Section 3 – Application
Application - s. 3(1)
This provision was amended by the Stronger Workplaces for a Stronger Economy Act, 2014, S.O 2014, c. 10, effective November 20, 2015 to reflect the broadened scope of the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 (EPFNA). EPFNA formerly applied only to foreign nationals employed or attempting to find employment as live-in caregivers. (Prior to its amendment, this section also provided for the application of the Act to foreign nationals in other prescribed employment but none was prescribed prior to the amendment of this section.)
This provision lists the persons to whom the EPFNA applies. It must be read in conjunction with ss. 3(2) and 3(3) which provide that the EPFNA does not apply to employers or recruiters if the Employment Standards Act, 2000 would not apply in respect of the employment of the foreign national. Note also that s. 3(4) provides that EPFNA applies to the Crown only in such circumstances as are prescribed, and that at the time of writing, no regulation to prescribe such application has been made.
Subsection 3(1) sets out the persons to whom the EPFNA applies (subject to ss. 3(2), (3) and (4)) as follows:
- Every foreign national who is employed in Ontario pursuant to an immigration or foreign temporary employee program;
- Every foreign national who is attempting to find employment in Ontario pursuant to an immigration or foreign temporary employee program;
- Every person who employs a foreign national in Ontario pursuant to an immigration or foreign temporary employee program;
- Every person who acts on behalf of an employer described in the immediately preceding bullet;
- Every person who acts as a recruiter in connection with the employment of a foreign national in Ontario pursuant to an immigration or foreign temporary employee program; and
- Every person who acts on behalf of a recruiter described in the immediately preceding bullet.
Subsection 3(1) is intended to capture employment that is or would be permitted to be performed by a foreign national in Ontario under an immigration or temporary foreign employee program. It therefore refers to foreign nationals who are employed pursuant to such programs or who are attempting to find employment pursuant to such programs.
Employed pursuant to an immigration or temporary foreign employee program
Generally, foreign nationals employed in Ontario pursuant to an immigration or foreign temporary employee program will require a work permit to work in Ontario. As a result, a foreign national as defined in s. 1(1) of the EPFNA who has a work permit allowing him or her to work in Ontario would be covered under the EPFNA (subject to ss. 3(2), 3(3) and 3(4)).
Immigration programs are administered by the federal government and would generally refer to programs that enable foreign nationals to obtain permanent residency in Canada. Under these programs, a foreign national may be permitted to apply for a work permit while their Permanent Resident (PR) application is being finalized, which would enable them to obtain employment in Ontario. For example, this would include the Family Sponsorship Program.
It should be noted that there may be immigration programs that permit a foreign national to work in Ontario without a work permit. Whether or not such a foreign national is working pursuant to an "immigration program" would have to be determined on a case by case basis. Further, even where the work is performed pursuant to an immigration program, the application of EPFNA is subject (as noted above) to ss. 3(2), 3(3) and 3(4). Of particular note in these situations would be ss. 3(2) and 3(3), which limit the application of EPFNA to foreign nationals whose employment would be covered under the Employment Standards Act, 2000. See above and below sections for a discussion of those subsections.
Foreign temporary employee programs refer generally to programs administered by the federal government intended to enable foreign nationals to obtain work permits so that they may legally perform work in Ontario on a temporary basis. A work permit will therefore be determinative evidence that a foreign national is employed pursuant to such a program. Some of the foreign temporary employee programs administered by the federal government at the time of writing are described below:
- Seasonal Agricultural Program ("SAWP"): This program is based on bilateral agreements with Mexican and Caribbean governments and allows employers engaged in the production of specific agricultural products to hire foreign nationals for up to 8 months per year for on-farm work.
- Agricultural Stream: This program allows employers engaged in the production of specific agricultural products to hire foreign nationals for a maximum of 24 months for on-farm work.
- In-Home Caregiver Program: This program provides employment positions for foreign nationals who work in a home providing care for children, elderly family members, or family members with disabilities. They may be live-in or live-out. Formerly, the federal program for caregivers required such employees to live in the residence of the employer. These employees were captured under the former EPFNA as live-in caregivers. However, with the expanded scope of EPFNA, both live-in and live-out caregivers under the "new" federal program now fall under EPFNA.
