Sunday, 9 June 2013

What Does it Mean to be a Volunteer under Ontario Employment Law?

What is a "volunteer" under Ontario employment law? The question is more complicated than it might first appear. Most people know what a volunteer is: it is someone who freely gives of their time, usually towards some altruistic purpose. But what is the difference between a "volunteer" and a wrongfully unpaid worker?

In an earlier post titled "Unpaid Internships" I looked at the issue of, well, unpaid internships. As mentioned in that post the word "intern" does not appear in the Ontario Employment Standards Act, 2000. As it turns out, the word "volunteer" does not appear in the Employment Standards Act either. The Ontario Ministry of Labour's Frequently Asked Questioned resource provides only that, "Volunteers are not covered by the Employment Standards Act, 2000."

In looking at internships, I noted that the definition of "employee" contained within the Employment Standards Act, 2000 included a person receiving training, unless all six enumerated criteria were met. For readers looking for more information on internships, have a look at my earlier post.

With respect to volunteers, the answer is even less obvious.

Definition of "Employee," "Employer," and "Wages" in the Ontario Employment Standards Act, 2000

The Ontario Employment Standards Act, 2000 and the minimum standards prescribed by it apply only to "employees" and "employers."

The first word that needs definition is "employee." "Employee" is defined within the Ontario Employment Standards Act, 2000 to include:

(a) a person, including an officer of a corporation, who performs work for an "employer" for "wages",

(b) a person who supplies services to an employer for wages,

(c) a person who receives training from a person who is an employer, as set out in subsection [1](2) [i.e. "interns"], or

(d) a person who is a homeworker,

and includes a person who was an employee.

The second word that needs definition is "employer." "Employer" is defined within the Ontario Employment Standards Act, 2000 to include:

(a) an owner, proprietor, manager, superintendent, overseer, receiver or trustee of an activity, business, work, trade, occupation, profession, project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person in it, and

(b) any persons treated as one employer under section 4, and includes a person who was an employer

Finally, the important word in the definition of "employee" set out above is the word "wages." "Wages" is defined to mean:

(a) monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied,

(b) any payment required to be made by an employer to an employee under this Act, and

(c) any allowances for room or board under an employment contract or prescribed allowances,

but "wages" does not include,

(d) tips and other gratuities,

(e) any sums paid as gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency,

(f) expenses and travelling allowances, or

(g) subject to subsections 60 (3) or 62 (2), employer contributions to a benefit plan and payments to which an employee is entitled from a benefit plan.

Putting it all together an employee is someone who provides work in exchange for "monetary remuneration" payable pursuant to either an employment agreement or the law.

On the face of it, a volunteer would fall outside the definition of employee, as his or her work would not be performed in expectation of any monetary remuneration. As will be shown, this is the key distinction.

When Must "Wages" be Paid?

Recall that one definition of "wages" as provided in the law is: "any payment required to be made by an employer to an employee under this Act." When are payments "required to be made?"

There are a number of prescribed cases in which "wages" must be paid, including during the notice period following termination. However with respect to the ordinary course of working, there is no definition of what qualifies as "work" pursuant to which wages must be paid.

Section 23 of the Employment Standards Act, 2000, which prescribes that employers must pay at least the minimum wage, only provides that, "An employer shall pay employees at least the prescribed minimum wage." The prescription adds nothing to the understanding of who an employee is, nor when the prescribed minimum wage must be paid.

Isn’t There Any Statutory Definition of "Volunteer?"

It would certainly be a lot easier if the Employment Standards Act, 2000 simply defined who was a volunteer; but it does not.

There are some definitions of "volunteer" in Ontario law. For example, Ontario Regulation 385/96, made pursuant to the Occupational Health and Safety Act, defines "volunteer worker" as "a worker who performs work or supplies a service but who receives no monetary compensation for doing so other than an allowance for expenses or an honorarium." A similar definition appears in Ontario Regulation 257/00 made pursuant to the Ambulance Act, in which "volunteer" is defined as "a person who may receive an honorarium or other compensation but does not receive a wage or salary."

