Interns, trainees, co-op students, and volunteers in unpaid training programs or volunteer relationships without fail are covered by human rights laws in Canada and considered to be employment under human rights laws.
This is a bit of a wonkish post, but it covers off an extremely important topic so it needed to be written. The post covers off a number of issues: what do human rights statutes cover; some of the legal and policy considerations behind the current approach; the present state of the law in Canada; and, where to go for assistance if you feel your human rights have been breached.
Part of difficulty in tracking the legality of unpaid internships and volunteer schemes is that various statutes lay out differing tests to ascertain employee status. Simply put, when you're dealing with precariously employed young workers it isn't sufficient to rely on the tests laid out in workplace law that traditionally have been used to check if some one is an employee, rather one has to engage in a contextual analysis that considers all aspects of the employment relationship, what the statute says, and how the statute is interpreted and applied through the case law. This is due to the fact that statutes have shifting goals and purposes.
As far back as 2011 I've taken the position that emerging forms of precarious employment being deployed in Canada's labour markets are clearly covered by human rights statutes. This protection is critical and arguably just as important than coverage under statutes related to employment standards, workers' compensation, or occupational health or safety.
Before we get into the analysis it should be noted that each province and territory has its own human rights statute. That being said, there isn't much case law on emerging forms of precarious employment and it's very much an evolving area of workplace law. Finally, this isn't an exhaustive summary of the current state of the law, rather it's intended as a succinct overview highlighting an emerging area of workplace law.
What do Human Rights Statutes Cover in Canada?
Human rights statutes are laws aimed at ensuring a minimal level of protection in the area of civil rights. These laws impact on wide range of activities in modern Canadian society such as employment contracts, commercial services, rental of residential properties, and the delivery of services to the general public.
These statutes typically state that people are entitled to equal treatment free from discrimination or harassment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital, family status, or disability; additionally, it should be noted that some provinces include additional grounds such as political affiliation.
For situations involving unpaid labour key problems that young workers could be facing include sexual harassment, discrimination on the basis of age, asking prohibited questions in interview situations, and general harassment due to the social location of the worker in the workplace.
What are the Legal and Policy Considerations Behind the Canadian Approach?
Before tackling the application of human rights statutes there are a number of key narratives that need to be covered off to address the full scope of coverage in relation to interns, trainees, co-op students, and volunteers.
It's clear that human rights statutes are intended to be broadly applied and that the term "employment" has a far broader meaning in a human rights context than it is normally ascribed under workplace law. These statutes cover the full-spectrum of employment relationships such as short-term contracts, independent contractors, casual employees, sub-contractors, and part-time employment. It's necessary to utilize a purposive and functional analysis in determining whether an employment relationship exists.
Closely related to the above-noted proposition are a couple of inter-related concepts. The first is that human rights statute and policies arising from them are deserving of broad, policy-based, and liberal interpretations. For case law backing up this concept see: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403; and, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665.
Second, there's the concept that when a legislature intends on limiting the scope of the statute, it will usually do so in a clear and cogent manner; furthermore, it is beyond the power of human rights tribunals to create statutory limitations. For case law in this area take a peek at the following decisions: Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513; Glykis v. Hydro-Quebec, [2004] 3 S.C.R. 285; Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425; Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667; and, University of British Columbia v. Berg, [1993] 2 S.C.R. 353.
Are Interns, Trainees, Co-op Students, & Volunteers Covered Under Human Rights Laws?
In Canada interns, trainees, co-op students, and volunteers enjoy protection under human rights statutes. This is due to the application of concepts examined above and the evolving nature of workplace law in Canada. Over the past twenty-five years there have been any number of decisions that have enshrined protection for wide number of citizens who engage in forms of employment that fall outside traditional forms of employment.
The leading decision on scope of employment related to volunteers in Canada is the Nixon v. Vancouver Rape Relief Society, 2002 BCHRT 1, which held that volunteer relationships can be "employment" for the purposes of human rights statutes and for the obligations arising out of the law. The reasoning of the decision was later confirmed by the British Columbia Court of Appeal in Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601 (also see the Superior Court decision).
In the recently released decision in Rocha v. Pardons and Waivers of Canada, 2012 HRTO 2234 (CanLII), the Human Rights Tribunal of Ontario held that even when a person agrees to work in an unpaid capacity without remuneration for a period of time it does not remove them from the protections guaranteed under the provisions relating to employment under Ontario's Human Rights Code.
For additional human rights case law, see: Brown v. Robinson, (1989) 10 C.H.R.R. D/6286 (B.C.C.H.R.); and, Thambirajah v. Girl Guides of Canada, (1995) 26 C.H.R.R. D/1. Additionally, there is support under Canadian tort law for holding volunteers to be employees in analyzing whether a duty of care existed, see: Huba v. Schulze and Shaw, (1962) 32 D.L.R. (2d) 171 (Man. C.A.); and, Poppe v. Tuttle (c.o.b. 800 Ranch), (1980) 14 C.C.L.T. 115.
What Should I do if my Human Right Have Been Violated?
If you feel you're experiencing a breach of your human rights it is best to contact a lawyer or the human rights agencies in your specific province to get specific advice on how to enforce your rights (feel free to show them this article). Take a look at some of my previous articles on unpaid labour in Canada, see: here, here, here, and here. Take a peek at this great episode of Al Jazeera's The Stream discussing the implications arising from unpaid internships, see:
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