Authority to make orders - s. 24(1)

Employment standards officers have the authority to make orders and other arrangements described in s. 24 when it is determined that there has been a contravention of the Employment Protection for Foreign Nationals Act, 2009 (EPFNA).

Order to repay fees - s. 24(2)

Subsection 24(2) establishes an employment standards officer's power to issue an order or make arrangements with a recruiter or other person to repay fees to a foreign national or prescribed person if they find that a recruiter or other person has contravened EPFNA s. 7, which prohibits the charging of fees. At the time of writing no persons were prescribed.

Specifically, an officer can:

  1. Issue an order requiring the recruiter or other person to:
    • pay the amount of the fees directly to the foreign national or a person as prescribed by regulation (none have been prescribed at the time of writing)
    • pay the amount of the fees to the Director of Employment Standards in trust,
    OR
  2. Arrange for a recruiter or other person to repay the amount of the fees directly to the foreign national (voluntary compliance).

Where an order is issued or an arrangement made to repay the amount of the fees directly to the foreign national, it must be done in accordance with ESA Part XXII, s. 103(1) to 103(3). Those subsections establish the circumstances in which an officer may arrange direct payment to the employee or issue an order to pay, set out the administrative costs that must be paid when an order is issued requiring payment to the Director in trust and provide that a single order may be issued where monies are owing to more than one employee.

ESA Part XXII, s. 103(5) to (10) and s. 105 apply with respect to an order or arrangement for the repayment of illegally charged fees. Those provisions address the contents of the order, service of the order, notice to the employee about the order, compliance requirements and the effect of the order and also provide that where an arrangement for repayment is made (i.e., where no order is issued) and the employee cannot be located, the employer must pay the amount owing to the Director of Employment Standards in trust.

Subsection 24(2) must be read in conjunction with EPFNA s. 1(2) which provides some guidance on what modifications must be read in where provisions of the Employment Standards Act, 2000 are incorporated into EPFNA by reference. In the context of a contravention of the prohibition against the charging of fees, a reference in the Employment Standards Act, 2000 to an order to pay wages under ESA Part XXII, s. 103 is to be read as a reference to an order to repay fees and a reference to an employer is to be read as a reference to a recruiter or person collecting fees on behalf of a recruiter.

Order to repay costs - s. 24(3)

Subsection 24(3) establishes an employment standards officer's power to issue an order or make arrangements to repay costs recovered by an employer where they find that the employer has contravened EPFNA s. 8, which prohibits employers’ recovery of certain costs.

Specifically, an officer can:

  1. Issue an order requiring the employer to:
    • pay the amount of the costs recovered by the employer directly to the foreign national or a person as prescribed by regulation (none have been prescribed at the time of writing)
    • pay the amount of the costs recovered by the employer to the Director of Employment Standards in trust
  2. OR
  3. Arrange for an employer to pay the amount of the costs recovered by the employer directly to the foreign national (“voluntary compliance”).

Where an order is issued or an arrangement made to pay the amount of the costs recovered by the employer directly to the foreign national, it must be done in accordance with ESA Part XXII, s. 103(1) to 103(3). Those subsections establish the circumstances in which an officer may arrange direct payment to the employee or issue an order to pay, set out the administrative costs that must be paid when an order is issued requiring payment to the Director in trust and provide that a single order may be issued where monies are owing to more than one employee.

ESA Part XXII, s. 103(5) to (10) and s. 105 apply with respect to an order or arrangement for the repayment of illegally recovered costs. Those provisions address the contents of the order, service of the order, notice to the employee about the order, compliance requirements and the effect of the order and also provide that where an arrangement for repayment is made (i.e., where no order is issued) and the employee cannot be located, the employer must pay the amount owing to the Director of Employment Standards in trust.

Subsection 24(3) must be read in conjunction with EPFNA s. 1(2) which provides some guidance on what modifications must be read in where provisions of the Employment Standards Act, 2000 are incorporated into the EPFNA by reference. In the context of a contravention of the prohibition against recovering certain costs, a reference in the Employment Standards Act, 2000 to an order to pay wages under ESA Part XXII, s. 103 is to be read as a reference to an order to repay illegally recovered costs.

Order for compensation - s. 24(4)

Subsection 24(4) establishes an employment standards officer's power to issue an order for compensation if they find that any person has contravened the anti-reprisal provisions contained in EPFNA s. 10. The officer can order the foreign national to be compensated for any loss they incurred as a result of the contravention.

See ESA Part XVIII for a discussion of compensation orders in the context of the Employment Standards Act, 2000.

This provision also states that ESA Part XXII, s. 104(3) and (4) apply to compensation orders issued under EPFNA s. 24(4). Section 104(3)(a) provides that an order may be issued requiring a person to pay the amount of compensation to the Director in trust and such order will include administrative costs as set out in s. 104(3)(a)(ii). As a result, an order issued under s. 24(4) requiring the payment of compensation to the Director in trust will include administrative costs. However, no administrative costs are attached to an order issued under s. 104(3)(b) which requires the person to pay the amount of the compensation directly to the employee. As a result, there are no administrative costs included in an order issued under s. 24(4) if it requires the person to pay the amount of compensation directly to the foreign national.

