Bill 18, the Stronger Workplaces for a Stronger Economy Act, 2014, has amended the Employment Protection for Foreign Nationals Act, 2009 (“EPFNA”) as well as other employment-related statutes.

Prior to Bill 18, the EPFNA only applied to foreign nationals employed as live-in caregivers. The Bill 18 amendments will extend the application of the EPFNA to all foreign nationals employed or seeking employment in Ontario pursuant to an immigration or temporary foreign employee program. These amendments will come into force on November 20, 2015.

“Foreign national” has a defined meaning under the EPFNA, and only includes an individual who is not a Canadian citizen or a permanent resident within the meaning of the Immigration and Refugee Protection Act (Canada).

As of November 20, 2015, the EPFNA will apply to:

  • Every person who employs a foreign national in Ontario pursuant to an immigration or foreign temporary employee program;
  • Every person who acts as a recruiter in connection with the employment of a foreign national in Ontario pursuant to an immigration or foreign temporary employee program; and
  • Every person who acts on behalf of an employer or a recruiter to whom the EPFNA applies.

As of November 20, 2015, employers of foreign nationals will have a number of new obligations, which include but are not limited to the following:

  • Employers will be prohibited from taking possession of, or retaining, property that a foreign national is entitled to possess (s. 9 (1)), including but not limited to a passport or work permit (s. 9 (3)).
  • Employers will be prohibited from, inter alia, intimidating, penalizing, or threatening to intimidate or penalize a foreign national for inquiring about, filing a complaint under, or attempting to enforce his or her rights under the EPFNA (s. 10 (1)).
  • Employers will be required to provide foreign nationals with a copy of certain documents published by the Director of Employment Standards before the employment commences (s. 11 (1)).
  • Employers will have a duty to keep certain records in respect of foreign nationals and to ensure that these records are available for inspection (s. 14).

The EPFNA will also introduce a general prohibition against cost recovery by employers (s. 8. (1)). To address the interaction between the cost recovery provisions of the EPFNA and the deductions currently allowed under the federal Seasonal Agricultural Worker Program, the Ministry of Labour will be developing a new regulation under the EPFNA. The Ministry of Labour is seeking input with respect to the regulation. Public consultations on this topic will run until November 16, 2015.

As of November 20, 2015, recruiters will also have new obligations under the EPFNA. These obligations include but are not limited to the following:

  • Recruiters will be prohibited from directly or indirectly charging foreign nationals a fee for any service, good or benefit provided to the foreign national (s. 7 (1)).
  • Recruiters will be prohibited from taking possession of, or retaining, property that a foreign national is entitled to possess (s. 9 (2)), including but not limited to a passport or work permit (s. 9 (3)).
  • Recruiters will be prohibited from, inter alia, intimidating, penalizing, or threatening to intimidate or penalize a foreign national for inquiring about, filing a complaint under, or attempting to enforce his or her rights under the EPFNA (s. 10 (2)).
  • Recruiters will have a duty to keep certain records in respect of foreign nationals and to ensure these records are available for inspection (s. 15).

Foreign nationals to whom the EPFNA applies will have the ability to file a complaint against employers and recruiters for any alleged contravention that occurred 3 ½ years or less before the day on which the complaint was filed. When deciding whether to file a complaint, a foreign national will have a choice of either filing a complaint or commencing a civil proceeding, but not do both with respect to the same matter.

A complaint may result in the issuance of an order by an employment standards officer. Employers found to be in contravention of the EPFNA may be ordered to, inter alia, repay costs, compensate the foreign national for any loss incurred as a result of a contravention, or to reinstate the foreign national. Employers should be aware that reinstatement may be ordered in addition to compensation. An order issued by an employment standards officer or a refusal to issue an order will be reviewable by the Ontario Labour Relations Board.

It should be noted that a person who contravenes the EPFNA or fails to comply with an order made under the EPFNA is guilty of an offence and on conviction is liable

  • For a fine of not more than $50,000 or to imprisonment for a term of not more than 12 months or to both if the person is an individual; or
  • For a fine of not more than $100,000 if the person is a corporation. If a corporation has previously been convicted of an offence under the EPFNA, the corporation may be liable for a fine of not more than $250,000 if it had one previous conviction, or a fine of not more than $500,000 if it had more than one conviction.

The limitation period for prosecution under the EPFNA is two years, and prosecutions can only be commenced with the consent of the Director of Employment Standards.