Fairness is a Two-Way Street Act (Construction Labour Mobility), 1999, S.O. 1999, c. 4"

Fairness is a Two-Way Street Act (Construction Labour Mobility), 1999, S.O. 1999, c. 4, Fairness is a Two-Way Street Act (Construction Labour Mobility), 1999

Fairness is a Two-Way Street Act (Construction Labour Mobility), 1999

S.O. 1999, CHAPTER 4

Note: This Act was repealed on June 30, 2006. See: 1999, c. 4, s. 27.

Amended by: 2002, c. 17, Sched. F, Table; 2002, c. 18, Sched. P, s. 41; 2004, c. 8, s. 46.

SKIP TABLE OF CONTENTS

CONTENTS


Preamble
1.	Definitions
PART I CONSTRUCTION CONTRACTORS
2.	Register with Office
3.	Business Names Act registration
4.	Application of section
5.	Further registration requirements
6.	Requirements for placing bids
7.	Restriction on awarding construction contracts, ��
8.	Limitation on subcontracting
9.	Requirement re apprentices
PART II CONSTRUCTION WORKERS
10.	Register with Office
PART IV RETAIL SALES TAX ENFORCEMENT
12.	Definitions
13.	Retail sales tax on construction equipment or material
14.	Exception where security has been furnished
15.	Refund of security in excess of tax
PART V GENERAL
16.	Office established
17.	Decisions final
18.	Inspectors
19.	Obstruction of inspector
20.	Collection of information
21.	Immunity
22.	Where this Act prevails
23.	Non-application of Act
24.	Offence, subsection 2 (1)
25.	Regulations by L. G. in C.
26.	Regulations by Minister

Preamble

�� contractors, workers in the construction industry and aggregate haulers experience barriers to working and doing business in other jurisdictions because of unfair, discriminatory or restrictive practices in those other jurisdictions while contractors, workers in the construction industry and aggregate haulers from those other jurisdictions are able to work in �� without similar barriers.

The unemployment rate in the construction industry in �� is higher than the overall unemployment rate in ��. There are areas in �� where there is unequal access to business and job opportunities between jurisdictions, creating a potential for violence and social disruption, and where regional economic development is an important objective.

It is recognized that employment opportunities in those areas for �� residents would be enhanced and more equal access to business and job opportunities would be created by introducing measures aimed at restricting access to those taking advantage of ��’s policy of free mobility.

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

Definitions

1. (1) In this Act,

“bid” means documentation submitted by a contractor in response to a tender for a construction contract; (“soumission”)

“construction” includes all work in or about,

(a) constructing, altering, decorating, repairing, demolishing, erecting or remodelling the whole or any part of a building or structure,

(b) laying pipe and conduit above or below ground level,

(d) building a highway, as defined in section 1 of the Highway Traffic Act,

(e) carrying out the prescribed activities, and

(f) providing consulting services, including architectural or engineering services, with respect to the matters set out in clauses (a) to (e); (“construction”)

“contractor” means a person who enters into a contract and includes a subcontractor; (“entrepreneur”)

“designated area” means an area in �� that is prescribed as a designated area under section 25 or, if no area is prescribed, all of ��; (“secteur désigné”)

“designated jurisdiction” means a province or territory that is prescribed as a designated jurisdiction under section 25; (“territoire désigné”)

“Director” means the Director of the Office; (“directeur”)

“Minister” means the Minister of Labour; (“ministre”)

“Office” means the Jobs Protection Office established under section 16; (“Bureau”)

“person resident in a designated jurisdiction” means,

(a) in the case of an individual or a sole proprietor, a person who is ordinarily resident in that jurisdiction,

(b) in the case of a corporation,

(i) a person whose head office or registered office is located in that jurisdiction, or

(ii) a person controlled directly or indirectly by a person described in subclause (i), and

(c) in the case of a partnership, a partnership that includes at least one partner who is resident in that jurisdiction under clause (a) or (b); (“personne qui réside dans un territoire désigné”)

“prescribed” means prescribed by the regulations made under this Act. (“prescrit”) 1999, c. 4, s. 1 (1); 2002, c. 17, Sched. F, Table.

