Volunteer or employee?

9 minute read
25 August 2022


In 2018, D'Andra Montaque led a class action claim on behalf of volunteers (the "Class Members") against the Defendant, a student travel company, widely known as "S-Trip." The class action claimed that S-Trip volunteers were working upwards of 14-hour days and should be classified as employees, entitling them to wages and benefits commensurate pursuant to the Employment Standards Act, 2000 ("ESA").

S-Trip is a corporate travel company that operates under multiple brand names, largely selling and delivering vacation tours to student-age travelers. S-Trip takes roughly 25,000 students a year to more than 40 countries. S-Trip's revenues have grown from approximately $612,491 in its year of inception to more than $22,525,207.[1] S-Trip is a private company, which is not a registered charity and does not serve a civic, religious or charitable purpose. It is a for-profit business.

On June 27, 2022, the Ontario Superior Court approved the settlement[2] between the class action members and S-Trip. There are approximately 1,170 Class Members on record.

The "employment" relationship

To operate its trips, S-Trip employs "destination staff," which includes trip leaders, Coordinators and Program Directors. Trip Leaders are responsible for guiding the student travelers to and from their destinations. Coordinators are senior staff members tasked with managing one specific aspect of the travel program. Program Directors are senior staff members tasked with managing all aspects of a travel program.

S-Trip requires destination staff to sign a standard form agreement acknowledging they are not entitled to any benefits provided for under the ESA.[3] Despite this agreement, S-Trip advertises full-time salaried positions on their "job board" and regularly communicates to current and prospective S-Trip leaders that "80 per cent of its full-time staff started as destination staff" and that "some of [its] full-time staff members started off as trip leaders … not long ago."[4]

Destination staff are granted an honorarium with specified amounts according to their level of seniority with S-Trip, which is calculated by the number of trips they have completed. The honorarium differentiates based on position. The honorarium provided to destination staff members does not increase with the number of hours worked. Further, income tax, employment insurance and Canadian pension plans are not deducted from the honorarium.

The Class Members argued the following factors established an employment relationship:

  1. The Class Members are the main point of contact between customers and S-Trip;
  2. S-Trip's operations along with the duties performed by the Class Members serve no civic, religious or charitable purpose;
  3. S-Trip is a for-profit company;
  4. Class Members are subject to a six-step interview process, which includes a Garda Pre-Employment Background Check;
  5. Class Members are provided extensive training, including on-the-job training by full-time salaried staff members;
  6. Class Members are subject to a review and evaluation by S-Trip;
  7. Class Members are required to wear standardized uniforms;
  8. Class Members are provided with extensive guidelines and manuals;
  9. Class Members are assigned mandatory duties and working schedules;
  10. The duties assigned to Class Members are obligatory and not voluntary;
  11. Class Members are compensated for their work—i.e., the honorarium; and
  12. The compensation provided to Class Members increases with seniority.[5]

The settlement

The agreed upon Minutes of Settlement[6] provides for a total of $450,000, inclusive of all costs and administrative expenses. In addition, S-Trip will now classify destination staff as employees, pursuant to the ESA and the Canada Pension Plan.[7] S-Trip will implement a system to track employee hours, which is for the purpose of compensating employees for overtime and other obligations imposed by the ESA and amendments thereto.

Key takeaways

Although the parties in this case have reached a settlement which will reclassify volunteers as employees, a settlement agreement is not binding precedent in law. The Court approval does not endorse any specific test that will assist employers to assess whether a volunteer should actually be classified as an employee.

There is no definition of volunteer under the ESA. However, while not binding law, employers may be guided by the ESA Policy and Interpretation Manual,[8] which speaks to contextual factors that a court may assess when faced with this issue:

  • The extent to which the individual performing the volunteering services views it as a pursuit of livelihood;
  • Whether there is an economic imbalance between the two parties structuring the work arrangement; and
  • Whether a benefit is conferred upon the organization.

In the case of S-Trip, it is evident that these three factors existed in its relationship with the destination staff. First, in hopes of being hired as full-time salaried employees, individuals first had to volunteer as Destination Staff. Second, S-Trip required Destination Staff to sign an agreement removing their entitlements under the ESA. Third, S-Trip benefited from the labour performed by destination staff. Notwithstanding the existence of these factors in this case, it is important to note that the Court did not endorse any such test.

This Settlement is also another cautionary tale to employers that class actions are becoming a more prevalent and effective vehicle for employees seeking to bring claims against employers. In the last 10 years, there have been over 12 employment-related class action suits. In 2013, Justice Belobaba in certifying an employee class action observed:

A class proceeding … provides class members with a less expensive and more efficient litigation vehicle and the advantage of anonymity, which in turn avoids employees' fear of reprisals.[9]

If you would like to discuss this article further or have any specific questions about it, please contact a member of our Employment, Labour & Equalities group.

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