Bill 210, Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009

Fonseca, Hon Peter Minister of Labour

Current Status: Royal Assent received Chapter Number: S.O. 2009 C.32

Viewing: Royal Assent (current version) pdf

Bill 210                                                    2009

An Act to protect foreign nationals employed as live-in caregivers and in other prescribed employment and to amend the Employment Standards Act, 2000

Note: This Act amends the Employment Standards Act, 2000.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

 

 

CONTENTS

Interpretation

  1.

  2.

Interpretation

Acting as recruiter

Application

  3.

  4.

  5.

  6.

Application to foreign nationals, employers, etc.

Separate persons treated as one entity

No contracting out

Civil proceedings not affected

Protective Measures

  7.

  8.

  9.

10.

11.

12.

13.

Prohibition against charging fees

Prohibition against cost recovery by employers

Prohibitions against taking, retaining property

Prohibitions against reprisal

Duty to provide documents to foreign nationals

Director’s duty to publish documents

Director’s authority to publish names of offenders, etc.

Record Keeping

14.

15.

16.

Employer’s duty to keep records

Recruiter’s duty to keep records

Prohibition re record keeping

Liability of Directors

17.

18.

19.

Restricted application of ss. 18, 19

Directors’ liability to repay fees, etc.

Indemnification, etc., of directors

Complaints and Enforcement

20.

21.

22.

23.

24.

25.

26.

Complaints

Effect of filing complaint

Meetings required by employment standards officer

Settlement

Authority to make orders

Time limits on recovery

Refusal to issue order

27.

28.

29.

30.

31.

32.

Notice of contravention

Limitation period re orders, notices of contravention

OLRB review of order, etc.

OLRB review of notice of contravention

General provisions respecting the Board

Prescribed arrangements re collective agreements

Administration and Enforcement

33.

34.

35.

36.

37.

38.

39.

40.

Powers and duties of Director

Powers and duties of employment standards officers

Investigation and inspection powers

Warrants

Prohibitions re investigations and inspections

Posting of notices

Service of documents

Collections

Offences and Prosecutions

41.

42.

43.

44.

45.

46.

47.

48.

General offence

Limitation period, prosecution

Onus in prosecution for reprisal

Additional orders re reprisals, property

Additional orders re other contraventions

Offence re directors’ liability

Offence re permitting offence by corporation

Where prosecution may be heard, etc.

General

49.

50.

51.

52.

53.

Copy constitutes evidence

Regulations

Amendments to the Employment Standards Act, 2000

Commencement

Short title

______________

 

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation

Interpretation

Definitions

   1.  (1)  In this Act,

“director” means a director of a corporation and includes a shareholder who is a party to a unanimous shareholder agreement; (“administrateur”)

“Director of Employment Standards” has the same meaning as in the Employment Standards Act, 2000; (“directeur des normes d’emploi”)

“employment standards officer” has the same meaning as in the Employment Standards Act, 2000; (“agent des normes d’emploi”)

“foreign national” means an individual who is not,

  (a)  a Canadian citizen, or

  (b)  a permanent resident within the meaning of the Immigration and Refugee Protection Act (Canada); (“étranger”)

“live-in caregiver” means an individual who,

  (a)  provides child care, senior home support care or care of the disabled in a private household where the person being cared for resides, and

  (b)  resides in that household; (“aide familial”)

“other prescribed employment” means, in relation to a foreign national, employment in a position or sector that is prescribed for the purposes of paragraph 1 of subsection 3 (1); (“autre emploi prescrit”)

“prescribed”, unless otherwise indicated, means prescribed by the regulations made under this Act; (“prescrit”)

“recruiter” means a person who is acting as a recruiter as described in section 2. (“recruteur”)

Incorporation by reference

   (2)  Where this Act incorporates by reference a provision of the Employment Standards Act, 2000, the provision is incorporated with necessary modifications that include the following:

    1.  References in that Act to a complaint filed under section 96 of that Act shall be read as references to a complaint filed under section 20 of this Act.

    2.  References in that Act to an order under section 103, 104, 106, 107 or 108 of that Act shall be read as references to the corresponding order described in section 24 of this Act.

    3.  For greater certainty, references in that Act to an order to pay wages owing by an employer shall be read as references to the following in this Act:

            i.  In connection with the prohibitions in section 7 of this Act against a recruiter charging fees or another person collecting fees, the references shall be read as an order to repay fees charged by a recruiter or collected by a person on behalf of a recruiter, and read as if the fees were wages under that Act and as if the recruiter or person were an employer under that Act.

           ii.  In connection with the prohibition in section 8 of this Act against an employer recovering costs, the references shall be read as an order to repay costs recovered by an employer, and read as if the costs were wages under that Act.

Acting as recruiter

   2.  For the purposes of this Act, a person is acting as a recruiter,

  (a)  if the person finds, or attempts to find, an individual for employment; 

  (b)  if the person finds, or attempts to find, employment for an individual;

   (c)  if the person assists another person in doing the things described in clause (a) or (b); or

  (d)  if the person refers an individual to another person to do any of the things described in clause (a) or (b).

Application

Application to foreign nationals, employers, etc.

   3.  (1)  This Act applies to the following persons:

    1.  Every foreign national who is employed in Ontario as a live-in caregiver or in such other position or sector as may be prescribed or who is attempting to find such employment.

    2.  Every person who employs a foreign national in Ontario as a live-in caregiver or in other prescribed employment.

    3.  Every person who acts as a recruiter in connection with the employment of a foreign national in Ontario as a live-in caregiver or in other prescribed employment.

