Search Results | Clear Search | Previous (in doc) | Next (in doc) | Prev Doc | Next Doc
This Act is current to October 16, 2019
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Temporary Foreign Worker Protection Act

[SBC 2018] CHAPTER 45

Assented to November 8, 2018

Contents
Part 1 — Introductory Provisions
1Definitions
2Requirements of this Act cannot be waived
Part 2 — Licences for Foreign Worker Recruiters
3Licence required
4Licensee must be an individual
5Application for licence
6Issuance or refusal of licence
7Amendment, suspension or cancellation of licence
8Opportunity to be heard respecting actions in relation to licence
9Effect of suspension or cancellation of licence
Part 3
10-15Not in force
Part 4 — Reconsiderations Respecting Licences and Certificates of Registration
16Definition of "decision"
17Service must include information about reconsideration
18Initiating reconsideration
19Reconsideration of decision
Part 5 — Foreign Worker Recruiter and Employer Obligations
20-21Not in force
22Disclosure of referral fee
23Disclosure if foreign worker recruiter also providing immigration services
24Disclosure of partners
25Foreign worker recruiters liable for partners, affiliates or agents
26Information about rights under this Act
27Contract requirements
28Records
Part 6 — Registry and Information Sharing
29Licensed foreign worker recruiter registry and registered employer registry
30Information sharing
Part 7 — Investigations, Complaints and Determinations
31Definition of "complaint"
32Investigations initiated by director
33Complaint and time limit
34If complainant requests identity be kept confidential
35Investigations initiated by complaint
36Opportunity to respond
37Oral hearing not required
38Determinations and consequences
39Notifying others of determination
40No other proceedings
41No mistreatment because of complaint or investigation
42Power to compel persons to answer questions and order disclosure
43Maintenance of order at hearings
44Contempt proceeding for uncooperative person
45Immunity protection
46Entry and inspection powers
47Power to reconsider determination
48No jurisdiction to determine constitutional question
49No jurisdiction to apply the Human Rights Code
Part 8 — Enforcement
50Lien for amounts owing under a determination or order
51Payment of interest
52Demand on third party
53Failure to comply with demand
54Determination or order may be filed and enforced as judgment
55Seizure of assets
56Release of assets
57Wrongful removal of seized assets
58-59Not in force
60If money is paid to director
61Not in force
62Publication of violators' names
63Searching of records
Part 9Employment Standards Tribunal
64Application of the Employment Standards Act
65Employees of tribunal
66Other powers of tribunal
67Exclusive jurisdiction of tribunal
Part 10Appeals
68Appeal of director's determination
69Director's determination may be suspended
70After an appeal is filed
71Tribunal's orders
72Reconsideration of orders and decisions
Part 11 — General Provisions
73Director's power to delegate
74Right to sue preserved
75Warrant to carry out inspection powers
76Director cannot be required to give evidence in other proceedings
77Service of notices, decisions, determinations or demands
78Irregularities
79Limitation period
80Offences
81Evidence and burden of proof
82Regulations
Part 12 — Transitional Provisions and Consequential Amendments
83Transitional regulations
84-85 Consequential Amendments
86Commencement

Part 1 — Introductory Provisions

Definitions

1   In this Act:

"administrative penalty" means a monetary penalty required to be paid under section 38 (1) (f) [determinations and consequences];

"certificate of registration" means a valid certificate of registration issued under section 12 (1) [issuance or refusal of certificate of registration];

"determination" means any decision made by the director under section 35 (2) [investigations initiated by complaint], 38 [determinations and consequences] or 61 [security to ensure compliance];

"director" means the Director of Employment Standards appointed in accordance with the Employment Standards Act and, in relation to a function, duty or power that the director has delegated under section 73 [director's power to delegate] of this Act to another person, "director" includes that other person;

"employer" has the same meaning as in the Employment Standards Act;

"family", in relation to a person who provides recruitment services, means

(a) a spouse, child, parent, guardian, sibling, grandchild or grandparent, or

(b) any other prescribed person;

"foreign national" means a person who is not a Canadian citizen or permanent resident of Canada;

"foreign worker" means a foreign national who is an employee, as defined in the Employment Standards Act, in British Columbia or seeking employment in British Columbia;

"foreign worker recruiter" means a person who, for a fee or compensation, received directly or indirectly, provides recruitment services;

"immigration services" means services that assist a foreign national in immigrating to British Columbia, including

(a) researching and advising on immigration opportunities, laws or processes,

(b) preparing or assisting in the preparation, filing and presentation of the applications and documents related to immigration,

(c) representing a foreign national to or before immigration authorities, and

(d) providing or procuring settlement services;

"licence" means a valid licence issued under section 6 (1) [issuance or refusal of licence] of this Act;

"licensee" means a person who holds a licence;

"local government" means

(a) a municipality,

(b) a regional district, and

(c) another local body prescribed by regulation;

"recruitment services" means services that assist a foreign national to secure employment in British Columbia or assist an employer to secure employment in British Columbia for a foreign national, including

(a) finding or attempting to find employment in British Columbia for a foreign national,

(b) assisting or advising an employer in the hiring of a foreign national,

(c) assisting or advising another person in taking the actions described in paragraph (a) or (b), and

(d) referring a foreign national to another person who takes the actions described in paragraph (a) or (b);

"registered employer" means an employer who holds a certificate of registration;

"settlement services" means services to assist a foreign national in adapting to British Columbia's society or economy or in obtaining access to social, economic, government or community programs and services;

"tribunal" means the Employment Standards Tribunal continued under section 102 of the Employment Standards Act.

Requirements of this Act cannot be waived

2   An agreement to waive any of the requirements of this Act and the regulations has no effect.

Part 2 — Licences for Foreign Worker Recruiters

Licence required

3   (1) Subject to subsection (2), a person must not provide recruitment services or act as or purport to be a foreign worker recruiter unless the person holds a licence.