Further, ESA Part XXII, s. 103(3) and (5) to (9) also apply to orders under EPFNA s. 24(4). Subsection 103(3) provides that a single order can be issued with respect to more than one employee. Subsections 103(5) to (9) address the contents of the order, service of the order, notice to the employee about the order, compliance requirements and the effect of an order.

Subsection 24(4) must be read in conjunction with EPFNA s. 1(2) which provides some guidance on what modifications must be read in where provisions of the Employment Standards Act, 2000 are incorporated into EPFNA by reference. In the context of a contravention of the anti-reprisal provision of EPFNA, a reference in the Employment Standards Act, 2000 to an order under ESA Part XXII, s. 104 is to be read as a reference to the corresponding order described in EPFNA ss. 24(4) or 24(5).

Order for reinstatement - s. 24(5)

Subsection 24(5) establishes an employment standards officer's power to issue a reinstatement order if they find that an employer or person acting on behalf of an employer has contravened the anti-reprisal provisions contained in EPFNA s. 10. Where a reprisal under EPFNA has been found, the officer can issue an order requiring the foreign national to be reinstated into their position. The provision states that an officer may issue a reinstatement order in addition to an order for compensation. Thus, in addressing a contravention of the anti-reprisal provisions, an officer may issue an order for compensation, an order for reinstatement or both.

For a discussion of reinstatement orders in the context of the Employment Standards Act, 2000, including when an order for reinstatement is appropriate, see ESA Part XVIII.

This provision states that ESA Part XXII, s. 104(4) applies to a reinstatement order issued under EPFNA s. 24(5). As a result, ESA Part XXII, ss. 103(3) and (5) to (9) also apply with respect to orders under EPFNA s. 24(5). Subsection 103(3) provides that a single order can be issued with respect to more than one employee. Subsections 103(5) to (9) address the contents of the order, service of the order, notice to the employee about the order, compliance requirements, and the effect of an order.

Compliance order - s. 24(6)

Subsection 24(6) establishes an employment standards officer's power to issue a compliance order if they determine that a person has contravened a provision of EPFNA.

ESA Part XXII, s. 108 applies with respect to a compliance order under EPFNA. It empowers an employment standards officer to order that the person stop violating the legislation or take or stop taking action specified in the order by a date specified in the order. Section 108 provides that a compliance order cannot require the payment of wages or compensation. By referentially incorporating ESA Part XXII, s. 103(6) to (9), s. 108 also addresses service of the order, notice to the employee about the order, compliance requirements and the effect of the order. Further, s. 108 provides that other orders may be issued in addition to a compliance order and provides that the Director of Employment Standards may apply to court for an injunction to enforce the order.

Subsection 24(6) must be read in conjunction with EPFNA s. 1(2) which provides some guidance on what modifications must be read in where provisions of the Employment Standards Act, 2000 are incorporated into EPFNA by reference. In the context of a compliance order, a reference to an order under ESA Part XXII, s. 108 is to be read as a reference to the corresponding order described in in EPFNA s. 24(4) or s. 24(5).

Orders against directors - s. 24(7)

ESA Part XXII, s. 106 and 107 apply with respect to the s. 24(7) order. ESA Part XXII, s. 106 provides for the issuance of orders against directors for wages owed by employers. Where an order to pay wages has been made against the employer, or where the employer is insolvent and a claim has been filed with a court-appointed receiver or trustee in bankruptcy, an employment standards officer can issue an order against some or all of the employer's directors for amounts for which directors are liable. ESA Part XXII, s. 107 provides for the issuance of orders against any directors who were not the subject of an order issued under s. 106 where the order against the employer and the directors who were subject of the s. 106 order remains unpaid and there has been no application for review.

Subsection 24(7) must be read in conjunction with EPFNA s. 1(2) which provides some guidance on what modifications must be made where provisions of the Employment Standards Act, 2000 are incorporated into EPFNA by reference. References in the Employment Standards Act, 2000 to an order under ESA Part XXII, s. 106 or s. 107 are to be read as a reference to the corresponding order described in s. 24(7).

Money paid when no review - s. 24(8)

Subsection 24(8) provides that ESA Part XXII, s. 109 applies where an order is issued requiring payment to the Director of Employment Standards in trust.

Section 109 requires the Director of Employment Standards to pay the money received in trust to the employee named in the order, unless the person against whom the order was issued has applied for a review of that order with the Ontario Labour Relations Board. If an order was issued with respect to more than one employee and less than the full amount has been paid, the amount that was paid (including the amount for administrative costs) is distributed proportionately among the employees. No proceeding may be launched against the Director for acting in accordance with s. 109.

Maximum amount of order - s. 24(9)

This provision creates the authority to make a regulation that would set a maximum amount for an order to repay fees or an order to repay costs. It also provides that different maximum amounts could be established by regulation for different classes of contraventions or complaints. At the time of writing, no such regulations have been made.

Same - s. 24(10)

This provision indicates that if a maximum amount for an order to repay fees or an order to repay costs is established by regulation, an employment standards officer would be prohibited from issuing an order for an amount greater than the prescribed maximum.

At the time of writing, no such regulation had been made and there is no maximum amount established for an order to repay fees or for an order to repay costs.