Same

(2) For the purposes of subclause (b) (ii) of the definition of “person resident in a designated jurisdiction” in subsection (1),

“controlled” has the same meaning as in subsection 1 (5) of the Business Corporations Act. 1999, c. 4, s. 1 (2).

PART I
CONSTRUCTION CONTRACTORS

Register with Office

2. (1) No person resident in a designated jurisdiction shall enter into or submit a bid for a construction contract for work in a designated area without first registering with the Office. 1999, c. 4, s. 2 (1).

Same

(2) The Director shall register a contractor that is a corporation if the contractor,

(a) provides proof of its corporate status and a detailed auditor’s statement from a person licensed under the Public Accounting Act, 2004 certifying that its working capital ratio is at least 1.1 to 1 for the current fiscal year;

(b) posts security as prescribed in the amount of $10,000;

(d) satisfies any other prescribed requirements. 1999, c. 4, s. 2 (2); 2004, c. 8, s. 46.

Same

(3) The Director shall register a contractor that is not a corporation if the contractor,

(a) provides proof of its business status and detailed financial statements in a form approved by the Director;

(b) posts security as prescribed in the amount of $10,000;

(d) satisfies any other prescribed requirements. 1999, c. 4, s. 2 (3).

Annual registration

(4) A registration under this section is effective for one year. 1999, c. 4, s. 2 (4).

Business Names Act registration

3. (1) A person who is required to be registered under section 2 shall not be registered under section 4 of the Business Names Act unless the person provides proof of registration under section 2. 1999, c. 4, s. 3 (1).

Limited Partnerships Act

(2) A declaration under the Limited Partnerships Act with respect to a limited partnership that is or will be contracting for construction work shall not be accepted for filing if any of the general partners are persons required to be registered under section 2 unless all of those persons provide proof of registration under section 2. 1999, c. 4, s. 3 (2).

Where void

(3) A registration or filing made in contravention of this section is void. 1999, c. 4, s. 3 (3).

Immunity

(4) No proceeding shall be commenced against a person with respect to a decision concerning a registration or a filing that contravenes this section. 1999, c. 4, s. 3 (4).

Application of section

4. (1) This section applies with respect to legislation that is designated legislation under the Safety and Consumer Statutes Administration Act, 1996 if an administrative authority is designated under that Act to administer that designated legislation. 1999, c. 4, s. 4 (1).

Registration requirement, corporations

(2) A contractor required to be registered under section 2 shall not be certified, registered, licensed or issued a permit or authorization under a provision of legislation to which this section applies unless it provides proof of registration under section 2. 1999, c. 4, s. 4 (2).

Where void

(3) A certification, registration, licensing or issuance of a permit or authorization made in contravention of this section is void. 1999, c. 4, s. 4 (3).

Immunity

(4) No proceeding shall be commenced against a person with respect to a decision concerning the issuance of a certificate, registration, license, permit or authorization that contravenes this section. 1999, c. 4, s. 4 (4).

Further registration requirements

5. (1) No contractor who is required to be registered under section 2 shall be certified, registered, licensed or issued a permit or authorization under the prescribed legislation or the by-laws of the prescribed municipalities authorized under prescribed legislation unless the contractor provides proof of registration under section 2 and of compliance with sections 3 and 4, if they apply with respect to the contractor. 1999, c. 4, s. 5 (1).

Where void

(2) A certification, registration, licensing or issuance of a permit or authorization made in contravention of this section is void. 1999, c. 4, s. 5 (2).

Immunity

(3) No proceeding shall be commenced against a person with respect to a decision concerning the issuance of a certificate, registration, license, permit or authorization that contravenes this section. 1999, c. 4, s. 5 (3).