(2) Subsection (1) does not apply to a person who

(a) in relation to providing recruitment services, does only the following:

(i) recruits or engages in activities to find foreign nationals for employment with the person's own business or for employment with the person's employer;

(ii) provides recruitment services for a foreign national who is a member of the person's family;

(iii) acts on behalf of a college, institution or university as defined in the College and Institute Act;

(iv) acts on behalf of the government of Canada, the government of a province, the governing body of a first nation or a local government or the government of a jurisdiction outside Canada, or

(b) is in a prescribed class of persons.

Licensee must be an individual

4   Only an individual is eligible to be issued a licence as a foreign worker recruiter.

Application for licence

5   (1) An applicant for a licence as a foreign worker recruiter must

(a) submit to the director, in a form and manner approved by the director, an application that includes

(i) the name of the applicant,

(ii) if applicable, the business name under which the applicant operates or will operate if issued the licence, and

(iii) the business address, telephone number, email address and, if any, fax number of the applicant,

(b) as part of the application, and in order to ensure compliance with this Act and the regulations, file security with the director in accordance with the regulations,

(c) provide any information or materials the director may reasonably require to assess the application, and

(d) meet any prescribed application requirements.

(2) The director may make inquiries into and conduct investigations of the character, financial history and competence of an applicant for a licence if the director considers it necessary to determine whether the applicant meets the requirements of this Act and the regulations.

Issuance or refusal of licence

6   (1) On receipt of an application for a licence under section 5 [application for licence], the director may, if satisfied that the applicant has complied with this Act and the regulations, issue a licence to the applicant.

(2) The director may refuse to issue a licence to the applicant if the director is satisfied of any of the following:

(a) the applicant has not complied with this Act or the regulations;

(b) the applicant has provided incomplete, false, misleading or inaccurate information respecting the application;

(c) the applicant has failed to meet any qualification or satisfy any requirement of this Act or the regulations;

(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 the law, or with integrity, honesty or in the public interest, while carrying out the activities for which the licence is required;

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

(3) The director may specify in a licence issued under subsection (1) any terms and conditions that the director considers appropriate.

(4) A licence issued under subsection (1)

(a) is valid for a period of up to 3 years as specified by the director, and

(b) is not transferable.

(5) If the director decides to issue a licence to an applicant under subsection (1), the director must, as soon as practicable, issue the licence to the applicant.

(6) If the director makes a decision under subsection (3), the director must, as soon as practicable, serve the applicant with a copy of the director's decision that includes the reasons for the director's decision.

Amendment, suspension or cancellation of licence

7   (1) The director may amend, suspend or cancel a licence if

(a) the licensee consents, or

(b) the director is satisfied that

(i) the licensee has not complied with this Act or the regulations,

(ii) the licensee has provided the director with false, misleading or inaccurate information or has failed to provide any information the director required to be provided,

(iii) the licensee has failed to meet any qualification or satisfy any requirement of this Act or the regulations, or

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

(2) If the director amends, suspends or cancels a licence under subsection (1) (a), the director must, as soon as practicable, serve the licensee with a copy of the director's decision under subsection (1) (a) that includes the reasons for the director's decision.

Opportunity to be heard respecting actions in relation to licence

8   (1) Before the director makes a decision under section 6 (2) [issuance or refusal of licence] or 7 (1) (b) [amendment, suspension or cancellation of licence], the director must

(a) serve the applicant or licensee, as applicable, with written notice of the director's intended action and the reasons for that intended action, and

(b) give the applicant or licensee, as applicable, an opportunity to make written representations to the director, within a period set by the director, as to why the intended action should not be taken.

(2) The director is not required to give an oral hearing to any person to whom a notice has been served under subsection (1) or (5).

(3) After considering the representations referred to in subsection (1) (b), if any, the director must, as soon as practicable, serve the applicant or licensee, as applicable, with a copy of the director's decision under section 6 (2) or 7 (1) (b) that includes the reasons for the director's decision.

(4) Despite subsection (1) but subject to subsection (5), if the director considers that it is necessary to protect the public interest, the director may immediately amend, suspend or cancel a licence without giving the licensee an opportunity to be heard.

(5) If the director amends, suspends or cancels a licence under subsection (4), the director must

(a) serve, as soon as practicable, written notice to the licensee that the licence has been amended, suspended or cancelled, and

(b) give the licensee an opportunity to make written representations to the director within 20 business days after the date on which the licensee is served notice as to why the action of the director should not have been taken.

(6) After considering the representations referred to in subsection (5) (b), if any, the director must, as soon as practicable, serve the licensee with a copy of the director's decision under section 7 (1) (b) that confirms, rescinds or varies the action of the director under subsection (4) and includes the reasons for the director's decision.

Effect of suspension or cancellation of licence

9   (1) If the licensee's licence is suspended or cancelled under this Act, the licensee's rights and privileges under the licence,

(a) in the case of a suspension, are removed for the period during which the licence is suspended, or

(b) in the case of a cancellation, are terminated.

(2) The suspension or cancellation of a licensee's licence does not affect the validity of any services provided by the licensee before the date on which the licensee's licence was suspended or cancelled.

Part 3

Not in force

10-15   [Not in force.]

Part 4 — Reconsiderations Respecting Licences and Certificates of Registration

Definition of "decision"

16   In this Part and section 77 [service of notices, decisions, determinations or demands], "decision" means a decision by the director under any of the following provisions:

(a) section 6 (2) or (3) [issuance or refusal of licence];

(b) section 7 (1) (b) [amendment, suspension or cancellation of licence].

(c) and (d) [Not in force.]

Service must include information about reconsideration

17   A copy of a decision served on a person under any of the following provisions must include notification that the person may request a reconsideration by the director of the decision:

(a) section 6 (6) [issuance or refusal of licence];

(b) section 8 (3) or (6) [opportunity to be heard respecting actions in relation to licence].

(c) and (d) [Not in force.]

Initiating reconsideration

18   (1) A person who is subject to a decision may request the director to reconsider the decision by filing a request for reconsideration with the director not more than 30 days after the person is served with a copy of the decision under any of the provisions referred to in section 17 [service must include information about reconsideration].

