Employment Protection for Foreign Nationals Act, 2009, S.O. 2009, c. 32

• Jurisdiction: Ontario

Employment Protection for Foreign Nationals Act, 2009

S.o. 2009, chapter 32

Consolidation Period: From October 26, 2023 to the e-Laws currency date.

Last amendments: 2023, c. 15, Sched. 1.

CONTENTS

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”)

“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”) 2009, c. 32, s. 1 (1); 2014, c. 10, Sched. 1, s. 2.

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.

4. For greater certainty, references in section 88 of that Act to an amount owing under the provisions of that Act or the regulations shall be read as references to an amount owing under the provisions of this Act or its regulations. 2009, c. 32, s. 1 (2); 2017, c. 22, Sched. 1, s. 70 (1).

Section Amendments with date in force (d/m/y)

2014, c. 10, Sched.1, s. 2 - 20/11/2015

2017, c. 22, Sched. 1, s. 70 (1) - 01/01/2018

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). 2009, c. 32, s. 2.

Application

Application

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

1. Every foreign national who, pursuant to an immigration or foreign temporary employee program, is employed in Ontario or is attempting to find employment in Ontario.

2. Every person who employs a foreign national in Ontario pursuant to an immigration or foreign temporary employee program.

3. Every person who acts as a recruiter in connection with the employment of a foreign national in Ontario pursuant to an immigration or foreign temporary employee program.

4. Every person who acts on behalf of an employer described in paragraph 2 or a recruiter described in paragraph 3. 2014, c. 10, Sched. 1, s. 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. 2009, c. 32, s. 3 (2).

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. 2009, c. 32, s. 3 (3).

Crown

(4) This Act applies to the Crown in such circumstances as may be prescribed. 2009, c. 32, s. 3 (4).

Section Amendments with date in force (d/m/y)

2014, c. 10, Sched.1, s. 3 - 20/11/2015

Separate persons treated as one employer

4 (1) Subsection (2) applies if associated or related activities or businesses are or were carried on by or through an employer or recruiter and one or more other persons. 2017, c. 22, Sched. 1, s. 70 (2).

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. 2009, c. 32, s. 4 (2).

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. 2009, c. 32, s. 4 (3).

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. 2009, c. 32, s. 4 (4).

Section Amendments with date in force (d/m/y)

2017, c. 22, Sched. 1, s. 70 (2) - 01/01/2018

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. 2009, c. 32, s. 5 (1).

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. 2009, c. 32, s. 5 (2).

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. 2009, c. 32, s. 6 (1).

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. 2009, c. 32, s. 6 (2).

Same

(3) Subsections 8 (3) to (5) of the Employment Standards Act, 2000 apply with respect to service of the notice. 2009, c. 32, s. 6 (3).

Protective Measures

Prohibition against charging fees

7 (1) No person who acts as a recruiter in connection with the employment of a foreign national 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. 2009, c. 32, s. 7 (1); 2014, c. 10, Sched. 1, s. 4.

Prescribed exceptions

(2) Subsection (1) does not apply with respect to such fees as may be prescribed. 2009, c. 32, s. 7 (2).

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). 2009, c. 32, s. 7 (3).

Section Amendments with date in force (d/m/y)

2014, c. 10, Sched.1, s. 4 - 20/11/2015

Prohibition against using recruiters that charge fees

7.1 No recruiter or employer shall, in connection with the recruitment or employment of a foreign national, knowingly use the services of a recruiter who has charged a fee to a foreign national in contravention of subsection 7 (1). 2021, c. 35, Sched. 1, s. 1.

Section Amendments with date in force (d/m/y)

2021, c. 35, Sched. 1, s. 1 - 02/12/2021

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; or

(b) any other cost that is prescribed. 2009, c. 32, s. 8 (1); 2014, c. 10, Sched. 1, s. 5.

Prescribed exceptions

(2) Subsection (1) does not apply with respect to such costs as may be prescribed. 2009, c. 32, s. 8 (2).

Section Amendments with date in force (d/m/y)

2014, c. 10, Sched.1, s. 5 - 20/11/2015

Prohibitions against taking, retaining property

Employer

9 (1) No person who employs a foreign national, and no person acting on the employer’s behalf, shall take possession of, or retain, property that the foreign national is entitled to possess. 2009, c. 32, s. 9 (1); 2014, c. 10, Sched. 1, s. 6 (1).

Recruiter

(2) No person acting as a recruiter in connection with the employment of a foreign national, and no person acting on the recruiter’s behalf, shall take possession of, or retain, property that the foreign national is entitled to possess. 2009, c. 32, s. 9 (2); 2014, c. 10, Sched. 1, s. 6 (2).

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. 2009, c. 32, s. 9 (3).

Section Amendments with date in force (d/m/y)

2014, c. 10, Sched.1, s. 6 (1, 2) - 20/11/2015

Prohibitions against reprisal

Reprisal by employer

10 (1) No person who employs a foreign national, and no person acting on the employer’s behalf, shall intimidate or penalize or attempt or threaten to intimidate or penalize...