I've been wanting to write this post for over a year now, but the necessary information to back up my assertions didn't exist in the public sphere. However, that changed yesterday when the Law Society of Upper Canada's Articling Task Force released their Final Report. This post is going to examine the exclusions under the Employment Standards Act, 2000 ("the ESA") and the regulation dealing with Exemptions, Special Rules and Establishment of Minimum Wage ("the regulations") that apply to articling students in Ontario. From the outset I'm going to state that this is not a legal opinion, if you're in a situation where any of the information below applies it would be best to obtain legal advice.
Background: What are the Current Problems?
By way of background here's the situation that currently exists in relation to Ontario's articling crisis. There's a massive glut of law graduates in Ontario due to Canadian students going to the U.K. and Australia for law school, the University of Ottawa and the University of Windsor vastly increased their admissions over the past decade, and foreign trained lawyers immigrating to Canada. Essentially, there aren't enough articling positions for the current number of law graduates, it's simple economics of the supply far outweighing the demand. As a result of these dynamics many law graduates are accepting unpaid articling positions to meet the requirement to become licensed - the main requirements being working for ten months, passing two exams, and completing an online professional skills course.
Very little has been written about the rise of unpaid articling positions in Ontario. No statistics are available and the people taking these positions aren't publicly speaking about their situations. Personally, I know of one person who took an unpaid articling position, but I've been told that these positions are increasingly common in today's labour market. In a footnote on page twenty-nine of the Articling Task Force's Final Report it's stated that "[u]npaid positions continue to be offered and, as students become more pressured to find a placement, accepted." This is a critical piece of information as previously there hasn't been any official acknowledgement of this growing problem.
The Law: Exclusionary Regulations for an Exclusionary Profession
Now the question becomes whether it is legal to not pay an articling student for their labour. The answer may surprise a lot of people, but my analysis suggests that articling students are excluded from key provisions of the ESA. The starting point of this analysis is subsection 2(1) of the regulations, it reads: "Part VII, VIII, IX, X, and XI of the Act do not apply to a person employed (a) as a duly qualified practitioner of...(ii) law". The other key point is subsection 2(1)(e) of the regulations which reads "as a student in training for an occupation mentioned in clause (a), (b), (c), or (d)". These two subsections combine to operationalize the exclusion targeting articling students in Ontario and possibly paralegal students, but arguably the exclusion targeting paralegal students is the far narrower one under subsection 3(5)(2) of the ESA. It should be noted that many other types of students training to be professionals are excluded under the regulations, such as: engineers, architects, accountants, surveyors, veterinarians, dentists, many medical professions, and teachers.
But what do parts VII, VIII, IX, X, and XI of the ESA deal with? Here's a brief overview: part VII deals with hours of work and eating periods; part VIII deals with overtime pay; part IX deals with minimum wage; part X deals with public holidays; and, part XI deals with vacation with pay. These are critical parts of the ESA designed to ensure social minimums are adhered to. Essentially, articling students appear to be completely excluded from the foregoing parts and it appears that they would lack any form of recourse under the ESA if they wanted to contest conditions of employment in relation to the above noted parts. I wasn't able to find any case law directly speaking to articling students and this doesn't surprise me given the subject matter involved.
Analysis: Are These Exclusions Unfair?
These exclusions are deeply troubling given the social location and social context of articling students. At the core articling positions are ten to twelve month temporary employment contracts and some positions could easily be characterized as forms of precarious employment. Articling students are frequently the lowest in the organization's power structure which leaves them susceptible to: power imbalances, various forms of harassment, being forced to sixty plus hour weeks, mental health issues, substance abuse, and economic vulnerability. Articling students are generally young post-secondary graduates who haven't had a lot of employment experience prior to starting their positions and frequently have difficulty setting boundaries between their work and personal lives.
While at the time of inception these exclusions were most likely Charter proof given that the argument that articling students were entering an elite profession and didn't require a high degree of statutory protection. Historically, no doubt this was true, but with the changes in the economy and the labour market over the past thirty years I would argue that the above noted exclusions are now susceptible to a Charter challenge under section 15 given the disparate impact these exclusions have on the basis of age (also I suspect there might be an argument available based on an intersectional analysis rooted in gender, race, ethnic or national origin, and disability).
Overall, this is a topic that needs a lot more debate. The idea that articling students are working unpaid for profitable law firms and government agencies is ridiculous. This is part of a wider trend in society to devalue the labour of young workers and I don't feel it's a morally defensible position. At the core these types of positions are inherently unfair and privilege students from wealthy backgrounds at the expense of students who cannot engage in unpaid work - there are profound equality issues simmering beneath the surface about who gets to practice law and who gets denied. Students with massive law school debt simply aren't able to engage in unpaid work to obtain a license to practice law. At a time when a huge unmet need exists vis-a-vis legal services these sort of practices amounts to anti-competitive behavior and should be stopped through legislative means that enacts a licensing system fair to all law graduates.
Where to Turn for Help?
If you're reading this as an articling student in a conflict with your employer there are a number of places that you can turn to for assistance: the Ontario Lawyers' Assistance Program offers confidential support and counselling; the Law Society of Upper Canada funds an independent Discrimination and Harassment Counsel that offers confidential advice on human rights issues; and, the Human Rights Legal Support Centre offers legal advice for people who are experiencing breaches of their human rights in the workplace. Also, if you're an articling student working in an unpaid position please drop me an email as I'd love what's happening out there - anonymity is guaranteed. I've written about the situation facing recent law graduates in Ontario, see: here, here, and here. Finally, take a look at this video of New York Times reporter David Segal discussing the law school scam, see: