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C.C.S.M. c. R120

The Retail Businesses Holiday Closing Act

(Assented to July 3, 1987)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act,

"council" means

(a) in the case of a municipality incorporated by or under an Act of the Legislature, the council of that municipality,

(b) in the case of a local government district, the resident administrator of that local government district,

(c) in the case of an incorporated community established under The Northern Affairs Act, the incorporated community council of that incorporated community, and

(d) in the case of Northern Manitoba, other than an incorporated community, the Minister of Aboriginal and Northern Affairs; (« conseil »)

"holiday" means New Year's Day, Louis Riel Day (the third Monday in February), Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day and Sunday; (« jour férié »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"municipality" means

(a) a municipality incorporated by or under an Act of the Legislature,

(b) a local government district,

(c) an incorporated community established under The Northern Affairs Act, or

(d) the Minister of Aboriginal and Northern Affairs, in respect of all of Northern Manitoba, other than an incorporated community, or any part of Northern Manitoba, other than an incorporated community, that is specified by the Minister; (« municipalité »)

"Northern Manitoba" means Northern Manitoba as defined in The Northern Affairs Act; (« Nord »)

"retail business establishment" means the premises or place in which or from which a retail business is carried on. (« établissement de commerce de détail »)

S.M. 1993, c. 22, s. 10; S.M. 2000, c. 35, s. 76; S.M. 2006, c. 34, s. 268; S.M. 2007, c. 18, s. 3.

Retail business prohibited on holidays

2           No person who owns or operates a retail business in a retail business establishment shall admit members of the public therein or sell or offer for sale any goods or services therein on a holiday.

Sunday opening

3           Despite section 2, the owner or operator of a retail business establishment may open the establishment to the public and sell goods or services, or offer them for sale, on Sundays

(a) in the case of an owner or operator of one establishment, only if the establishment is always closed to the public, and goods or services are not sold or offered for sale, on Saturdays; and

(b) in the case of an owner or operator of two or more establishments, only if all the establishments are always closed to the public, and goods or services are not sold or offered for sale at any of the establishments, on Saturdays.

S.M. 1999, c. 46, s. 2.

Exemptions

4           The following are exempt from sections 2 and 3:

(a) goods or services sold or offered for sale by retail in the form of or in connection with living accommodation or prepared meals where the sale or offering for sale of those goods or services is the principal business of the seller or offeror;

(b) the retail sale of liquor under the authority of a licence or permit issued under The Liquor and Gaming Control Act;

(c) a retail business that is governed or regulated by a special Act of the Legislature or any regulations made thereunder;

(d) subject to clause 4.1(6)(a), a retail business establishment where the number of persons, including the owner, employed for the sale of goods or services does not exceed four persons at any one time;

(e) a pharmacy where the principal business carried on is the dispensing of drugs upon prescription and the sale of goods of a pharmaceutical or therapeutic nature or for hygienic or cosmetic purposes;

(f) a retail business establishment where gasoline, motor oil and related goods or services for use in the operation of a motor vehicle are the only goods or services sold or offered for sale;

(g) a retail business establishment where nursery stock, flowers, garden supplies and accessories are the only goods sold or offered for sale;

(h) a retail business establishment where fresh fruit and vegetables are the only goods sold or offered for sale;

(i) the operation of laundromats and other coin-operated services incidental thereto;

(j) the rental, servicing or repair of motor vehicles or boats;

(k) the admission of the public to premises for educational, recreational or amusement purposes or in respect of the sale or offering for sale of goods or services incidental thereto;

(l) the operation of tourism and recreational facilities including summer and winter resorts.

S.M. 1993, c. 5, s. 2 and 9; S.M. 1993, c. 22, s. 2, 11 and 18; S.M. 2001, c. 20, s. 22; S.M. 2013, c. 51, Sch. B, s. 200.

Definition

4.1(1)      In this section, "territory outside a municipality" means territory other than the territory of a municipality or that part of Northern Manitoba in respect of which the Minister of Aboriginal and Northern Affairs has the powers, rights and privileges of a municipality.

Exemption in force by by-law or regulation

4.1(2)      When a by-law of a municipality under subsection (3) or a regulation under subsection (5) made in respect of a territory outside a municipality so provides, the following are exempt from sections 2 and 3:

(a) every retail business establishment in the municipality or territory where the number of persons, including the owner, employed for the sale of goods or services does not ordinarily exceed four persons at any one time; and

(b) every retail business establishment in the municipality or territory where more than four persons, including the owner, are ordinarily employed for the sale of goods or services at any one time but only if

(i) the holiday is other than New Year's Day, Good Friday, Easter Sunday, Canada Day, Labour Day or Christmas Day, and

(ii) that retail business establishment does not admit members of the public therein or sell or offer for sale any goods or services before 9:00 a.m. or after 6:00 p.m. on the holiday.

