Employment Equity Act (S.C. 1995, c. 44)

Marginal note:Security requirements

24 Every compliance officer or any other person acting on behalf of or under the direction of the Commission who receives or obtains information relating to a compliance audit under this Act shall, with respect to access to and use of that information by that compliance officer or person, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of that information.

Undertakings and Directions

Marginal note:Employer undertaking

• 25 (1) Where a compliance officer is of the opinion that an employer

  • (a) has not collected information or conducted an analysis referred to in paragraph 9(1)(a) or conducted a review referred to in paragraph 9(1)(b),

  • (b) has not prepared an employment equity plan referred to in section 10,

  • (c) has prepared an employment equity plan that does not meet the requirements of sections 10 and 11,

  • (d) has not made all reasonable efforts to implement its employment equity plan in accordance with section 12,

  • (e) has failed to review and revise its employment equity plan in accordance with section 13,

  • (f) has failed to provide information to its employees in accordance with section 14,

  • (g) has failed to consult with its employees’ representatives in accordance with section 15, or

  • (h) has failed to establish and maintain employment equity records as required by section 17,

  the compliance officer shall inform the employer of the non-compliance and shall attempt to negotiate a written undertaking from the employer to take specified measures to remedy the non-compliance.

• Marginal note:Information re underrepresentation

  (1.1) Where

  • (a) an employer has been informed of a non-compliance by a compliance officer under subsection (1) and the finding of non-compliance is based, in whole or in part, on the apparent underrepresentation of Aboriginal peoples, members of visible minorities or persons with disabilities in the employer’s work force, as reflected in the employer’s work force analysis conducted pursuant to paragraph 9(1)(a), and

  • (b) the employer believes that the apparent underrepresentation is attributable to the decision of employees who may be members of the designated groups concerned not to identify themselves as such or not to agree to be identified by the employer as such under subsection 9(2),

  the employer may inform the compliance officer of such belief.

• Marginal note:Reason for underrepresentation to be considered

  (1.2) Where the employer satisfies the compliance officer that the finding of non-compliance is attributable, in whole or in part, to the reason described in paragraph (1.1)(b) and that the employer has made all reasonable efforts to implement employment equity, the compliance officer shall take the reason into account in exercising any powers under this section.

• Marginal note:No employer identification of individual employees

  (1.3) In satisfying the compliance officer under subsection (1.2) that the finding of non-compliance is attributable, in whole or in part, to the reason mentioned in paragraph (1.1)(b), the employer must do so by means other than the identification of individual employees in its work force that the employer believes are members of designated groups who have not identified themselves as such, or agreed to be identified by the employer as such, under subsection 9(2).

• Marginal note:Direction

  (2) Where a compliance officer fails to obtain a written undertaking that, in the opinion of the compliance officer, would be sufficient to remedy the non-compliance, the compliance officer shall notify the Commission of the non-compliance and the Commission may issue and send, by registered mail, a direction to the employer

  • (a) setting out the facts on which the officer’s finding of non-compliance is based; and

  • (b) requiring the employer to take such actions as are specified in the direction to remedy the non-compliance.

• Marginal note:Breach of undertaking

  (3) Where a compliance officer obtains a written undertaking and the compliance officer is of the opinion that the employer has breached the undertaking, the compliance officer shall notify the Commission of the non-compliance and the Commission may issue and send, by registered mail, a direction to the employer requiring the employer to take such actions as are specified in the direction to remedy the non-compliance.

• Marginal note:Amendment of direction

  (4) The Commission may rescind or amend a direction issued by the Commission pursuant to subsection (2) or (3) on the presentation of new facts or on being satisfied that the direction was issued without knowledge of, or was based on a mistake as to, a material fact.

Marginal note:Direction of Commission

• 26 (1) Where a compliance officer is of the opinion that an employer has failed to give reasonable assistance or to provide information as required by subsection 23(4), the compliance officer shall notify the Commission of the non-compliance and the Commission may issue and send, by registered mail, a direction to the employer

  • (a) setting out the facts on which the officer’s finding of non-compliance is based; and

  • (b) requiring the employer to take such actions as are specified in the direction to remedy the non-compliance.

