Canada Labour Code (R.S.C., 1985, c. L-2)

DIVISION XV.3Genetic Testing

Marginal note:Definitions

• 247.98 (1) The following definitions apply in this Division.

  disclose

  disclose includes to authorize disclosure. (communiquer)

  genetic test

  genetic test, in relation to an employee, means a test that analyzes the employee’s DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis. (test génétique)

• Marginal note:Genetic test

  (2) Every employee is entitled not to undergo or be required to undergo a genetic test.

• Marginal note:Disclosure of results

  (3) Every employee is entitled not to disclose or be required to disclose the results of a genetic test.

• Marginal note:Disciplinary action

  (4) No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Division, have worked, or take any disciplinary action against or threaten to take any such action against an employee

  • (a) because the employee refused a request by the employer to undergo a genetic test;

  • (b) because the employee refused to disclose the results of a genetic test; or

  • (c) on the basis of the results of a genetic test undergone by the employee.

• Marginal note:Disclosure by third party

  (5) No person shall disclose to an employer that an employee has undergone a genetic test, or disclose to an employer the results of a genetic test, without the written consent of the employee.

• Marginal note:Collection or use

  (6) No employer shall collect or use the results of a genetic test without the written consent of the employee who has undergone the test.

Marginal note:Complaint

• 247.99 (1) An employee who alleges that an employer has taken action against the employee in contravention of subsection 247.98(4) may make a complaint in writing to the Head.

• (1.1) [Repealed, 2018, c. 27, s. 585]

• Marginal note:Time for making complaint

  (2) Subject to subsection (3), the complaint shall be made to the Head not later than 90 days after the day on which the complainant knew, or in the Head’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

• Marginal note:Extension of time

  (3) The Head may extend the period of time referred to in subsection (2)

  • (a) if the Head is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the employee making the complaint believed the official had that authority; or

  • (b) in any other circumstance that is prescribed by regulation.

• Marginal note:Head to assist parties

  (4) On receipt of a complaint made under subsection (1), the Head shall endeavour to assist the parties to the complaint to settle the complaint.

• Marginal note:Complaint not settled within reasonable time

  (5) If a complaint is not settled under subsection (4) within the period that the Head considers to be reasonable in the circumstances, the Head must, on the written request of the employee who made the complaint that the complaint be referred to the Board, deliver to the Board the complaint made under subsection (1) and any other statements or documents that the Head has that relate to the complaint.

• Marginal note:Notice

  (6) If the employee who made the complaint does not reply to a written communication from the Head within a period that the Head considers to be reasonable in the circumstances and a period of at least 30 days, or any longer period that may be prescribed by regulation, have elapsed from the day on which the complaint was made, the Head may give written notice to the employee that they have the period of 30 days, or any longer period that may be prescribed by regulation, set out in the notice to make a written request that the complaint be referred to the Board.

• Marginal note:Time limit

  (6.1) Subject to the regulations, if the employee to whom notice is given under subsection (6) does not, within the period set out in the notice, make a written request that the complaint be referred to the Board, the Head may deem the complaint to be withdrawn.

• Marginal note:Suspension of complaint

  (6.2) If the Board is satisfied that the complainant must take measures before the Board may continue to deal with the complaint referred to it under subsection (5), it may, at any time, suspend consideration of the complaint, in whole or in part.

• Marginal note:Notice

  (6.3) If the Board suspends consideration of a complaint, the Board shall notify the complainant in writing and specify in the notice

  • (a) the measures that complainant must take; and

  • (b) the period within which they must take those measures.

• Marginal note:End of suspension

  (6.4) The suspension ends when, in the Board’s opinion, the measures specified in the notice have been taken.

• Marginal note:Rejection of complaint

  (6.5) The Board may reject a complaint referred to it under subsection (5), in whole or in part,

  • (a) if the Board is satisfied that

    • (i) the complaint is not within its jurisdiction,

    • (ii) the complaint is frivolous, vexatious or not made in good faith,

    • (iii) the complaint has been settled in writing between the employer and the employee,

    • (iv) there are other means available to the employee to resolve the subject matter of the complaint that the Board considers should be pursued,

    • (v) the subject matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator, or

    • (vi) in respect of a complaint made by an employee who is subject to a collective agreement, the collective agreement covers the subject matter of the complaint and provides a third-party dispute resolution process; or

  • (b) if consideration of the complaint was suspended under subsection (6.2) and if, in the Board’s opinion, the measures specified in the notice under subsection (6.3) were not taken within the specified period.

• Marginal note:Notice of rejection of complaint

  (6.6) If the Board rejects a complaint, it shall notify the employee in writing, with reasons.

• Marginal note:Decision of Board

  (7) The Board, after a complaint has been referred to it, shall

  • (a) consider whether the employer has contravened subsection 247.98(4) and render a decision on it; and

  • (b) send a copy of the decision with the reasons for the decision to each party to the complaint and to the Head.

• Marginal note:Orders

  (8) If the Board decides under subsection (7) that an employer has contravened subsection 247.98(4), the Board may, by order, require the employer to cease contravening that subsection and may, if applicable, by order, require the employer to

  • (a) permit the employee to return to the duties of their employment;

  • (b) reinstate the former employee;

  • (c) pay to the employee or former employee compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to the employee or former employee;

  • (d) rescind any disciplinary action taken in respect of the contravention and pay compensation to the employee, not exceeding the sum that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer; and

  • (e) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequences of the contravention.

