Section 1 – Interpretation
Definitions - s. 1(1)
This section contains definitions for certain terms used in the Employment Protection for Foreign Nationals Act, 2009 (EPFNA).
Note that EPFNA was amended effective November 20, 2015 by the Stronger Workplaces for a Stronger Economy Act, 2014, S.O 2014, c. 10 to broaden the scope of the legislation. Prior to November 20, 2015, EPFNA's name was the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009, and it applied only to foreign nationals employed or attempting to find employment in Ontario as live-in caregivers. Effective November 20, 2015, the newly named EPFNA applies to all foreign nationals employed in Ontario or attempting to find employment in Ontario pursuant to an immigration or foreign temporary employee program.
Some of the defined terms in the EPFNA have the same meaning as in the Employment Standards Act, 2000.
For the purposes of EPFNA, the term "director" is defined in the same way as in ESA Part XX, s.79.
Director of employment standards
Similarly, the use of the term "Director of Employment Standards" in EPFNA has the same meaning as "Director" in the Employment Standards Act, 2000. See ESA Part I, s. 1 for more information.
Employment standards officer
"Employment standards officer" has the same meaning in both acts. An employment standards officer is someone appointed under Part III of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A. For a discussion on the authority to appoint employment standards officers, please see ESA Part XXI, s. 86.
A "foreign national" is defined as an individual who is neither a Canadian citizen nor a permanent resident within the meaning of the federal Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). IRPA defines a permanent resident as a person who has acquired permanent resident status and has not subsequently lost that status per s. 46 of IRPA. The issue of whether a person is a Canadian citizen or a permanent resident can be assessed by requesting and reviewing certain documentation.
EPFNA defines the term "prescribed" as meaning established by regulations under EPFNA.
The term "recruiter" means a person who meets the criteria of acting as a recruiter as described in s. 2 of EPFNA. See the discussion of s. 2 of EPFNA for more information.
Incorporation by reference – s. 1(2)
Subsection 1(2) clarifies how certain provisions of the Employment Standards Act, 2000, which are incorporated into EPFNA by reference, are to be interpreted. The subsection provides that where EPFNA incorporates a reference to a provision of the Employment Standards Act, 2000, the provision must be incorporated with necessary modifications. Subsection 1(2) goes on to specify that those modifications include the following:
- References in the Employment Standards Act, 2000 to a complaint filed under ESA Part XXII, s. 96 are to be read as references to a complaint filed under s. 20 of EPFNA;
- References in the Employment Standards Act, 2000 to an order issued under any of the Employment Standards Act, 2000 sections outlined below are to be read as references to the corresponding order set out in s. 24 of EPFNA:
- Section 103 order to pay wages;
- Section 104 order to reinstate, pay compensation or both;
- Section 106 or 107 order to pay wages against directors; or
- Section 108 order to comply;
- References in the Employment Standards Act, 2000 to an order to pay wages owed by an employer, when read in the context of a prohibition under s. 7 of EPFNA, are to be read as an order to repay fees charged by a recruiter or collected by a person on behalf of a recruiter as if the fees were wages under the Employment Standards Act, 2000. Furthermore, when applying s. 7 of EPFNA, references to an employer under the Employment Standards Act, 2000 are to be read as a reference to a recruiter or other person.
- References in the Employment Standards Act, 2000 to an order to pay wages owed by an employer, when read in the context of a prohibition under s. 8 of EPFNA, are to be read as an order to repay costs recovered by an employer as if the costs were wages under the Employment Standards Act, 2000.
- ESA Part XX, s. 88(5) allows the Director of Employment Standards to set multiple rates of interest for any amounts owing under the Employment Standards Act, 2000 and its regulations, as well as money held in trust by the Director. This section is incorporated for the purposes of amounts owing under the EPFNA.
Delegation of powers (EPFNA)
For more information on the Director of Employment Standard's ability to delegate under EPFNA, see Delegation of Powers for further information.