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Bill C-64

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Royal Assent

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	Limitations respecting Directions and Orders
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 unqualified persons;
	(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;
	(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).
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.
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
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.
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.
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.
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.
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 III
	ASSESSMENT OF MONETARY PENALTIES
	Violations
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.
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.
Violations not offences	(3) A violation is not an offence and accordingly the Criminal Code does not apply in respect of a violation.
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.
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.
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.
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
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.
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.
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.
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
	(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.
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.
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.
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.
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).
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.
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.
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.
	Enforcement of Monetary Penalties
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.
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 IV
	GENERAL
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.
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.
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.
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.
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.
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 Solicitor General; and
	(b) in the case of a regulation respecting the Canadian Forces, the Minister of National Defence.
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.
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.
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.
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.
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.
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.
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.