Section 7 – Prohibition against charging fees
Prohibition against charging fees - s. 7(1)
Subsection 7(1) prohibits a recruiter from directly or indirectly charging any fee to a foreign national employed or attempting to find employment pursuant to an immigration or foreign temporary employee program for any service, good or benefit provided to the foreign national. This prohibition therefore includes fees charged by a recruiter for both "optional" and "mandatory" services such as orientation sessions, assistance or instruction with respect to resume or job interview preparation, image consulting, first aid training sessions, and cooking classes. Where such services are provided by a recruiter to a foreign national, they must be provided free of charge.
The Act does not restrict recruiters from charging fees to employers or prospective employers for recruitment services or for other services. Note, however, where such arrangements are made, the fees must be recorded in compliance with the record-keeping requirements as set out in ss. 14 and 15 of the Employment Protection for Foreign Nationals Act, 2009 (EPFNA).
As noted, s. 7(1) prohibits recruiters from “directly” charging any fee as well as “indirectly” charging any fee to a foreign national. An example of a situation where a recruiter “indirectly” charges a fee would include a situation where the recruiter charges a fee for services related to obtaining a work permit for the foreign national but asks the employer of the foreign national to collect those fees on its behalf through payroll deductions. Not only would the recruiter in this situation be in contravention of s. 7(1) but the employer making the deductions on behalf of the recruiter would be in contravention of s. 7(3).
Finally, as noted in the discussion of the scope of the EPFNA and specifically, s. 3(1) of the Act, a foreign government acting as a “recruiter” as described in the EPFNA is (unless certain exceptions under the State Immunity Act apply) immune from liability for any contraventions of the EPFNA including the prohibition against charging fees. As a result, a foreign government charging fees to its citizens who, as foreign nationals are seeking employment in Ontario pursuant to an immigration or temporary foreign employee program, would not be liable for a contravention of s. 7(1). In addition, a person acting on behalf of such a foreign government is likewise immune. (See the discussions at section 3(1) of the EPFNA and subsection 7(3) below.)
Prescribed exceptions - s. 7(2)
Subsection 7(2) provides that a recruiter would be permitted to charge a fee if it was permitted by regulation.
At the time of writing, no fees have been prescribed. Recruiters are therefore prohibited from charging fees of any kind to any foreign nationals employed or seeking employment pursuant to an immigration or foreign temporary employee program.
Prohibition against collecting fees - s. 7(3)
Subsection 7(3) prohibits a person acting on behalf of a recruiter from collecting a fee illegally charged by the recruiter. Whether a person is acting on behalf of a recruiter is a question of fact.
At the time of writing, recruiters are prohibited from charging fees of any kind to foreign nationals employed or attempting to find employment pursuant to an immigration or foreign temporary employee program. Therefore, persons acting on behalf of a recruiter are prohibited from collecting any fee on behalf of the recruiter.
An example of someone acting on behalf of a recruiter would arise where a recruiter charges a fee for services related to obtaining a work permit for a foreign national but asks the employer of the foreign national to collect those fees on its behalf through payroll deductions. In that case, the employer making the deductions on behalf of the recruiter would be in contravention of s. 7(3). (Note as well the recruiter in this situation would be in contravention of s. 7(1).
Finally, as noted in the discussion of the scope of the EPFNA and specifically, s. 3(1) of the Act, a foreign government acting as a “recruiter” as described in the EPFNA is (unless certain exceptions under the State Immunity Act apply) immune from liability for any contraventions of the EPFNA including the prohibition against charging fees. Further, a person acting on behalf of such a foreign government is similarly immune from liability under s. 7(3). (See the discussions at section 3(1) of the EPFNA and subsection 7(1) above.)