christmas Day

• Good Friday is a statutory holiday in all provinces except while Easter Monday in a statutory holiday only in Quebec

• All provinces except the Atlantic provinces (, Newfoundland, and Prince Edward Island) celebrate Victoria Day (Dollard Day in Quebec) and Thanksgiving Day

• The First Monday in August is a statutory holiday in , New Brunswick, and , but not in other provinces

• Remembrance Day is only a statutory holiday in , British Columbia and Saskatchewan

• Only Ontario has Boxing Day as a statutory holiday

• Family Day in Alberta and Ontario (3rd Monday of February); Fête Nationale du Québec in Quebec (June 24) 10 Robins Appleby & Taub LLP 5. LEASING + HOLIDAYS

Lawyers should turn their minds (and their client’s attention) to the impact of holidays on their clients’ operations. For example, the following issues may arise:

• Days of operation: What days do the parties expect the leased premises to be open for business? Are there certain holidays that the landlord requires the premises to be open for business? Are there any holidays or other days of importance that the tenant does not want to operate? • Notice provisions: Are there any holidays or other important dates upon which the delivery of notice or any other documentation is not desirable/ feasible? • Definition of a holiday: How are holidays defined in the lease? Is the definition specific enough for your client? Does the definition of a holiday ‘piggy back’ on the definition contained within a statute? If so, does this statutory definition encompass all of your client’s dates of importance? • Landlord services: What services will be offered by a landlord during a holiday (e.g. lighting, heating, air-conditioning, cleaning services and other services). During what hours and will the services be offered? Will they be at an additional fee to the tenant? • Access: Will the landlord provide access to the property on a holiday? If so, during what hours and for whom? • Promotional fund: Are there any special holiday activities of the landlord that require a financial contribution from the tenant? • Extra-provincial or foreign clients: If you are dealing with parties that are based in other provinces or countries, ensure that any relevant provisions of the lease (e.g. notice provisions) reflect the provincial or national holidays of the parties • Fines: Is your tenant planning to open their premises for business in violation of any applicable legislation and/or by-laws. How is your client planning to deal with the possible outcome (i.e. fines)? Do you have the expertise to deal with disputes that may arise from your client’s actions?

6. BEYOND STATUTORY HOLIDAYS

A client may want certain days addressed within a lease that are not described as holidays in provincial or federal legislation.

For example, clients may wish to exclude certain dates for notice purposes such as religious holidays or days of personal importance such as birthdays. These may be sensitive issues for certain clients and an attempted service of documents on dates and times that are not acceptable to the recipient may create problems.

11 Robins Appleby & Taub LLP Darrell Gold of our office has devised the following sample notice clause to reflect the religious concerns of some of our firm’s observant Jewish clients. Of course, this type of clause can be customized to address any number of eventualities for your clients:

Sample notice clause for observant Jewish clientele:

"Business Day" means a day other than:

(i) a Saturday, Sunday and statutory holiday in the Province of Ontario; and

(ii) each of the first day of Passover, the second day of Passover, the seventh day of Passover, the eighth day of Passover, the first day of Shavuoth, the second day of Shavuoth, the first day of Rosh Hashanah, the second day of Rosh Hashanah, Yom Kippur, the first day of Sukkoth, the second day of Sukkoth, Shemini Azereth and Simchas Torah (the "Holy Days"). For the purpose of this Agreement, each Holy Day is deemed to commence one hour before sunset on such day and end one and one- half hours after sundown on the subsequent day, provided such day is not a Holy Day in which case it will end at such latter time on the first day which is not a Holy Day: For purposes of example only, if sunset is at 7:00 p.m. and sundown is 8:00 p.m. on the following day which is not a Holy Day, then the "black-out" period for notice commences 6:00 p.m. and ends at 9:30 p.m. on the following day.

7. CONCLUSION

Whether your client is a landlord or a tenant, the boilerplate provisions within leases that purport to address holidays, notice provisions and dates of operation should be reviewed to ensure that theses clauses address your client’s needs.

As well, if your client is a tenant, it may be wise to discuss the ramifications of store closing legislation and by-laws on their activities.

Lastly, if your clients are in Toronto, you may want to keep your eyes on City Council’s activities regarding retail holiday closings. Toronto has the power to completely rework the City’s retail closings rules and may do just that.

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