(2) The director may extend the time to file a request for reconsideration, whether or not the time to file the request for reconsideration under subsection (1) has expired, if the director is satisfied that

(a) special circumstances existed that precluded filing the request for reconsideration within the time required in subsection (1), and

(b) an injustice would otherwise result.

(3) A request for reconsideration must

(a) be made in writing,

(b) identify the decision for which the reconsideration is requested,

(c) state why the decision should be changed,

(d) state the outcome requested,

(e) include the name, address and telephone number of the person requesting the reconsideration, and, if that person has an agent to act on the person's behalf in respect of the reconsideration, include the full name of the agent and a telephone number at which the agent may be contacted during normal business hours,

(f) include a mailing address, email address or fax number for service of any notices and of a copy of the director's decision in respect of the reconsideration, and

(g) be signed by the person requesting the reconsideration or the person's agent.

Reconsideration of decision

19   (1) Despite the filing of a request for reconsideration under section 18 (1) [initiating reconsideration], the director's decision that is subject to the reconsideration remains in effect until the outcome of the reconsideration.

(2) On a reconsideration under this section, the director must, after considering the information provided by the person requesting the reconsideration,

(a) rescind the director's decision,

(b) confirm the director's decision, or

(c) vary the director's decision.

(3) The director must, as soon as practicable, serve on the person requesting the reconsideration a copy of the director's decision made under subsection (2) that includes the reasons for the director's decision.

(4) If the refusal to grant a licence or certificate of registration is rescinded, the director must, as soon as practicable, issue the licence or certificate of registration.

(5) If the suspension or cancellation of a licence or certificate of registration is rescinded, the director must, as soon as practicable, reinstate and, if necessary, reissue the licence or certificate of registration.

(6) If the imposition of a condition or the amendment of a licence or certificate of registration is rescinded, the director must, as soon as practicable, reissue the licence or certificate of registration with the condition removed or the amendment reversed.

(7) If the director's decision is varied, the director must, as soon as practicable,

(a) reissue the licence or certificate of registration with the varied decision incorporated, if necessary, or

(b) take other necessary actions to implement the varied decision.

Part 5 — Foreign Worker Recruiter and Employer Obligations

Not in force

20-21   [Not in force.]

Disclosure of referral fee

22   If a foreign worker recruiter is receiving a fee or compensation for referring a foreign national to another person, the recruiter must clearly disclose that fact in writing to the foreign national.

Disclosure if foreign worker recruiter also providing immigration services

23   A foreign worker recruiter who provides recruitment services to an employer and immigration services to a foreign national who will be employed by that employer must

(a) disclose to both the employer and foreign national

(i) that the recruiter is acting for both parties, and

(ii) the nature of the services the recruiter is providing to each party,

(b) obtain the written consent of the employer and the foreign national to provide those services to both parties, and

(c) have a signed contract, which meets the requirements under section 27 [contract requirements], with the

(i) employer, and

(ii) foreign national.

Disclosure of partners

24   A foreign worker recruiter must disclose to the director the names and addresses of all the foreign worker recruiter's partners, affiliates or agents located or operating inside or outside of British Columbia

(a) at the time the foreign worker recruiter applies for a licence, and

(b) at any time after the time referred to in paragraph (a) that there is a material change in the information disclosed.

Foreign worker recruiters liable for partners, affiliates or agents

25   A foreign worker recruiter must ensure that partners, affiliates or agents of the foreign worker recruiter, who in partnership with or on behalf of the foreign worker recruiter provide recruitment services to a foreign worker, comply with this Act and the regulations.

Information about rights under this Act

26   (1) A foreign worker recruiter must make available or provide to each foreign national to whom the foreign worker recruiter provides recruitment services, in a form provided or approved by the director, information about the rights of foreign nationals and foreign workers under this Act.

(2) [Not in force.]

Contract requirements

27   In order to provide recruitment services to a foreign national or an employer, or to provide immigration services to a foreign national in the circumstances set out in section 23 [disclosure if foreign worker recruiter also providing immigration services], a foreign worker recruiter must enter into a contract with the foreign national or the employer that

(a) is in writing,

(b) is written in clear and unambiguous language,

(c) states the services to be provided,

(d) in the case of recruitment services provided to an employer, describes the fees and expenses to be charged to the employer and the services for each fee and expense charged,

(e) in the case of immigration services provided to a foreign national, describes the fees and expenses to be charged to the foreign national and the services for each fee and expense charged,

(f) contains any terms and conditions required by the director, and

(g) contains any prescribed terms and conditions.

Records

28   (1) A licensee or former licensee must retain all records relating to the recruitment services provided by the licensee or former licensee to a foreign national, including the following information:

(a) all contracts entered into by the licensee or former licensee with the foreign national;

(b) the name of, and each address provided by, the foreign national;

(c) a description of the recruitment services provided to the foreign national;

(d) the name of each employer to which the licensee or former licensee referred the foreign national and, if applicable, the name of each employer with whom the licensee or former licensee placed the foreign national;

(e) the fees and expenses the licensee or former licensee requested or received in relation to the foreign national.

(2) [Not in force.]

(3) Records referred to in subsections (1) and (2) must

(a) be retained for a period of at least 4 years after the date on which they were created,

(b) be made available for inspection by the director on the request of the director, and

(c) in respect of

(i) a licensee or registered employer, be kept at the principal place of business in British Columbia of the licensee or employer, and

(ii) a former licensee or former registered employer, be kept in British Columbia.

Part 6 — Registry and Information Sharing

Licensed foreign worker recruiter registry and registered employer registry

29   (1) The director must establish and maintain a registry respecting

(a) foreign worker recruiters licensed under Part 2 that contains, for each licensee,

(i) the name of the licensee,

(ii) if applicable, the business name under which the licensee operates,

(iii) the business address, telephone number, email address and, if any, fax number of the licensee, and

(iv) any other prescribed information, and

(b) [Not in force.]

(2) The director must publish the information referred to in subsection (1) (a) in any manner that the director considers appropriate to bring the information to the public's attention.

