Immigration and Refugee Protection Regulations (SOR/2002-227)

Marginal note:Entry to verify compliance with section 209.3

• 209.9 (1) Subject to subsection (5), if any of the circumstances set out in section 209.5 exists, the Minister of Employment and Social Development may, for the purpose of verifying compliance with the conditions set out in section 209.3, enter and inspect any premises or place in which a foreign national referred to in that section performs work and any premises or place that the employer has provided to the foreign national as accommodation.

• Marginal note:Powers on entry

  (2) The Minister of Employment and Social Development may, for that purpose,

  • (a) ask the employer and any person employed by the employer any relevant questions;

  • (b) require from the employer, for examination, any documents found in the premises or place;

  • (c) use copying equipment in the premises or place, or require the employer to make copies of documents, and remove the copies for examination or, if it is not possible to make copies in the premises or place, remove the documents to make copies;

  • (d) take photographs and make video or audio recordings;

  • (e) examine anything in the premises or place;

  • (f) require the employer to use any computer or other electronic device in the premises or place to allow that Minister to examine any relevant document contained in or available to it; and

  • (g) be accompanied or assisted in the premises or place by any person required by that Minister.

• Marginal note:Entering private property

  (3) The Minister of Employment and Social Development and any person accompanying him or her may enter on and pass through private property, other than a dwelling-house, to gain entry to a premises or place referred to in subsection (1). For greater certainty, they are not liable for doing so.

• Marginal note:Person accompanying Minister of Employment and Social Development

  (4) A person may, at the Minister of Employment and Social Development’s request, accompany that Minister to assist him or her to access the premises or place referred to in subsection (1) and is not liable for doing so.

• Marginal note:Dwelling-house

  (5) In the case of a dwelling-house, the Minister of Employment and Social Development may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (6).

• Marginal note:Issuance of warrant

  (6) On ex parte application, a justice of the peace may issue a warrant authorizing the Minister of Employment and Social Development to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice of the peace is satisfied by information on oath that

  • (a) there are reasonable grounds to believe that the dwelling-house is a premises or place referred to in subsection (1);

  • (b) entry into the dwelling-house is necessary to verify compliance with the conditions set out in section 209.3; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.

Marginal note:Exemption from certain conditions

209.91 The following employers are exempt from the application of sections 209.11 and 209.2:

• (a) the government of a foreign state that makes an offer of employment to a foreign national in respect of the performance of duties as an official of that state;

• (b) the office of a political subdivision of a foreign state that enjoys privileges and immunities granted under subsection 6(1) of the Foreign Missions and International Organizations Act;

• (c) a foreign diplomatic mission or consular post referred to in Part I of the Foreign Missions and International Organizations Act or an international organization or accredited mission as defined in subsection 2(1) of that Act; and

• (d) the owner or operator of an international bridge or tunnel, as defined in section 2 of the International Bridges and Tunnels Act.

DIVISION 5Collection and Disclosure of Information

Marginal note:Collection of information

209.911 The Minister of Employment and Social Development may collect information related to an employer’s compliance with the conditions set out in section 209.2.

Marginal note:Disclosure of information

209.92 An officer may, for the purposes of determining whether a work permit is to be issued to a foreign national under subsection 200(1), of making a determination under paragraphs 203(1)(a) to (g), if applicable, or of verifying compliance with the conditions set out in sections 209.2 to 209.4, disclose to the Minister of Employment and Social Development and to the competent authorities of the provinces concerned information that relates to an application for a work permit or to an employer’s compliance with the conditions set out in sections 209.2 to 209.4.

DIVISION 6Administrative Monetary Penalties and Other Consequences for Failure To Comply with Conditions Imposed on Employers

Interpretation

Marginal note:Definitions

209.93 The following definitions apply in this Division.

large business

large business means any business that is not a small business. (grande entreprise)

small business

small business means any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenues at the time a request for an assessment under subsection 203(2) is received, or if no such request is made, at the time a copy of an offer of employment for a work permit application is provided to the Minister under paragraph 209.11(1)(d). (petite entreprise)

Purpose

Marginal note:Purpose of Division

209.94 The purpose of this Division is to encourage compliance with the provisions of the Act and these Regulations and not to punish.

