Lawsuit targets Blyth Academy
Private school touts its ‘brilliant teaching’ but educators say the jobs are precarious
The phrase “brilliant teaching” features prominently in recent newspaper ads for Toronto-based private high school Blyth Academy.
“Our students tell us over and over that the best teaching they’ve encountered is here,” says promotional material from one of the school’s 14 Ontario campuses.
The company, also known for high school credits it offers in exotic locations abroad, proclaims that great teachers and small classes are behind its ranking “as Canada’s #1 private high school in the Huffington Post.”
But, according to documents filed in a proposed class action against Blyth Academy, accolades for those teachers don’t necessarily translate to fair pay, work conditions or job security.
Karen Walmsley, who taught at Blyth Academy’s Yorkville campus from 2015 to 2017, launched the legal proceedings over what she described in an interview as “precarious employment,” with some teachers allegedly overworked, underpaid and hired contract to contract.
“I care about justice for every teacher who works there,” Walmsley said.
At the heart of the claim is the allegation that the school systematically misclassified teachers by hiring them as “independent contractors” instead of “employees.”
This leaves them without protection under the Employment Standards Act, including the right to earn minimum wage or overtime pay.
Blyth Academy denies all claims in its statement of defence filed in January and says terms of employment were clearly laid out on all contracts signed by Walmsley and other teachers.
It argues that because the school doesn’t provide a traditional academic schedule and offers an array of part-time, full-time, group and private classes, “it does not have a traditional academic staff or faculty.”
The class action will only proceed if certified in court and a hearing date is scheduled for early December.
If certified, it could include “anywhere from 100 to 200 teachers per year” who have worked at the school since it was founded in 2002, says labour lawyer Stephen Moreau of Cavalluzzo LLP, a reputable firm with a track record in employment law.
The proposed lawsuit is claiming $20 million, plus an unspecified amount for unpaid overtime, vacation and holiday pay.
Walmsley says she taught up to three courses a day in English and social sciences, each for two hours and 15 minutes. She taught primarily in groups, though sometimes in private or semi-private classes, and was paid a flat rate of between $2,650 and $3,200 per 10-week course and $1,500 for private. Each required 110 hours of teaching, Blyth Academy says in its statement of defence.
But once work outside the classroom was factored in — including preparing lesson plans, tests and assignments, marking and corresponding regularly with parents and students as required by the school, and providing extra help — it sometimes amounted to well beyond a 40-hour work week, says the claim.
“The defendants required or permitted Walmsley to work between approximately 60 and 80 hours a week,” it says. “As a result of working said hours Walmsley routinely earned income that was below or well below the minimum wage.”
As an example, it cites her first term in the fall of 2015, when Walmsley earned $7,000 over 10 weeks and worked “in excess of 80 hours per week,” which translates to $8.75 an hour, below the minimum wage of $11.25 at that time.
But Blyth Academy’s statement of defence denies that carrying out required teaching duties “could have reasonably resulted in Ms. Walmsley working in excess of the overtime threshold, or a number of hours such that her remuneration was less than the applicable minimum wage.”
In emailed responses to questions from the Star, Blyth Academy president Patrick Shaw said because the average class size is seven students “this greatly reduces the amount of time required to mark assignments and meet with students outside of class hours.”
As an independent contractor, Walmsley did not receive vacation pay or pay for statutory holidays, according to the statement of claim, filed in October and amended in February to also include those teaching private classes.
Walmsley left Blyth Academy in June 2017 before her contract ended and now teaches elsewhere. Shaw declined to comment on the circumstances, citing privacy laws and company policy.
Similar class actions over job classifications have recently been launched against companies in other industries, ranging from Just Energy to GoodLife Fitness.
Under Ontario law, a worker is generally considered an employee if their employer decides what they do, how and where they complete their work, sets their rate of pay and has the ability to discipline them. If the nature of the job meets this test, the Ministry of Labour — or the courts — may find that an independent contractor is actually an employee, regardless of their agreement with their employer.
