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

Marginal note:Administering oaths

250 The Head may administer all oaths and take and receive all affidavits and statutory declarations required with respect to the Head’s powers set out in subsection 249(2) and certify to the administration, taking or receiving of them.

Marginal note:Where underpayments found on inspection

• 251 (1) If the Head finds that an employer has failed to pay an employee any wages or other amounts to which the employee is entitled under this Part, the Head may determine the difference between the wages or other amounts actually paid to the employee under this Part and the wages or other amounts to which the employee is entitled under this Part.

• Marginal note:For greater certainty

  (1.1) For greater certainty, the Head may, when exercising the powers referred to in subsection (1), make any finding necessary to determine whether an employee is entitled to any wages or other amounts under this Part, including a finding that the employee was dismissed for just cause for the purposes of Division X or XI.

• Marginal note:Evidence

  (1.2) If the employer fails to make or keep any record in respect of an employee that the employer is required to make or keep under this Part — or fails to allow the Head to examine, take extracts from or make copies of such a record — the Head may, when exercising the powers referred to in subsection (1), rely on any other available evidence.

• Marginal note:Where amount of underpayment agreed to

  (2) If, under subsection (1), the Head determines that there is a difference between the wages or other amounts actually paid to an employee and the wages or other amounts to which the employee is entitled and the amount of that difference is agreed to in writing by the employee and his or her employer, the employer must, within five days after the date of the agreement, pay the amount

  • (a) to the employee on the direction of the Head; or

  • (b) to the Head.

• Marginal note:Where amount paid to Head

  (3) If an employer pays the amount under subsection (2) to the Head, the Head must, without delay after receiving it, pay it over to the employee who is entitled to the amount.

• Marginal note:Minister’s consent required for prosecution

  (4) No prosecution for failure to pay an employee the wages or other amounts to which the employee was entitled under this Part shall, without the written consent of the Minister, be instituted against the employer when the employer has made payment of any amount of difference in wages or other amounts in accordance with subsection (2).

Internal Audit

Marginal note:Internal audit order

• 251.001 (1) Subject to the regulations, the Head may, in writing, for the purpose of verifying compliance or preventing non-compliance with this Part, order an employer to, in accordance with the order,

  • (a) conduct an internal audit of its practices and books, payrolls and other records to determine whether the employer is in compliance with any provision of this Part or the regulations; and

  • (b) provide a report of the results of the audit to the Head.

• Marginal note:Contents of order

  (2) The Head shall, in the internal audit order, specify

  • (a) any industrial establishment and class of employees to which it applies;

  • (b) the period of time to be covered by the internal audit;

  • (c) the provisions of this Part or the regulations with respect to which the internal audit was ordered;

  • (d) the date by which the employer is to provide the report; and

  • (e) the form of the report.

• Marginal note:Information to include in report

  (3) The Head may also specify in the order that the report is to contain any information that the Head considers appropriate.

• Marginal note:Service

  (4) Service of the order or of a copy of it shall be by personal service, by registered mail or by any other means prescribed by regulation and, in the case of registered mail, the order or its copy shall be deemed to have been received by the addressee on the seventh day after the day on which it was mailed.

• Marginal note:Proof of service

  (5) A certificate purporting to be signed by the Head certifying that a document referred to in subsection (4) was sent by registered mail or by any other means prescribed by regulation to the addressee, accompanied by a true copy of the document and by an identifying post office certificate of the registration or other proof, prescribed by regulation, that the document has been sent or received, is admissible in evidence and is proof of the statements contained in the certificate, without proof of the signature or official character of the person appearing to have signed the certificate.

• Marginal note:Report — non-compliance

  (6) If the employer determines that it had not complied with any provision referred to in the order, the employer shall set out in the report the nature of the employer’s non-compliance and the steps that have been or will be taken by the employer to comply with the provision.

• Marginal note:Report — wages and other amounts

  (7) If the employer determines that any wages or other amounts to which an employee is entitled under this Part are owed, the employer shall also state in the report the name of the employee, the amount owed for the period of time covered by the internal audit, the method used to determine the amount owed and any payment subsequently made to the employee with respect to that amount owed.

• Marginal note:Inspection and complaint not precluded

  (8) For greater certainty, nothing in this section precludes an inspection from being made, or a complaint from being dealt with, under this Part.

• Marginal note:False information

  (9) No employer shall make a false or misleading statement in a report.

Complaints

Marginal note:Making of complaint

• 251.01 (1) Any employee may make a complaint in writing to the Head if they believe that the employer has contravened

  • (a) any provision of this Part or of the regulations made under this Part; or

  • (b) any order.