    4.  Every person who acts on behalf of an employer described in paragraph 2 or a recruiter described in paragraph 3.

Prerequisite

   (2)  This Act applies to an employer described in paragraph 2 of subsection (1) unless the Employment Standards Act, 2000 does not apply in respect of the employment.

Same

   (3)  This Act applies to a recruiter described in paragraph 3 of subsection (1) unless the Employment Standards Act, 2000 would not apply in respect of the employment.

Crown

   (4)  This Act applies to the Crown in such circumstances as may be prescribed.

Separate persons treated as one entity

   4.  (1)  Subsection (2) applies if,

  (a)  associated or related activities or businesses are or were carried on by or through an employer or recruiter and one or more other persons; and

  (b)  the intent or effect of their doing so is or has been to directly or indirectly defeat the intent and purpose of this Act.

Same

   (2)  The employer or recruiter, as the case may be, and the other person or persons described in subsection (1) shall all be treated as a single entity for the purposes of this Act, even if the activities or businesses are not carried on at the same time.

Exception, individuals

   (3)  Subsection (2) does not apply with respect to a corporation and an individual shareholder of the corporation unless the individual is a member of a partnership and the shares are held for the purposes of the partnership.

Joint and several liability

   (4)  Persons who are treated as one entity under this section are jointly and severally liable for any contravention of this Act and for any amounts owing to a foreign national by any of them for the contravention.

No contracting out

   5.  (1)  No person shall contract out of or waive a protective measure under this Act and any such contracting out or waiver is void.

Definition

   (2)  In this section,

“protective measure” means a requirement or prohibition under this Act that applies to an employer, recruiter or person acting on behalf of an employer or recruiter for the benefit of a foreign national.

Civil proceedings not affected

   6.  (1)  Subject to section 21, no civil remedy of a foreign national against his or her employer or against a recruiter is affected by this Act.

Notice

   (2)  If a foreign national commences a civil proceeding against his or her employer or against a recruiter under this Act, notice of the proceeding shall be served on the Director of Employment Standards on a form approved by the Director on or before the date the civil proceeding is set down for trial.

Same

   (3)  Subsections 8 (3) to (5) of the Employment Standards Act, 2000 apply with respect to service of the notice.

Protective Measures

Prohibition against charging fees

   7.  (1)  No person who acts as a recruiter in connection with the employment of a foreign national as a live-in caregiver or in other prescribed employment shall directly or indirectly charge the foreign national or such other persons as may be prescribed a fee for any service, good or benefit provided to the foreign national.

Prescribed exceptions

   (2)  Subsection (1) does not apply with respect to such fees as may be prescribed.

Prohibition against collecting fees

   (3)  No person acting on behalf of a recruiter shall collect a fee charged by the recruiter in contravention of subsection (1).

Prohibition against cost recovery by employers

   8.  (1)  No employer shall directly or indirectly recover or attempt to recover from a foreign national or from such other persons as may be prescribed,

  (a)  any cost incurred by the employer in the course of arranging to become or attempting to become an employer of the foreign national as a live-in caregiver or in other prescribed employment; or

  (b)  any other cost that is prescribed.

Prescribed exceptions

   (2)  Subsection (1) does not apply with respect to such costs as may be prescribed.

Prohibitions against taking, retaining property

Employer

   9.  (1)  No person who employs a foreign national as a live-in caregiver or in other prescribed employment, and no person acting on the employer’s behalf, shall take possession of, or retain, property that the foreign national is entitled to possess.

Recruiter

   (2)  No person acting as a recruiter in connection with the employment of a foreign national as a live-in caregiver or in other prescribed employment, and no person acting on the recruiter’s behalf, shall take possession of, or retain, property that the foreign national is entitled to possess.

Example: passports, etc.

   (3)  For example and without limiting the generality of subsections (1) and (2), a person described in subsection (1) or (2) is not permitted to take possession of, or retain, a foreign national’s passport or work permit.

Prohibitions against reprisal

Reprisal by employer

   10.  (1)  No person who employs a foreign national as a live-in caregiver or in prescribed employment, and no person acting on the employer’s behalf, shall intimidate or penalize or attempt or threaten to intimidate or penalize the foreign national because he or she,

  (a)  asks any person to comply with this Act;

  (b)  makes inquiries about his or her rights under this Act;

   (c)  files a complaint with the Ministry under this Act;

  (d)  exercises or attempts to exercise a right under this Act;

  (e)  gives information to an employment standards officer; or

    (f)  testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act.

Reprisal by recruiter

   (2)  No person acting as a recruiter in connection with the employment of a foreign national as a live-in caregiver or in other prescribed employment, and no person acting on the recruiter’s behalf, shall intimidate or penalize or attempt or threaten to intimidate or penalize the foreign national because he or she,

  (a)  asks any person to comply with this Act or the Employment Standards Act, 2000;

  (b)  makes inquiries about his or her rights under this Act or the Employment Standards Act, 2000;

   (c)  files a complaint with the Ministry under this Act or the Employment Standards Act, 2000;

  (d)  exercises or attempts to exercise a right under this Act or the Employment Standards Act, 2000;

  (e)  gives information to an employment standards officer; or

    (f)  testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act or the Employment Standards Act, 2000.

Onus of proof

   (3)  In a proceeding for the contravention of this section, other than a proceeding described in subsection (4), the burden of proof that a person did not contravene this section lies on that person.

