Section 27 – Notice of contravention
Notice of contravention - s. 27(1)
Section 27(1) permits an employment standards officer to issue a notice of contravention requiring payment of a specified penalty to a person that the officer believes has contravened the Employment Protection for Foreign Nationals Act, 2009 (EPFNA). This provision was amended by the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017, c. 22, effective January 1, 2018. The applicable penalties for a notice of contravention issued under this section are set out in O. Reg. 47/10.
The officer's power to issue a notice of contravention is discretionary. However, once the officer decides to issue the notice of contravention, the officer must set out the penalty as prescribed in the regulation. See ESA Part XXII, s. 113(1.1) for a discussion of an officer’s discretion regarding notices of contravention.
Note that the officer may issue a notice of contravention to any person they believe has contravened the Act. Person is defined in ESA Part I, s. 1. The word "person" indicates that the notice may be issued against an individual or a corporation. However, s. 27(1) must be read subject to s. 27(2) which states that ESA Part XXII, s. 113(9) applies to the issuance of a notice of contravention. Section 113(9) provides that a notice of contravention may not be issued where the contravention is by a director or officer of a corporation.
Amount of penalty - s. 27 (1.1)
O. Reg. 47/10 prescribes penalties for contraventions of the EPFNA as follows:
For a contravention of EPFNA s. 14 or s. 15 identified to have occurred prior to January 1, 2018:
- $500 for a second contravention of the same provision within a three-year period
- $1000 for a third or subsequent contravention of the same provision in a three-year period.
For a contravention of any other provision of EPFNA, the penalties set out are multiplied by the number of foreign nationals affected. For contraventions occurring prior to November 28, 2015, this provision applies only if the affected employees are live-in caregivers, as prior to November 28, 2015 EPFNA only applied to live-in caregivers.
For a contravention of EPFNA s. 14 or s. 15 identified to have occurred on or after January 1, 2018:
- $700 for a second contravention of the same provision within a three-year period, and
- $1500 for a third or subsequent contravention of the same provision in a three-year period.
For a contravention of any other provision of the Act identified to have occurred on or after January 1, 2018, the above listed penalties apply, but the penalty is multiplied by the number of employees affected.
Penalty within range - s. 27 (1.2)
This section states that if a range has been prescribed as the penalty, the employment standards officer shall determine the amount of the penalty from within that range in accordance with any prescribed criteria. At the time of writing, no range has been prescribed and in accordance with s. 27(1.1) officers are therefore required to apply the penalties currently prescribed in O. Reg. 47/10.
Same - s. 27(2)
Subsections 113(2), (3), (7) and (9) provide that:
- A notice of contravention must contain or be accompanied by an explanation of the nature of the contravention
- The notice must be served in accordance with ESA Part XXI, s. 95
- A notice of contravention can be issued even when an order has been issued or a person has been or may be prosecuted or convicted with respect to the same contravention, and
- A notice of contravention cannot be issued with respect to a contravention by an officer or director of a corporation.
Deemed contravention - s. 27(3)
Subsection 27(3) provides that where a notice of contravention is issued against a person, the person is deemed to have contravened the provision in question if that person fails to make an application for a review of the notice of contravention within 30 days after the date of service of the notice, or, where on a review of the notice, the Ontario Labour Relations Board finds that the person contravened the provision. In the latter case, this would occur if the Ontario Labour Relations Board affirms the notice or amends it.
Penalty - s. 27(4)
Subsection 27(4) creates an obligation to pay the penalty set out in the notice of contravention (either by the officer where there is no review or where there is a review as affirmed or amended by the Ontario Labour Relations Board) to the Minister of Finance if the contravention is deemed to have occurred under s. 27(3).
It also requires payment of any collector's fees and disbursements added to the amount of the penalty under ESA Part XXIV, s. 128(2). In other words, once the notice of contravention has been sent for collection, any authorized collector's fees and disbursements are deemed to have been added to the amount set out in the notice of contravention.
ESA Part XXII, s. 113(6.1) applies to this penalty and establishes the time period within which the payment of the penalty to the Minister of Finance must be made. In the event that the notice is not appealed, the payment is due 30 days after the notice was issued. In the event the notice is appealed, the payment is due 30 days after the Ontario Labour Relations Board has found that there was a contravention.
Publication re: Notice of contraventions – s. 27(5)
This section permits the Director of Employment Standards to publish the name of the person or business that a notice of contravention has been issued to, as well as a description of the contravention, the date of the contravention, and the penalty for the contravention.
Note that the publishing of this information is restricted to situations where a person is deemed to have contravened EPFNA in accordance with s. 27(3). Such contraventions only occur when the recipient fails to file for a review of the notice with the Ontario Labour Relations Board within the period set out in EPFNA s. 30, where the person has filed for a review and the Board finds that they did in fact contravene the provision set out in the notice. As a result, the publishing of this information cannot simply occur once the notice was issued, but only after the application for review has been upheld or the period for review has expired.
Internet publication – s. 27(6)
This subsection clarifies that the authority to publish the information set out in s. 27(5) includes authority to publish on the Internet.
Disclosure – s. 27(7)
This subsection states that where the Director has published information under s. 27(5) that such publication is deemed to be permitted under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31