Information sharing

30   For the purposes of administering and enforcing this Act, the director may provide information collected and obtained under this Act, including personal information as defined in the Freedom of Information and Protection of Privacy Act, to the following:

(a) a public body, as defined in the Freedom of Information and Protection of Privacy Act;

(b) a department or agency of the Government of Canada;

(c) a department or agency of another province or territory of Canada;

(d) a department or agency of another country or of a state within that country;

(e) a police service;

(f) any other person or body that governs or regulates the conduct of individuals who provide recruitment services to foreign nationals entering Canada;

(g) any other prescribed persons or class of persons.

Part 7 — Investigations, Complaints and Determinations

Definition of "complaint"

31   In this Part, "complaint" means a complaint made under section 33 (1) [complaint and time limit].

Investigations initiated by director

32   The director may at any time or for any reason

(a) conduct an investigation to ensure compliance with this Act and the regulations, whether or not the director has received a complaint, and

(b) stop or postpone the investigation.

Complaint and time limit

33   (1) A person may complain to the director that a person has contravened one or more of the following sections of this Act:

(a) and (b) [Not in force.]

(c) section 22 [disclosure of referral fee];

(d) section 23 [disclosure if foreign worker recruiter also providing immigration services];

(e) section 27 [contract requirements];

(f) section 41 [no mistreatment because of complaint or investigation].

(2) A complaint must be in writing and be delivered to an office of the Employment Standards Branch within 2 years of the date of the alleged contravention.

If complainant requests identity be kept confidential

34   (1) If requested in writing by a complainant, the director must not disclose any identifying information about the complainant unless

(a) the disclosure is necessary for the purposes of a proceeding under this Act, or

(b) the director considers the disclosure is in the public interest.

(2) Subsection (1) applies despite any provision of the Freedom of Information and Protection of Privacy Act other than section 44 (2) and (3) of that Act.

Investigations initiated by complaint

35   (1) Subject to subsection (2), the director must investigate a complaint.

(2) The director may refuse to investigate a complaint or may stop or postpone investigating a complaint if

(a) the complaint is not made within the time limit specified in section 33 (2) [complaint and time limit],

(b) this Act does not apply to the complaint,

(c) the complaint is frivolous, vexatious or trivial or is not made in good faith,

(d) there is not enough evidence to prove the complaint,

(e) a proceeding relating to the subject matter of the complaint has been commenced before a court, a tribunal, an arbitrator or a mediator,

(f) a court, a tribunal or an arbitrator has made a decision or an award relating to the subject matter of the complaint, or

(g) the dispute that caused the complaint is resolved.

Opportunity to respond

36   If an investigation is conducted, the director must make reasonable efforts to give a person under investigation an opportunity to respond.

Oral hearing not required

37   The director is not required to give an oral hearing to

(a) any person the director investigates under section 32 [investigations initiated by director] or 35 [investigations initiated by complaint], or

(b) any person in respect of whom the director makes

(i) a determination, or

(ii) a reconsideration under section 47 [power to reconsider determination].

Determinations and consequences

38   (1) If satisfied that a person has contravened a requirement of section 3 [licence required] or 10 [certificate of registration required], Part 5 [Foreign Worker Recruiter and Employer Obligations] or section 41 [no mistreatment because of complaint or investigation] of this Act, the director may require the person to do one or more of the following:

(a) comply with the requirement;

(b) remedy or cease doing an act;

(c) post notice, in a form and location specified by the director, respecting

(i) a determination, or

(ii) a requirement of, or information about, this Act or the regulations;

(d) pay to a person a fee or expense paid by or recovered from the person in contravention of this Act;

(e) pay any costs incurred by the director in connection with inspections under section 46 [entry and inspection powers] related to investigation of the contravention;

(f) pay a monetary penalty in accordance with the regulations.

(2) [Not in force.]

(3) The director may make a requirement under subsection (1) or (2) subject to any terms and conditions that the director considers appropriate.

(4) A person on whom the director imposes a requirement under this section must comply with that requirement.

(5) If the director requires a person to pay costs referred to in subsection (1) (e) or an administrative penalty, the amount required to be paid is a debt due to the government and may be collected under this Act by the director.

(6) A person who is required to pay an amount owing under this section must pay the amount whether or not the person

(a) has been convicted of an offence under this Act, or

(b) is also liable to pay a fine for an offence under section 80 [offences].

(7) If, with respect to a complaint, the director is satisfied that the requirements of this Act and the regulations have not been contravened, the director must dismiss the complaint.

Notifying others of determination

39   On making a determination under this Act, the director must serve any person named in the determination with a copy of the determination that includes the following:

(a) if a person is required by the determination to pay fees, expenses, wages, compensation, interest, an administrative penalty or another amount, the amount to be paid and how it was calculated;

(b) if a person is required by the determination to pay an administrative penalty, the nature of the contravention and the date by which the administrative penalty must be paid;

(c) the time limit and process for appealing the determination to the tribunal;

(d) written reasons for the director's determination;

(e) any requirements imposed under section 38 (1) or (2), including any terms and conditions imposed under subsection (3) of that section.

No other proceedings

40   Once a determination is made requiring payment of an amount, a person may commence another proceeding to recover the amount only if

(a) the director has consented in writing, or

(b) the director or the tribunal has cancelled the determination.

No mistreatment because of complaint or investigation

41   (1) A foreign worker recruiter must not

(a) discriminate against or threaten to discriminate against a person with respect to recruitment services, or

(b) intimidate or coerce a person to pay or provide a monetary or other penalty, or impose or threaten to impose a monetary or other penalty on a person,

because a complaint or investigation may be or has been made under this Act, an appeal or other action may be or has been taken under this Act or information may be or has been supplied under this Act.

(2) [Not in force.]

Power to compel persons to answer questions and order disclosure

42   (1) For the purposes of this Act, the director may make an order requiring a person to do either or both of the following:

(a) attend, in person or by electronic means, before the director to answer questions on oath or affirmation, or in any other manner;

(b) produce for the director a record or thing in the person's possession or control.