Exceptions

   (4)  Subsection (3) does not apply with respect to the burden of proof in a review under section 30 of a notice of contravention of this section or the burden of proof in a prosecution for a contravention of this section.

Duty to provide documents to foreign nationals

Employer’s duty

   11.  (1)  A person who employs a foreign national as a live-in caregiver or in other prescribed employment shall give him or her a copy of the documents published by the Director of Employment Standards under section 12 before the employment commences if the employer did not use the services of a recruiter in connection with the employment.

Recruiter’s duty

   (2)  If a recruiter contacts, or is contacted by, a foreign national in connection with employment as a live-in caregiver or other prescribed employment, the recruiter shall give the foreign national a copy of the documents published by the Director under section 12 as soon as is practical after first making contact with him or her.

Duties re languages other than English

   (3)  If the language of the foreign national is a language other than English, the employer or recruiter, as the case may be, shall make enquiries as to whether the Director has prepared a translation of the documents published under section 12 into that language and, if the Director has done so, the employer or recruiter shall also provide a copy of the translation to the foreign national.

Transition, employer’s duty

   (4)  If the foreign national is employed by the employer in other prescribed employment on the day the regulation prescribing the employment comes into force, the employer shall give him or her a copy of the documents published by the Director under section 12 and the translation, if required by subsection (3), as soon after the regulation comes into force as is practical.

Same

   (5)  If the foreign national is employed by the employer as a live-in caregiver on the day this section comes into force, the employer shall give him or her a copy of the documents published by the Director under section 12 and the translation, if required by subsection (3), as soon after this section comes into force as is practical.

Director’s duty to publish documents

   12.  (1)  The Director of Employment Standards shall prepare and publish documents providing such information as the Director considers appropriate about the rights and obligations under this Act of,

  (a)  foreign nationals who are employed as live-in caregivers or in other prescribed employment or who are attempting to find such employment;

  (b)  employers of foreign nationals employed as live-in caregivers or in other prescribed employment; and

   (c)  persons acting as recruiters in connection with the employment of foreign nationals as live-in caregivers or in other prescribed employment.

Rights under the Employment Standards Act, 2000

   (2)  The Director shall prepare and publish a document providing such information about the rights and obligations of employees and employers under the Employment Standards Act, 2000 as the Director considers of particular relevance to foreign nationals employed as live-in caregivers or in other prescribed employment and their employers.

If information out of date

   (3)  If the Director believes that a document prepared under subsection (1) or (2) has become out of date, the Director shall prepare and publish a new document.

Director’s authority to publish names of offenders, etc.

   13.  (1)  If a person, including an individual, is convicted of an offence under this Act, the Director of Employment Standards may publish or otherwise make available to the general public the name of the person, a description of the offence, the date of the conviction and the person’s sentence.

Internet publication

   (2)  Authority to publish under subsection (1) includes authority to publish on the Internet.

Disclosure

   (3)  Any disclosure made under subsection (1) is deemed to be made in compliance with clause 42 (1) (e) of the Freedom of Information and Protection of Privacy Act.

Record Keeping

Employer’s duty to keep records

   14.  (1)  A person who employs a foreign national as a live-in caregiver or in other prescribed employment shall record the name and address of any person to whom the employer made a payment for finding the foreign national for employment or for finding employment for the foreign national, the date and amount of the payment and such other information as may be prescribed.

Records retention

   (2)  The employer shall retain, or shall arrange for some other person to retain, the records for seven years after the earliest of,

  (a)  the date on which the employee ceases to be employed by the employer as a live-in caregiver or in other prescribed employment, as the case may be; or

  (b)  the date on which the employee becomes a permanent resident, within the meaning of the Immigration and Refugee Protection Act (Canada), or a Canadian citizen.

Availability for inspection

   (3)  The employer shall ensure that the records required by this section are readily available for inspection as required by an employment standards officer, even if the employer has arranged for another person to retain them.

Recruiter’s duty to keep records

   15.  (1)  A person who acts as a recruiter in connection with the employment of a foreign national as a live-in caregiver or in other prescribed employment shall record the following information:

    1.  The name of the foreign national.

    2.  The amount of any fees paid to the recruiter by the foreign national or other prescribed person that are permitted under subsection 7 (2), the date of the payment and the reason for the payment.

    3.  The name and address of each employer for whom the recruiter found, or attempted to find, foreign nationals to be employed as live-in caregivers or in other prescribed employment.

    4.  The name and address of each employer with whom the recruiter placed, or attempted to place, foreign nationals in employment as live-in caregivers or in other prescribed employment.

    5.  The amount of any money paid to the recruiter by an employer of the foreign national, the date of the payment and the reason for the payment.

    6.  Such other information as may be prescribed.

Duty to keep documents

   (2)  If the recruiter charges the foreign national or other prescribed person a fee that is permitted under subsection 7 (2), the recruiter shall retain or arrange for some other person to retain all invoices, statements of account and other documents related to the fee.

Records retention

   (3)  The recruiter shall retain or arrange for some other person to retain the records and documents for seven years after the services are provided in connection with the employment of the foreign national.

Availability for inspection

   (4)  The recruiter shall ensure that the records and documents required by this section are readily available for inspection as required by an employment standards officer, even if the recruiter has arranged for another person to retain them.

Prohibition re record keeping

   16.  No person shall make, keep or produce false records or other documents that are required to be kept under this Act or participate or acquiesce in the making, keeping or producing of false records or other documents that are required to be kept under this Act.