By-law

4.1(3)      The council of a municipality may adopt a by-law providing that the exemptions referred to in subsection (2) are in force in the municipality.

Contents of by-law

4.1(4)      A by-law under subsection (3) may provide that the exemptions referred to in subsection (2) are in force in a specified period or periods only.

Local restriction

4.1(4.1)    A by-law under subsection (3) may restrict the hours of operation under the exemptions referred to in subsection (2).

Regulation regarding territory

4.1(5)      Where the Lieutenant Governor in Council is satisfied that a majority of the inhabitants of a territory outside a municipality so desire, the Lieutenant Governor in Council may by regulation, in respect of the territory, exercise the same powers that a municipality may by by-law exercise under subsection (3).

Effect of by-law or regulation

4.1(6)      When pursuant to a by-law under subsection (3) or a regulation under subsection (5) the exemptions referred to in subsection (2) are in force in a municipality or a territory outside a municipality,

(a) clause 4(d) is not in force in that municipality or territory;

(b) a provision of a lease or other agreement that would have the effect of requiring a retail business establishment referred to in clause (2)(b) to remain open on a holiday referred to in subclause (2)(b)(i) when a by-law under subsection (3) or a regulation under subsection (5) is in force is of no effect in respect of that holiday even if the lease or other agreement was made before the coming into force of the by-law; and

(c) in the case of a municipality, a by-law under section 6 of The Shops Regulation Act, to the extent that it requires a retail business establishment referred to in clause (2)(b) to close and remain closed on a holiday referred to in subclause (2)(b)(i), is not in force in that municipality.

S.M. 1993, c. 5, s. 3 and 9; S.M. 1993, c. 22, s. 3, 12 and 18; S.M. 2000, c. 35, s. 76; S.M. 2012, c. 37, s. 2.

4.2         [Repealed]

S.M. 1993, c. 5, s. 3 and 9; S.M. 1993, c. 22, s. 3 and 18.

Extended Sunday hours on Boxing Day

4.3(1)      Despite sections 2 and 3 but subject to a by-law made under section 4.4, when December 26 falls on a Sunday, a retail business establishment may be open at any time on that day if it was permitted to be open on the preceding Sunday under

(a) a by-law adopted under subsection 4.1(3); or

(b) a regulation made under subsection 4.1(5).

Commercial tenants

4.3(2)      When December 26 falls on a Sunday, a provision of a lease or other agreement that would have the effect of requiring a retail business establishment to be open on that day is of no effect.

Application

4.3(3)      Subsection (2) applies to a lease or other agreement made before or after the coming into force of this section.

S.M. 2010, c. 46, s. 2; S.M. 2012, c. 37, s. 3.

Local restriction: Boxing Day

4.4         In respect of a Sunday that falls on December 26, the council of a municipality may adopt a by-law

(a) providing that the exemption in subsection 4.3(1) is not in force in the municipality; or

(b) restricting the hours of operation under that exemption.

S.M. 2010, c. 46, s. 2.

Refusal to work on Sunday

4.5(1)      An employee in a retail business establishment may refuse to work on a Sunday if

(a) the employee gives the owner or operator of the establishment at least 14 days' notice before the Sunday; and

(b) in respect of that Sunday, the establishment is exempt under clause 4.1(2)(b) or subsection 4.3(1) from the application of sections 2 and 3.

No termination or other discriminatory action to be taken for refusing to work on Sunday

4.5(2)      No owner or operator of a retail business establishment, or other person acting on behalf of such an owner or operator, shall

(a) suspend, terminate or restrict or threaten to suspend, terminate or restrict the employment of an employee;

(b) lay off or threaten to lay off an employee; or

(c) otherwise discriminate against an employee;

because the employee refuses to work or attempts to refuse to work on a Sunday, if the employee is permitted to refuse under subsection (1).

Complaint may be filed

4.5(3)      If an owner or operator of a retail business establishment, or other person acting on his or her behalf, contravenes subsection (2), an employee may file a complaint with an officer in a form acceptable to the director.

Complaint deemed to be complaint re payment of wages

4.5(4)      A complaint that results or might result in an order of compensation or reinstatement under this section is deemed to be a complaint relating to the payment of wages made under The Employment Standards Code.

Dismissal of complaint by order

4.5(5)      An officer who investigates a complaint and determines that no contravention of subsection (2) has occurred shall dismiss the complaint by order.