Requirements for placing bids

6. (1) No contractor who is required to be registered under section 2 shall present a bid with respect to a construction contract for work in a designated area unless the contractor provides proof of registration under section 2 and all of the following that apply with respect to the contractor:

1. Proof of having registered under the Business Names Act in accordance with subsection 3 (1).

2. Proof of having filed a declaration under the Limited Partnerships Act in accordance with subsection 3 (2).

3. Proof of having been certified, registered, licensed or issued a permit or authorization to which section 4 applies in accordance with that section.

4. Proof of having filed a return or a notice under the Corporations Information Act. 1999, c. 4, s. 6 (1).

Contract voidable

(2) If a contract is awarded to a contractor who presented a bid for it in contravention of subsection (1), the contract is voidable by the person who awarded the contract. 1999, c. 4, s. 6 (2).

Restriction on awarding construction contracts, ��

7. (1) The Government of �� shall not award a construction contract to a contractor who is required to be registered under section 2. 1999, c. 4, s. 7 (1).

Same, agencies, etc.

(2) The prescribed agencies, boards and commissions shall not award a construction contract to a contractor who is required to be registered under section 2. 1999, c. 4, s. 7 (2).

Same, municipalities and other bodies

(3) The municipalities and other bodies set out in the Schedule to the Pay Equity Act shall not award a construction contract for work in a designated area to a contractor who is required to be registered under section 2. 1999, c. 4, s. 7 (3).

Same, corporations

(4) The prescribed corporations shall not award a construction contract to a contractor who is required to be registered under section 2. 1999, c. 4, s. 7 (4).

Immunity

(5) No proceeding shall be commenced against a person to whom this section applies with respect to a decision concerning the awarding of a construction contract that contravenes this section. 1999, c. 4, s. 7 (5).

Contract voidable

(6) A contract awarded to a contractor in contravention of this section is voidable by the person who awarded it. 1999, c. 4, s. 7 (6).

Limitation on subcontracting

8. (1) A person who has a construction contract with the Government of �� or any other body referred to in subsection 7 (1), (2) or (4) shall not enter into any contract with respect to that construction contract with a contractor who is required to be registered under section 2. 1999, c. 4, s. 8 (1).

Same

(2) A person who has a construction contract for construction work in a designated area with a municipality or other body referred to in subsection 7 (3) shall not enter into any contract with respect to that construction contract with a contractor who is required to be registered under section 2. 1999, c. 4, s. 8 (2).

Requirement re apprentices

9. The wage rates and ratios of apprentices to journeymen required under the Trades Qualification and Apprenticeship Act shall be deemed to apply under that Act with respect to all apprentices of a contractor required to be registered under section 2. 1999, c. 4, s. 9.

PART II
CONSTRUCTION WORKERS

Register with Office

10. (1) Every individual who is a person resident in a designated jurisdiction and who is or will be doing construction work in a designated area shall register with the Office. 1999, c. 4, s. 10 (1).

Same

(2) Subject to subsections (3) and (4), the Director shall register an individual referred to in subsection (1) if the individual,

(a) provides evidence satisfactory to the Director of work experience in a prescribed trade, occupation or construction activity;

(b) pays the fee set by the Director; and

If certificate required in designated jurisdiction

(3) If an individual seeking registration under subsection (1) is or will be doing construction work in a prescribed trade, occupation or construction activity for which a certificate, registration, licence, permit or authorization is required in the designated jurisdiction, the individual shall also provide evidence satisfactory to the Director of that certificate, registration, licence, permit or authorization. 1999, c. 4, s. 10 (3).

If certificate required in ��

(4) If an individual seeking registration under subsection (1) is or will be doing construction work in a prescribed trade, occupation or construction activity for which a certificate, registration, licence, permit or authorization is required in ��, the individual shall also provide evidence satisfactory to the Director of that certificate, registration, licence, permit or authorization. 1999, c. 4, s. 10 (4).