Liability of Directors

Restricted application of ss. 18, 19

   17.  (1)  Sections 18 and 19 do not apply with respect to an individual described in subsection 80 (2), (3) or (4) of the Employment Standards Act, 2000.

Application to certain shareholders

   (2)  Sections 18 and 19 apply to a shareholder who is a party to a unanimous shareholder agreement to the extent that the agreement restricts the discretion or powers of the directors to manage or supervise the management of the business and affairs of the corporation in relation to duties and liabilities under this Act.

Directors’ liability to repay fees, etc.

Employer

   18.  (1)  The directors of an employer are jointly and severally liable to repay costs recovered by the employer from a foreign national in contravention of section 8,

  (a)  if the employer is insolvent, the foreign national has caused a claim for repayment of the costs to be filed with the receiver appointed by a court with respect to the employer or with the employer’s trustee in bankruptcy and the claim has not been paid;

  (b)  if an employment standards officer has made an order requiring the employer to repay the costs, unless the amount set out in the order has been paid or the employer has applied to have it reviewed;

   (c)  if an employment standards officer has made an order that a director is liable to repay the costs, unless the amount set out in the order has been paid or the employer or the director has applied to have it reviewed; or

  (d)  if the Ontario Labour Relations Board has issued, amended or affirmed an order under section 29, the order, as issued, amended or affirmed, requires the employer or the directors to repay the costs and the amount set out in the order has not been paid.

Recruiter

   (2)  The directors of a recruiter or person acting on behalf of the recruiter, as the case may be, are jointly and severally liable to repay fees charged in contravention of subsection 7 (1) or (3), respectively,

  (a)  if the recruiter or person, as the case may be, is insolvent, the foreign national has caused a claim for repayment of the fees to be filed with the receiver appointed by a court with respect to the recruiter or person or with the recruiter’s or person’s trustee in bankruptcy and the claim has not been paid;

  (b)  if an employment standards officer has made an order requiring the recruiter or person, as the case may be, to repay the fees, unless the amount set out in the order has been paid or the recruiter or person has applied to have it reviewed;

   (c)  if an employment standards officer has made an order that a director is liable to repay the fees, unless the amount set out in the order has been paid or the recruiter or person, as the case may be, or the director has applied to have it reviewed; or

  (d)  if the Ontario Labour Relations Board has issued, amended or affirmed an order under section 29, the order, as issued, amended or affirmed, requires the recruiter or person, as the case may be, or the directors to repay the fees and the amount set out in the order has not been paid.

Primary responsibility

   (3)  Despite subsections (1) and (2), the employer, recruiter or person acting on behalf of the recruiter, as the case may be, is primarily responsible to repay the costs or fees, but proceedings against the employer, recruiter or person do not have to be exhausted before proceedings may be commenced to collect those costs or fees from directors under this section.

Contribution from other directors

   (4)  A director who has satisfied a claim to repay costs or fees is entitled to contribution in relation to the repaid costs or fees from other directors who are liable for the claim.

Limitation periods

   (5)  A limitation period established under section 28 prevails over a limitation period in any other Act, unless the other Act states that it is to prevail over this Act.

Indemnification, etc., of directors

   19.  Sections 82 and 83 of the Employment Standards Act, 2000 apply with respect to the liability of directors under this Act.

Complaints and Enforcement

Complaints

   20.  (1)  A person alleging that this Act has been or is being contravened may file a complaint with the Ministry of Labour in a written or electronic form approved by the Director of Employment Standards.

Effect of failure to use form

   (2)  A complaint that is not filed in a form approved by the Director is deemed not to have been filed.

When complaint not permitted

   (3)  A person who commences a civil proceeding with respect to an alleged contravention of this Act is not permitted to file a complaint with respect to the same matter.

Limitation period for complaint

   (4)  A complaint regarding a contravention that occurred more than three and one half years before the day on which the complaint was filed is deemed not to have been filed.

Same

   (5)  A regulation may change the limitation period set out in subsection (4) and may prescribe different limitation periods for different classes of complaints.

Effect of filing complaint

   21.  (1)  A person who files a complaint under this Act with respect to an alleged contravention of this Act is not permitted to commence a civil proceeding with respect to the same matter.

Withdrawal of complaint

   (2)  Despite subsection (1), a person who has filed a complaint may commence a civil proceeding with respect to a matter described in that subsection if he or she withdraws the complaint within two weeks after it is filed.

Meetings required by employment standards officer

   22.  (1)  An employment standards officer may, after giving written notice, require any of the persons referred to in subsection (2) to attend a meeting with the officer in any of the following circumstances:

    1.  The officer is investigating a complaint against a person.

    2.  While inspecting a place, the officer comes to have reasonable grounds to believe that a person has contravened this Act with respect to a foreign national.

    3.  The officer acquires information that suggests to him or her the possibility that a person may have contravened this Act with respect to a foreign national.

    4.  The officer wishes to determine whether an employer is complying with this Act.

    5.  The officer wishes to determine whether a recruiter or a person acting on behalf of a recruiter is complying with this Act.

Attendees

   (2)  Any of the following persons may be required to attend the meeting:

    1.  The foreign national who is employed as a live-in caregiver or in other prescribed employment or who is attempting to find such employment, as the case may be.

    2.  The employer.

    3.  The recruiter.

    4.  The person acting on behalf of the recruiter.

    5.  If the employer, recruiter or person acting on behalf of the recruiter, as the case may be, is a corporation, a director or employee of the corporation.