• Marginal note:Time for making complaint

  (2) A complaint under subsection (1) shall be made within the following period

  • (a) in the case of a complaint of non-payment of wages or other amounts to which the employee is entitled under this Part, six months from the last day on which the employer was required to pay those wages or other amounts under this Part; and

  • (b) in the case of any other complaint, six months from the day on which the subject-matter of the complaint arose.

• Marginal note:Extension of time

  (3) The Head may, subject to the regulations, extend the period set out in subsection (2)

  • (a) if the Head is satisfied that a complaint was made within that period to a government official who had no authority to deal with the complaint and that the person making the complaint believed the official had that authority;

  • (b) in any circumstances prescribed by regulation; or

  • (c) in the conditions prescribed by regulation.

• Marginal note:Limitation

  (3.1) An employee shall not make a complaint under subsection (1) if they have made a complaint that is based on substantially the same facts under any of subsections 240(1), 246.1(1) and 247.99(1), unless that complaint has been withdrawn.

• Marginal note:Exception

  (4) Despite subsection (3.1), the employee may file a complaint under subsection (1) if it relates only to the payment of their wages or other amounts to which they are entitled under this Part, including amounts referred to in subsections 230(1) and 235(1), but that complaint is suspended until the day on which the complaint made under subsection 240(1), 246.1(1) or 247.99(1), as the case may be, is withdrawn or resolved.

• Marginal note:Limitation — section 177.1

  (4.1) With respect to a request made under subsection 177.1(1), an employee may make a complaint under subsection (1) only on the grounds that the employer has refused the request on any ground other than those referred to in subparagraphs 177.1(3)(c)(i) to (v) or has failed to comply with any requirement set out in section 177.1(4).

• Marginal note:For greater certainty

  (5) For greater certainty, a complaint is not permitted under this section if it relates to a disagreement whose settlement is governed exclusively by a collective agreement under subsection 168(1.1).

Marginal note:Suspension of complaint

• 251.02 (1) If the Head is satisfied that the employee must take measures before the Head may continue to deal with the complaint made under section 251.01, the Head may, at any time, suspend consideration of the complaint, in whole or in part.

• Marginal note:Notice

  (2) If the Head suspends consideration of a complaint, the Head must notify the employee in writing and specify in the notice

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

  • (b) the period of time within which the employee must take those measures.

• Marginal note:Extension of time

  (3) The Head may, upon request, extend the time period specified in the notice.

• Marginal note:End of suspension

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

Marginal note:Assistance — Head

251.03 After receipt of a complaint, the Head may assist the parties to the complaint to settle the complaint.

Marginal note:Settlement of amounts due

• 251.04 (1) If an employer and an employee who has made a complaint relating to the non-payment of wages or other amounts to which they are entitled under this Part reach a settlement in writing on the wages or other amounts to be paid, the employer may pay those amounts to the employee or to the Head.

• Marginal note:If amount paid to Head

  (2) If an employer pays the amounts to the Head, the Head must, without delay after receiving them, pay them over to the employee who is entitled to the amounts.

• Marginal note:Minister’s consent required for prosecution

  (3) No prosecution for failure to pay an employee the wages or other amounts that were the subject of the complaint may be instituted against an employer, without the written consent of the Minister, if the employer has paid the amounts referred to in subsection (1) to the employee or the Head.

Marginal note:Rejection of complaint

• 251.05 (1) The Head may reject a complaint made under section 251.01, in whole or in part,

  • (a) if the Head is satisfied

    • (i) that the complaint is not within their jurisdiction,

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

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

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

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

    • (vi) that in respect of a complaint other than a complaint of non-payment of wages or other amounts to which the employee is entitled under this Part, there is insufficient evidence to substantiate the complaint, or

    • (vii) that 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;

  • (b) if consideration of the complaint was suspended under subsection 251.02(1) and if, in the Head’s opinion, the other measures specified in the notice under subsection 251.02(2) were not taken within the specified time period;

  • (c) subject to the regulations, if an employee to whom notice is given under subsection (1.1) does not respond within the period set out in the notice.

• Marginal note:Notice

  (1.1) If the employee 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 indicate in writing that they wish to pursue their complaint.

• Marginal note:Notice of rejection of complaint

  (2) If a complaint has been rejected, the Head shall notify the employee in writing, with reasons.

• Marginal note:Request for review

  (3) The employee may, within 15 days after the day on which the employee is notified of the rejection, request in writing, with reasons, that the Head review the Head’s decision.

• Marginal note:Review

  (4) The Head may confirm the decision, or rescind it and re-examine the complaint.

• Marginal note:Notice of Head’s decision

  (5) The Head shall notify the employee in writing of the Head’s decision.

• Marginal note:Reconsideration final

  (6) The Head’s confirmation or rescission is final and conclusive and is not subject to appeal to or review by any court.