This case challenged the constitutionality of parts of Ontario’s Employment Standards Act, which excluded domestic workers from many employment protections given to other workers.
LEAF sponsored the Toronto Organization for Domestic Workers’ Rights’ (also known as Intercede) challenge before the Supreme Court of Ontario (Divisional Court), which the organization brought alongside Melita Chittenden and Avelina Villanueva.
Facts
Melita Chittenden and Avelina Villanueva both came to Canada and were employed as live-in domestic workers. At the time of the case, the minimum hourly wage in Ontario was $4.35. The minimum hourly wage for overtime work was $6.53.
Ms. Chittenden worked approximately 70 hours per week, receiving an average hourly wage of $2.73. She was never paid extra for overtime. Ms. Villanueva initially worked approximately 87 hours per week for an average hourly wage of $1.88. She too was never paid extra for overtime. After changing positions, she worked approximately 65 hours per week for an average wage of $2.81 per hour. The position did not include any extra wages for overtime outside of her statutory rest periods.
Under the Employment Standards Act at the time, domestic workers and nannies were excluded from protections concerning hours of work, minimum wage, overtime pay, and premium holiday pay. Almost all domestic workers in Ontario were women, and nearly all live-in domestic workers in Ontario were immigrants to Canada.
Arguments
The applicants, sponsored by LEAF, argued that the provisions in the Employment Standards Act violated s. 15 of the Charter. The provisions denied domestic workers protections and benefits based on their occupation – and, by extension, based on their sex and national origin. The results almost exclusively harmed women, and in particular women who had immigrated to Canada. In addition, the exclusion reflected societal assumptions undervaluing women’s contributions in the private sphere, and the further undervaluing of the work of racialized and migrant women undeserving of the same protections as “real” work.
Outcome
Following the launch of this challenge, the Government of Ontario introduced a regulation under the Employment Standards Act. This regulation extended minimum wage protections to domestic workers, and required that they be compensated for work in excess of 44 hours a week. It did not, however, provide maximum hours of work protections to domestic workers.
LEAF is grateful to Robert Sharpe (now Justice Sharpe), counsel in this case.
Download the factum here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].