Requirements

   (3)  Subsections 102 (3) to (9) of the Employment Standards Act, 2000 apply in connection with the meeting.

Settlement

   23.  If a foreign national and another person who have agreed to a settlement respecting a contravention or alleged contravention of this Act inform an employment standards officer in writing of the terms of the settlement, section 112 of the Employment Standards Act, 2000 applies with respect to the settlement.

Authority to make orders

   24.  (1)  An employment standards officer has the authority to make the orders and arrangements set out in this section in connection with a contravention of this Act.

Order to repay fees

   (2)  If the employment standards officer finds that a recruiter or other person has contravened section 7 (prohibition against charging fees), the officer may order the recruiter or other person to pay the amount of the fees to the Director of Employment Standards in trust, in accordance with subsections 103 (1) to (3) of the Employment Standards Act, 2000, or the officer may make the arrangements described in those subsections for the fees to be repaid.  Subsections 103 (5) to (10) and section 105 of that Act apply with respect to the order or arrangement.

Order to repay costs 

   (3)  If the employment standards officer finds that an employer has contravened section 8 (prohibition against cost recovery by employers), the officer may order the employer to pay the amount of the costs to the Director of Employment Standards in trust, in accordance with subsections 103 (1) to (3) of the Employment Standards Act, 2000, or the officer may make the arrangements described in those subsections for the costs to be repaid.  Subsections 103 (5) to (10) and section 105 of that Act apply with respect to the order or arrangement.

Order for compensation 

   (4)  If the employment standards officer finds that a person has contravened section 10 (prohibitions against reprisal), the officer may make an order that the foreign national be compensated for any loss he or she incurred as a result of the contravention.  Subsections 104 (3) and (4) of the Employment Standards Act, 2000 apply with respect to the order.

Order for reinstatement

   (5)  If the employment standards officer finds that an employer or a person acting on behalf of an employer has contravened section 10 (prohibitions against reprisal), the officer may make an order that the foreign national be reinstated.  This order may be made in addition to an order for compensation.  Subsection 104 (4) of the Employment Standards Act, 2000 applies with respect to the order.

Compliance order

   (6)  If the employment standards officer finds that a person has contravened a provision of this Act, the officer may make a compliance order respecting the contravention.  Section 108 of the Employment Standards Act, 2000 applies with respect to the order.

Orders against directors

   (7)  If the employment standards officer finds that a corporation has contravened section 7 or 8, the officer may make orders against some or all of the directors of the corporation to pay amounts for which the directors are liable under section 18 (directors’ liability to repay fees, etc.).  Sections 106 and 107 of the Employment Standards Act, 2000 apply with respect to the orders.

Money paid when no review

   (8)  Section 109 of the Employment Standards Act, 2000 applies with respect to an order requiring payment to the Director of Employment Standards in trust.

Maximum amount of order

   (9)  A regulation may prescribe a maximum amount for an order to repay fees or an order to repay costs and may prescribe different maximum amounts for different classes of contraventions or complaints.

Same

   (10)  If a maximum amount is prescribed with respect to an order to repay fees or to repay costs, an employment standards officer shall not issue such an order with respect to one foreign national for an amount greater than the prescribed maximum.

Time limits on recovery

Complaint by foreign national

   25.  (1)  If a foreign national files a complaint alleging a contravention of this Act, an employment standards officer investigating the complaint is not permitted to issue an order to repay fees or repay costs if the contravention occurred more than three and one half years before the complaint was filed.

Complaint by another person

   (2)  If, in the course of investigating a complaint, an employment standards officer finds that a person has contravened this Act with respect to another foreign national who did not file a complaint, the officer is not permitted to issue an order to repay fees or repay costs to that foreign national if the contravention occurred more than three and one half years before the complaint was filed.

Inspection, no complaint

   (3)  If an employment standards officer finds during an inspection that a person has contravened this Act with respect to a foreign national, the officer is not permitted to issue an order to repay fees or repay costs if the contravention occurred more than three and one half years before the officer commenced the inspection.

Different time limits

   (4)  A regulation may change a time limit set out in subsection (1), (2) or (3) and may prescribe different time limits for different classes of complaints or contraventions.

Refusal to issue order

   26.  (1)  If, after a foreign national files a complaint alleging a contravention of this Act in respect of which an order described in subsection 24 (2), (3), (4), (5) or (6) could be issued, an employment standards officer assigned to investigate the complaint refuses to issue such an order, the officer shall advise the foreign national of the refusal in accordance with subsection 110 (1) of the Employment Standards Act, 2000.

Deemed refusal

   (2)  If no order is issued with respect to a complaint described in subsection (1) within two years after it was filed, an employment standards officer is deemed to have refused to issue an order and to have advised the foreign national as required by subsection (1) on the last day of the second year.

Notice of contravention

   27.  (1)  If an employment standards officer believes that a person has contravened a provision of this Act, the officer may issue a notice to the person setting out the officer’s belief and the applicable penalty for that contravention.

Same

   (2)  Subsections 113 (2), (3), (7) and (9) of the Employment Standards Act, 2000 apply with respect to the notice of contravention.

Deemed contravention

   (3)  The person is deemed to have contravened the provision set out in the notice if,

  (a)  the person fails to apply for a review of the notice under section 30 within the period provided under that section; or

  (b)  the person applies for the review and the Ontario Labour Relations Board finds that the person contravened the provision set out in the notice.

