Section 28 – Limitation period re: orders, notices of contravention
Limitation period re: Orders, notices of contravention - s. 28(1)
This provision establishes a two-year limitation period on the Ministry's ability to issue an order to repay fees, an order to repay costs, an order for compensation or a notice of contravention. The two-year period for issuing the above-listed orders commences with the following:
- If the order is in respect of a foreign national who filed a complaint, on the date the complaint was filed, or
- If the order is in respect of a foreign national who did not file a complaint but another person did file a complaint and the contravention in respect of the non-complainant was discovered during the investigation of the complaint, on the date the complaint was filed, or
- If the order is in respect of a foreign national who did not file a complaint and the contravention was discovered during an inspection (rather than an investigation of a complaint), on the date the inspection was commenced.
It should be noted that the legislation does not impose a limitation period with respect to an officer's ability to issue an order for reinstatement or an order for compliance. For more information on the Program's policy around the issuance of those orders, which can be applied in the context of the Employment Protection for Foreign Nationals Act, 2009 (EPFNA), see ESA Part XXII, s. 114.
Requirements - s. 28(2)
Subsection 28(2) provides that ss. 114 (2) to (5) and s. 115 of the Employment Standards Act, 2000 apply to the limitation periods set out in s. 28(1) and to the amendment or recession of an order or notice of contravention.
Subsection 114(2) provides that where a complaint is filed by one employee and a second employee files a complaint about substantially the same contravention, the second employee is treated as a non-complainant for purposes of the limitation period on the issuance of orders, thus, in the context of EPFNA, attracting the application of s. 28(1)(b); s. 114(3) provides that this rule does not apply if an order had already been issued or notification of a refusal to issue an order had already been made in respect of the first complaint. Subsections 114(4) and (5) provide that orders and notices of contravention, respectively, cannot be amended or rescinded after the expiry of the limitation period applicable to the issuance of orders and notices without the consent of the employer and employee (in the case of orders) or the consent of the employer (in the case of notices of contravention). Subsection 115 addresses the meaning of "substantially the same" as that term is used in s. 114. See ESA Part XXII for a more detailed discussion of these provisions.