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

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).

Marginal note:Submissions by employer — period

• 209.994 (1) An employer to whom a notice of preliminary finding under section 209.993 or a corrected notice of preliminary finding under section 209.995 is issued may, within 30 days after the day on which it is received,

  • (a) make written submissions with respect to the information referred to in paragraphs 209.993(3)(b) to (d); or

  • (b) request an extension of that period.

• Marginal note:Reduced period

  (1.1) Despite subsection (1), if the notice of preliminary finding or the corrected notice of preliminary finding is solely in respect of a failure to comply with any one of the conditions set out in the provisions listed in items 18 to 23 of Table 1 of Schedule 2, the employer may make a written submission or request referred to in paragraph (1)(a) or (b) within five days after the day on which the notice or corrected notice is received.

• Marginal note:Deemed receipt

  (2) Despite section 9.3(2) of these Regulations and section 3 of the Electronic Documents and Electronic Information Regulations, a notice of preliminary finding or a corrected or cancelled notice of preliminary finding is deemed to have been received 10 days after the day on which it is sent.

• Marginal note:Reduced period

  (2.1) Despite subsection (2), if the notice of preliminary finding or the corrected notice of preliminary finding is solely in respect of a failure to comply with any one of the conditions set out in the provisions listed in items 18 to 23 of Table 1 of Schedule 2, the notice or corrected notice is deemed to have been received five days after the day on which it is sent.

• Marginal note:Submissions by employer — extension of period

  (3) An officer or the Minister of Employment and Social Development may extend the period referred to in subsection (1) if there is a reasonable explanation justifying its extension.

Marginal note:Correction or cancellation of notice

209.995 An officer or the Minister of Employment and Social Development may correct any information in a notice of preliminary finding that is issued under subsection 209.993(1) or (2), or cancel one, at any time before a notice of final determination is issued under section 209.996.

Notice of Final Determination

Marginal note:Notice — issuance by officer

• 209.996 (1) Subject to subsection (3), if an officer determines, 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 final determination to the employer.

• Marginal note:Notice — issuance by Minister

  (2) Subject to subsection (3), if the Minister of Employment and Social Development determines, 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 final determination to the employer.

• Marginal note:Period

  (3) An officer or the Minister of Employment and Social Development must not make a determination before the expiry of the period set out in subsection 209.994(1) or the period extended under subsection 209.994(3) as the case may be.

• Marginal note:Content of notice

  (4) The notice of final determination 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 determination;

  • (c) if applicable, the administrative monetary penalty amount and the period of ineligibility for the violation as well as the statement indicating 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, 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;

  • (e) if applicable, a statement that the administrative monetary penalty amount must be paid within 30 days after the day on which the notice of final determination is received by the employer, unless a payment agreement for the payment of amount and interest has been reached within that period; and

  • (f) how the administrative monetary penalty is to be paid.

• Marginal note:Maximum amount within 12 months

  (5) If the sum of the administrative monetary penalty amount described in paragraph (4)(c) and all previous administrative monetary penalty amounts provided for in notices of final determination issued to the employer in question within 12 months before the day on which the determination is made exceeds $1 million, then the amount of the penalty must be reduced by that excess.

• Marginal note:Deemed receipt

  (6) Despite section 9.3(2) of these Regulations and section 3 of the Electronic Documents and Electronic Information Regulations, a notice of final determination is deemed to have been received 10 days after the day on which it is sent.

• Marginal note:Reduced period

  (7) Despite subsection (6), if the notice of final determination is solely in respect of a failure to comply with any one of the conditions set out in the provisions listed in items 18 to 23 of Table 1 of Schedule 2, the notice is deemed to have been received five days after the day on which it is sent.