Violations

Marginal note:Violations

• 209.95 (1) An employer referred to in subsection 209.2(1) or 209.3(1) who fails to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 — if the failure to do so is not justified under subsection 209.2(3), (3.1) or (4), 209.3(3), (4) or (5), or 209.4(2) — commits a violation and

  • (a) is liable to an administrative monetary penalty of an amount that is determined in accordance with section 209.98 or if it is determined under that section that there is no penalty, is issued a warning informing the employer that there is no administrative monetary penalty for the violation but that the violation will be considered in the calculation of the total number of points under subparagraph 209.991(1)(a)(i) for any subsequent violation; and

  • (b) if applicable, is ineligible to employ a foreign national for whom a work permit is required for the period determined in accordance with section 209.99.

• Marginal note:Discrepancy

  (2) In the event of a discrepancy between the short-form description in column 2 of Table 1 of Schedule 2 and the provision to which it pertains, the provision prevails.

Rules Applicable to Violations

Marginal note:Separate violation — multiple foreign nationals

• 209.96 (1) A failure to comply — that is not justified under subsection 209.2(3), (4) or (5), 209.3(3), (4) or (5) or 209.4(2) — with a condition that affects more than one foreign national constitutes a separate violation for each foreign national affected.

• Marginal note:Separate violation — occupation, wages or working conditions

  (2) A failure to comply — that is not justified under subsection 209.2(3) or 209.3(3) — with any one of the following elements of the condition set out in item 9 of Table 1 of Schedule 2, constitutes a separate violation:

  • (a) to provide the foreign national with employment in the same occupation as the occupation that is set out in the foreign national’s offer of employment;

  • (b) to provide the foreign national with wages that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment; and

  • (c) to provide the foreign national with working conditions that are substantially the same as — but not less favourable than — those set out in the foreign national’s offer of employment.

• Marginal note:Separate violation — live-in caregivers

  (3) With respect to employers who employ foreign nationals as live-in caregivers, a failure to comply — that is not justified under subsection 209.3(3) — with either one of the following elements of the condition set out in item 10 of Table 1 of Schedule 2, constitutes a separate violation:

  • (a) to ensure that the foreign national resides in a private household in Canada,

  • (b) to ensure that the foreign national provides child care, senior home support care or care of a disabled person in that household without supervision.

• Marginal note:Separate violation — abuse

  (4) A failure to comply — that is not justified under subsection 209.2(3) or 209.3(3) — with the condition set out in item 17 of Table 1 of Schedule 2 with respect to any one of the elements set out in paragraphs 196.2(1)(a) to (e) constitutes a separate violation.

Classification

Marginal note:Provisions

209.97 A failure to comply — that is not justified under subsection 209.2(3), (4) or (5), 209.3(3), (4) or (5) or 209.4(2) — with a condition that is set out in one of the provisions listed in column 1 of Table 1 of Schedule 2 is classified as a violation of Type A, Type B or Type C as set out in column 3 of that Table.

Administrative Monetary Penalty Amount

Marginal note:Administrative monetary penalty amount

209.98 The administrative monetary penalty for a violation is the amount set out in column 2, 3 or 4 of Table 2 of Schedule 2 opposite the total number of points determined under section 209.991 as set out in column 1, depending on the type of violation and whether it is committed by an individual or small business, or a large business.

Period of Ineligibility

Marginal note:Period of ineligibility

• 209.99 (1) The period of ineligibility for a violation is the period set out in column 2, 3 or 4 of Table 3 of Schedule 2 opposite the total number of points determined under section 209.991 as set out in column 1 depending on the type of violation.

• Marginal note:Beginning of period

  (2) The period referred to in subsection (1) begins on the day on which the determination referred to in subsection 209.996(1) or (2) is made in respect of the employer.