Compensation or reinstatement order

4.5(6)      If an officer investigating a complaint filed under subsection (3) determines that a person has contravened subsection (2), the officer may by order require the owner or operator of the retail business establishment to pay compensation to the director for any loss the employee incurred as a result of the contravention, or reinstate the employee, or do both.

Administrative costs

4.5(7)      An order under subsection (6) must also require the owner or operator of the retail business establishment to pay to the director administrative costs of $100, or 10% of any compensation ordered, whichever is more, to a maximum of $1,000.

Deemed wages, deemed payment of wages order

4.5(8)      For the purposes of The Employment Standards Code,

(a) compensation ordered to be paid under this section is deemed to be wages due and payable to the employee under the Code;

(b) an order to pay compensation under this section is deemed to be an order for the payment of wages made under subsection 96(1) of the Code;

(c) subsection 96(2) (maximum amount recoverable by order) of the Code is deemed not to apply to an order to pay compensation under this section; and

(d) the filing deadline under clause 110(1.1)(a) of the Code is deemed to apply to an order to pay compensation or an order for reinstatement under this section.

Enforcing order under Employment Standards Code

4.5(9)      The provisions of The Employment Standards Code relating to the enforcement of an order for the payment of wages apply, with necessary changes, to an order to pay compensation under this section.

Definitions

4.5(10)     In this section, "director", "employee", "officer" and "wage" have the same meaning as in The Employment Standards Code.

S.M. 2012, c. 37, s. 4.

Exemption for emergency

5           Where the minister is of the opinion that the closing of a retail business establishment in accordance with sections 2 and 3 will work a hardship on the public due to an emergency, the minister may, on application therefor, issue a permit exempting the establishment from the application of sections 2 and 3, subject to such terms and conditions as the minister considers advisable.

S.M. 1997, c. 18, s. 2.

Exemption for special events

6(1)        Where, in the opinion of the minister it would be desirable to exempt a retail business establishment from the operation of this Act in order that a special event may be held, the minister may issue a permit exempting the retail business establishment from the operation of this Act for the period during which the special event is held.

Exemption may be general in effect

6(2)        Where the minister is of the opinion that it is desirable that an exemption referred to in subsection (1) in respect of a special event be general in effect, the minister may do so, by order.

Exemption for vacation resort areas

6(3)        Where, in the opinion of the Lieutenant Governor in Council it is essential for the maintenance or development of a tourist industry, the Lieutenant Governor in Council may, by regulation, designate a municipality as a vacation resort area and a municipality that is so designated may, by by-law, exempt any class of retail business establishment from the application of section 2 in respect of the sale of such goods or services and subject to such conditions as may be specified in the by-law.

S.M. 1997, c. 18, s. 3.

Powers of municipalities

7           Any provision of any other Act empowering a municipality to regulate the closing or the hours of operation of a retail business does not include the power to permit the carrying on of the retail business on a holiday where to do so is prohibited by this Act, but nothing in this Act shall be construed to affect any power conferred on a municipality to prohibit the carrying on of a retail business on a day when the carrying on of the retail business is not prohibited by this Act.

Offence and penalty

8           Any person who violates a provision of this Act or the regulations is guilty of an offence and is liable on summary conviction, in the case of a first offence, to a fine of not less than $1,000. and not more than $10,000. and, in the case of a subsequent offence occurring within two years of any previous offence, to a fine of not less than $10,000. and not more than $50,000.

Regulations

9           The Lieutenant Governor in Council may make regulations

(a) [repealed] S.M. 1997, c. 18, s. 4;

(a.1) for the purpose of subsection 6(1), establishing fees or a method for determining fees to be charged for permits;

(b) [repealed] S.M. 1993, c. 22, s. 13;

(c) designating municipalities as vacation resort areas; and

(d) necessary to carry out the intent and purpose of this Act.

S.M. 1993, c. 5, s. 4 and 9; S.M. 1993, c. 22, s. 4, 13 and 18; S.M. 1997, c. 18, s. 4.

Repeal

10          The Retail Businesses Holiday Closing Act being chapter R120 of the Continuing Consolidation of the Statutes of Manitoba and An Act to amend The Retail Businesses Holiday Closing Act being chapter 1 of the Statutes of Manitoba, 1987, are hereby repealed.

Reference in C.C.S.M.

11          This Act may be referred to as chapter R120 of the Continuing Consolidation of the Statutes of Manitoba.

Commencement of Act

12(1)       Subject to subsection (2), this Act comes into force on the day it receives the royal assent.

Retroactive Effect

12(2)       If the royal assent is given to this Act after July 1, 1987, this Act shall be deemed to have come into force on July 1, 1987, and is retroactive in effect to that day.

 

 


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