Exemptions Under the ESA (Profession of Law)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-24
CLNP Page ID:	1791
Page Categories:	[Employment Law]
Citation:	Exemptions Under the ESA (Profession of Law), CLNP 1791, <4U>, retrieved on 2024-04-24
Editor:	Sharvey
Last Updated:	2021/11/13

O. Reg. 285/01: WHEN WORK DEEMED TO BE PERFORMED, EXEMPTIONS AND SPECIAL RULES

2. (1) Parts VII, VII.1, VIII, IX, X and XI of the Act do not apply to a person employed,

(a) as a duly qualified practitioner of,

(i) architecture,

(ii) law,

(iii) professional engineering,

(iv) public accounting,

(v) surveying, or

(vi) veterinary science;

(b) as a duly registered practitioner of,

(i) chiropody,

(ii) chiropractic,

(iii) dentistry,

(iv) massage therapy,

(v) medicine,

(vi) optometry,

(vii) pharmacy,

(viii) physiotherapy, or

(ix) psychology;

(c) as a duly registered practitioner under the Naturopathy Act, 2007;

(d) as a teacher as defined in the Teaching Profession Act;

(e) as a student in training for an occupation mentioned in clause (a), (b), (c) or (d);

(f) in commercial fishing;

(g) as a salesperson or broker, as those terms are defined in the Real Estate and Business Brokers Act, 2002; or

(h) as a salesperson, other than a route salesperson, who is entitled to receive all or any part of his or her remuneration as commissions in respect of offers to purchase or sales that,

(i) relate to goods or services, and

(ii) are normally made away from the employer’s place of business. O. Reg. 285/01, s. 2 (1); O. Reg. 92/06, s. 1; O. Reg. 498/18, s. 1 (1).

(2) Subject to sections 24, 25, 25.1, 26 and 27 of this Regulation, Parts VII, VII.1, VIII, IX, X and XI of the Act do not apply to a person employed on a farm whose employment is directly related to the primary production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish. O. Reg. 285/01, s. 2 (2); O. Reg. 498/18, s. 1 (2).

Employment Standards Act, 2000, S.O. 2000, c. 41

PART VII

HOURS OF WORK AND EATING PERIODS

PART VII.1

THREE HOUR RULE

PART VIII

OVERTIME PAY

PART IX

MINIMUM WAGE

PART X

PUBLIC HOLIDAYS

PART XI

VACATION WITH PAY

Stan Seidenfeld Professional Corporation v Huihua (Linda) Peng, 2016 CanLII 26939 (ON LRB)

38. At the macro level section 2 of O.Reg. 285/01 clearly encompasses a wide range of occupations commencing with architects to a person employed on a farm whose employment is directly related to the primary production of eggs, through to cultured fish. Upon zeroing in to the more particular, one aspect of the regulation’s structure is mystifying. Namely, the older O.Reg. 325 listed all of the “traditional professions” in section 2(1)(a) prefaced by the words:

1)Parts VII, VIII, IX, X and XI of the Act do not apply to a person employed,

(a) as a duly qualified practitioner of….”

However, when O.Reg. 285/01 replaced O.Reg. 325 the list of professions listed in O.Reg. 325 was divided into two subsections, namely, section 2(1)(a) and section 2(1)(b). The difference being that 2(1)(a) is prefaced by the words “as a duly qualified practitioner of” whereas section 2(1)(b) is prefaced by the words “as a duly registered practitioner of”. When one reviews how the professions/occupations were divided amongst section 2(1)(a) and (b) there is absolutely no discerning reason or rationale evident on its face for the separation into two sub-sections, or why they were divided in the manner they were. The reality is that in order for an individual to be capable of practicing, for example, medicine, law, optometry, veterinary science, dentistry, or accounting one not only has to be qualified, but also has be a member of a self-governing professional body that maintains a register of its members. Thus, one has to be both qualified and registered to be a practitioner of one of those professions listed in section 2(1)(a)(b). Therefore, the draftsperson has created the classic “distinction without a difference”.