In Ontario, interns are generally considered employees and entitled to basic standards like minimum wage and standard hours of work unless they fall under one of two exceptions:
- The Student Exemption: The Employment Standards Act does not apply to a person who performs work under a program approved by a secondary school board, college of applied arts and technology, private career college, or university.
- The Professional Exemption: students training to join certain professions are not entitled to certain employment standards like minimum wage, hours of work, overtime pay, public holidays, and vacation pay.
Employees are sometimes misclassified as volunteers. Simply because an employer calls someone a “volunteer” does not mean that they are, in fact, a volunteer.
The leading case on volunteer misclassification in The Employment Standards Act: Policy and Interpretation Manual is Re Consumer Liability Discharge Corporation. In this decision, Referee Davis noted that the minimum standards in the Employment Standards Act cannot be avoided by agreement between an employee and employer. He stated that whether someone is truly a volunteer is a difficult question that depends “on the total circumstances surrounding each individual case.” He stated that the following factors are relevant: “the extent to which the person performing the services views the arrangement as being pursuant to his pursuit of a livelihood on the one hand, and the extent to which the person receiving the services is conferred a benefit on the other… the circumstances of how the arrangement was initiated… whether an economic imbalance between the two parties was a factor in structuring the arrangement.”
For further information on volunteer misclassification, see labour lawyer Josh Mandryk’s post here.
Health and Safety Rights
Interns are generally entitled to health and safety protections based on the Occupational Health and Safety Act definition of “worker” under section 1(1). Workers have three basic rights:
- The “right to participate”, in identifying and resolving health and safety concerns. This is expressed mainly in Joint Health and Safety Committees requirements;
- The “right to know” about any hazards to which they may be exposed; and
- The “right to refuse work” that they believe is dangerous.
In Ontario, interns are entitled to protections against discrimination and harassment in employment under the Human Rights Code. Employees are protected several grounds, including race, colour, ancestry, place of origin, citizenship, ethnic origin, creed (religion), sexual orientation, marital status, family status, record of offenses, age, disability, sex (includes pregnancy and sexual harassment), gender identity, and gender expression.
While the Human Rights Code does not define “employment”, the Human Rights Commission and the Human Rights Tribunal of Ontario endorse a broad definition of “employment” that covers those in a work-like context, including interns and volunteers.
Disclaimer: This factsheet is not legal advice and should not, under any circumstances, be relied upon as legal advice. For assistance with your specific legal issue, please contact the appropriate government department or a legal professional. The Canadian Intern Association does not accept any liability for your use of this factsheet and will not, under any circumstances, be liable to you or any other person for any loss or damage arising from, connected with, or relating to the use of this factsheet by you or any other person.