Ontario looking to broaden protections
Ontario’s Minister of Labour introduced a bill late last year intended to broaden the definition of "worker" under the province’s occupational health and safety legislation so unpaid interns could have the same health and safety protections as fully employed workers.
Setting aside the legalities of unpaid work in the province, current legislation does not clearly include unpaid interns in basic health and safety laws, and co-op students and apprentices may not always be protected by the Employment Standards Act.
"In Ontario, under the Occupational Health and Safety Act, ‘worker’ is defined as a person who performs work or supplies services for monetary compensation," says Claire Seaborn, an Ottawa-based law student and founder of the Canadian Intern Association. "Based on that definition, essentially any student or unpaid intern wouldn’t fall within it and that’s why they’re excluded."
If passed, Bill 146, the Stronger Workplaces for a Stronger Economy Act, 2013, would redefine worker to include precarious workers, such as unpaid interns.
In Manitoba and Nova Scotia, interns are also left out of occupational health and safety legislation altogether, says Seaborn.
"The problem is when these pieces of legislation were written, nobody had thought about this unpaid worker concept… as a result, we have all of these definitions of worker that just haven’t considered this new type of worker that’s developed," she says. "Essentially, all of these pieces of legislation need to keep up with the times and adapt to the fact that we have a whole new category of worker that has been created in Canada."
Legislation in Alberta, New Brunswick, Newfoundland and Labrador and Prince Edward Island protects interns that are part of an academic program, but not unpaid interns outside of a school program.
In British Columbia, the law states property owners are required to maintain "premises that are being used as a workplace in a manner that ensures the health and safety of persons at or near the workplace."
"So, an unpaid intern may not be a worker, but they’re a person," says Lorna Pawluk, a lawyer at Vancouver-based law firm Bernard Barristers and Solicitors. "As an owner, you have obligations to everybody under this act."
British Columbia’s definition of a worker is also broader than most provinces, which may provide more protection, says Seaborn.
"The definition of worker is… anyone who becomes subject to the hazard of an industry, so it’s a lot easier to say interns would fall within that definition," she says.
Unpaid interns in vocational programs are covered by B.C.’s workers’ compensation legislation.
"If WorkSafeBC determines that an individual is not a learner (someone who is doing work during a probationary period or undergoing training), not participating in a practicum with a post-secondary institute that has obtained voluntary coverage under the Workers Compensation Act, we would consider that individual to be an intern who would not be eligible for compensation benefits (health care, vocational rehabilitation and wage loss)," according to Megan Johnston, communications officer with WorkSafeBC, the province’s workers’ compensation board.
Legislation in Saskatchewan is similar to that in B.C., offering anyone who is subject to the hazards of an industry protection under provincial safety laws, Seaborn says.
Quebec
Quebec is the only province that explicitly states workers include apprentices, students and volunteers.
"It doesn’t specifically say ‘unpaid interns’ but the definition is just so much clearer," says Seaborn. "Students without remuneration fall under it, volunteer workers and people who can be deemed workers. So, Quebec has the clearest definition, I would say, out of anyone."
Seaborn recommends other provinces follow Quebec in amending legislation to be clearer and more inclusive.
"Similar to Quebec, other provinces should include a broader definition of worker and a definition of worker that includes unpaid work and student work," she says.
Unpaid interns often
misclassified employees
There are an estimated 100,000 to 300,000 internship positions available across Canada in nearly every sector, according to Andrew Langille, a Toronto lawyer who focuses on youth and workplace law.
There are very few instances when those interns can go unpaid, he says.
"Most provinces have a prohibition on unpaid labour and they don’t have any exclusions to it — for the most part — and most that do have professional exclusions are student exclusions," he says, using Ontario as an example. "So, you really can’t have a legal unpaid internship in most provinces."
Interns that are not being paid are likely illegal and if an accident should occur, a court might deem that individual as an employee. This is commonly referred to as employee misclassification.
"In many cases, where somebody has been misclassified as an unpaid intern, they’re an employee in actuality and have protections under occupational health and safety laws," Langille says, adding oftentimes language used in OHS legislation is written to be inferred.
"The other thing you have to realize is that occupational health and safety laws are socially protected legislation and they’re designed to be broadly and liberally interpreted," he says. "So, the courts are supposed to look for ways to protect people rather than not protect people — that would be one thing that I’ve discovered."
Yet, Langille still believes change needs to happen because interns should have the explicit right to refuse potentially dangerous work.
"The interesting thing is that students currently aren’t covered under the Occupational Health and Safety Act, but if they’re in a mandatory work-training program as part of a college or university program, they’re entitled to WSIB coverage," he says. "So, they don’t have any Occupational Health and Safety Act protections — which would ostensibly protect them from injury — but if they do get injured, they get benefits."
