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

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.

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.