Annual registration

(5) A registration under this section is effective for one year. 1999, c. 4, s. 10 (5).

Special exemption

(6) On the request of a person resident in ��, the Director may exempt a specified individual from the requirements of subsections (3) and (4) with respect to a particular project if,

(a) the specified individual is working for the person resident in ��;

(b) in the Director’s opinion, the individual’s skills are necessary to that project; and

(c) in the Director’s opinion, because of a shortage of those skills, no other individual who is a resident of �� is available to carry out the work. 1999, c. 4, s. 10 (6).

PART III (s. 11) Repealed: 2002, c. 18, Sched. P, s. 41.

PART IV
RETAIL SALES TAX ENFORCEMENT

Definitions

12. In this Part,

“consumption” has the same meaning as under the Retail Sales Tax Act; (“consommation”)

“fair value” has the same meaning as under the Retail Sales Tax Act; (“juste valeur”)

“use” has the same meaning as under the Retail Sales Tax Act. (“usage”) 1999, c. 4, s. 12.

Retail sales tax on construction equipment or material

13. (1) A person who is employed by the Crown in the Ministry of Finance in the administration or enforcement of an Act that imposes a tax, and who is designated an inspector under this Act may, for the purposes of ensuring that the tax payable under the Retail Sales Tax Act has been paid, or that security in accordance with this Part or the Retail Sales Tax Act has been furnished, stop, detain and inspect any motor vehicle entering �� from a designated jurisdiction if the person reasonably believes that the motor vehicle contains or is transporting construction equipment or material for consumption or use in ��. 1999, c. 4, s. 13 (1).

Documents to be produced to inspector

(2) An inspector who is detaining a motor vehicle under subsection (1) may require the operator or owner of the motor vehicle to produce for inspection a bill of lading, invoice or other document showing the destination of the motor vehicle, the place or places to which any construction equipment or material is to be delivered, the person to whom delivery is to be made and the value of the construction equipment or material. 1999, c. 4, s. 13 (2).

Security for tax

(3) Where the inspector reasonably believes that construction equipment or material worth $200 or more is being brought into �� for consumption or use in �� in such circumstances as to make that consumption or use liable to tax under the Retail Sales Tax Act, the inspector may require the operator of the motor vehicle to pay or cause to be paid to the Minister of Finance security for the tax, and may continue to detain the motor vehicle until the security has been paid. 1999, c. 4, s. 13 (3).

Same

(4) Security to be paid under subsection (3) shall be for an amount of money equal to not less than 8 per cent of the fair value of the construction equipment or material that the inspector considers may be intended for consumption or use in ��. 1999, c. 4, s. 13 (4).

Exception where security has been furnished

14. (1) Subsections 13 (3) and (4) do not apply if documents are provided to the inspector showing that the construction equipment or material is to be used or consumed in �� in the carrying out of a contract by a non-resident contractor, as defined in subsection 39 (6) of the Retail Sales Tax Act, who has complied with subsections 39 (3) to (5) of that Act in respect of the contract evidenced by the documents. 1999, c. 4, s. 14 (1).

Exception where construction equipment or material removed from ��

(2) Subsections 13 (3) and (4) do not apply if the operator of the motor vehicle informs the inspector that he or she will forthwith remove from �� the construction equipment or material for the tax on which security has been required, and if the operator immediately removes the construction equipment or material from ��. 1999, c. 4, s. 14 (2).

Refund of security in excess of tax

15. (1) A person for whom or on whose behalf security has been paid to the Minister of Finance under section 13 may apply to the Minister of Finance for the refund of any part of the amount paid as security that exceeds the tax payable and paid under the Retail Sales Tax Act in respect of the consumption or use of the construction equipment or material for the tax on which the security was paid. 1999, c. 4, s. 15 (1).

