Bill 160, Caregiver and Foreign Worker Recruitment and Protection Act, 2009

Versions

Bill 160 2009

An Act respecting the recruitment and protection of caregivers and foreign workers

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

1. In this Act,

"caregiver" means,

(a) an individual who is qualified to provide care for children, elderly persons or persons with disabilities, whether in a private home or other appropriate setting, and

(b) a prescribed individual or member of a prescribed class of individuals; ("fournisseur de soins")

"caregiver agency business" means promoting a caregiver or finding or offering or promising to find work for a caregiver for a fee; ("agence de placement de fournisseurs de soins")

"caregiver recruitment" means any activities relating to the recruitment of an individual for the purpose of referring the individual to a person engaged in a caregiver agency business; ("recrutement de fournisseurs de soins")

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; ("conjoint de fait")

"Director" means the Director of Employment Standards appointed under the Employment Standards Act, 2000; ("directeur")

"employer" has the same meaning as in subsection 1 (1) of the Employment Standards Act, 2000; ("employeur")

"family member", in relation to an individual, means,

(a) a spouse or common-law partner of the individual,

(b) a child of the individual or a child of the individual's spouse or common-law partner,

(d) any other individual who is a member of a class of individuals prescribed in the regulations for the purpose of this definition; ("membre de la famille")

"finding" includes assisting in finding; ("trouver")

"foreign worker" means, subject to the regulations, a foreign national who, pursuant to an immigration or foreign temporary worker program, is recruited to become employed in Ontario; ("travailleur étranger")

"foreign worker recruitment" means, whether or not these activities are provided for a fee, the activities of,

(a) finding one or more foreign workers for employment in Ontario,

(b) finding employment in Ontario for one or more foreign workers; ("recrutement de travailleurs étrangers")

"licensee" means a person who holds a licence under this Act; ("titulaire de licence")

"officer" means an employment standards officer under the Employment Standards Act, 2000; ("agent")

"person" includes a partnership, union, organization and unincorporated association; ("personne")

"prescribed" means prescribed by the regulations made under this Act; ("prescrit")

"regulations" means the regulations made under this Act. ("règlements")

Licensing

Licence required for caregiver agency business

2. (1) No person shall engage in a caregiver agency business unless the person holds a licence under this Act that authorizes the person to do so.

Licence required for caregiver recruitment

(2) No person shall engage in caregiver recruitment unless the person holds a licence under this Act that authorizes him or her to do so.

Licence required for foreign worker recruitment

(3) No person shall engage in foreign worker recruitment unless the person is an individual who holds a licence under this Act that authorizes him or her to do so.

Exemptions

(4) The following persons are not required to hold a licence under this Act:

1. An individual who, on behalf of his or her employer, engages in activities to find employees, including employees who may be foreign workers, for that employer.

2. A person who, without receiving a fee directly or indirectly, engages in activities to find employment for a foreign worker who is his or her family member.

3. An agency of the government or a municipality.

4. A person or class of persons exempt under the regulations.

Licence application

3. (1) A person may apply, in a form approved by the Director, for a licence authorizing the person to engage in,

(a) a caregiver agency business; or

(b) caregiver recruitment.

Licence application, foreign worker recruitment

(2) An individual may apply, in a form approved by the Director, for a licence authorizing him or her to engage in foreign worker recruitment.

Applicant to provide information

4. (1) When applying for a licence, the applicant shall provide,

(a) the information required by the regulations or the application form; and

(b) any additional information requested by the Director.

Licence fee

(2) Before the Director issues a licence, the applicant shall pay the licence fee specified in the regulations.

Security: foreign worker recruiter

5. (1) Before the Director licenses an individual to engage in foreign worker recruitment, the individual shall provide,

(a) an irrevocable letter of credit from a financial institution that carries on business in Ontario; or

(b) a deposit of cash or securities acceptable to the Director.

Same

(2) The terms, conditions and amount of the letter of credit or other security shall be satisfactory to the Director and shall meet the requirements of the regulations.

Investigations

6. (1) The Director may make inquiries into and investigate the character, financial history and competence of an applicant for a licence as necessary to determine whether the applicant meets the requirements of this Act and the regulations.

Corporations and partnerships

(2) If the applicant is a corporation or partnership, the Director may inquire into or investigate the conduct of the officers, directors or partners of the applicant.