Penalty

   (4)  A person who is deemed to have contravened this Act shall pay to the Minister of Finance the prescribed penalty for the deemed contravention and the amount of any collector’s fees and disbursements added to the amount under subsection 128 (2) of the Employment Standards Act, 2000, and subsection 113 (6.1) of the Employment Standards Act, 2000 applies with respect to required payment.

Limitation period re orders, notices of contravention

   28.  (1)  An employment standards officer shall not issue an order to repay fees, an order to repay costs, an order for compensation or a notice of contravention with respect to a contravention of this Act concerning a foreign national,

  (a)  if the foreign national filed a complaint about the contravention, more than two years after the complaint was filed;

  (b)  if the foreign national did not file a complaint but another person did file a complaint, more than two years after the other person filed his or her complaint if the officer discovered the contravention with respect to the foreign national while investigating the complaint; or

   (c)  if clauses (a) and (b) do not apply, more than two years after an employment standards officer commenced an inspection with respect to the applicable person for the purpose of determining whether a contravention occurred.

Requirements

   (2)  Subsections 114 (2) to (5) and section 115 of the Employment Standards Act, 2000 apply with respect to the limitation periods described in subsection (1) and with respect to the amendment or rescission of an order or a notice of contravention.

OLRB review of order, etc.

   29.  (1)  A person against whom an order has been issued under this Act is entitled to a review of the order by the Ontario Labour Relations Board in the circumstances described in subsection 116 (1) of the Employment Standards Act, 2000.

Review of order, sought by foreign national

   (2)  If an order to repay fees, an order to repay costs, an order for compensation or an order for reinstatement has been issued in respect of a foreign national, he or she is entitled to a review of the order by the Board in the circumstances described in subsection 116 (2) of the Employment Standards Act, 2000.

Same, refusal to issue order

   (3)  In case of a refusal to issue an order described in subsection (2), the foreign national is entitled to a review of the refusal by the Board in the circumstances described in subsection 116 (3) of the Employment Standards Act, 2000.

Exception, orders against directors

   (4)  Despite subsections (2) and (3), the foreign national is not entitled to a review of an order under subsection 24 (7) or to a review of a refusal to issue such an order.

Requirements

   (5)  Subsections 116 (4) to (9) and sections 117 and 118 of the Employment Standards Act, 2000 apply with respect to the review.

Powers of the Board

   (6)  The Board has the powers set out in sections 119 and 120 of the Employment Standards Act, 2000 in a review under this section.

OLRB review of notice of contravention

   30.  (1)  A person against whom a notice of contravention has been issued under this Act may dispute the notice in the circumstances described in subsection 122 (1) of the Employment Standards Act, 2000.

Requirements

   (2)  Subsections 122 (2) to (7) of the Employment Standards Act, 2000 apply with respect to the review.

General provisions respecting the Board

   31.  Sections 123 and 124 of the Employment Standards Act, 2000 apply with respect to the Ontario Labour Relations Board and its duties under this Act.

Prescribed arrangements re collective agreements

   32.  (1)  A regulation may prescribe how this Act may be enforced if an employer is bound by a collective agreement.

Effect of settlement

   (2)  A regulation may prescribe that a settlement made on an employee’s behalf by a trade union that represents the employee is binding on the employee.

Administration and Enforcement

Powers and duties of Director

   33.  (1)  The Director of Employment Standards may exercise the powers conferred upon the Director under this Act and shall perform the duties imposed on the Director under this Act.

Same

   (2)  Subsections 85 (2) and (3) and sections 88 and 88.1 of the Employment Standards Act, 2000 apply with respect to the Director.

Powers and duties of employment standards officers

   34.  (1)  An employment standards officer may exercise the powers conferred upon employment standards officers under this Act and shall perform the duties imposed on them under this Act.

Same

   (2)  Sections 89 and 90 of the Employment Standards Act, 2000 apply with respect to employment standards officers.

Prosecution of employment standards officer

   (3)  No prosecution of an employment standards officer shall be commenced with respect to an alleged contravention of subsection 89 (2) of the Employment Standards Act, 2000 without the consent of the Deputy Attorney General.

Proof of consent

   (4)  The production of a document that appears to show that the Deputy Attorney General has consented to a prosecution of an employment standards officer is admissible as evidence of his or her consent.

Investigation and inspection powers

   35.  (1)  An employment standards officer may, without a warrant, enter and inspect any place in order to investigate a possible contravention of this Act or to perform an inspection to ensure that this Act is being complied with.

Requirements

   (2)  Subsections 91 (2) to (10) of the Employment Standards Act, 2000 apply with respect to investigations and inspections under this Act.

Warrants

   36.  (1)  A justice of the peace may issue a warrant for the purposes and in the circumstances described in subsection 92 (1) of the Employment Standards Act, 2000.

Requirements

   (2)  Subsections 92 (2) to (6) of the Employment Standards Act, 2000 apply with respect to the warrant.

Prohibitions re investigations and inspections

Obstruction

   37.  (1)  No person shall hinder, obstruct or interfere with or attempt to hinder, obstruct or interfere with an employment standards officer conducting an investigation or inspection under this Act.

Same

   (2)  No person shall,

  (a)  refuse to answer questions on matters that an employment standards officer thinks may be relevant to an investigation or inspection under this Act; or

  (b)  provide an employment standards officer with information on matters the officer thinks may be relevant to an investigation or inspection that the person knows to be false or misleading.