Same

(2) The provisions of the Retail Sales Tax Act applicable to refunds of tax and the evidence and procedures to obtain a refund apply to a refund under subsection (1). 1999, c. 4, s. 15 (2).

PART V
GENERAL

Office established

16. (1) An office to be known in English as the Jobs Protection Office and in French as Bureau de protection des emplois is established for the purposes of this Act. 1999, c. 4, s. 16 (1).

Same

(2) The Minister may,

(a) designate offices of the Ministry of Labour or of other ministries as branch offices of the Office; and

(b) make rules for any other matter necessary or advisable for the operation of the Office. 1999, c. 4, s. 16 (2).

Director

(3) The Minister shall designate an official of the Ministry as Director and the Director shall be responsible for the Office. 1999, c. 4, s. 16 (3).

Delegation

(4) The Minister may delegate to the Director any of the Minister’s powers set out in clause (2) (b). 1999, c. 4, s. 16 (4).

Powers and duties of Director

(5) The Director shall be responsible for,

(a) registering construction contractors under section 2 and individuals under section 10;

(b) co-ordinating the enforcement of this Act and the prescribed legislation;

(c) co-ordinating information sharing among ministries and other bodies required to enforce this Act and the prescribed legislation;

(d) providing information and assistance to �� construction contractors and construction workers seeking contracts and work in a designated jurisdiction;

(e) monitoring access by persons from �� to construction business and job opportunities in a designated jurisdiction and reporting to the Minister concerning that access; and

(f) carrying out any other matter that the Minister considers necessary or advisable with respect to administering this Act and carrying out its objectives. 1999, c. 4, s. 16 (5).

Decisions final

17. Despite the Statutory Powers Procedure Act, the following decisions under this Act are final:

1. A decision respecting the registration of contractors under section 2 or individuals under section 10.

2. A decision made with respect to a registration or filing under section 3.

3. A decision made with respect to a certification, registration, licensing or issuance of a permit or authorization under section 4 or 5.

4. A decision made with respect to awarding a construction contract under section 7.

5. The Minister’s designation of an office as a branch office of the Office.

6. A decision of the Director under this Act. 1999, c. 4, s. 17.

Inspectors

18. (1) The Minister may designate as inspectors employees of the Government of ��, of a municipality or of any other body administering or enforcing legislation or by-laws referred to in this Act or the regulations made under this Act. 1999, c. 4, s. 18 (1).

Powers of inspectors

(2) An inspector may,

(a) enter in or on any workplace without a warrant;

(b) require the production of any document required under this Act and inspect, examine and copy any such document;

(d) make enquiries of any person who is or was in a workplace to which this Act applies with respect to whether or not any person is a person resident in a designated jurisdiction;

(e) exercise under this Act any power with respect to an inspection that he or she may exercise under another Act; and

(f) exercise any other prescribed power. 1999, c. 4, s. 18 (2).

Dwelling

(3) Despite clause (2) (a), an inspector shall enter a dwelling or that part of a dwelling being used as a workplace only with the consent of the occupier or under the authority of a search warrant issued under section 158 of the Provincial Offences Act. 1999, c. 4, s. 18 (3).

Seizure of documents or things

(4) While acting under the authority of this Act, an inspector may, without a warrant or court order, seize any document or thing that is produced to him or her or that is in plain view if the inspector reasonably believes that this Act or a regulation has been contravened and that the document or thing will afford evidence of the contravention. 1999, c. 4, s. 18 (4).

Possession

(5) The inspector may remove the document or thing seized or may detain it in the place in which it is seized. 1999, c. 4, s. 18 (5).

Notice and receipt

(6) The inspector shall inform the person from whom the document or thing is seized as to the reason for the seizure and shall give the person a receipt for it. 1999, c. 4, s. 18 (6).

Report to justice

(7) The inspector shall bring a document or thing seized under the authority of this section before a provincial judge or justice of the peace or, if that is not reasonably possible, shall report the seizure to a provincial judge or justice of the peace. 1999, c. 4, s. 18 (7).

