0013-00-ES Lela Edwards, Applicant v. Mrs. Waheda Khan, Ministry of Labour, Responding Parties v. Attorney General of Ontario, Intervenor.

Employment Practices Branch File No. 41008353

BEFORE: Stephen Raymond, Vice-Chair.

APPEARANCES: Jacquie Chic and Beth Long for the applicant; and Waheeda Hosein-Khan and Mohammed Khan for the respondent; Alicia Gordon-Fagan for Ministry of Labour;

Hart Schwartz for the Ministry of the Attorney General.

DECISION OF THE BOARD; December 28, 2000

1. This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the “Act”) for review of a refusal by Employment Standards Officer Anthony Pierre (the “Officer”) to issue an order on February 16, 2000. The application was filed with the Board on April 3, 2000.

I. Background

2. The applicant, Ms. Lela Edwards (“Ms. Edwards”) worked for Ms. Waheda Khan (“Ms. Khan”). Ms. Edwards was hired to care for Ms. Khan’s two young boys, who were at the time of Ms. Edwards’ employment, aged two and three. Following a brief period of employment of approximately four weeks, the employment relationship ended. Ms. Edwards made a claim for minimum wage and overtime pay pursuant to the Act for the period of her employment.

3. In his refusal to issue an Order, the Officer determined that Ms. Edwards was a domestic servant as defined under Regulation 325 and, as such, was not entitled to minimum wage or overtime pay.

II. The Issues

4. The basis of the appeal was that section 3(1)(f) of Regulation 325 of the Act or sections 7 and 9 of Regulation 322 of the Act are unconstitutional. Notice of Constitutional Question was served on the Attorneys General of Canada and Ontario.

5. The first issue the Board decided to determine was whether Ms. Edwards was employed as a nanny or a domestic servant. In other words, was the employment regulated by Regulation 325 or Regulation 322.

III. Issue 1 - Was Ms. Edwards employed as a domestic servant or a nanny?

6. Regulation 322 section 2(b) states

7. This Regulation applies to a person who is employed by a householder,

(b) as a nanny to rear a child who is a member of the household where the person is considered to be qualified to do so because of formal training or experience equivalent to formal training;

Regulation 322 section 7 states

7. (1) Where,

(a) work is performed by the domestic, nanny or sitter in excess of forty-four hours in a week; and

(b) the householder and the domestic, nanny or sitter agree,

the excess time may be granted as time off, at times agreed upon by the householder and the domestic, nanny or sitter, at the rate of 1.5 hours for each hour so spent in one of the next twelve weeks subsequent to such performance at the regular rate of pay.

(2) Section 24 of the Act does not apply if time off is given in accordance with subsection (1). R.R.O. 1990, Reg.322, s.7.

Regulation 322 section 9 states

9. Part IV of the Act does not apply to a domestic, nanny or sitter. R.R.O. 1990, Reg. 322, s.9.

10. Regulation 325 section 1 provides a definition of domestic servant

“domestic servant” means a person who is employed by a householder,

(a) as a sitter to attend primarily to the needs of a child who is a member of the household,

(b) as a companion to attend to the needs of an aged, infirm or ill member of the household, or

(c) as a domestic to perform services in the household who works twenty-four hours a week or less;

Regulation 325 subsection 3(1)(f) states

3. (1) Parts IV, V, VI, VII and VIII of the Act do not apply to a person employed,

(f) as a domestic servant;

8. Ms. Edwards testified that she worked for Ms. Khan from May 31, 1999 to June 25, 1999. She worked eleven hours per day from Monday to Friday and earned $160.00 per week. She was responsible for Ms. Khan’s two boys, aged two and three for the eleven-hour period that she worked. There were no other adults present. She fed the boys meals (although Ms. Khan prepared them) and cleaned the dishes. She was responsible for keeping the boys clean and watching over them. She read to them, taught them to spell easy words such as ‘cat’ and ‘rat’, played with them, counted to them, took them for walks and disciplined them, although, as she indicated, she would never hit them.