Collection of information

(3) The Director may,

(a) require information or material from any person who is the subject of the inquiry or investigation; and

(b) request information or material from any person who the Director has reason to believe can provide information or material relevant to the inquiries or investigations.

Verification of information

(4) The Director may require that any information provided under subsection (3) be verified by statutory declaration.

Terms and conditions of licence

7. (1) The Director may, if he or she considers it in the public interest to do so, impose terms or conditions on a licence at the time of issuing it, or at any other time by written notice to the licensee, and a licence is also subject to any terms or conditions imposed by regulation.

Duration of licence

(2) A licence is valid for one year from the day it is issued.

Licence not transferable or assignable

(3) A licence is not transferable or assignable.

Change in business entity

8. (1) If there is a change in the officers, directors or partners of a licensee, the licensee may not continue to engage in activities under the licence unless the Director consents to the continuation in writing.

Sole proprietorships

(2) If a licensee who is a sole proprietor dies or becomes incapable, the Director may issue a temporary licence to permit the sole proprietor's business to be maintained or wound down, and the temporary licence is valid for the period stated in the licence.

No application re foreign worker recruitment

(3) Subsection (2) does not apply to an individual licensed to be engaged in foreign worker recruitment.

Refusal to issue licence

9. (1) The Director may refuse to issue a licence to an applicant if,

(a) the applicant provides incomplete, false, misleading or inaccurate information in support of the application;

(b) the applicant fails to meet any qualification or satisfy any requirement of this Act or the regulations;

(c) the applicant has been found guilty or convicted of an offence under the Criminal Code (Canada) or of an offence under the criminal law of a jurisdiction outside Canada;

(d) having regard to the past conduct of the applicant, there are reasonable grounds to believe that the applicant will not act in accordance with law, or with integrity, honesty or in the public interest, while carrying out the activities for which the licence is required; or

(e) the applicant is carrying on activities that are in contravention of this Act, the regulations or the terms of the licence, or will be in contravention if the licence is granted.

Where applicant is a corporation or partnership

(2) The Director may refuse to issue a licence authorizing a corporation or partnership to engage in a caregiver agency business or caregiver recruitment, if,

(a) in the case of a corporation, a director or officer of the corporation could be refused a licence under subsection (1); or

(b) in the case of a partnership, a member of the partnership could be refused a licence under subsection (1).

Notice of refusal

(3) If the Director refuses to issue a licence to an applicant, the Director shall give the applicant written reasons for the refusal, along with a notice that the refusal may be appealed in accordance with section 20.

Cancellation or suspension of licence

10. (1) Subject to subsection (2), the Director may cancel or suspend the licence of a licensee,

(a) for any reason for which the Director may refuse to issue a licence to an applicant under section 9;

(b) if the licensee fails to provide information requested by the Director or required by the regulations;

(d) if the licensee contravenes or fails to comply with a condition of the licence.

Notice of cancellation or suspension

(2) If the Director cancels or suspends a licence, the Director shall give the licensee written reasons for doing so, along with a notice that the cancellation or suspension may be appealed in accordance with section 20.

When cancellation or suspension becomes effective

(3) A decision to cancel or suspend a licence takes effect when notice of the decision is served on the licensee.

Registering Employers of Foreign Workers

Employer shall register to recruit foreign workers

11. (1) No employer shall recruit a foreign worker without first registering with the Director.

Recruitment registration application

(2) An employer may apply, in a form approved by the Director, to be registered to recruit a foreign worker.

Applicant to provide information

(3) When applying to be registered, the employer shall provide,

(a) the employer's name and address;

(b) the business number assigned to the employer by the Canada Revenue Agency, if the employer has a business number;

(c) the name and address of every individual who will be engaged directly or indirectly in foreign worker recruitment on behalf of the employer;

(d) the information prescribed in the regulations respecting the position to be filled by a foreign worker;

(e) any additional information that is required by the regulations or the application form, or requested by the Director.

Registration

(4) Unless the application is refused under section 12, the Director shall,

(a) register the employer; and

(b) provide the employer written notice of the registration and the date on which the registration expires.

Term of registration

(5) Subject to the regulations, a registration is valid for the period stated in the registration.

