The Ontario Ministry of Labour has recently been cracking down
on unpaid internships at magazines, prompting the publishers at
Toronto Life and The Walrus to shut down their programs. As summer
approaches and post-secondary students begin their hunt for
relevant work experience, is worth reviewing the rules around
whether and when people receiving training must be paid for their
The Ontario Employment Standards Act, 2000 (the "ESA")
makes no reference, anywhere, to "interns". Instead, the
ESA refers to "a person receiving training". Some
trainees are considered to be employees (and therefore covered by,
and entitled to the protections in, the ESA), and some are not. In
order to be considered an employee, a trainee must be trained in a
skill that is used by the employer's other employees. However,
a trainee who is trained in a skill that is used by the
employer's other employees will not be covered by, or entitled
to the protections in, the ESA, if all of the following six
conditions are met:
1. The training is similar to that provided in a vocational
2. The training is for the benefit of the trainee (i.e., not the
3. The employer derives little, if any, benefit from the
4. The trainee does not displace other employees in the
5. The trainee is not accorded a right to become an employee of
6. The trainee is advised that he or she will not be paid for
the time spent in training.
It doesn't matter whether the trainee agreed to work as an
unpaid intern, has signed an agreement indicating that he or she
would work as an unpaid intern, or did not attempt to negotiate for
monetary compensation. If the trainee is being trained in a skill
used by the employer's other employees, and one or more of the
six conditions in the above list is not met, then the trainee must
be paid at least minimum wage, and will enjoy all of the other
protections in the ESA, including those pertaining to hours of
work, overtime pay, paid vacations, public holidays, leaves of
absence, termination and severance pay, etc.
It should also be noted that the ESA also contains exemptions
for certain, specific types of trainees, including:
1. a secondary school student who performs workunder a work
experience program authorized by the school board; and
2. an individual who performs work under a program approved by a
college of applied arts and technology or a university.
Furthermore, students in training to become certain
professionals (including in architecture, law, professional
engineering, public accounting, surveying, veterinary science,
chiropody, chiropractic, dentistry, massage therapy, medicine,
optometry, pharmacy, physiotherapy, psychology, and naturopathy, or
teaching as defined in the Teaching Profession Act) are exempt from
the minimum wage, hours of work, overtime pay, paid vacations and
public holiday provisions of the ESA. Most of these professions
have some type of work experience or apprenticeship requirement
that must be completed before a person can qualify to practise the
profession, and such work experience is often mandated by the
profession's governing statute. This exemption will not apply
merely because a student who is studying this subject area at a
university or college is seeking employment.
If you would like assistance determining whether unpaid interns
at your organization should be paid and/or receive other
protections outlined in the ESA, please contact a member of the BLG
labour and employment law group.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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