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

PART IIIAssessment of Monetary Penalties

Violations

Marginal note:Violation

• 35 (1) Every private sector employer commits a violation of this Act who

  • (a) without reasonable excuse, fails to file an employment equity report as required by section 18;

  • (b) without reasonable excuse, fails to include in the employment equity report any information that is required, by section 18 and the regulations, to be included; or

  • (c) provides any information in the employment equity report that the employer knows to be false or misleading.

• Marginal note:Continuing violations

  (2) A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

• Marginal note:Violations not offences

  (3) A violation is not an offence and accordingly the Criminal Code does not apply in respect of a violation.

Marginal note:Assessment of monetary penalty

• 36 (1) The Minister may, within two years after the day on which the Minister becomes aware of a violation, issue a notice of assessment of a monetary penalty in respect of the violation and send it by registered mail to the private sector employer.

• Marginal note:Limit

  (2) The amount of a monetary penalty shall not exceed

  • (a) $10,000 for a single violation; and

  • (b) $50,000 for repeated or continued violations.

• Marginal note:Factors to be considered

  (3) In assessing the amount of a monetary penalty, the Minister shall take into account

  • (a) the nature, circumstances, extent and gravity of the violation; and

  • (b) the wilfulness or intent of the private sector employer and the employer’s history of prior violations.

Marginal note:Notice of assessment of monetary penalty

37 A notice of the assessment of a monetary penalty shall

• (a) identify the alleged violation;

• (b) specify the amount of the monetary penalty; and

• (c) specify the place where the employer may pay the monetary penalty.

Options

Marginal note:Employer’s options

• 38 (1) An employer may, not later than thirty days after receiving a notice of assessment of a monetary penalty,

  • (a) comply with the notice; or

  • (b) contest the assessment of the monetary penalty by making a written application to the Minister for a review, by a Tribunal, of that assessment.

• Marginal note:Copy of application

  (2) If the Minister receives a written application, the Minister shall send a copy of it to the Chairperson.

• Marginal note:Copy of notice of assessment

  (3) If an employer who is issued a notice of assessment of a monetary penalty fails to exercise one of the options set out in subsection (1) within the period referred to in that subsection, the Minister shall send a copy of the notice to the Chairperson.

Marginal note:Review by Tribunal

• 39 (1) On receipt of a copy of a written application or a copy of a notice of assessment, the Chairperson shall establish a Tribunal consisting of one member selected from the Canadian Human Rights Tribunal to review the assessment and shall

  • (a) send, by registered mail, a request that the employer appear before the Tribunal at the time and place set out in the request to hear the allegations against the employer in respect of the alleged violation; and

  • (b) in writing, advise the Minister who issued the notice of assessment of the time and place set out in the request.

• Marginal note:Failure to appear before Tribunal

  (2) Where an employer to whom a request is sent fails to appear before a Tribunal at the time and place set out in the request, the Tribunal shall consider all the information that is presented to it by the Minister in relation to the alleged violation.

• Marginal note:Opportunity to make representations

  (3) In conducting its review, a Tribunal shall provide the Minister and the employer with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations to it with respect to the alleged violation.

• Marginal note:Determination of Tribunal

  (4) Where at the conclusion of its proceedings a Tribunal determines that the employer

  • (a) has not committed the alleged violation, the Tribunal shall immediately inform the employer and the Minister of its determination and no further proceedings shall be taken against the employer in respect of the alleged violation; or

  • (b) has committed the alleged violation, the Tribunal shall immediately

    • (i) issue to the Minister a certificate, in the prescribed form, of its determination that sets out an amount, not exceeding the applicable amount set out in subsection 36(2), determined by the Tribunal to be payable by the employer in respect of the violation, and

    • (ii) send a copy of the certificate to the employer by registered mail.

• Marginal note:Factors to be considered

  (5) In determining an amount under subparagraph (4)(b)(i), a Tribunal shall take into account the factors set out in subsection 36(3).

• Marginal note:Burden of proof

  (6) In proceedings under this section, the Minister has the burden of proving, on a balance of probabilities, that an employer has committed the alleged violation.

• Marginal note:Certificate

  (7) A certificate that purports to have been issued by a Tribunal under subparagraph (4)(b)(i) is evidence of the facts stated in the certificate, without proof of the signature or official character of the person appearing to have signed the certificate.

• Marginal note:Determinations are final

  (8) A determination of a Tribunal under this section is final and, except for judicial review under the Federal Courts Act, is not subject to appeal or review by any court.

Enforcement of Monetary Penalties

Marginal note:Registration of certificate

• 40 (1) A certificate issued under subparagraph 39(4)(b)(i) may be registered in the Federal Court and when registered has the same force and effect, and all proceedings may be taken on the certificate, as if the certificate were a judgment in that Court obtained by Her Majesty in right of Canada against the employer named in the certificate for a debt in the amount set out in the certificate.

