With high school and post-secondary students heading back to the
classroom this September, many Ontario employers are on the lookout
for co-op students or student interns. Co-ops and internships can
be mutually beneficial arrangements for both employers and
students, helping students gain meaningful work experience while
allowing employers to effectively recruit future employees.
However, with controversy recently swirling around
"unpaid internships," some employers may be uneasy about
the notion of taking on a student. And employers have good reason
to be cautious. In general, if a student performs work or supplies
services for a person or company, that individual is typically
considered an "employee" under the Ontario Employment
Standards Act, 2000 ("ESA"), and is thereby
entitled to minimum wage pay for the work he or she performs, as
well as to all other ESA protections.
That said, the ESA does permit unpaid student internships in
certain circumstances. Employers do not have to pay co-op students
or student interns if such students work by way of a work placement
program that meets specific criteria. A high school student
performing a co-op will not be considered an "employee"
if that student is, in fact, in high school and the co-op placement
is authorized by the school board running the student's school.
A post-secondary school student will also not be an
"employee" if he or she is performing work through a work
experience program approved by the relevant college or
The ESA also permits non-student internships to be
unpaid, as long as the intern is being trained and the internship
meets all of the following criteria:
The training is similar to that which
is given in a vocational school.
The training is for the benefit of
The person providing the training
derives little, if any, benefit from the activity of the individual
while he or she is being trained.
The individual does not displace
employees of the person providing the training.
The individual is not accorded a
right to become an employee of the person providing the
The individual is advised that he or
she will receive no remuneration for the time that he or she spends
The Ontario Labour Relations Board has made it
clear that such training internships must provide interns with
formal instruction, supervision and evaluation. The Board has also indicated it does not look
kindly on a company that: charges its customers for a training
intern's expertise; fails to document what particular skills
the intern is taught; and does not track the number of hours the
intern is instructed.
Written with the assistance of John Schudlo, articling
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the
world's preeminent corporations and financial institutions with
a full business law service. We have 3800 lawyers and other legal
staff based in more than 50 cities across Europe, the United
States, Canada, Latin America, Asia, Australia, Africa, the Middle
East and Central Asia.
Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).