Blyth Academy said in its statement of defence it hires teachers as both independent contractors and employees and that 45 were classified as employees in 2017. But it didn’t indicate the total number of teachers hired last year.
Shaw said in an email “the vast majority of our full-time teachers at our largest schools, including Yorkville in downtown Toronto, are employees.”
The school currently has about 1,200 full-time high school students in Ontario, who pay annual tuition starting at $13,795. It also operates schools abroad, offers online credits, and part-time and summer courses in Canada and overseas.
Blyth describes itself as a network of boutiques offering everything from full-time classes to “à la carte” courses taught in groups or privately, and argues it has a right to hire independent contractors because of its unique business model and the fluid nature of its enrolment.
For those reasons, “we have always relied on a mix of fulland part-time teachers to accommodate our flexible structure,” Shaw said. The case comes at a time when new teachers face an uphill battle to land employment in a saturated market after a decade of teacher surpluses, particularly in urban centres such as Toronto.
Application forms on the website for Blyth’s Yorkville campus say “Blyth Academy attracts thousands of teacher applications every year, allowing us to be very selective.”
Teachers are “the key to the success of our program and students,” it adds.
Working conditions and staff turnover in any school have im- plications for students, says Charles Pascal, professor at the Ontario Institute for Studies in Education at the University of Toronto.
“When teachers are well supported and well prepared, students will benefit and if they aren’t, not only will the teachers suffer, so will the education of the students,” said Pascal, a former deputy minister of education with the province. He noted there is a lack of oversight of private high schools in Ontario, an issue raised in 2013 and 2015 by the province’s auditor general, who noted Ontario has “one of the least regulated private school sectors in Canada.”
Currently the only requirement is that private schools follow provincial curriculum. “With respect to anything else, buyer beware,” Pascal said.
The lack of job security was a major reason that teacher Michael McNeely says he left Blyth after teaching private classes for four years.
McNeely, who is deaf-blind and can hear with the assistance of a cochlear implant, taught one student at a time at several Blyth Academy sites between 2013 and 2017 after earning his Master’s degree in teaching. He says he earned $1,600 per 10-week course and taught up to four at a time.
“I loved the students,” said McNeely, 29, who qualifies as a member of the class action. “They had an impression on me, and I think I had an impact on them because I was an educator with a disability.”
But he says he was not given an opportunity to teach group classes.
“I was always scared about the next contract,” said McNeely, who’s now a first-year law student at York University’s Osgoode Hall Law School and hopes to specialize in disabilities law. “There was never a guarantee I’d be back. As a person with a disability, I can’t live in that circumstance.”
The class action claims Blyth was “unjustly enriched” as a result of hiring teachers as contractors and that it continues to breach duties of care and good faith “to properly characterize the employment relationship” and advise teachers of their rights to minimum wage, overtime pay, vacation pay, and public holiday and premium pay.
“The defendants were in a position of power over vulnerable employees and owed them duty of good faith,” it says.
But the statement of defence says teachers are aware of the terms under which they are hired and each “is educated, sophisticated and fully understood and understands the nature of each contract he or she entered into.”
Walmsley, 39, has a Master’s degree in anthropology and graduated from teachers’ college in the spring of 2015. By the time she was hired on contract by Blyth that September, “I needed to make rent as soon as possible,” she said.
Walmsley said she didn’t understand the implications of the contract or her classification as an independent contractor. She said she loved the Blyth students and described a strong sense of community among them and her fellow teachers, most of whom were young, new to the profession and dedicated to the kids. But the threat of burnout loomed because of the job demands, which included designing courses from scratch, she added.
When teaching a full course load, she says a typical day would involve arriving at school at about 8 a.m., teaching until 4 p.m. and then working until 8 p.m. on marking and prep.
Lawyer Moreau says he has heard from “well over 100” teachers regarding the proposed class action, which could affect anyone who has taught a course at Blyth Academy since it was founded in 2002 by Sam Blyth, a former travel company operator.
If successful, the case could be significant in helping define situations in which it is appropriate for employers to hire people as contractors instead of employees, he added.
“We have a lot of confidence in the strength of the case overall.”