(2) The director may apply to the Supreme Court for an order

(a) directing a person to comply with an order made under subsection (1), or

(b) directing any officers and governing members of a person to cause the person to comply with an order made under subsection (1).

Maintenance of order at hearings

43   (1) At an oral hearing, the director may make orders or give directions that the director considers necessary for the maintenance of order at the hearing, and, if any person disobeys or fails to comply with any order or direction, the director may call on the assistance of any peace officer to enforce the order or direction.

(2) A peace officer called on under subsection (1) may take any action that is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose.

(3) Without limiting subsection (1), the director, by order, may

(a) impose restrictions on a person's continued participation in or attendance at a hearing, and

(b) exclude a person from further participation in or attendance at a hearing until the director orders otherwise.

Contempt proceeding for uncooperative person

44   (1) The failure or refusal of a person subject to an order under section 42 [power to compel persons to answer questions and order disclosure] to do any of the following makes the person, on application to the Supreme Court by the director, liable to be committed for contempt as if in breach of an order or judgment of the Supreme Court:

(a) attend before the director;

(b) take an oath or make an affirmation;

(c) answer questions;

(d) produce records or things in the person's possession or control.

(2) The failure or refusal of a person subject to an order or direction under section 43 [maintenance of order at hearings] to comply with the order or direction makes the person, on application to the Supreme Court by the director, liable to be committed for contempt as if in breach of an order or judgment of the Supreme Court.

(3) Subsections (1) and (2) do not limit the conduct for which a finding of contempt may be made by the Supreme Court.

Immunity protection

45   (1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against the director, or a person acting on behalf of or under the direction of the director, because of anything done or omitted

(a) in the performance or intended performance of any duty under this Act, or

(b) in the exercise or intended exercise of any power under this Act.

(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith.

Entry and inspection powers

46   (1) For the purposes of ensuring compliance with this Act and the regulations, the director may do one or more of the following:

(a) enter during regular working hours any place, including any means of conveyance or transport, where

(i) work is or has been done or started by foreign workers,

(ii) an employer or a foreign worker recruiter carries on business or stores assets relating to that business,

(iii) a record required for the purposes of this Act is kept, or

(iv) anything to which this Act applies is taking place or has taken place;

(b) inspect, and question a person about, any work, material, appliance, machinery, equipment or other thing in the place;

(c) inspect any records that may be relevant to an investigation under this Part;

(d) on giving a receipt for a record inspected under paragraph (c), remove the record to make copies or extracts;

(e) require a person to disclose, either orally or in writing, a matter required under this Act and require that the disclosure be under oath or affirmation;

(f) require a person to produce, or to deliver to a place specified by the director, any records for inspection under paragraph (c).

(2) Despite subsection (1), the director may enter a place occupied as a private residence only with the consent of the occupant or under the authority of a warrant issued under section 75 [warrant to carry out inspection powers].

Power to reconsider determination

47   (1) Subject to subsection (2), the director may vary or cancel a determination.

(2) If a person appeals a determination that the director intends to vary or cancel under subsection (1), the director must vary or cancel the determination within 30 days of the date that a copy of the appeal request was received by the director.

No jurisdiction to determine constitutional question

48   Nothing in this Act is to be construed as giving the director or any person acting for or on behalf of the director under this Act jurisdiction over constitutional questions relating to the Canadian Charter of Rights and Freedoms.

No jurisdiction to apply the Human Rights Code

49   The director does not have jurisdiction to apply the Human Rights Code.

Part 8 — Enforcement

Lien for amounts owing under a determination or order

50   (1) Despite any other Act, an amount owing under a determination made under section 38 (1) (d) or (2) [determinations and consequences], or under an order of the tribunal made in relation to a determination under section 38 (1) (d) or (2), constitutes a lien, charge and secured debt in favour of the director, dating from the date, as identified in the determination or order, of the contravention that is the subject of the determination or order, against all the real and personal property of the person named in the determination or order, including money due or accruing due to the person from any source.

(2) Despite any other Act, the amount of a lien, charge and secured debt referred to in subsection (1) is payable and enforceable in priority over all liens, judgments, charges and security interests or any other claims or rights, including the following:

(a) any claim or right of the government, including, but not limited to, the claims and rights of the Workers' Compensation Board;

(b) any claim or right arising through contract, account receivable, insurance claim or sale of goods;

(c) any security interest within the meaning of the Personal Property Security Act.

(3) Subsection (2) applies regardless of when the lien, judgment, charge, security interest, claim or right was perfected within the meaning of the Personal Property Security Act, or was created or made.

(4) The lien, charge and secured debt referred to in subsection (1) has priority over a mortgage of, or debenture charging, land that was registered in a land title office before registration against that land of a certificate of judgment obtained on the filing, under section 54 [determination or order may be filed and enforced as judgment], of a determination or an order of the tribunal, but only with respect to money advanced under the mortgage or debenture after the certificate of judgment was registered.

Payment of interest

51   (1) If a person owes an amount under a determination or an order of the tribunal to another person, the person owing the amount must pay interest at the prescribed rate on the amount owed from the date a complaint about the amount owed is delivered to an office of the Employment Standards Branch to the date of payment.

(2) No interest accumulates under subsection (1) from the date a determination is made under section 38 [determinations and consequences] requiring payment of an amount until 38 days after that date.

(3) This Part applies to the recovery of interest payable under subsection (1).

(4) An amount collected under this Part, or deposited under section 69 [director's determination may be suspended], earns interest at the prescribed rate, payable by the minister charged with the administration of the Financial Administration Act, from the date the amount is deposited in a savings institution to the date of payment to the person entitled.

(5) Subsection (4) does not apply to security filed under section 5 (1) (b) [application for licence] or any security provided or bond posted under section 61 [security to ensure compliance].

Demand on third party

52   (1) If the director has reason to believe that a person is or is likely to become indebted to another who is required to pay money under a determination or an order of the tribunal, the director may demand in writing that the person pay to the director, on account of the other's liability under the determination or order, all or part of the money otherwise payable to the other person.

