Ontario Bolsters Child Performer Rights, but excludes fashion models

On February 5, 2015, the Ontario Government rolled out new legislation that specifically targets Child Performer’s employment rights in the entertainment industry.

CanadaFashionLaw has followed a movement that has been happening south of the border in terms of protecting child talent, and is delighted that Ontario is also taking the necessary precautions to protect talented youth.  However, it appears that the Ontario government did not specifically consider fashion models, much to CanadaFashionLaw‘s disappointment.

Abiding by this legislation is mandatory and employers cannot “contract out” of the provisions.  Below is a summary of the salient provisions of the legislation:

  • Who does it pertain to? The act pertains to child performers under the age of 18, who perform work or supply services as a performer (including a background performer) in the entertainment industry for monetary compensation.  However, the act stipulates that an employer cannot employ a baby less than 15 days old for recorded entertainment or a child that is younger than 2.5 years old for live entertainment.
  • What is the legislation applied to? The legislation is limited to the live and recorded entertainment industry.
  • What is included as part of the entertainment industry?  The scope of what qualifies as part of the entertainment industry is restricted to performers in: a) live performing arts in theatre, dance, music, opera or circus or b) visual or audio visual recorded entertainment that is played in cinemas, the internet, radio, television broadcast, or a recorded device, such as a DVD.
  • An obligation of full and continued disclosure. Prior to employing a child performer, the prospective employer must have a meeting with the child’s parent/guardian providing full disclosure about the gig, including a description of the role the child will play, the location and hours of the rehearsals and performances, any health and/or safety hazards the child may be exposed to, the precautions the prospective employer will take to safe guard against those hazards, any special skills required of the child and any special effects that the child may be exposed to.  The child has the option of being present at this meeting.  Should any of these items be changed, the employer must provide the parent/guardian with written notice.  The changes cannot be implemented without the parent/guardian’s consent.
  • Written employment contracts are mandatory.  Although fantastic that this is included, CanadaFashionLaw doesn’t understand why anyone would provide services without a written contract.
  • Supervision.  Any child performer under 16 years ago must be accompanied by an authorized chaperone to/from the workplace.  The parent/guardian must provide its authorization in writing.  However, if the travel is overnight, the parent/guardian must accompany the child at all times.  The employer is responsible for the overnight travel costs.  A parent/guardian or authorized chaperone must be present during the child’s performance.
  • Tutoring.  The employer must set aside time in the work schedule for the child to receive tutoring.
  • Creation of trust fund.  If the child earns more than $2,000 on a project, 25% of the earnings must be set up in a trust fund, which the child can access when he/she reaches 18.  However, if the child is part of a trade union or professional association, and the union/association provides for a trust fund deposit, this provision does not apply.
  • Maximum hours of work and overtime.  The legislation sets the maximum hours and overtime a child can work in the day, which varies according to age and whether the child is performing in live or recorded entertainment.
  • Free hours.  The legislation also stipulates that the child must have a specific number of minimum hours free during the work day and also during the week.
  • Enforcement.  The act refers back to specific provisions in the Employment Standards Act with respect to enforcement.

Interestingly, (but perhaps not surprisingly), the fashion industry does not easily tie in with this legislation.  It appears to be geared towards Ontario’s golden child entertainment industries: film, television, radio and music, with a few additional industries, such as dance, opera, theatre and, even the circus.  Fashion is not itemized as an industry.  As such, it is difficult to make the case that child models will be protected by this legislation.  At best, child models may be protected under this legislation if they are included in a recorded commercial that is replayed in cinemas, on the internet or on TV.  Frustratingly, this is another example of how the Ontario government has shortchanged the fashion industry (perhaps to the employers’ delight).

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Fashion Advocacy: The Ontario Government Should Support and Fund the Fashion Industry

We wish to draw your attention to an important issue that is occurring right now that affects the fashion industry and ask for your support.

In 2014-2015, the Ontario Ministry of Tourism, Culture and Sport invested approximately $800 million into the province’s cultural industries. To date, the fashion industry has been ineligible to receive any of this funding on the basis that it does not qualify as culture or arts.

Ashlee Froese, a fashion lawyer who is a Bay Street partner, co-chair of FGI, and a mentor with TFI and CAFA, is filing submissions to the Government of Ontario advocating that fashion should be eligible for government funding. A number of entities and individuals have officially endorsed her submission, including the Toronto Fashion Incubator, Fashion Group International, the Canadian Arts and Fashion Awards, Lisa Tant, Jeanne Beker, Stylist Box, Sue Roadburg, David Dixon, Suzanne Rogers, Deirdre Kelly, Paul Mason, Robert Ott, Sabrina Maddeaux, Ryerson Fashion Zone, Mikael D, Novella Magazine, Toronto Men’s Fashion Week.

We believe that mass support from within the fashion community will help get the fashion industry noticed.

We invite you to familiarize yourself with Ashlee’s submissions, which can be accessed here: Ontario Culture Consultation.

If you support this position, please sign the petition which can be accessed here.  The deadline is December 7, 2015.

This submission has been endorsed by the Toronto Fashion Incubator, Fashion Group International, the Canadian Arts and Fashion Fund, Lisa Tant, Jeanne Beker, Suzanne Rogers, David Dixon, Paul Mason, Sue Roadburg, Dierdre Kelly and Stylist Box.

Together we can make this happen, together we will make this happen!

Thank you.

Politics, Lobbying and Fashion: A Fabulous Combination?

Last week, CanadaFashionLaw advised its readers that the Ontario Government is conducting open consultations with respect to setting up a Culture Strategy for Ontario.  Fashion is not included as part of culture.  One of CanadaFashionLaw’s mantras is: don’t ask, don’t get.  With respect to the consultation, our position is that if you don’t like the status quo, change it!  (And if you want our help to change the status quo, let us know!).  Ultimately, industry has to inform the government of the realistic ‘boots on the ground’ business impact that laws have.

There’s always an interesting dance between industry and the government.  Oftentimes industries flourish when it has government support.  When industries don’t have that support, industry players will band together to lobby the government to make laws more favourable.  Statistics on whether the Canadian fashion industry is very involved in lobbying the government for progressive change is sparse.  Sometimes this is on purpose as corporations are hesitant to demonstrate their overt influence on the government.

Examples in the US of where the fashion industry has actively lobbied government to change laws include attempts to change the US Copyright Act to include specific protection for fashion designs and to build support for the Trans-Pacific Partnership.  If you’re wondering why the fashion industry would have a vested interest in the TPP – the TPP will eliminate tariffs of textiles and apparel.  (Of course, this could put a major dent in the ‘Made in America’ movement).  In 2015 alone, the US fashion industry spent big on this issue.  For example, the US National Retail Federation spent $3 million on lobbying the US government, Target spent $770,00, JC Penny spent $410,000 and the Gap spent $160,000.  That is some significant investment!

It will be interesting to see if the Canadian fashion industry will band together to get the Ontario government to consider fashion to be part of culture.

If you’re interested in chatting about this more, feel free to reach out to CanadaFashionLaw.