Separate inquiries

   (3)  No person shall prevent or attempt to prevent an employment standards officer from making inquiries of any person separate and apart from another person under clause 91 (6) (e) of the Employment Standards Act, 2000.

False and misleading information

   (4)  No person shall provide false or misleading information under this Act.

Posting of notices

   38.  An employment standards officer may require an employer or recruiter to post and to keep posted in or upon his, her or its premises in a conspicuous place or places where it is likely to come to the attention of affected foreign nationals,

  (a)  any notice relating to the administration or enforcement of this Act that the officer considers appropriate; or

  (b)  a copy of a report or part of a report made by the officer concerning the results of an investigation or inspection.

Service of documents

   39.  Section 95 of the Employment Standards Act, 2000 applies with respect to the service of documents under this Act.

Collections

   40.  Sections 125 to 129 of the Employment Standards Act, 2000 apply with respect to the collection of money which a person is liable to pay under this Act.

Offences and Prosecutions

General offence

   41.  A person who contravenes this Act or fails to comply with an order made under this Act is guilty of an offence and on conviction is liable,

  (a)  if the person is an individual, to a fine of not more than $50,000 or to imprisonment for a term of not more than 12 months or to both;

  (b)  subject to clause (c), if the person is a corporation, to a fine of not more than $100,000; and

   (c)  if the person is a corporation that has previously been convicted of an offence under this Act,

           (i)  if the person has one previous conviction, to a fine of not more than $250,000, and

          (ii)  if the person has more than one previous conviction, to a fine of not more than $500,000.

Limitation period, prosecution

   42.  No prosecution shall be commenced under this Act more than two years after the date on which the offence was committed or alleged to have been committed.

Onus in prosecution for reprisal

   43.  In a prosecution in which a person is alleged to have contravened subsection 10 (1) or (2) (prohibitions against reprisal), if the prosecutor establishes that the person acted in a way that a reasonable person in the position of the foreign national would in the circumstances find intimidating or punitive or that the person attempted or threatened to act in such a way, the court may, in the absence of evidence to the contrary, find that the person intimidated or penalized or attempted or threatened to intimidate or penalize the foreign national and that the person did so for a reason referred to in subsection 10 (1) or (2), as the case may be.

Additional orders re reprisals, property

   44.  (1)  If a person is convicted of contravening section 9 (prohibitions against taking, retaining property) or section 10 (prohibitions against reprisal), the court shall, in addition to any fine or term of imprisonment that is imposed, order that the person take specific action or refrain from taking specific action to remedy the contravention.

Same

   (2)  Without restricting the generality of subsection (1), in the case of a contravention of section 10, the order may include one or more of the following:

    1.  A requirement to pay compensation.

    2.  If the person convicted is an employer, a requirement to pay wages owing to the foreign national.

    3.  If the person convicted is an employer, a requirement to reinstate the foreign national in employment.

Failure to comply with order

   (3)  A person who fails to comply with an order issued under subsection (1) is guilty of an offence and on conviction is liable,

  (a)  if the person is an individual, to a fine of not more than $2,000 for each day during which the failure to comply continues or to imprisonment for a term of not more than six months or to both; and

  (b)  if the person is a corporation, to a fine of not more than $4,000 for each day during which the failure to comply continues.

Additional orders re other contraventions

   45.  (1)  If a person is convicted of contravening a provision of this Act other than section 10 (prohibitions against reprisal), the court shall, in addition to any fine or term of imprisonment that is imposed, assess any amount owing to a foreign national affected by the contravention and order the person to pay the amount assessed to the Director of Employment Standards.

Collection by Director

   (2)  The Director shall attempt to collect the amount ordered to be paid under subsection (1) and if he or she is successful shall distribute it to the foreign national.

Enforcement of order

   (3)  An order under subsection (1) may be filed by the Director in a court of competent jurisdiction and on filing is deemed to be an order of that court for the purposes of enforcement.

Offence re directors’ liability

   46.  (1)  A director of a corporation is guilty of an offence if the director,

  (a)  fails to comply with an order under section 18 and has not applied for a review of that order; or

  (b)  fails to comply with an order under section 18 that has been amended or affirmed by the Ontario Labour Relations Board on a review of the order under section 29 or with a new order issued by the Ontario Labour Relations Board on such a review.

Penalty

   (2)  A director convicted of an offence under subsection (1) is liable to a fine of not more than $50,000.

Offence re permitting offence by corporation

   47.  (1)  If a corporation contravenes this Act, an officer, director or agent of the corporation or a person acting or claiming to act in that capacity who authorizes, permits or acquiesces in the contravention is a party to and guilty of the offence and is liable on conviction to the fine or imprisonment provided for the offence.

Same

   (2)  Subsection (1) applies whether or not the corporation has been prosecuted or convicted of the offence.

Additional penalty

   (3)  If an individual is convicted under this section, the court may, in addition to any other fine or term of imprisonment that is imposed, assess any amount owing to a foreign national affected by the contravention and order the individual to pay the amount assessed to the Director of Employment Standards.

Collection by Director

   (4)  The Director shall attempt to collect the amount ordered to be paid under subsection (3) and if he or she is successful shall distribute it to the foreign national.

No prosecution without consent

   (5)  No prosecution shall be commenced under this section without the consent of the Director.

Proof of consent

   (6)  The production of a document that appears to show that the Director has consented to a prosecution under this section is admissible as evidence of the Director’s consent.