(2) A person on whom a demand is made under this section must, if indebted to the other person, pay to the director or to someone specified by the director the amount demanded, within 15 days after the later of

(a) the date the demand is served, and

(b) the date the person named in the demand becomes indebted to the other person.

(3) The director's receipt for money paid by a person in response to a demand is proof that the person's liability to the person required to pay under the determination or under the order of the tribunal is discharged to the extent of the amount stated in the receipt.

(4) For the purposes of this section, a savings institution is indebted to a person required to pay under a determination or under an order of the tribunal for money or a beneficial interest in money in the savings institution

(a) on deposit to the credit of that person when a demand is served,

(b) held in trust by a depositor for that person when a demand is served, or

(c) deposited to the credit of that person after a demand is served.

(5) A demand made under this section continues in effect until it is satisfied or until it is cancelled by the director.

Failure to comply with demand

53   (1) If a person on whom a demand is made under section 52 [demand on third party] does not comply with the demand,

(a) the director may enforce recovery of the amount stated in the demand as if it were an amount owing under a determination, and

(b) this Part applies to the recovery of that amount.

(2) If a person on whom a demand is made under section 52 denies indebtedness to anyone required to pay under a determination or an order of the tribunal, the director may require that person to produce information the director considers necessary to establish that there is no indebtedness.

Determination or order may be filed and enforced as judgment

54   (1) The director may at any time file in a Supreme Court registry a determination or an order of the tribunal.

(2) Unless varied, cancelled or suspended under section 47 [power to reconsider determination], 69 [director's determination may be suspended], 71 [tribunal's orders] or 72 [reconsideration of orders and decisions], a filed determination is enforceable in the same manner as a judgment of the Supreme Court in favour of the director for the recovery of a debt in the amount stated in the determination.

(3) Unless varied or cancelled by the tribunal under section 72 [reconsideration of orders and decisions], a filed order of the tribunal is enforceable in the same manner as a judgment of the Supreme Court in favour of the director for the recovery of a debt in the amount stated in the order.

(4) If a determination or order filed under this section is varied, cancelled or suspended, the director must promptly withdraw the determination or order from filing in the Supreme Court registry.

Seizure of assets

55   (1) If a person is required to pay under a determination or order of the tribunal, the director may seize as much of the assets owned or possessed by the person, or used in or incidental to that person's business, as is necessary to satisfy

(a) the amount stated in the determination or order, and

(b) the costs of seizure.

(2) The director must safely keep the assets under seizure until the earlier of the following, as applicable:

(a) the determination or order of the tribunal is filed in court under section 54 [determination or order may be filed and enforced as judgment] and a writ of seizure and sale has been executed;

(b) the determination or order is cancelled under section 47 [power to reconsider determination], 71 [tribunal's orders] or 72 [reconsideration of orders and decisions].

Release of assets

56   The director must release an asset seized under section 55 [seizure of assets] if satisfied that the asset is owned by someone other than a person required to pay under a determination or an order of the tribunal.

Wrongful removal of seized assets

57   (1) A person must not remove, damage or dispose of assets seized under section 55 [seizure of assets] except in accordance with this Act, a writ of seizure and sale or a court order.

(2) In addition to any other penalty, a person who contravenes subsection (1) is liable for the amount owed by the person required to pay under the determination or order of the tribunal.

(3) This Part applies to the recovery of an amount a person is liable for under subsection (2).

Not in force

58-59   [Not in force.]

If money is paid to director

60   (1) The director must pay to the minister charged with the administration of the Financial Administration Act all money received by the director under this Act, including money to be held in trust for the persons named in a determination or an order of the tribunal.

(2) Money received by the minister charged with the administration of the Financial Administration Act in respect of a determination or an order of the tribunal must be attributed

(a) first, to the amount required to be paid for which a determination or order was made under section 38 (1) (d) or (2) [determinations and consequences],

(b) second, to any other amount, other than interest or an administrative penalty, required to be paid by the determination or order,

(c) third, to interest required to be paid by the determination or order, and

(d) fourth, to an administrative penalty required to be paid by the determination or order.

(3) The minister charged with the administration of the Financial Administration Act must pay, according to the direction of the director, to the persons named in a determination or an order of the tribunal, money received in trust for those persons.

(4) Money attributed under subsection (2) (a) must be attributed proportionally among the persons to whom money is owing under the determination or order according to the amount owing as shown on the determination or order.

(5) The money attributed to a person under subsection (4) must then be paid according to the following priority:

(a) to a person who was assigned all or part of the attributed money by the person to whom the money was attributed;

(b) to the person to whom the money was attributed or, if deceased,

(i) to that person's estate, or

(ii) under the Wills, Estates and Succession Act.

(6) If there is not enough money to pay everyone entitled under a paragraph in subsection (5), the money available under that paragraph must be divided among them in proportion to the amount each of them is entitled to.

(7) Subsections (4) to (6) apply also to interest required to be paid on an amount owed to a person by a determination or an order of the tribunal.

(8) Despite subsections (5) and (7), if money is received for an amount owing to a person who owes money under another determination or under an order of the tribunal, the director may direct that the amount received be used to pay the claims of anyone entitled to payment under the other determination or under the order.

Not in force

61   [Not in force.]

Publication of violators' names

62   (1) The director may compile information relating to contraventions of this Act or the regulations, including information identifying the persons who, according to a determination or an order of the tribunal, committed the contraventions.

(2) The director may

(a) publish information compiled under subsection (1), and

(b) make that information available for public inspection during regular business hours at offices of the Employment Standards Branch.

Searching of records

63   On the written request and payment of a prescribed fee by a person, the director may

(a) conduct a search of records maintained by the director for information, in respect of a person named in the request, related to contraventions of this Act or the regulations or complaints or investigations under this Act, and

(b) provide that information to the person who made the request and paid the fee.