Refusal to register

12. (1) The Director may refuse to register an employer if,

(a) the employer provides incomplete, false, misleading or inaccurate information in support of the application;

(b) the applicant has been found guilty or convicted of an offence under the Criminal Code (Canada) or of an offence under the criminal law of a jurisdiction outside Canada;

(c) having regard to the past conduct of the employer, there are reasonable grounds to believe that the employer will not act in accordance with the law, or with the undertakings the employer has given in respect of employing a foreign worker;

(d) an individual who will be engaged in foreign worker recruitment on behalf of the employer is required to hold a licence under section 2 but does not; or

(e) there are reasonable grounds to believe that an employee who will be engaged in foreign worker recruitment on behalf of the employer will not act in accordance with law, or with integrity, honesty or in the public interest.

Notice of refusal

(2) If the Director refuses to register an employer, the Director shall give the employer written reasons for doing so, along with a notice that the refusal may be appealed in accordance with section 20.

Cancellation or suspension of registration

13. (1) Subject to subsection (2), the Director may cancel or suspend the registration of an employer,

(a) for any reason for which the Director may refuse to register an employer under section 12;

(b) if the employer fails to provide information requested by the Director or required by the regulations; or

Notice of cancellation or suspension

(2) If the Director cancels or suspends an employer's registration, the Director shall give the employer written reasons for doing so, along with a notice that the cancellation or suspension may be appealed in accordance with the Employment Standards Act, 2000.

When cancellation or suspension becomes effective

(3) A decision to cancel or suspend an employer's registration takes effect when notice of the decision is served on the employer.

Obligations and Prohibitions

No charge for caregiver agency services

14. (1) A person who is engaged in a caregiver agency business shall not directly or indirectly charge or collect a fee,

(a) from a caregiver who is seeking work as a caregiver or information about persons seeking to engage caregivers, or from a family member of the caregiver; or

(b) from a caregiver for attempting to find work for the caregiver or providing the caregiver with information about persons seeking a caregiver, or from a family member of the caregiver.

No charge for caregiver recruitment

(2) A person who is engaged in caregiver recruitment shall not directly or indirectly charge or collect a fee from a caregiver, or from a family member on behalf of a caregiver, for,

(a) recruiting the caregiver; or

(b) referring the caregiver to a person engaged in a caregiver agency business.

Foreign workers not to be charged

(3) An individual who is engaged in caregiver or foreign worker recruitment shall not directly or indirectly charge or collect a fee from a caregiver or foreign worker for finding or attempting to find employment for him or her.

Fee for services

(4) Despite subsection (1), a person engaged in a caregiver agency business may charge and collect a fee for a service supplied to an individual as long as,

(a) paying for the service is not a condition of the person's acting for or on behalf of the individual; and

(b) the regulations do not prohibit charging a fee for the service.

Contract void

(5) If a contract provides for the payment of a fee to a person who is prohibited by this section from directly or indirectly charging or collecting it, the contract is void.

No recovery from foreign worker

15. (1) No employer shall directly or indirectly recover from a foreign worker,

(a) subject to subsection (2), any cost incurred by the employer in recruiting the worker; or

(b) any other amount, except an amount in respect of the reasonable monetary value of a good, service or benefit that,

(i) was given to the worker by the employer,

(ii) was to the direct benefit or advantage of the worker, and

(iii) was not required to be obtained by the worker as a condition of being employed, or if it was, the worker was not required to obtain it from the employer.

Exceptions

(2) An employer may sue to recover the employer's reasonable costs of recruiting a foreign worker from that worker if he or she fails to report for work or, having reported,

(a) acts in a manner that is not condoned by the employer and that,

(i) constitutes wilful misconduct, disobedience or wilful neglect of duty,

(ii) is violent in the workplace, or

(iii) is dishonest in the course of employment; or

(b) fails to complete substantially all of his or her term of employment with the employer.

No reduction of wages, etc., re foreign workers

16. An employer shall not reduce the wages of a foreign worker, or reduce or eliminate any other benefit or term or condition of a foreign worker's employment that the employer undertook to provide as a result of participating in the recruitment of a foreign worker, and any agreement by the foreign worker to such a reduction or elimination is void.

Administration and Enforcement

Duty to maintain records

17. (1) A licensee shall,

(a) prepare complete and accurate financial records of its operations in Ontario, and maintain them for at least three years after the records are made; and

(b) prepare other records and documents described in the regulations, and maintain them for the period specified in the regulations.

