Section 10 – Prohibitions against reprisal
Reprisal by employer - s. 10(1)
Subsection 10(1) prohibits employers and anyone acting on their behalf from reprising against foreign nationals employed pursuant to an immigration or foreign temporary employee program for asking a person to comply with the Employment Protection for Foreign Nationals Act, 2009 (EPFNA), for making inquiries about, exercising or seeking the enforcement of their rights under EPFNA, for giving information to an employment standards officer or for participating in a proceeding under EPFNA. This includes intimidating, penalizing or attempting or threatening to intimidate or penalize the employee for doing any of the activities listed in clauses (a) to (f) above.
Subsection 10(1) is very similar to s. 74 of the Employment Standards Act, 2000, except that it contains no clauses corresponding to those Employment Standards Act, 2000 clauses that are not relevant to EPFNA (i.e., the clauses dealing with proceedings under the Retail Business Holidays Act, R.S.O. 1990, c. R.30, leaves of absence and garnishment orders).
It is important to note that foreign nationals who are employed pursuant to an immigration or foreign temporary employee program have protection from reprisals related to the Employment Standards Act, 2000 (including the provisions related to the Retail Business Holidays Act, etc.) through s. 74 of the Employment Standards Act, 2000 because they are "employees" under the Employment Standards Act, 2000.
In the Employment Standards Act, 2000 context, the Program applies a four-step test for determining whether an employer or a person acting on behalf of the employer has committed an act of reprisal. The test has been modified to fit the context of EPFNA as set out below:
- Is the person alleged to have been the subject of a reprisal a foreign national employed in Ontario pursuant to an immigration or foreign temporary employee program?
- Is the person alleged to have committed an act of reprisal the foreign national's employer or a person acting on behalf of his or her employer?
- Did the employer intimidate or penalize or attempt or threaten to intimidate or penalize the foreign national?
- Did the foreign national engage in any of the protected activities set out paragraphs (a) to (f) of etc.) through s. 10(1)?
- Did the employer or person acting on behalf of the employer intimidate or penalize or attempt or threaten to intimidate or penalize the foreign national because he or she engaged in the protected activities referred to in step 4?
If all five questions are answered in the affirmative, a breach of s. 10(1) is established. (Note that s. 10(3) places the burden of proof on the employer in a proceeding involving an alleged reprisal, except where the burden of proof relates to a review of a notice of contravention at the Ontario Labour Relations Board or a prosecution in court).
Information on Employment Standards Act, 2000 reprisal can be found in ESA Part XVIII of this Manual. In particular, four of the five steps outlined here are discussed in further detail. The discussion of reprisals under the Employment Standards Act, 2000, including the discussion of enforcement and heads of damage, can be applied to this provision with necessary modifications.
Reprisal by recruiter - s. 10(2)
Subsection 10(2) establishes an anti-reprisal scheme respecting recruiters and those acting on their behalf. It prohibits recruiters and anyone acting on their behalf from reprising against foreign nationals employed or seeking employment pursuant to an immigration or foreign temporary employee program for asking a person to comply with EPFNA or the Employment Standards Act, 2000, for making inquiries about, exercising or seeking the enforcement of their rights under EPFNA or the Employment Standards Act, 2000, for giving information to an employment standards officer or for participating in a proceeding under EPFNA or the Employment Standards Act, 2000. This includes intimidating, penalizing or attempting or threatening to intimidate or penalize the foreign national for doing any of the listed activities in clauses (a) to (f) above.
Note that in addition to prohibiting reprisals related to EPFNA, this subsection specifically prohibits recruiters and persons acting on their behalf from reprising against foreign nationals for reasons related to inquiries about, exercising or enforcing their rights under the Employment Standards Act, 2000. This latter prohibition is necessary because section 74 of the Employment Standards Act, 2000 (which prohibits reprisals related to the Employment Standards Act, 2000) would not otherwise apply to recruiters or persons acting on their behalf, because they are not "employers".
In the Employment Standards Act, 2000 context, the Program applies a four-step test for determining whether an employer, or a person acting on behalf of the employer, has committed an act of reprisal. The test has been modified to fit the context of EPFNA in relation to recruiters or persons acting on behalf of recruiters as set out below:
- Is the person alleged to have been the subject of a reprisal a foreign national employed or seeking employment in Ontario pursuant to an immigration or foreign temporary employee program?
- Is the person alleged to have committed an act of reprisal a person acting as recruiter in connection with the employment of a foreign national pursuant to an immigration or foreign temporary employee program or someone acting on the recruiter's behalf?
- Did the recruiter or person acting on a recruiter's behalf intimidate or penalize or attempt or threaten to intimidate or penalize the foreign national?
- Did the foreign national engage in any of the protected activities set out paragraphs (a) to (f) of subsection 10(2)?
- Did the recruiter or person acting on behalf of a recruiter intimidate or penalize or attempt or threaten to intimidate or penalize the foreign national because he or she engaged in the protected activities referenced in step 4?
If all five questions are answered in the affirmative, a breach of s. 10(2) is established.
Information on Employment Standards Act, 2000 reprisal can be found in ESA Part XVIII of this Manual. In particular, four of the five steps outlined here are discussed in further detail. The discussion of reprisals under the Employment Standards Act, 2000, including the discussion of enforcement and heads of damage, can be applied to this provision with necessary modifications.
Onus of proof - s. 10(3)
This provision places the legal burden of proof that a person did not contravene s. 10 on that person, except in proceedings referred to in s. 4 (which are Ontario Labour Relations Board reviews of notices of contravention and prosecutions). Subject to s. 10(4), the effect of this provision is to require the employer, recruiter, or person acting on behalf of the employer or recruiter, to rebut the claim of the foreign national that he or she has been the subject of a reprisal. The person (which includes a corporation) against whom the contravention is alleged must establish, on a balance of probabilities, that he, she, or it did not contravene s. 10 of EPFNA.
Exceptions - s. 10(4)
Subsection 10(4) provides that a person who is alleged to have contravened the anti-reprisal provisions does not have the burden of proof to establish that he or she did not contravene s. 10 in two situations:
- In a hearing before the Ontario Labour Relations Board arising from a review of a notice of contravention.
- If a notice of contravention has been issued with respect to a contravention of s. 10 of EPFNA and the person against whom the notice was issued files an application for review of the notice, the onus is on the Director of Employment Standards to show, on a balance of probabilities, that the employer or recruiter (or person acting on his, her or its behalf) contravened s. 10. The placement of the burden of proof on the Director is effected by s. 30 of EPFNA, which incorporates s. 122(4) of the Employment Standards Act, 2000 by reference.
- In a prosecution arising for a contravention of s. 10.
Where a person is prosecuted for contravening s. 10, the onus of proof that applies is set out in s. 43 of EPFNA.