Prohibition against cost recovery by employers - s. 8(1)

This provision prohibits employers from recovering or attempting to recover (either directly or indirectly), any costs incurred in hiring, or attempting to hire, a foreign national pursuant to an immigration or foreign temporary employee program. Employers are therefore prohibited from passing on to the foreign national any recruitment costs and other costs incurred in arranging to become or attempting to become the foreign national’s employer; employers would also be prohibited from recovering any prescribed costs (though no other costs have been prescribed as of the time of writing). The provision must be read subject to s. 8(2) which permits costs prescribed by regulation to be recovered. Ontario Regulation 348/15, which came into force on November 26, 2015, provides certain exceptions to the prohibition against cost recovery by employers.

Recovering or attempting to recover a cost indirectly could include, for example, ostensibly charging the foreign national a fee for something that was not a cost incurred in the course of arranging to become the employer but which in fact was intended to reimburse the employer for such a cost under another name. It could also include having another person recover the cost on behalf of an employer.

It should be noted that although the provision states that it prohibits recovery of costs incurred in "attempting to become an employer," the prohibition does not apply with respect to costs incurred by a prospective employer unless the employer ultimately employs the foreign national. That is because the scope of the Employment Protection for Foreign Nationals Act, 2009 is limited in its application under paragraph 2 of s. 3(1) to "a person who employs a foreign national".

Prescribed exceptions - s. 8(2)

Subsection 8(2) provides that the prohibition against cost recovery by employers would does not apply with respect to costs that are permitted by regulation. Ontario Regulation 348/15, which came into force on November 26, 2015, provides that employers who employ a foreign national in Ontario under an employment contract made pursuant to the federal government’s “Seasonal Agricultural Worker Program” (SAWP) are permitted to recover from the foreign national costs of air travel and of work permits, if the contract allows for these deductions. Please note that any such cost recovery is limited to the amounts as specified within the contract.