Onus of proof

   (7)  In a prosecution in which a person is alleged to have contravened this section, if the prosecutor establishes that the person was aware that the corporation was contravening this Act, the court may, in the absence of evidence to the contrary, find that the person authorized, permitted or acquiesced in the contravention.

Where prosecution may be heard, etc.

   48.  Section 138 of the Employment Standards Act, 2000 applies with respect to the prosecution of offences under this Act.

General

Copy constitutes evidence

   49.  Section 140 of the Employment Standards Act, 2000 applies with respect to documents, records and certificates of the Director of Employment Standards under this Act.

Regulations

   50.  (1)  The Lieutenant Governor in Council may make regulations,

  (a)  prescribing anything referred to in this Act as prescribed;

  (b)  providing that any provision of this Act or a regulation does not apply to a person or in specified circumstances.

Conditions

   (2)  A regulation made under this Act may provide that it applies only if one or more conditions specified in it are met.

Amendments to the Employment Standards Act, 2000

   51.  (1)  Subsection 92 (1) of the Employment Standards Act, 2000 is amended by striking out “or” at the end of clause (a), by adding “or” at the end of clause (b) and by adding the following clause:

   (c)  there are reasonable grounds to believe that an offence under this Act or the regulations has been or is being committed and that information or other evidence will be obtained through the exercise of a power mentioned in subsection 91 (6).

   (2)  Section 92 of the Act is amended by adding the following subsection:

Same

   (7)  Without restricting the generality of subsection (6), if a warrant is issued under this section, the matters on which an officer executing the warrant may question a person under clause 91 (6) (e) are not limited to those that aid in the effective execution of the warrant but extend to any matters that the officer thinks may be relevant to the investigation or inspection.

   (3)  Subsection 102 (1) of the Act is amended by striking out “either of” in the portion before paragraph 1 and by adding the following paragraphs:

    3.  The officer acquires information that suggests to him or her the possibility that an employer may have contravened this Act or the regulations with respect to an employee. 

    4.  The officer wishes to determine whether the employer of an employee who resides in the employer’s residence is complying with this Act.

Commencement

   52.  This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

   53.  The short title of this Act is Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009.

 

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 210 and does not form part of the law.  Bill 210 has been enacted as Chapter 32 of the Statutes of Ontario, 2009.

     The Bill enacts a new Act, the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009, and also amends the Employment Standards Act, 2000.

     The new Act applies with respect to foreign nationals who are employed in Ontario as live-in caregivers or in such other positions or sectors as may be prescribed by regulation (referred to in the Act as “other prescribed employment”).  It also applies with respect to foreign nationals who are attempting to find employment as live-in caregivers or in other prescribed employment.  (See section 3 of the Bill.)  The expressions “foreign national” and “live-in caregiver” are defined.  (See section 1 of the Bill.)

     Persons who act as recruiters in connection with the employment of these foreign nationals are prohibited from charging the foreign national or other prescribed persons a fee for any good, service or benefit provided to the foreign national.  Exceptions may be established by regulation. (See section 7 of the Bill.)  “Recruiter” is defined.  (See sections 1 and 2 of the Bill.)

     Employers of the foreign nationals are prohibited from recovering from the foreign national or other prescribed persons any costs incurred by the employer in connection with arranging to employ the foreign national, and from recovering other costs that may be prescribed by regulation.  Exceptions may be established by regulation. (See section 8 of the Bill.)

     Employers and recruiters are prohibited from taking possession of, or retaining, property, such as a passport or work permit, that the foreign nationals are entitled to possess. (See section 9 of the Bill.)

     Prohibitions against reprisal are set out. (See section 10 of the Bill.)

     Employers and recruiters are required to give the foreign nationals copies of documents published by the Director of Employment Standards containing information about the rights of the foreign nationals and the duties of the employers and recruiters under the Act.  If the language of the foreign national is a language other than English, and if the Director has prepared a translation of the documents into that other language, employers and recruiters are also required to provide a copy of the translation to the foreign national.  (See sections 11 and 12 of the Bill.)

     The records to be kept by employers and recruiters are specified.  (See sections 14 and 15 of the Bill.)

     Provision is made for the enforcement of these rights and duties by means of complaints to the Ministry of Labour.  The process is analogous to the enforcement process under the Employment Standards Act, 2000, and several provisions of that Act are incorporated by reference into this Act.   Employment standards officers are authorized to convene meetings, to make orders and to issue notices of contravention.  Those orders and notices can be reviewed by the Ontario Labour Relations Board.  (See sections 20 to 32 of the Bill.)

     The powers and duties of the Director of Employment Standards and of employment standards officers under the Act are specified.  Employment standards officers are permitted to undertake inspections and investigations, and can require employers and recruiters to post notices.  Provision is made for the collection of amounts owing under the Act.  (See sections 33 to 40 of the Bill.)

     It is an offence to contravene the Act or to fail to comply with an order issued under the Act.  Provision is made for penalties for these contraventions.  Provision is also made for additional consequences to be imposed in connection with particular classes of contraventions.  (See sections 41 to 48 of the Bill.)

     Unrelated amendments to the Employment Standards Act, 2000 relate to certain enforcement provisions of that Act.  Subsection 92 (1) of the Act is amended to set out additional grounds for the issuance of a search warrant.  A new subsection 92 (7) relates to the matters that an officer is permitted to question individuals about when executing a warrant  Subsection 102 (1) of the Act is amended to set out additional circumstances in which employment standards officers are permitted to convene fact-finding meetings.  (See section 51 of the Bill.)

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