• Marginal note:Amendment of direction

  (2) The Commission may rescind or amend a direction issued pursuant to subsection (1) on the presentation of new facts or on being satisfied that the direction was issued without knowledge of, or was based on a mistake as to, a material fact.

Requests for Review or Order

Marginal note:Employer’s request for review

• 27 (1) An employer to whom a direction is issued under subsection 25(2) or (3) or 26(1) may make a request to the Chairperson for a review of the direction

  • (a) in the case of a direction issued under subsection 25(2) or (3), within sixty days after the day on which it is issued; and

  • (b) in the case of a direction issued under subsection 26(1), within thirty days after the day on which it is issued.

• Marginal note:Commission may apply

  (2) If the Commission is of the opinion that an employer has failed to comply with a direction issued by the Commission, the Commission may apply to the Chairperson for an order confirming the direction.

• Marginal note:Limitation

  (3) No application may be made pursuant to subsection (2) where the employer has requested a review in accordance with subsection (1).

Employment Equity Review Tribunals

Marginal note:Establishment of Tribunals

• 28 (1) If an employer makes a request under subsection 27(1) or the Commission makes an application under subsection 27(2), the Chairperson shall establish an Employment Equity Review Tribunal to consider the request or application.

• Marginal note:Composition

  (2) The Chairperson shall appoint a Tribunal consisting of one member of the Canadian Human Rights Tribunal, but the Chairperson may appoint a Tribunal of three members if the Chairperson considers that the complexity or precedential significance of the request or application requires a Tribunal of three members.

• Marginal note:Qualifications of members

  (3) The Chairperson shall, in appointing members of the Tribunal, take into consideration their knowledge and experience in employment equity matters.

• Marginal note:Presiding

  (4) If a Tribunal consists of more than one member, the Chairperson shall designate one of the members to preside over the hearings of the Tribunal.

• Marginal note:Acting after expiration of appointment

  (4.1) A member whose appointment expires may, with the approval of the Chairperson, conclude any hearing that the member has begun, and a person performing duties under this section is deemed to be a part-time member for the purposes of subsection 48.2(2) of the Canadian Human Rights Act.

• Marginal note:Remuneration

  (5) The members of a Tribunal shall be paid such remuneration as may be provided for under subsection 48.6(1) of the Canadian Human Rights Act.

• Marginal note:Travel expenses

  (6) Members are entitled to be paid any travel and living expenses incurred in carrying out duties as members of the Tribunal while absent from their ordinary place of residence that may be provided for under subsection 48.6(2) of the Canadian Human Rights Act.

• (7) [Repealed, 2014, c. 20, s. 463]

• Marginal note:Government services and facilities

  (8) In performing its duties and functions, a Tribunal shall, where available, make use of the services and facilities of departments, boards and agencies of the Government of Canada.

• Marginal note:Rules

  (9) The Chairperson may make rules governing the practice and procedure of Tribunals.

• Marginal note:Security requirements

  (10) Every member or other person acting on behalf of or under the direction of a Tribunal who receives or obtains information relating to a request or application referred to in subsection (1) shall, with respect to access to and use of that information by that member or other person, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of that information.

Marginal note:Powers of Tribunal

• 29 (1) A Tribunal may

  • (a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral and written evidence on oath and to produce such documents and things as the Tribunal considers necessary for a full review;

  • (b) administer oaths; and

  • (c) receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Tribunal sees fit, whether or not that evidence or information would be admissible in a court of law.

• Marginal note:How matters to be dealt with

  (2) A Tribunal shall conduct any matter that comes before it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

• Marginal note:Hearings to be public

  (3) Subject to subsection (4), a hearing before a Tribunal shall be conducted in public.

• Marginal note:Hearings may be in camera

  (4) A hearing before a Tribunal may, on the request of an employer, be held in camera if the employer establishes to the satisfaction of the Tribunal that the circumstances of the case so require.

• Marginal note:Reasons for decision

  (5) A Tribunal shall provide the parties to a proceeding before the Tribunal with written reasons for its decision.

