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

DIVISION 5Disclosure of Information

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 (e), 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) or (4), 209.3(3) or (4) 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) or (4), 209.3(3) or (4) 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(a) to (d) constitutes a separate violation.

Classification

Marginal note:Provisions

209.97 A failure to comply — that is not justified under subsection 209.2(3) or (4), 209.3(3) or (4) 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.