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| Limitation
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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
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(a) cause undue hardship on an employer;
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(b) require an employer to hire or promote
unqualified persons;
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(c) with respect to the public sector, require
an employer to hire or promote persons
without basing the hiring or promotion on
selection according to merit in cases where
the Public Service Employment Act requires
that hiring or promotion be based on
selection according to merit, or impose on
the Public Service Commission an
obligation to exercise its discretion
regarding exclusion orders or regulations;
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(d) require an employer to create new
positions in its workforce;
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(e) impose a quota on an employer; or
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(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).
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| Meaning of
``quota''
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(2) In paragraph (1)(e), ``quota'' means a
requirement to hire or promote a fixed and
arbitrary number of persons during a given
period.
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| Public sector
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(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
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(a) the Public Service Commission and the
Treasury Board under the Public Service
Employment Act and the Financial
Administration Act; or
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(b) a portion of the public sector referred to
in paragraph 4(1)(c) or (d) under any other
Act of Parliament.
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| 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.
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| 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.
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| Communicati
on 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.
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| Exception
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(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.
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| 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.
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| Violation
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35. (1) Every private sector employer
commits a violation of this Act who
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(a) without reasonable excuse, fails to file
an employment equity report as required by
section 18;
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(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
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(c) provides any information in the
employment equity report that the
employer knows to be false or misleading.
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| 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.
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| Violations not
offences
|
(3) A violation is not an offence and
accordingly the Criminal Code does not apply
in respect of a violation.
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| 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.
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| Limit
|
(2) The amount of a monetary penalty shall
not exceed
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(a) $10,000 for a single violation; and
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(b) $50,000 for repeated or continued
violations.
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| Factors to be
considered
|
(3) In assessing the amount of a monetary
penalty, the Minister shall take into account
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(a) the nature, circumstances, extent and
gravity of the violation; and
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(b) the wilfulness or intent of the private
sector employer and the employer's history
of prior violations.
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| Notice of
assessment of
monetary
penalty
|
37. A notice of the assessment of a
monetary penalty shall
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(a) identify the alleged violation;
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(b) specify the amount of the monetary
penalty; and
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(c) specify the place where the employer
may pay the monetary penalty.
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| Employer's
options
|
38. (1) An employer may, not later than
thirty days after receiving a notice of
assessment of a monetary penalty,
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(a) comply with the notice; or
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(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.
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| Copy of
application
|
(2) Where the Minister receives a written
application, the Minister shall send a copy of
the application to the President of the Panel.
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| Copy of
notice of
assessment
|
(3) Where 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 of assessment to the President of
the Panel.
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| Review by
Tribunal
|
39. (1) On receipt of a copy of a written
application or a copy of a notice of
assessment, the President of the Panel shall
establish a Tribunal consisting of one member
selected from the Panel to review the
assessment and shall
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(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
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(b) in writing, advise the Minister who
issued the notice of assessment of the time
and place set out in the request.
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| 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.
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| Opportunity
to make
representation
s
|
(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.
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| Determination
of Tribunal
|
(4) Where at the conclusion of its
proceedings a Tribunal determines that the
employer
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(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
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(b) has committed the alleged violation, the
Tribunal shall immediately
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(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
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(ii) send a copy of the certificate to the
employer by registered mail.
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| 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).
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| 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.
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| 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.
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| Determination
s are final
|
(8) A determination of a Tribunal under this
section is final and, except for judicial review
under the Federal Court Act, is not subject to
appeal or review by any court.
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| 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.
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| 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).
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| Regulations
|
41. (1) The Governor in Council may make
regulations
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(a) defining, for the purposes of the Act, the
expressions ``employee'', ``hired'',
``occupational group'', ``promoted'',
``salary'' and ``terminated'';
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(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;
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(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);
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(d) governing the establishment and
maintenance of employment equity records
referred to in section 17;
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(e) prescribing anything that is to be
prescribed by this Act; and
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(f) generally, for carrying out the purposes
and provisions of this Act.
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| 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.
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| 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.
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| 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.
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| 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
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(a) the Canadian Security Intelligence
Service; or
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|
(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.
|
|
| Requirements
|
(6) A regulation made under subsection (5)
shall be made on the recommendation of the
Treasury Board after consultation with
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(a) in the case of a regulation respecting the
Canadian Security Intelligence Service, or
the Royal Canadian Mounted Police, the
Solicitor General; and
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(b) in the case of a regulation respecting the
Canadian Forces, the Minister of National
Defence.
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|
| 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.
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| Powers, duties
and functions
of Minister
|
42. (1) The Minister is responsible for
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|
|
(a) developing and conducting information
programs to foster public understanding of
this Act and to foster public recognition of
the purpose of this Act;
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|
(b) undertaking research related to the
purpose of this Act;
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(c) promoting, by any means that the
Minister considers appropriate, the purpose
of this Act;
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(d) publishing and disseminating
information, issuing guidelines and
providing advice to private sector
employers and employee representatives
regarding the implementation of
employment equity; and
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(e) developing and conducting programs to
recognize private sector employers for
outstanding achievement in implementing
employment equity.
|
|
| Federal
Contractors
Program
|
(2) The Minister is responsible for the
administration of the Federal Contractors
Program for Employment Equity and shall, in
discharging that responsibility, ensure that the
requirements of that Program with respect to
the implementation of employment equity by
contractors to whom the Program applies are
equivalent to the requirements with respect to
the implementation of employment equity by
an employer under this Act.
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| 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.
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|
| Delegation
|
43. The Minister may authorize those
persons employed in the public service of
Canada 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.
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| 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.
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| 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.
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