- Stream for Low-wage Positions: This category includes positions that are below the provincial/territorial median wage. Examples of low-wage occupations include general labourers, food counter attendants, and sales and service personnel.
- Stream for High-wage Positions: This category includes positions at or above the provincial/territorial median wage. Examples of high-wage occupations include managerial, scientific, professional and technical positions as well as the skilled trades.
- International Mobility Program: This program allows employers to hire or bring in temporary foreign workers without the need to obtain a Labour Market Impact Assessment ("LMIA").
Attempting to find employment pursuant to an immigration or foreign temporary employee program
The Program's position is that a foreign national as defined in s. 1(1) of EPFNA will be considered to be attempting to find employment pursuant to an immigration or foreign temporary employee program if the individual possesses a work permit, has made an application for a work permit or there is evidence to demonstrate that the foreign national has communicated with a recruiter about finding employment in Ontario.
Every person who employs a foreign national in Ontario pursuant to an immigration or foreign temporary employee program and every person acting on behalf of such an employer
In order for the EPFNA to apply to an “employer”, that employer must ultimately employ a foreign national pursuant to an immigration or temporary foreign national employee program (or person acting on their behalf).
In other words, the obligations of an employer under the EPFNA apply only with respect to foreign nationals that are actually employed by the employer. For example, the prohibitions against cost recovery in s. 8 apply only to prohibit an employer from recovering costs incurred in employing or attempting to employ a foreign national who is (or was) in fact employed by the employer.
Every person who acts as a recruiter in connection with the employment of a foreign national in Ontario pursuant to an immigration or foreign temporary employee program and every person acting on behalf of such a recruiter
In order for the EPFNA to apply to a “recruiter”, that recruiter must be acting as such in connection with the employment of a foreign national in Ontario pursuant to an immigration or foreign temporary employee program.
One question that has arisen related to the application of the EPFNA to “recruiters” is whether a foreign government that participates in arranging for its own citizens to work in Ontario as foreign nationals could be considered a “recruiter” and therefore subject to the EPFNA as such. While a foreign government could, depending on the circumstances, be considered a “recruiter” as described in the EPFNA, the EPFNA (as provincial legislation) cannot generally be enforced against a foreign government because of the application of the federal State Immunity Act, R.S.C. 1985, c. S-18.
Prerequisite - s. 3(2)
Subsection 3(2) specifies that EPFNA applies to every person who employs a foreign national in Ontario pursuant to an immigration or foreign temporary employee program if the Employment Standards Act, 2000 applies or would apply in respect of the employment of the foreign national. In determining whether the Employment Standards Act, 2000 applies or would apply in respect of employment, reference must be made to s. 3 of the Employment Standards Act, 2000, which sets out to whom the Act applies. Generally, the Employment Standards Act, 2000 applies with respect to an employee and his or her employer if the employee's work is performed in Ontario or if work outside of Ontario is a continuation of the work performed in Ontario, and the employer's undertaking falls within provincial employment law jurisdiction and the employer does not enjoy diplomatic immunity. See ESA Part III, s. 3 for more information on the application of the Employment Standards Act, 2000.
Application to recruiters - s. 3(3)
Subsection 3(3) specifies that EPFNA applies to every person who acts as a recruiter in connection with the employment of a foreign national in Ontario pursuant to an immigration or foreign temporary employee program if the Employment Standards Act, 2000 would apply in respect of the employment of the foreign national. In determining whether the Employment Standards Act, 2000 applies or would apply in respect of employment, reference must again be made to s. 3 of the Employment Standards Act, 2000 which sets out to whom the Act applies. Generally, the Employment Standards Act, 2000 applies with respect to an employee and his or her employer if the employee's work is performed in Ontario or if work outside of Ontario is a continuation of the work performed in Ontario, and the employer's undertaking falls within provincial employment law jurisdiction and the employer does not enjoy diplomatic immunity. See ESA Part III, s. 3 for more information on the application of the Employment Standards Act, 2000.
Application to the crown - s. 3(4)
Subsection 3(4) establishes that EPFNA applies to the Crown in such circumstances as may be prescribed by regulation. However, at the time of writing, no regulations have been made pursuant to this provision; therefore, unless a regulation is made, EPFNA does not apply to employment with the Crown. For information on the meaning of the Crown, see ESA Part III, s. 3(4).