• Marginal note:Recovery of costs and charges

  (2) All reasonable costs and charges associated with registration of the certificate are recoverable in like manner as if they were part of the amount determined by the Tribunal under subparagraph 39(4)(b)(i).

PART IVGeneral

Marginal note:Regulations

• 41 (1) The Governor in Council may make regulations

  • (a) defining, for the purposes of the Act, the expressions “employee”, “hired”, “occupational group”, “promoted”, “salary” and “terminated”;

  • (b) prescribing the manner of calculating the number of employees employed by an employer for the purpose of determining when an employer is considered to employ one hundred or more employees;

  • (c) governing the collection of information and the conduct of analyses referred to in paragraph 9(1)(a) and the conduct of reviews referred to in paragraph 9(1)(b);

  • (d) governing the establishment and maintenance of employment equity records referred to in section 17;

  • (e) prescribing anything that is to be prescribed by this Act; and

  • (f) generally, for carrying out the purposes and provisions of this Act.

• Marginal note:Application

  (2) A regulation made pursuant to subsection (1) may be of general application or may apply to a particular employer or group of employers.

• Marginal note:Where regulations apply to public sector

  (3) No regulation may be made under subsection (1) that applies to the public sector without prior consultation with the Treasury Board.

• Marginal note:Inconsistent meanings

  (4) No expression defined pursuant to paragraph (1)(a) that applies to the public sector shall be given a meaning that is inconsistent with the meaning that that expression or any similar expression is given under the Public Service Employment Act.

• Marginal note:Adaptation of Act to certain portions

  (5) The Governor in Council may, taking into account the operational effectiveness of the appropriate portion of the public sector referred to in paragraph (a) or (b), make any regulation that the Governor in Council considers necessary to adapt this Act or the regulations or any provision of this Act or the regulations to accommodate

  • (a) the Canadian Security Intelligence Service; or

  • (b) where an order is made under paragraph 4(1)(d) in relation to the Canadian Forces or the Royal Canadian Mounted Police, the Canadian Forces or the Royal Canadian Mounted Police.

• Marginal note:Requirements

  (6) A regulation made under subsection (5) shall be made on the recommendation of the Treasury Board after consultation with

  • (a) in the case of a regulation respecting the Canadian Security Intelligence Service, or the Royal Canadian Mounted Police, the Minister of Public Safety and Emergency Preparedness; and

  • (b) in the case of a regulation respecting the Canadian Forces, the Minister of National Defence.

• Marginal note:Requirements may differ

  (7) The effect of a regulation made under subsection (5) with respect to any matter may differ from the effect of the Act or the regulations or of any provision of the Act or the regulations with respect to that matter.

Marginal note:Powers, duties and functions of Minister

• 42 (1) The Minister is responsible for

  • (a) developing and conducting information programs to foster public understanding of this Act and to foster public recognition of the purpose of this Act;

  • (b) undertaking research related to the purpose of this Act;

  • (c) promoting, by any means that the Minister considers appropriate, the purpose of this Act;

  • (d) publishing and disseminating information, issuing guidelines and providing advice to private sector employers and employee representatives regarding the implementation of employment equity; and

  • (e) developing and conducting programs to recognize private sector employers for outstanding achievement in implementing employment equity.

• Marginal note:Federal Contractors Program

  (2) The Minister is responsible for the administration of the Federal Contractors Program for Employment Equity.

• Marginal note:Labour market information

  (3) The Minister shall make available to employers any relevant labour market information that the Minister has respecting designated groups in the Canadian workforce in order to assist employers in fulfilling their obligations under this Act.

Marginal note:Delegation

43 The Minister may authorize those persons employed in the federal public administration whom the Minister considers to be appropriate to exercise any of the powers and perform any of the duties and functions that may be or are required to be exercised or performed by the Minister under this Act or the regulations, and any power exercised or duty or function performed by any person so authorized shall be deemed to have been exercised or performed by the Minister.

Marginal note:Review of operation of Act

• 44 (1) Five years after the coming into force of this Act, and at the end of every five year period thereafter, a comprehensive review of the provisions and operation of this Act including the effect of those provisions shall be undertaken by such committee of the House of Commons as may be designated or established by the House for that purpose.

• Marginal note:Tabling of report

  (2) A committee shall, within six months after the completion of a review referred to in subsection (1), submit a report on its review to the House of Commons including a statement of any changes the committee would recommend.

Transitional Provision

Marginal note:Compliance with certain provisions

45 The Treasury Board, the Public Service Commission and any person who is an employer to whom the Employment Equity Act, R.S., c. 23 (2nd Supp.), applied shall, within one year after the coming into force of this section, comply with sections 9 and 10 of this Act.

Consequential Amendments

46 to 53 [Amendments]

Repeal

54 [Repeal]

Coming into Force

Marginal note:Coming into force

Footnote ^*55 This Act or any provision of this Act comes into force on a day or days to be fixed by order of the Governor in Council.

• Return to footnote ^*[Note: Act in force October 24, 1996, see SI/96-93.]