Records available in Ontario

(2) A licensee, former licensee or person whose licence has been cancelled or suspended shall make the records referred to in subsection (1) available for inspection by an officer at a time and place, in Ontario, specified by the officer.

Authority to investigate non-compliance

18. (1) The Director, or an officer authorized in writing by the Director, may on his or her own initiative make any inspection or investigation that he or she considers necessary or advisable to determine whether this Act, the regulations or a term or condition imposed under this Act is being complied with.

Powers

(2) For the purpose of administering or enforcing this Act, the Director and an officer authorized in writing by the Director have the powers set out in Part XXI of the Employment Standards Act, 2000.

Order to recover prohibited amounts

19. (1) If the Director is satisfied that a licensee has collected a fee prohibited by section 14 or an employer has recovered an amount prohibited by section 15, the Director may, by order, recover the amount from the licensee or employer on behalf of the individual who paid it.

Order to enforce undertakings

(2) If the Director is satisfied that an employer has reduced the wages of a foreign worker or reduced or eliminated a benefit or other term or condition of employment of a foreign worker contrary to section 16, the Director may, by order, recover from the employer on behalf of the foreign worker,

(a) the amount by which the wages were decreased; or

(b) the reasonable monetary value of the reduction or loss of the benefit or other term or condition of employment.

Enforcement when employer contravenes Act

(3) The Director may, by order, recover from an employer on behalf of the foreign worker, any fee that the worker was required to pay to find employment with the employer if the employer,

(a) recruits a foreign worker when the employer is not registered under this Act; or

(b) uses an individual to recruit a foreign worker when the individual is required to hold a licence under this Act but does not.

Use of proceeds of letters of credit

(4) If the Director makes an order under this section in respect of a licensee engaged in foreign worker recruitment, the Director may, in accordance with the regulations,

(a) declare the letter of credit, cash or other security provided by the licensee under section 5 forfeited; and

(b) use the proceeds realized to reduce or satisfy the amount recoverable under the order.

Recovery same as recovering unpaid wages

(5) The amount ordered to be paid by a licensee or employer under this section is a debt owing to the Crown and may be recovered by the Director in the same manner, and with the same priority, as wages may be recovered under the Employment Standards Act, 2000.

Director may determine amount

(6) The Director may determine the amount to be recovered by order under this section, in a reasonable and appropriate manner, if the Director is unable to determine the amount recoverable because the person against whom the order is to be made has failed to,

(a) keep or maintain complete and accurate records; or

(b) make the records available for inspection.

Application

(7) For the purposes of subsection (5), the provisions of the Employment Standards Act, 2000 apply, with necessary changes, to an order made by the Director under this section in the same manner as they apply to an order made by the Director under Part XXII of the Employment Standards Act, 2000.

Definition: "licensee"

(8) In this section,

"licensee" includes a person who formerly held a licence or whose licence has been cancelled or suspended.

Appeal of decision re licence or registration

20. (1) A decision of the Director to refuse, cancel or suspend a licence or registration may be appealed to a judge of the Superior Court of Justice by the person who,

(a) applied for, or held, the licence; or

(b) applied to be, or was, registered.

How to appeal

(2) An appeal to the court shall be made by filing an application with the court within 14 days after a copy of the Director's decision is served on the person appealing, and as soon as practicable after filing the application, the person appealing shall serve a copy of the application on the Director.

Powers of court on appeal

(3) On hearing an appeal, the court may,

(a) set aside, vary or confirm the decision of the Director;

(b) make any decision that, in its opinion, should have been made; or

Foreign worker not required to be party

21. A foreign worker is not required to be a party in a proceeding in respect of an order, as provided for in subsection 19 (7), or of an appeal under section 20.

Sharing information

22. (1) For the purpose of administering and enforcing this Act, the Director may provide information collected or obtained under this Act, including personal information as defined in the Freedom of Information and Protection of Privacy Act, to a ministry of the government or a department or agency of the Government of Canada or of another province.

Forwarding report to professional regulatory body

(2) If the Director considers that information collected under this Act in respect of an individual engaged in foreign worker recruitment, including personal information, as defined in the Freedom of Information and Protection of Privacy Act, is relevant to any of the following persons or bodies, the Director may report the information to the person or body:

1. The Law Society of Upper Canada or the law society of another province.

2. The Canadian Society of Immigration Consultants.

3. Any other person or body that governs or regulates the conduct of individuals who recruit or assist foreign workers entering Canada.