Procedure

(8) Sections 159 and 160 of the Provincial Offences Act apply with necessary modifications in respect of a document or thing seized under the authority of this section. 1999, c. 4, s. 18 (8).

Obstruction of inspector

19. No person shall hinder or obstruct an inspector in the lawful performance of his or her duties or furnish an inspector with false information or refuse to furnish the inspector with information required for the purposes of this Act. 1999, c. 4, s. 19.

Collection of information

20. (1) For the purposes of carrying out his or her duties under this Act, the Director may require a person to whom this Act applies to provide the Director with information. 1999, c. 4, s. 20 (1).

Sharing of information

(2) Any person who administers or enforces this Act or legislation or by-laws referred to in this Act may share with one another information in their possession if that information is necessary for the purposes of this Act, that legislation or those by-laws. 1999, c. 4, s. 20 (2).

Confidentiality

(3) Every person who administers or enforces this Act shall preserve secrecy with respect to all matters that come to his or her attention in the course of his or her duties under this Act and shall not disclose information relating to those matters to any person unless,

(a) the information is required in connection with the administration of this Act or a proceeding under this Act;

(b) the disclosure is made to his or her counsel;

(d) the information is generally available to the public; or

(e) in the case of personal information, the disclosure is made with the consent of the person to whom the information relates. 1999, c. 4, s. 20 (3).

Compellability

(4) No person who administers or enforces this Act shall be compelled to give testimony in any proceeding, other than a proceeding under this Act, with regard to information obtained in the course of his or her duties. 1999, c. 4, s. 20 (4).

Definition

(5) In this section,

“information” includes personal information within the meaning of section 38 of the Freedom of Information and Protection of Privacy Act or section 28 of the Municipal Freedom of Information and Protection of Privacy Act. 1999, c. 4, s. 20 (5).

Immunity

21. No proceeding shall be commenced against the Crown, a Minister, the Director, an inspector or any other person responsible for administering or enforcing this Act respecting any act done in good faith in the performance or intended performance of any duty or in the exercise or intended exercise of any power under this Act or for any alleged neglect, default or omission in the performance or exercise in good faith of any duty or power under this Act. 1999, c. 4, s. 21.

Where this Act prevails

22. (1) The right of a person to a licence, certification, registration, permit or authorization under another Act is subject to this Act. 1999, c. 4, s. 22 (1).

Same

(2) If there is a conflict between this Act and any legislation or by-law affected by this Act, this Act prevails. 1999, c. 4, s. 22 (2).

Same

(3) Subsection (2) applies with respect to a conflict between this Act and the Safety and Consumer Statutes Administration Act, 1996, despite section 5 of that Act. 1999, c. 4, s. 22 (3).

Non-application of Act

23. (1) No provision of this Act applies with respect to construction work in �� under a construction contract that was in force before the day this section is proclaimed in force. 1999, c. 4, s. 23 (1).

Exception

(2) Subsection (1) does not apply with respect to a new contract with respect to a construction contract referred to in that subsection or work arranged with respect to a construction contract referred to in that subsection if the new contract is made or the work arranged on or after the day this section is proclaimed in force. 1999, c. 4, s. 23 (2).

Offence, subsection 2 (1)

24. (1) A person who contravenes subsection 2 (1) is guilty of an offence and on conviction is liable,

(a) in the case of a corporation, to a fine of not more than $25,000 for each day or part of a day that the corporation continues to work in contravention of that subsection; and

(b) in the case of a person who is not a corporation, to a fine of not more than $2,000 for each day or part of a day that the person continues to work in contravention of that subsection. 1999, c. 4, s. 24 (1).

Offence, section 6

(2) If a person resident in a designated jurisdiction enters into a contract after making a bid that contravenes section 6, the person is guilty of an offence and on conviction is liable,