Section 48-50 – Where prosecution may be heard, copy constitutes evidence, regulations
Section 48 – Where prosecution may be heard, etc.
Section 48 indicates that s. 138 of the Employment Standards Act, 2000 applies to prosecutions commenced under the Employment Protection for Foreign Nationals Act, 2009.
Subsection 138(1) of the Employment Standards Act, 2000 provides that the prosecutor can choose to have the prosecution of an offence conducted in the area where the accused resides or carries on business, rather than where the offence occurred as would normally be the case under the Provincial Offences Act, R.S.O. 1990, c P.33. For example, if the accused is a recruiter who lives in Hamilton and who is alleged to have illegally charged a foreign national a recruitment fee in Toronto, the Crown could require that the case heard in Hamilton.
Subsection 138(2) of the Employment Standards Act, 2000 provides that the Attorney General or his or her agent may, by giving notice to the clerk of the Ontario Court of Justice, require that the prosecution be heard by a judge of that court rather than by a justice of the peace.
Section 49 – Copy constitutes evidence
Section 140 of the Employment Standards Act, 2000 applies with respect to documents, records and certificates of the Director of Employment Standards under the Employment Protection for Foreign Nationals Act, 2009.
Section 140 of the Employment Standards Act, 2000 states that a copy of an order, notice of contravention ("NOC") or record signed by an employment standards officer or by the Ontario Labour Relations Board constitutes evidence of the order, NOC or record. It also provides that certain certificates (e.g., certificate that an employer failed to pay an order) that appear to be signed by the Director of Employment Standards constitute evidence of facts indicated in the certificate.
See ESA Part XXVI for a more detailed discussion of s. 140 of the Employment Standards Act, 2000.
Section 50 – Regulations
Regulations - s. 50(1)
This section allows for the making of regulations under the Employment Protection for Foreign Nationals Act, 2009 (EPFNA). Subsection 50(1) was amended by the Stronger Workplaces for a Stronger Economy Act, 2014, S.O. 2014, c. 10, effective November 20, 2015 with the addition of the reference to a "class of persons" in clause (b) and the addition of clauses (c) and (d). At the time of writing, no regulations have been made pursuant to this subsection. It was further amended by the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017, c. 22 to allow for the making of regulations governing the penalties attached to notices of contravention under EPFNA s. 27(1).
Conditions - s. 50(2)
This subsection allows for any regulations made under s. 50(1) to apply only if certain conditions are met.
Regulations re: Penalties for contraventions – s. 50(3)
This section permits regulations to be made establishing different penalties or ranges of penalties for different contraventions as well as establishing different methods of determining those penalties and ranges. It also permits regulations to be made establishing different penalties, ranges of penalties and methods for establishing such penalties or ranges for contraveners who are individuals and contraveners that are corporations. Finally, it allows regulations to be made that prescribe the criteria an officer shall or may consider when imposing a penalty. At the time of writing, no ranges of penalties, methods, or criteria have been established and officers are therefore required in accordance with EPFNA s. 27(1.1) to apply the penalties prescribed in O. Reg. 47/10.