General

Forms

23. The Director may approve forms for use under this Act and the regulations.

Manner of service

24. (1) A copy of an order or notice of decision required to be given to, or served on, a person under this Act may be served personally or by ordinary mail, e-mail, or fax, or by another method that allows proof of receipt.

When order or notice mailed

(2) An order or notice of decision sent by ordinary mail under subsection (1) to a person's last known address is deemed to be received on the seventh day after the day of mailing, unless the person to whom it is sent establishes that, acting in good faith, he or she did not receive the order or notice, or did not receive it until a later date, because of absence, accident, illness or other cause beyond his or her control.

When order or notice sent electronically

(3) Service by e-mail or by fax under subsection (1) is deemed to be received the day after it is sent or, if that day is a Saturday or holiday, on the next day that is not a Saturday or holiday, unless the person establishes that, acting in good faith, he or she did not receive the order or notice, or did not receive it until a later date, because of absence, accident, illness or other cause beyond his or her control.

Not compellable in civil proceeding

25. The Director and an officer are not compellable witnesses in a civil action or other proceeding to which the Director or officer is not a party respecting any document or information obtained, received or made under this Act or the regulations, and may not be compelled to produce such documents.

Public registry

26. The Director shall maintain a public registry, which may be in electronic form, containing the information prescribed in the regulations respecting licensees.

Offences

27. (1) A person is guilty of an offence who,

(a) contravenes a provision of this Act;

(b) makes a false or misleading statement to the Director or an officer acting under the authority of this Act;

(c) destroys, mutilates, alters or fails to keep a record or document required to be kept under this Act or the regulations; or

(d) hinders, obstructs or interferes with, or attempts to hinder, obstruct or interfere with, the Director or an officer acting under the authority of this Act.

Penalty

(2) Every person who is guilty of an offence under subsection (1) is liable,

(a) in the case of an individual, to a fine of not more than $25,000; and

(b) in the case of a corporation, to a fine of not more than $50,000.

Directors and officers

(3) If a corporation commits an offence under subsection (1), a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence and is liable on summary conviction to a fine of not more than $25,000, whether or not the corporation has been prosecuted or convicted.

Regulations

28. The Lieutenant Governor in Council may make regulations,

(a) prescribing the qualifications, including work experience, that are required for the purposes of the definition of "caregiver" in section 1 and prescribing individuals and classes of individuals for the purposes of that definition;

(b) prescribing classes of individuals for the purpose of clause (d) of the definition of "family member" in section 1;

(d) respecting the issuance of licences under this Act, including prescribing,

(i) qualifications that a person shall have to become a licensee,

(ii) information, including personal information, that shall be provided by a person applying for a licence,

(iii) terms and conditions of licences, and

(iv) the fees payable for licences;

(e) respecting the duties of persons engaged in a caregiver agency business or in caregiver or foreign worker recruitment;

(f) establishing grounds for cancellation and suspension of licences;

(g) exempting persons or classes of persons from the requirement to hold a licence under this Act;

(h) respecting a letter of credit or other security to be provided under section 5, including its form and amount, the conditions on which and manner in which it may be forfeited, and the disposition of the proceeds realized upon its forfeiture;

(i) respecting the amount of cash that may be accepted under section 5 in lieu of a letter of credit or other security;

(j) respecting the registration of employers who wish to recruit foreign workers, including establishing the term of such a registration;

(k) prescribing services for which persons engaged in a caregiver agency business may not charge a fee;

(l) governing the documents, records and information that shall be kept by licensees, including prescribing types and classes of documents, records and information, and time periods for retaining each type and class;

(m) prescribing documents, records or information that shall be provided to the Director or an officer and respecting the time and manner in which they shall be provided;

(n) respecting information that a caregiver agency business shall provide to a person when the agency refers him or her to an employer;

(o) respecting any matter necessary or advisable to carry out the purposes of this Act.

Commencement

29. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

30. The short title of this Act is the Caregiver and Foreign Worker Recruitment and Protection Act, 2009.

EXPLANATORY NOTE

The purpose of the Bill is to regulate and license persons who operate caregiver agency businesses and who engage in activities in relation to the recruiting of caregivers and foreign workers.