Part 9Employment Standards Tribunal

Application of the Employment Standards Act

64   Sections 103 [application of Administrative Tribunals Act], 104 [chair may delegate authority] and 106 [organization of tribunal] of the Employment Standards Act apply to the tribunal acting under this Act.

Employees of tribunal

65   (1) Despite the Public Service Act, the tribunal may employ a registrar and other employees it considers necessary for the purposes of this Act.

(2) The Labour Relations Code, the Public Service Act and the Public Service Labour Relations Act do not apply to the tribunal's employees.

Other powers of tribunal

66   (1) In addition to its powers under Part 10 [Appeals], the tribunal may, respecting an appeal or reconsideration of the tribunal, do one or more of the following:

(a) extend the time period for requesting an appeal or applying for reconsideration even though the period has expired;

(b) enter during regular working hours any place, including any means of conveyance or transport, where

(i) work is or has been done or started by foreign workers,

(ii) an employer or a foreign worker recruiter carries on business or stores assets,

(iii) a record required for the purposes of this Act is kept, or

(iv) anything to which this Act applies is taking place or has taken place;

(c) inspect any records that may be relevant to an appeal or a reconsideration;

(d) on giving a receipt for a record examined under paragraph (c), remove the record to make copies or extracts;

(e) require a person to disclose, either orally or in writing, a matter required under this Act and require the disclosure to be made under oath or affirmation;

(f) order a person to produce, or to deliver to a place specified by the tribunal, any records for inspection under paragraph (c).

(2) Despite subsection (1), the tribunal may enter a place occupied as a private residence only with the consent of the occupant or under the authority of a warrant issued under section 75 [warrant to carry out inspection powers].

Exclusive jurisdiction of tribunal

67   (1) The tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in an appeal or reconsideration under Parts 9 [Employment Standards Tribunal] and 10 [Appeals] and to make any order permitted to be made.

(2) A decision or order of the tribunal on a matter in respect of which the tribunal has exclusive jurisdiction is final and conclusive and is not open to question or review in any court.

Part 10Appeals

Appeal of director's determination

68   (1) Subject to this section, a person served with a determination may appeal the determination to the tribunal on one or more of the following grounds:

(a) the director erred in law;

(b) the director failed to observe the principles of natural justice in making the determination;

(c) evidence has become available that was not available at the time the determination was being made.

(2) A person who wishes to appeal, under subsection (1), a determination to the tribunal must, within the appeal period established under subsection (3),

(a) deliver to the office of the tribunal

(i) a written request specifying the grounds on which the appeal under subsection (1) is based,

(ii) a copy of the director's written reasons for the determination, and

(iii) payment of the appeal fee, if any, prescribed by regulation, and

(b) deliver a copy of the request under paragraph (a) (i) to the director.

(3) The appeal period referred to in subsection (2) is the period that starts on the date the determination was served under section 77 [service of notices, decisions, determinations or demands] and ends 30 days after that date.

(4) If, after an appeal is made by a person in accordance with subsections (2) and (3), the determination that is the subject of the appeal is varied by the director under section 47 [power to reconsider determination], the person, within 7 days of being notified of the variation,

(a) may amend the request for appeal under subsection (2) (a) (i) and deliver it to the tribunal, and

(b) if the request for appeal is amended, must deliver a copy of the amended request to the director.

(5) On receiving a copy of the request under subsection (2) (b) or amended request under subsection (4) (b), the director must provide the tribunal with the record that was before the director at the time the determination, or variation of it, was made, including any witness statement and document considered by the director.

(6) The director is a party to an appeal under this section.

(7) The filing of a determination under section 54 [determination or order may be filed and enforced as judgment] does not prevent the determination being appealed.

Director's determination may be suspended

69   (1) A person who appeals a determination may request the tribunal to suspend the effect of the determination.

(2) The tribunal may suspend the determination for the period and subject to the conditions it thinks appropriate, but only if the person who requests the suspension deposits with the director either

(a) the total amount, if any, required to be paid under the determination, or

(b) a smaller amount that the tribunal considers adequate in the circumstances of the appeal.

After an appeal is filed

70   (1) At any time after an appeal is filed, and without a hearing of any kind, the tribunal may dismiss all or part of the appeal if the tribunal determines that any of the following apply:

(a) the appeal is not within the jurisdiction of the tribunal;

(b) the appeal was not filed within the applicable time limit;

(c) the appeal is frivolous, vexatious or trivial or gives rise to an abuse of process;

(d) the appeal was made in bad faith or filed for an improper purpose or motive;

(e) the appellant failed to diligently pursue the appeal or failed to comply with an order of the tribunal;

(f) there is no reasonable prospect that the appeal will succeed;

(g) the substance of the appeal has been appropriately dealt with in another proceeding;

(h) one or more of the requirements of section 68 [appeal of director's determination] have not been met.

(2) Before considering an appeal, the tribunal may

(a) refer the matter back to the director for further investigation, or

(b) recommend that an attempt be made to settle the matter.

(3) If the tribunal dismisses all or part of an appeal under subsection (1), the tribunal must inform the parties of its decision in writing and give reasons for that decision.

Tribunal's orders

71   After considering whether the grounds for appeal have been met, the tribunal may, by order,

(a) confirm, vary or cancel the determination under appeal, or

(b) refer the matter back to the director.

Reconsideration of orders and decisions

72   (1) On application under subsection (2) or on its own motion, the tribunal may

(a) reconsider any order or decision of the tribunal, and

(b) confirm, vary or cancel the order or decision or refer the matter back to the original panel or another panel.

(2) The director or a person served with an order or a decision of the tribunal may make an application under this section.

(3) The application may not be made more than 30 days after the date of the order or decision.

(4) The tribunal may not reconsider an order or decision on the tribunal's own motion more than 30 days after the date of the decision or order.

(5) An application may be made only once with respect to the same order or decision.

(6) The director and a person served with an order or a decision of the tribunal are parties to a reconsideration of the order or decision.

Part 11 — General Provisions

Director's power to delegate

73   (1) The director may delegate to any person any of the director's functions, duties or powers under this Act, except the power to delegate under this section.

