New legislation has just been passed by the Manitoba Legislature repealing The Retail Holiday Business Closures Act, among other changes affecting retail businesses operating in Manitoba. The new legislation removes provincial restrictions on the operation of retail business establishments on Sundays and holidays.
These changes will take effect as of Sunday December 13, 2020.
Up to now, Sunday and holiday openings were prohibited unless a municipality (including the City of Winnipeg), enacted a bylaw. Even then, New Year's Day, Good Friday, Easter Sunday, Canada Day, Labour Day and Christmas Day were off limits. Sunday hours of operation have been restrictive. Specific types of retail establishments had been exempt, such as pharmacies, nurseries and recreational facilities. These changes provide flexibility for a much wider array of businesses to set their hours on holidays and Sundays.
Our view is that municipal bylaws passed under The Retail Holiday Business Closures Act should be of no force and effect as that legislation is repealed. Municipalities will still have a right to pass legislation regarding the days and hours that businesses may operate within the municipality. We are currently unaware of plans by municipalities to enact bylaw limiting days or hours.
Restrictions remain on retail business opening hours as set out in The Remembrance Day Act, where a retail business may be open on Remembrance Day, with certain exceptions set out therein.
It is important to note that employees retain the right to refuse to work on Sunday provided that certain criteria are met in terms of notice to the employer. This is normally done by providing notice to the employer of at least 14 days. This right has been effectively "transferred" from the repealed legislation into The Employment Standards Code. This is a protected right and employers may not take retaliatory action against an employee for refusing to work on Sundays (or Remembrance Day).
The definition of "retail" has been and remains broad. A "retail business establishment" means the premises or place in which or from which a retail business is carried on. This includes the selling or offering for sale of services at retail including services of a person engaged in a trade or profession, the rental of goods or the charging of admission to a performance.
Employers who are subject to a collective agreement may have certain contractual obligations that are more restrictive. We anticipate that these collective agreement provisions would still apply in these circumstances.
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