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January 26, 2017

“Qualified Practitioners”, “Students in Training” and Overtime

If you operate a company or firm that employs a “duly qualified practitioner of … public accounting” or “a student in training” for “public accounting” then you had better become familiar with two recent cases out of the Ontario Labour Relations Board (the “OLRB”).

The first, Stan Seidenfeld Professional Corporation v Huihua (Linda) Peng, 2016 CanLII 26939 (ON LRB) and the second is Jose Reyes v Jonas Lang Lasalle Real Estate Services Inc., 2017 CanLII 1071 (ON LRB).  The cases consider the “public accounting” and “student in training” exemptions from the overtime provisions of the Employment Standards Act, 2000 (the “ESA” or the “Act”).

The ESA, and more specifically, O. Reg. 285/01, Exemptions, Special Rules and Establishment of Minimum Wage provides for the following exemptions from the overtime provisions in the ESA:

(a)  as a duly qualified practitioner of,

(i)     architecture,

(ii)    chiropody,

(iii)   dentistry,

(iv)   law,

(v)    medicine,

(vi)   optometry,

(vii)  pharmacy,

(viii) professional engineering,

(ix)   psychology,

(x)    public accounting,

(xi)   surveying, or

(xii)  veterinary science;

(b) as a duly registered drugless practitioner

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

(d) as a student in training for the professions or callings mentioned in clause (a), (b) or (c);

In Stan Seidenfeld Professional Corporation, the first case in which the Board was called upon to directly address what was meant by the term “public accounting.  The Board, after conducting a detailed analysis, including an extensive and comprehensive review of the structure of the accounting profession in Ontario and the rules of statutory interpretation, the Board stated:

44. Thus, “public accounting” is simply a reference to an accountant holding out his/her services to perform the normal accounting functions for members of the public.  It is intended to be a reference to the accounting profession, not just to those accountants who are licensed to sign an audit or assurance agreement.

45. In further support of the proposition that it was the intention of O.Reg. 285/01 s.2(a)(b) to exclude from the overtime provisions those who work in the self-governing professions is the fact that invariably those who are hired as employees, in the listed professions, are paid on the basis of a yearly salary, and the amount of hours they work can vary widely based upon any number of variables, such as time of year (accountants); type of service being provided (medical residents in hospitals); amount of clients needing immediate assistance (criminal defence lawyers).  When one combines the concept of being paid a salary (many times including a bonus), as discussed in paragraphs 18 – 26 above, the normal meaning of the list of exempted professions found in O.Reg. 285/01 s.2(a)(b) makes eminent sense.

51. Such accountants cannot be considered as “students in training” as they are already qualified and registered accountants.  However, if the definition of “public accounting” is interpreted consistently with the principle of noscitur a sociis then O.Reg. 285/01 s.2(1)(d) can logically be applied to all those who are students of accounting, being student members of one of the three accounting associations, and in the same class as all other students of the occupations/professions listed in O.Reg. 285/01 s.2(1)(a)(b)(c) or (d).  Such a result is far more rational and reasonable than the Director’s approach.

….

53. Therefore, the Board finds that the term “public accounting” as used in O.Reg. 285/01 s.2(1)(a) is meant to be a reference to those who are qualified and registered practitioners of accounting i.e. accountants, offering their services to the public.

In Jose Reyes v Jonas Lang Lasalle Real Estate Services Inc. a case with some history, the OLRB was, ultimately, called upon to consider whether the Applicant was excluded from overtime on the basis that he was employed as a “duly qualified practitioner of public accounting” or as “a student in training” in public accounting.   The OLRB stated:

…. [the Applicant] effectively concedes that he was employed as an “accountant” (in the generic sense) by Jonas Lang to perform accounting duties, having been registered as a “public accountant” in the Dominican Republic and who was registered as a student member of the CPA (Ontario), and was gaining experience in order to sit the CPA’s exams that if passed would entitle him to become a full member of the CPA.  There is nothing in O.Reg. 285, R.R.O.1990 that requires a student in training be enrolled in classes. Subsection 2(1)(d) of O.Reg. 285 only requires that a person be in training for (in this case) public accounting, which is exactly the situation Reyes was in, by his own admission.  The subsection does not attempt to define what that training has to consist of, leaving that aspect to the particular profession involved. [Emphasis added]

After quoting from Stan Seidenfeld Professional Corporation, the OLRB concluded that the Applicant “clearly falls within the definition of a “student in training” in order to become a registered public accountant in Ontario, and thus O.Reg. 285, R.R.O.1990 excludes him from the benefit of the overtime provisions.”

These cases are of significance to those who employ people engaged in the professions (specifically public accounting) and students in training in those professions.