• (9) [Repealed, 2018, c. 27, s. 496]

Marginal note:Order final

• 247.991 (1) Every order of the Board is final and shall not be questioned or reviewed in any court.

• Marginal note:No review by certiorari, etc.

  (2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board in any proceedings under section 247.99.

• Marginal note:Enforcement of orders

  (3) Any person affected by an order of the Board under subsection 247.99(8), or the Head on the request of such a person, may, after 14 days from the day on which the order is made, or from the day provided in the order for compliance, whichever is later, file a copy of the order in the Federal Court, exclusive of reasons.

• Marginal note:Registration

  (4) On filing in the Federal Court under subsection (3), an order of the Board shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken in respect of it, as if the order were a judgment obtained in that Court.

• Marginal note:Civil remedy

  (5) The making of a complaint under subsection 247.99(1) does not suspend or affect an employee’s civil remedies against their employer.

Marginal note:Regulations

247.992 For the purposes of this Division, the Governor in Council may make regulations

• (a) prescribing circumstances for the purposes of paragraph 247.99(3)(b);

• (b) prescribing periods for the purposes of subsection 247.99(6);

• (c) prescribing the circumstances under which a complaint is not to be deemed to be withdrawn under subsection 247.99(6.1); and

• (d) prescribing the conditions that are to be met before a complaint may be deemed to be withdrawn under subsection 247.99(6.1).

DIVISION XVIAdministration and General

Inquiries

Marginal note:Inquiries

• 248 (1) The Minister may,

  • (a) for any of the purposes of this Part, cause an inquiry to be made into and concerning employment in any industrial establishment; and

  • (b) appoint one or more persons to hold the inquiry.

• Marginal note:Powers on an inquiry

  (2) A person appointed pursuant to subsection (1) has all of the powers of a person appointed as a commissioner under Part I of the Inquiries Act.

Inspections

Marginal note:Delegation

• 249 (1) Subject to any terms and conditions specified by the Minister, the Head may delegate to any qualified person or class of persons any of the powers the Head is authorized to exercise or any of the duties or functions the Head is authorized to perform for the purposes of this Part. The Head may make the delegation subject to any terms and conditions that the Head considers appropriate.

• Marginal note:Certificate to be produced

  (1.1) The Head shall furnish to every person to whom powers, duties or functions are delegated under subsection (1) a certificate of authority and, when entering any place used in connection with a federal work, undertaking or business the person, shall, when requested, show the certificate to the person in charge of that place.

• Marginal note:Powers of Head

  (2) For the purposes of this Part and the regulations, the Head may

  • (a) inspect and examine all books, payrolls and other records of an employer that relate to the wages, hours of work or conditions of employment affecting any employee;

  • (b) take extracts from or make copies of any entry in the books, payrolls and other records mentioned in paragraph (a);

  • (c) require any employer to make or furnish full and correct statements, either orally or in writing, in such form as may be required, respecting the wages paid to all or any of his employees, and the hours of work and conditions of their employment;

  • (c.1) require any employer that provides benefits to its employees under a long-term disability plan that must be insured in accordance with subsection 239.2(1) to furnish proof that the plan is insured in accordance with that subsection;

  • (d) require an employee to make full disclosure, production and delivery to the Head of all records, documents, statements, writings, books, papers, extracts therefrom or copies thereof or of other information, either orally or in writing, that are in the possession or under the control of the employee and that in any way relate to the wages, hours of work or conditions of his employment; and

  • (e) require any party to a complaint made under subsection 240(1) to make or furnish full and correct statements, either orally or in writing, in such form as may be required, respecting the circumstances of the dismissal in respect of which the complaint was made.

• Marginal note:Right to enter premises

  (3) The Head may, at any reasonable time, enter on any place used in connection with a federal work, undertaking or business for the purpose of making an inspection authorized under subsection (2), and may, for that purpose, question any employee apart from his employer.

• Marginal note:Reasonable assistance

  (4) The person in charge of any federal work, undertaking or business and every person employed in it or in connection with its operation shall give the Head all reasonable assistance to enable the Head to carry out the Head’s duties and functions under this Part or the regulations.

• Marginal note:Head accompanied

  (5) The Head may, in carrying out the Head’s duties and functions, be accompanied or assisted by any persons that the Head considers necessary.

• Marginal note:Evidence precluded — Head

  (6) The Head shall not be required to give testimony in any civil suit or civil proceedings, or in any proceeding under section 242, with regard to information obtained in carrying out those duties and functions.

• Marginal note:Evidence precluded — other persons

  (7) No person to whom powers, duties or functions have been delegated under subsection (1), and no person who has accompanied or assisted such a person or the Head in carrying out their duties and functions, shall be required to give testimony in any civil suit or civil proceedings, or in any proceeding under section 242, with regard to information obtained in carrying out those duties and functions or in accompanying or assisting the person, except with the written permission of the Head.

• Marginal note:Not liable

  (8) Neither the Head nor a person to whom powers, duties or functions have been delegated under subsection (1) is personally liable for anything done or omitted to be done by them in good faith under the authority or purported authority of this Part.