(2) A delegation under this section

(a) may be cancelled, and

(b) may be made subject to the terms that the director considers appropriate.

(3) If the director ceases to hold office, a delegation under this section continues in effect

(a) as long as the delegate continues in office, or

(b) until cancelled by a succeeding director.

(4) A person who claims to be carrying out a function, duty or power delegated by the director under this section must, on request, produce evidence of the delegation.

Right to sue preserved

74   Subject to section 40 [no other proceedings], nothing in this Act or the regulations affects a person's right to commence and maintain an action that, but for this Act, the person would have had the right to commence and maintain.

Warrant to carry out inspection powers

75   If satisfied by evidence given under oath or affirmation that there is reason to believe there are in a private residence records or other things that are relevant for the purposes of an investigation or appeal under this Act, a justice may issue a warrant authorizing the person named in the warrant to enter the private residence in accordance with the warrant in order to exercise the powers referred to in section 46 [entry and inspection powers] or 66 [other powers of tribunal].

Director cannot be required to give evidence in other proceedings

76   Except for a prosecution under this Act or an appeal to the tribunal, the director or a delegate of the director must not be required by a court, board, tribunal or person to give evidence or produce records relating to information obtained for the purposes of this Act.

Service of notices, decisions, determinations or demands

77   (1) A notice, decision, determination or demand that is required to be served on a person under this Act is deemed to have been served if

(a) served on the person,

(b) sent by ordinary mail or registered mail to the person's last known business address according to the records of the director,

(c) transmitted by email to the person's last known email address according to the records of the director,

(d) transmitted by fax to the person's last known fax number according to the records of the director, or

(e) sent, transmitted or delivered by any other prescribed method of service.

(2) If service is by ordinary mail or registered mail, the notice, decision, determination or demand is deemed to be served 8 days after the notice, decision, determination or demand is mailed.

(3) If service is by email or by fax, the notice, decision, determination or demand is deemed to be served 3 days after the notice, decision, determination or demand is transmitted.

Irregularities

78   A technical irregularity does not invalidate a proceeding under this Act.

Limitation period

79   No proceeding for an offence under this Act may be commenced in any court more than 2 years after the facts on which the proceeding is based first come to the director's knowledge.

Offences

80   (1) A person is guilty of an offence if the person

(a) contravenes a provision of this Act or the regulations,

(b) makes a false or misleading statement to the director,

(c) destroys documents required to be made or retained under this Act, or

(d) hinders, obstructs or interferes with the director or a designate operating under the authority of this Act.

(2) A person who contravenes a provision of this Act is guilty of an offence and is liable on summary conviction,

(a) in the case of an individual, to a fine of not more than $50 000 or imprisonment for a term of not more than one year, or both, and

(b) in the case of a corporation, to a fine of not more than $100 000.

Evidence and burden of proof

81   (1) The production of a cheque, bill of exchange or order to pay on which is marked "Pursuant to clearing rules, this item must not be cleared again unless certified", or other words signifying that payment was not made by a savings institution, is evidence that payment was not made.

(2) A copy of a document issued under this Act by the director, and certified by the director as a true copy, is, without proof of the director's appointment or signature,

(a) evidence of the document, and

(b) evidence that the person issuing the document was authorized to do so.

(3) Subsection (2) applies also in respect of a copy of a document issued under this Act by the tribunal and certified by the registrar of the tribunal as a true copy.

Regulations

82   (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) respecting applications for licences, renewal of licences or certificates of registration;

(b) respecting the filing of financial security and providing for different amounts of security for different classes of persons or different circumstances;

(c) prescribing information that must be contained in a registry established and maintained under section 29 [licensed foreign worker recruiter registry and registered employer registry], which may be different for licensees and registered employers, for different classes of licensees and for different classes of registered employers;

(d) specifying requirements of the regulations contravention of which may be the subject of a determination under section 38 [determinations and consequences];

(e) prescribing interest rates for the purposes of section 51 [payment of interest] and providing for different rates for different purposes;

(f) respecting fees, including regulations

(i) prescribing fees for licences issued under this Act,

(ii) prescribing fees for registering as an employer under this Act,

(iii) prescribing fees to be paid in respect of services provided by the government under this Act, and

(iv) specifying the time, manner and method for payment of prescribed fees payable under this Act;

(g) prescribing methods of service for the purposes of section 77 (1) (e) [service of notices, decisions, determinations or demands], including timeframes within which documents sent, transmitted or delivered by a prescribed method of service are deemed to have been served, which may be different for different methods of service;

(h) respecting penalties or schedules of penalties for determinations in respect of contraventions of a requirement of this Act, which penalties or schedules of penalties may

(i) vary according to the nature or frequency of the contraventions or the number of persons affected by any contravention, and

(ii) provide for greater penalties for a second contravention and for third and subsequent contraventions in a 3-year period or any other period that may be prescribed;

(i) respecting any other matter for which regulations of the Lieutenant Governor in Council are contemplated by this Act.

Part 12 — Transitional Provisions and Consequential Amendments

Transitional regulations

83   (1) The Lieutenant Governor in Council may make regulations considered necessary or advisable for the purpose of more effectively bringing into operation the provisions of this Act and to obviate any transitional difficulties encountered in doing so.

(2) Without limiting subsection (1), a regulation may suspend for the period the Lieutenant Governor in Council specifies the operation of a provision of an enactment if that provision would impede the effective operation of this Act.

(3) For 3 years after the date this Act comes into force, a regulation made under this section may be made retroactive to a date not earlier than the date this Act comes into force and, if made retroactive, is deemed to have come into force on the date specified in the regulation.

(4) Unless earlier repealed, a regulation made under this section is repealed one year after it is enacted.

Consequential Amendments

[Note: See Table of Legislative Changes for the status of sections 84 and 85.]

Section(s)Affected Act
84Employment Standards Act
85Workers Compensation Act

Commencement

86   This Act comes into force by regulation of the Lieutenant Governor in Council.