Section 38 – 43 -Posting of notices, service documents, collections, general offence, limitation period, prosecution, onus in prosecution for reprisal
Section 38 – Posting of notices
This provision allows employment standards officers to require the posting of notices or copies of a report.
The notice referred to in clause (a) might, for example, consist of a general outline of all of the provisions of the Employment Protection for Foreign Nationals Act, 2009 or, on the other hand, may focus on one or more provisions that the officer feels are of particular relevance. The copy of the report or part of a report referred to in clause (b) may be a copy of the officer’s report (or excerpts of it) concerning his or her investigation or inspection.
Section 39 – Service of documents
Section 39 provides that s. 95 of the Employment Standards Act, 2000 applies with respect to service of documents under the Employment Protection for Foreign Nationals Act, 2009. For a discussion of s. 95 of the Employment Standards Act, 2000, which addresses issues such as methods of service, the effective date of service, the Ontario Labour Relations Board’s powers around service, and certificates of service, see ESA Part XXI.
Section 40 – Collections
Sections 125 to 129 of the Employment Standards Act, 2000, which are all provisions dealing with collections, apply to the collection of money which a person is liable to pay under the Employment Protection for Foreign Nationals Act, 2009. For a discussion of the Program’s interpretation of ss. 125 to 129 of the Employment Standards Act, 2000 see ESA Part XXIV.
Section 41 - General offence
Section 41 of the Employment Protection for Foreign Nationals Act, 2009 (EPFNA) is similar to s.132 of the Employment Standards Act, 2000 and applies to every person (a term which includes a corporation), who violates a provision of EPFNA, or disobeys an order made under EPFNA. An individual who is found guilty of an offence is liable to a fine of not more than $50,000 or 12 months in jail, or both.
A corporation that is found guilty of an offence is liable to a fine of not more than $100,000 for a first conviction, $250,000 for a second conviction, and $500,000 for a third or subsequent conviction.
Prosecutions under EPFNA may be initiated under Part I or Part III of the Provincial Offences Act, R.S.O. 1990, c P.33 ("POA"). A Part I prosecution can only be commenced by a person who has been appointed a provincial offences officer. Part I prosecutions are commenced by filing a certificate of offence with the Ontario Court of Justice and serving the accused with either an offence notice ("ticket") or summons. A ticket may only be used where a set fine for the offence in question has been established by the Chief Justice of the Ontario Court of Justice. At the time of writing, no set fine has been established for offences under EPFNA. However, a provincial offences officer may use the Part I summons procedure for EPFNA offences. The POA provides that where the summons procedure is used in respect of an offence under an Act, the provisions of the Act respecting maximum fines and terms of imprisonment do not apply; instead the POA provides that the maximum fine that can be imposed on conviction is $1,000. A sentence of imprisonment cannot be imposed if the summons procedure is used. If a prosecution is commenced under Part III of the POA, the s. 41 provisions regarding maximum fines and (in the case of an individual) maximum terms of imprisonment would apply.
Section 42 – Limitation period, prosecution
Section 42 provides that a prosecution cannot be commenced under the Employment Protection for Foreign Nationals Act, 2009 (EPFNA) more than two years after the offence was committed or alleged to have been committed.
The date on which an offence has been committed or is alleged to have been committed is a question of fact. For example, a contravention of s. 10 (reprisal) would occur on the date the employer penalized the foreign national for exercising or attempting to exercise a right under EPFNA (e.g., the date the employee was terminated for having refused to pay costs the employer incurred in becoming his or her employer). A contravention of EPFNA's prohibition against a recruiter charging a fee in connection with the employment of a foreign national would occur on the day the fee is charged. A contravention of EPFNA's requirement to comply with an order to pay would occur once the order becomes final and binding (which, in the case where no application for review is made, is at the expiry of the period for applying for a review).
In the case of a prosecution under Part I of the Provincial Offences Act, R.S.O. 1990, c P.33 ("POA"), the prosecution is considered to commence when a certificate of offence is filed with the court office. In the case of a prosecution under Part III of the POA, the prosecution is considered to commence when a document called an "information" is laid under oath before a provincial judge or a justice of the peace.
Section 43 – Onus in prosecution for reprisal
In a prosecution for a prohibited reprisal, if the prosecutor establishes that the accused acted in a way that a reasonable person in the position of the foreign national would consider intimidating or punitive, or that the accused attempted or threatened to act in that way, the court could find that a person engaged in a prohibited reprisal in the absence of evidence to the contrary. In other words, if the prosecutor establishes those facts, the court can, in its discretion, shift the onus to the person who is alleged to have contravened s. 10.