While these definitions accord with what thinks of as a volunteer, they do not assist in defining when a worker ought to be paid.

What About Case Law?

A review of cases to consider such circumstances leads one to the 1940s case of Kent v. Bell, 1946 CanLII 8 (ON CA), reversed [1949] S.C.R. 745. A key issue in that case was whether a person performing work on his landlady's roof, without an express agreement as to how much - if anything - he was to be paid, could be called an "employee."

At trial, the judge held that the defendant husband, as agent of his defendant wife, had employed the plaintiff as an employee and that the defendant husband was negligent such that, pursuant to the law at the time, the plaintiff could recover damages for such negligence. The case was appealed all the way to the Supreme Court of Canada.

At the Ontario Court of Appeals (as it was then known), in resolving that the plaintiff worker was, in fact, an employee, Justice Roach (dissenting), held that:

[13] Counsel for the appellants argued in this court that the relationship of master and servant did not exist between the plaintiff and either of the defendants. I disagree with that contention. I think it should be concluded on the evidence that the defendant wife, through the agency of her husband, did employ the plaintiff under an express contract of hiring to do manual labour in the course of such construction, although the amount of wages to be paid for such services was not expressly stated.

[14] The plaintiff, while his main occupation may have been that of farmer operating this farm, was from time to time employed in a factory. For some time prior to the day in question he had been working in the plant of the Canadian Top and Body Corporation as a welder’s helper and fitter, earning wages varying from $8 to $9.60 a day. The accident occurred on a Saturday. On the Friday previously the defendant husband had asked the plaintiff if he would be working the following day. The plaintiff replied that in all likelihood he would be working. The defendant husband then stated that he wanted the plaintiff to assist in the construction of the roof because, as he put it: “We want to get as much of the roof done over the week-end as we possibly can.” The plaintiff agreed by saying: “I guess I will have to help.” The following morning he went to work in the factory, but quit at noon.

[15] This was not the first occasion on which the plaintiff had been employed casually to work for either of the defendants, and on each of the other occasions he was paid in cash. I think it would be unreasonable to assume, while this subject of wages was not discussed on this particular occasion, that the plaintiff did not expect to be paid, or that the defendant husband, as agent for his wife, did not expect to pay him. The plaintiff was losing the wages which he would otherwise have been earning on that particular afternoon at the factory, and while, as it appears from the evidence, he was anxious that the addition to the dwelling should be completed, I do not think it should be concluded that he was to do the work without being paid therefor.

On the facts of the case, two members of the court disagreed with Justice Roach's conclusion on the point. Justices Hogg and Henderson held that the worker was a mere volunteer, with no expectation of payment.

The Supreme Court of Canada disagreed with both sides of the Court of Appeals and held that the plaintiff was neither a volunteer nor an employee, but rather an independent contractor. As to the question of whether wages would have to be paid, the answer in that case would be “no” as the benefit that was to be conferred to the plaintiff was that of a roof over his head.

The cases relied upon by both the Supreme Court of Canada and the Ontario Court of Appeals in their reasons for decision all pointed to the same topic: the reasonable expectation of the parties at the time the work was considered (review paragraph 15 of Justice Roach's reasons.) In short, the question that the court often seems to want to answer is: did the worker expect to be paid?

The Erosion of the Reasonable Expectation of Payment

The issue of reasonable expectation of payment is interesting because, I would submit, a lot has changed since Kent v. Bell was decided. Expectations about payment have been, again I would submit, diminished. Fewer people now expect to be paid for their work. The same explains the growth of "unpaid internships." However, as many point out, simply because one does not expect to be paid for his or her labour does not mean that they should not be. Fellow blogger Andrew Langille has invested a great amount of time and effort on this subject and interested readers would do well to consider his site: youth and work.