9. Her prior practical experience included the care of an elderly man in Jamaica, the raising of her own five children and a number of grandchildren. She was completely responsible for the raising of her own children and was left for long periods of time with her grandchildren while the parents of those children worked outside of the home. In her care of the elderly man, she was responsible for all of his daily care including feeding, washing and general care. She testified that she once said to the elderly man while referring to the Bible that “you are once a man, but twice a child.” It was in this way that she linked her care of the elderly man to the care of young children.

10. Counsel for the applicant argued that Ms. Edwards was not a nanny but was a domestic servant. She argued that although her experience with her own children and grandchildren was relevant that it did not meet the test of “experience equivalent to the formal training” of a nanny. She further indicated that the definition of domestic servant could include a person who like Ms. Edwards had raised her own kin. It was argued that Ms. Edwards was not hired as a nanny but more as a baby-sitter. She further argued that if the Board permitted experience in raising one’s own children to qualify as “experience equivalent to the formal training” of a nanny that would discriminate against childless persons working in the child care industry.

11. Counsel for the Ministry took the position that Ms. Edwards could be either a domestic servant or a nanny and that both interpretations were open to the Board. She referred to a decision of Referee Bryant in Sharpe and McDermott ESC 2507 (May 9, 1989, Bryant). In that decision, Referee Bryant dealt with a similar situation. In determining that the claimant was not a nanny, he relied on a course leading to the position of nanny taught at Sheridan College. At the time of his decision, the course had been discontinued for several years. He compared the ability of the employee to the formal criteria of the course and determined at page 15 that,

I find that the claimant was an experienced sitter. I also find the claimant achieved a level of education that indicates that she may have the ability to acquire the requisite knowledge and skills required to become a qualified nanny. I accept Dr. McDermott’s evidence, which is the only evidence concerning this issue which I am prepared to rely upon, that the claimant does not have the knowledge and ability of a qualified nanny nor does she possess the experience equivalent to formal training.

12. Counsel for the Ministry also directed my attention to the decision of the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re) 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 (S.C.C.). In that case, the Court was dealing with the Act and stated at page 11,

13. Finally, with regard to the scheme of the legislation, since the ESA is a mechanism for providing benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation. As such, according to several decisions of this Court, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant (see, e.g., Abrahams v. Attorney General of Canada, 1983 CanLII 17 (SCC), [1983] 1 S.C.R. 2, at p. 10; Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), [1988] 1 S.C.R. 513, at p. 537). …

IV. The Decision

13. It is my view that a broad and generous interpretation is not only appropriate but, in fact, is mandated by the Supreme Court of Canada. Using this principle, one must conclude that Ms. Edwards was employed as a nanny. While it is true that she was attending “purely to the needs of a child” as contemplated by the definition of domestic servant, when one does that for two young children for eleven hours a day, five days a week, one is rearing the children as a nanny. Her extensive experience in raising her own children and grandchildren and her related experience with an elderly man is sufficient to satisfy the requirement of “equivalent experience to the formal training” as a nanny in Regulation 322, section 2(b).

14. That decision was given orally at the hearing. The parties met with a Labour Relations Officer and were able to agree that the amount owing to Ms. Edwards was seven hundred and fifty dollars ($750.00). I ordered Ms. Khan to pay that amount to Ms. Edwards. The parties agreed that it would be paid by December 31, 2000.

V. Issue 2 – the constitutional question

15. The initial constitutional question was in relation to Regulation 325. Having determined that Ms. Edwards’ employment was regulated by Regulation 322, there was no practical purpose to determine the constitutional question raised pursuant to Regulation 325. Counsel for the applicant indicated Ms. Edwards would pursue her constitutional questions relating to Regulation 322 in another venue and would not proceed with those issues in front of the Board. Counsel further indicated that Ms. Khan would not need to appear in any other forum on this matter. If the matter was pursued, it would be as a test case and would in no way impact any entitlement that Ms. Edwards might have arising out of her employment with Ms. Khan.

VI. DISPOSITION

16. The appeal is allowed. The responding party, Ms. Khan, is ordered to pay the applicant, Ms. Edwards, the sum of $750.00 before December 31, 2000.

“Stephen Raymond”

for the Board