• Marginal note:Reasons for decision

  (6) A Tribunal shall, on request by any person, provide the person with a copy of any decision of the Tribunal, including a decision under subsection (4) to hold a hearing in camera, together with the written reasons for the decision.

Marginal note:Decision of Tribunal

• 30 (1) A Tribunal may, after hearing a request made under subsection 27(1) or an application made under subsection 27(2),

  • (a) by order, confirm, vary or rescind the Commission’s direction; and

  • (b) make any other order it considers appropriate and reasonable in the circumstances to remedy the non-compliance.

• Marginal note:Board may vary or rescind

  (2) A Tribunal may vary or rescind any order made by it.

• Marginal note:Orders are final

  (3) An order of a Tribunal is final and, except for judicial review under the Federal Courts Act, is not subject to appeal or review by any court.

Marginal note:Enforcement of orders

• 31 (1) Any order of a Tribunal made under section 30 may, for the purposes of its enforcement, be made an order of the Federal Court and is enforceable in the same manner as an order of that Court.

• Marginal note:Procedure

  (2) To make an order of a Tribunal an order of the Federal Court, the usual practice and procedure of the Court may be followed or a certified copy of the order may be filed with the registrar of the Court, and from the time of filing the order becomes an order of the Court.

Marginal note:Report of activities of Human Rights Commission

32 The Commission shall include in its annual report referred to in section 61 of the Canadian Human Rights Act a report of its activities, including an assessment of their effectiveness, under this Act during the year.

Limitations respecting Directions and Orders

Marginal note:Limitation

• 33 (1) The Commission may not give a direction under section 25 or 26 and no Tribunal may make an order under section 30 where that direction or order would

  • (a) cause undue hardship on an employer;

  • (b) require an employer to hire or promote persons who do not meet the essential qualifications for the work to be performed;

  • (c) with respect to the public sector, require an employer to hire or promote persons without basing the hiring or promotion on merit in cases where the Public Service Employment Act requires that hiring or promotion be based on merit, or impose on the Public Service Commission an obligation to exercise its discretion regarding exclusion orders or regulations;

  • (d) require an employer to create new positions in its workforce;

  • (e) impose a quota on an employer; or

  • (f) in the case of a direction or order respecting the establishment of short term numerical goals, fail to take into account the factors set out in subsection 10(2).

• Marginal note:Meaning of quota

  (2) In paragraph (1)(e), quota means a requirement to hire or promote a fixed and arbitrary number of persons during a given period.

• Marginal note:Public sector

  (3) In making a direction or order that applies to the public sector, the Commission, in the case of a direction, and a Tribunal, in the case of an order, shall take into account the respective roles and responsibilities of

  • (a) the Public Service Commission and the Treasury Board under the Public Service Employment Act and the Financial Administration Act; or

  • (b) a portion of the public sector referred to in paragraph 4(1)(c) or (d) under any other Act of Parliament.

Privileged Information

Marginal note:Privileged information

• 34 (1) Information obtained by the Commission under this Act is privileged and shall not knowingly be, or be permitted to be, communicated, disclosed or made available without the written consent of the person from whom it was obtained.

• Marginal note:Evidence and production of documents

  (2) No member of the Commission or person employed by it who obtains information that is privileged under subsection (1) shall be required, in connection with any legal proceedings, other than proceedings relating to the administration or enforcement of this Act, to give evidence relating to that information or to produce any statement or other writing containing that information.

• Marginal note:Communication or disclosure of information

  (3) Information that is privileged under subsection (1) may, on any terms and conditions that the Commission considers appropriate, be communicated or disclosed to a minister of the Crown in right of Canada or to any officer or employee of Her Majesty in right of Canada for any purpose relating to the administration or enforcement of this Act.

• Marginal note:Exception

  (4) Nothing in this section prohibits the communication or disclosure of information for the purposes of legal proceedings relating to the administration or enforcement of this Act.

• Marginal note:Employer’s consent required

  (5) No information obtained by the Commission or a Tribunal under this Act may be used in any proceedings under any other Act without the consent of the employer concerned.