Section 47 – Offence re: Permitting offence by corporation
Offence re: Permitting offence by corporation - s. 47(1)
Same - s. 47(2)
Subsection 47(1) provides that where a corporation contravenes any provision of the Act or the regulations, an officer, director or agent of the corporation (or a person acting or claiming to act in such a role) who authorizes, permits or acquiesces in the contravention is a party to and guilty of the offence and is liable on conviction to the penalty provided for the offence, i.e., a maximum of $50,000 fine and/or 12 months' imprisonment. This applies whether the individual's role in relation to the corporation's contravention is active, e.g., authorizing the act that constituted the contravention, or passive, e.g., being aware of the act but failing to take steps that he or she could have taken to prevent it.
Subsection 47(2) provides that the individual officer, director or agent may be convicted under this provision even though the corporation has not been prosecuted or convicted. Thus, a corporate director could be prosecuted under s. 47, even though a prosecution has not been commenced against the corporation under s. 41.
The key to s. 47 is that the officer, director or agent of the corporation must be a person who "authorizes, permits or acquiesces" in a contravention of the Employment Protection for Foreign Nationals Act, 2009 (EPFNA) by the corporation.
These provisions have the same wording as ss. 137(1) and (2) of the Employment Standards Act, 2000. For a discussion of the Program's interpretation of those provisions, which can be applied to EPFNA with necessary modifications, see ESA Part XXV.
Additional penalty - s. 47(3)
Collection by director - s. 47(4)
These provisions indicate that where an individual is convicted of an offence under s. 47, the court may, in addition to any other penalty, assess the amount owed by the corporation in relation to the foreign national(s), and may order the individual to pay the amount assessed to the Director of Employment Standards in trust, who is required to attempt to collect the amount and, if successful, to distribute it to the foreign national(s). Please note that unlike s. 45(1), this section does not require the court to make an assessment and order the payment of wages to the Director upon conviction.
These provisions are similar to ss. 137(4) and (5) of the Employment Standards Act, 2000. For a discussion of the Program's interpretation of those provisions, which can be applied to EPFNA with the necessary modifications, see ESA Part XXV.
No prosecution without consent - s. 47(5)
Subsection 47(5) provides that a prosecution under s. 47 of an officer, director or agent of a corporation (or person acting or claiming to act in such a capacity) that has contravened the legislation can only be commenced with the consent of the Director of Employment Standards. This power has been delegated pursuant to s. 33(2) of EPFNA which incorporates s. 88 of the Employment Standards Act, 2000 by reference.
Proof of consent - s. 47(6)
This provision states that a document that appears to indicate the consent of the Director of Employment Standards (or his or her delegate pursuant to s. 33 of the Act) to prosecute under s. 47 is admissible as evidence of the Director's consent.
Onus of proof - s. 47(7)
In a prosecution under s. 47, where the prosecutor establishes that an officer, director or agent (or person claiming to act in that capacity) was aware of the corporation's contravention of the legislation, the court may conclude that the individual authorized, permitted or acquiesced in the contravention in the absence of evidence to the contrary. In other words, if the prosecutor establishes that the individual was aware of the contravention, the court can, in its discretion, shift the onus to the individual.