I would submit that whether the worker expected to be paid for his or her labour can no longer be the test. In my opinion, the test is whether the worker ought reasonably to have expected to be paid for labour, given the nature of the work to be performed. The test, I would submit, would be objective not subjective so as to protect against naive assumptions of being required to perform unpaid labour as some rite of passage.

A Final Twist: The Application of Human Rights Legislation

To confuse matters even more, the Human Rights Tribunal of Ontario has held that the Ontario Human Rights Code does apply to volunteer employment.

In Rocha v. Pardons and Waivers of Canada, 2012 HRTO 2234 (CanLII) Adjudicator Judith Keene held that volunteer employment can be considered “employment” for the purposes of the Code.

Where Does All This Leave Employers?

As with suggestions about internships, the safest suggestion for most employers is to treat the worker as an employee.

As I have recently mentioned in talks to entrepreneurs and students, the test is likely in the degree and type of work performed. If the work is performed on intermittent and casual basis for an altruistic cause, such as a charity, then the work is likely truly volunteer work. If, on the other hand, the work looks like work, i.e. someone tells the worker when to arrive, what to do, how to do it, and has the ability to summarily end the relationship, then the work should probably be paid.

Consequences if Employers Get it Wrong

Sometimes employers are naive, sometimes they are mistaken, but sometimes the employer is simply unscrupulous. Regardless of intent, the fact is that employer can be held liable by the Employment Standards Office for unpaid wages to workers that ought to have been paid.

Section 103 of the Ontario Employment Standards Act, 2000 provides that:

If an employment standards officer finds that an employer owes wages to an employee, the officer may,

(a) arrange with the employer that the employer pay the wages directly to the employee; or

(b) order the employer to pay the amount of wages to the Director in trust.

Pursuant to subsection 103(4), the maximum amount that an employment standards officer can order an employer to pay any single employee is $10,000.

Furthermore, and more likely in cases where the employer's intention was to exploit those looking to advance their careers, pursuant to section 132 of the Employment Standards Act, 2000 the Ontario Ministry of Labour has the power to fine and even imprison those who violate the law. Section 132 provides as follows:

A person who contravenes this Act or the regulations or fails to comply with an order, direction or other requirement under this Act or the regulations is guilty of an offence and on conviction is liable,

(a) if the person is an individual, to a fine of not more than $50,000 or to imprisonment for a term of not more than 12 months or to both;

(b) subject to clause (c), if the person is a corporation, to a fine of not more than $100,000; and

(c) if the person is a corporation that has previously been convicted of an offence under this Act or a predecessor to it,

(i) if the person has one previous conviction, to a fine of not more than $250,000, and

(ii) if the person has more than one previous conviction, to a fine of not more than $500,000.

Suggestions for Ontario Workers and Recent Graduates

I appreciate that the economy is difficult and that the pressure to find paid employment is great. I also appreciate that many believe that the quickest and most guaranteed way to get ahead is to volunteer or work at an unpaid internship.

I have nothing against volunteering and I have less against "co-op positions" and "internships" than some others in the employment law arena.

However, the opportunities for exploitation are also great.

If you believe that the position that you held should have been a paid one, it may be appropriate to seek legal advice. The employment lawyers at Ottawa's Kelly Santini LLP can provide confidential legal information to you to better advise you as to your rights and remedies. Alternatively, workers can call the Ontario Employment Standards Office at 1-800-531-5551.

Suggestions for Ontario Employers

If you are an Ontario workplace and you occasionally rely upon volunteers, it may be prudent to seek legal advice about your situation. As cases such as Kent v. Bell demonstrate, it is not always easy to tell when a worker is truly a volunteer as compared to an employee. Also, as set out above, sometimes the consequences of getting it wrong can be quite serious.

The experienced employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to your business. We can provide you with opinions, advice and options to protect your business and mitigate your risks.

Contact Me

To reach the author of this blog, Sean Bawden, email or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

1 comment:

  1. Very informative post about employment issues. This post must need to be read by many job hunters to be more aware with it. Thanks for sharing.