With news almost every week of another marijuana dispensary raided by the police, Ontarian’s have asked, can the Ministry of Labour enforce employment standards (i.e. notice of termination, overtime, etc.) in favour of individuals who work at these criminal enterprises?
In short, yes. There is simply no exemption in the Employment Standards Act (“ESA”) which exempts individuals who perform work for a criminal enterprise. Although the ESA has many broad exemptions for whether someone is an “employee” covered by employment standards, it does not, however, exempt individuals working for a criminal enterprise.
The statutory interpretation maxim of “implied conclusion” supports a finding that the ESA applies to an individual who performs work for a criminal enterprise. An implied conclusion lies whenever there is reason to believe that if the legislature had meant to include a particular thing with its legislation, it would have referred to that thing (i.e. criminal activity) expressly. Here, the Ontario government has (wisely) chosen not to exclude “illegal” work as an exemption to employment standards, so it is implied that individuals employed by marijuana dispensaries are covered by the ESA.
Such an interpretation of the ESA extends its protections to as many individuals as possible, which is the intention of the government. Were individuals who performed work deemed illegal by another statute exempted from the ESA, a substantial amount of vulnerable workers would not be protected by employment standards. It would also lead to none-sense. What if a builder failed to get a building permit before it broke ground; would its employees be “illegal” and therefore exempted from the ESA?
The Ontario Labour Relations Board (the “Board”) has followed the above reasoning, consistently finding that an outside statute, for example, the Immigration and Refugee Protection Act, or the Criminal Code of Canada by analogy, did not affect whether an individual was an employee under its mandated legislation (i.e. the ESA). For instance, in Bricklayers, Masons Independent Union of Canada, Local 1 v. Neivex Masonry Inc., 2000 CanLII 12678 (ON LRB) the Board stated that “[a]ny issue of a violation of … the Immigration Regulations is not relevant to the question of whether [someone] was an employee.” Moreover, in Masters Construction Ltd.,  OLRB Rep. Feb. 162, the Board said:
In our opinion, the Board should not inquire into whether a person who is employed by an employer is a person who was legally employed under the Immigration Act. The Board is not the appropriate place to determine whether someone is lawfully entitled to work in Canada. While we have assumed that these two persons were not lawfully employed, we believe that their status under the Immigration Act is irrelevant to our determinations under the Labour Relations Act. If a person is employed, then whether that employment is lawful is a matter for other forums or agencies and not ours.
In summary, employees who perform work for illegal enterprises such as marijuana dispensaries are covered by the same employment standards as those employees who work for more law-abiding Ontario employers. This is a common-sense approach, and one that protects employees who are already in vulnerable situations by way of their line of work.