Total Number of Points

Marginal note:Calculation

• 209.991 (1) The total number of points in respect of each violation is determined by

  • (a) considering

    • (i) the compliance history of the employer who committed the violation set out in column 1 of Table 4 of Schedule 2, and

    • (ii) the severity criteria set out in column 1 of Table 5 of Schedule 2;

  • (b) ascribing

    • (i) for the criterion described in subparagraph (a)(i), the applicable number of points set out in column 2 of Table 4 of Schedule 2,

    • (ii) for the criteria described in subparagraph (a)(ii), the applicable number of points set out in column 2 of Table 5 of Schedule 2 having regard to the severity or the impact of the violation, as the case may be,

  • (c) adding the values obtained under paragraph (b); and

  • (d) if the employer made an acceptable voluntary disclosure in accordance with subsections (2) and (3) and the value obtained under paragraph (c)

    • (i) is four or more, subtracting four points from the value obtained under that paragraph , or

    • (ii) is less than four, replacing that value with a value of zero.

• Marginal note:Voluntary disclosure — criteria of acceptability

  (2) The voluntary disclosure made by an employer with respect to the commission of a violation by the employer is acceptable if

  • (a) the disclosure is complete; and

  • (b) at the time the voluntary disclosure is made, the powers set out in sections 209.6 to 209.9 are not being exercised in respect of the employer nor is any enforcement action related to an offence arising out of the contravention of a provision of the Act being undertaken in respect of the employer.

• Marginal note:Voluntary disclosure — considerations

  (3) Despite subsection (2), an officer or the Minister of Employment and Social Development may consider that the voluntary disclosure is not acceptable after considering

  • (a) the severity of the impact of the violation on the foreign national;

  • (b) in the case of an employer described in subsection 209.2(1), the severity of the impact of the violation on the Canadian economy, or in the case of an employer described in subsection 209.3(1), the severity of the impact of the violation on the Canadian labour market;

  • (c) whether the disclosure was made in a timely manner;

  • (d) the number of times an acceptable voluntary disclosure is made by the employer; and

  • (e) the nature of the condition with which the employer failed to comply.

Multiple Violations

Marginal note:Cumulative amounts

• 209.992 (1) If a notice of preliminary finding under section 209.993 or a notice of final determination under section 209.996 that is issued to an employer lists more than one violation, the administrative monetary penalty amounts are cumulative but the total must not exceed $1 million.

• Marginal note:Applicable period of ineligibility

  (2) If a notice of preliminary finding or a notice of final determination that is issued to an employer includes more than one period of ineligibility, the longest period of ineligibility applies.

Notice of Preliminary Finding

Marginal note:Notice — issuance by officer

• 209.993 (1) If an officer assesses, on the basis of information obtained by any officer or the Minister of Employment and Social Development during the exercise of the powers set out in sections 209.6 to 209.8 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.2(3), (4) or (5) or 209.4(2), the officer must issue a notice of preliminary finding to the employer.

• Marginal note:Notice — issuance by Minister

  (2) If the Minister of Employment and Social Development assesses, on the basis of information obtained during the exercise of the powers set out in sections 209.6, 209.7 and 209.9 and any other relevant information, that an employer has committed a violation because that employer failed to comply with one of the conditions set out in the provisions listed in column 1 of Table 1 of Schedule 2 and the failure to do so was not justified under subsection 209.3(3), (4) or (5) or 209.4(2), that Minister must issue a notice of preliminary finding to the employer.

• Marginal note:Content of notice

  (3) The notice of preliminary finding must include the following information:

  • (a) the name of the employer referred to in subsection (1) or (2), as the case may be;

  • (b) the condition with which the employer failed to comply as well as the provision listed in column 1 of Table 1 of Schedule 2, the relevant facts surrounding the violation and the reasons for the preliminary finding;

  • (c) if applicable, the administrative monetary penalty amount and the period of ineligibility for the violation as well as the statement that the violation will be considered in the calculation of the total number of points under subparagraph 209.991(1)(a)(i) for any subsequent violation;

  • (d) if applicable, the statement that a warning may be issued to the employer informing them that there is no administrative monetary penalty for the violation but that the violation will be considered in the calculation of the total number of points under subparagraph 209.991(1)(a)(i) for any subsequent violation; and

  • (e) the statement that the employer may make written submissions within the period set out in section 209.994 with respect to the information referred to in paragraphs (b) to (d).