Pay Equity Act (S.C. 2018, c. 27, s. 416)

Marginal note:Powers — investigation or application

121 In the conduct of an investigation under this Act or the consideration of an application submitted under this Act, the Pay Equity Commissioner may

• (a) summon and enforce the appearance of persons before the Pay Equity Commissioner and compel them to give oral or written evidence on oath and to produce any record, report, electronic data or other document, or any information or thing, that the Pay Equity Commissioner considers necessary, in the same manner and to the same extent as a superior court of record;

• (b) administer oaths;

• (c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Pay Equity Commissioner sees fit, whether or not it is or would be admissible in a court of law;

• (d) enter any place — including a conveyance — other than a dwelling-house;

• (e) converse in private with any person in any place entered under paragraph (d) and otherwise carry out in that place any inquiries that the Pay Equity Commissioner sees fit; and

• (f) exercise any of the powers referred to in any of paragraphs 118(3)(b) to (g).

Marginal note:Means of telecommunication

• 122 (1) For the purposes of subsection 118(3) and section 121, the Pay Equity Commissioner is considered to have entered a place when accessing it remotely by a means of telecommunication.

• Marginal note:Limitation — place not accessible to the public

  (2) If the Pay Equity Commissioner accesses remotely, by a means of telecommunication, a place that is not accessible to the public, he or she must do so with the knowledge of the owner or person in charge of the place and must be remotely in the place for no longer than the period necessary for the purpose of the compliance audit or the investigation, as the case may be.

Marginal note:Accompanying individual

123 The Pay Equity Commissioner may be accompanied by any other individual the Pay Equity Commissioner believes is necessary to help him or her exercise his or her powers or perform his or her duties or functions under section 118 or 121.

Marginal note:Assistance

124 The owner or other person in charge of a place entered by the Pay Equity Commissioner or his or her delegate under section 118 or 121 and every individual found in the place must give the Pay Equity Commissioner or the delegate, as the case may be, all reasonable assistance and provide the Pay Equity Commissioner or delegate with any information that the Pay Equity Commissioner or delegate may reasonably require.

PART 7Administrative Monetary Penalties

Definition

Marginal note:Meaning of penalty

125 In this Part, penalty means an administrative monetary penalty imposed under this Part for a violation.

Purpose

Marginal note:Purpose of penalty

126 The purpose of a penalty is to promote compliance with this Act and not to punish.

Regulations

Marginal note:Regulations

• 127 (1) The Governor in Council may make regulations

  • (a) designating, as a violation that may be proceeded with in accordance with this Part,

    • (i) the contravention of any specified provision of this Act or the regulations, or

    • (ii) the contravention of any order made or issued under any provision of this Act or the regulations;

  • (b) classifying each violation as a minor violation, a serious violation or a very serious violation;

  • (c) fixing a penalty, or a range of penalties, in respect of each violation, penalties which may be different for employers, groups of employers, bargaining agents and other persons;

  • (d) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;

  • (e) respecting the circumstances under which, the criteria by which and the manner in which a penalty may be reduced;

  • (f) establishing the time and manner for paying a penalty;

  • (g) respecting the determination of a lesser amount than the penalty imposed that may be paid in complete satisfaction of the penalty if paid within the time and manner prescribed by regulation;

  • (h) respecting the service of documents required or authorized under this Part, including the documents or types of documents that must be served, the manner and proof of service and the circumstances under which documents are deemed to be served;

  • (i) respecting who can request a review in respect of a notice of violation or penalty and the manner of making the request; and

  • (j) specifying information for the purposes of section 146.

• Marginal note:Maximum penalty

  (2) The maximum penalty in respect of a violation that may be fixed under regulations made under paragraph (1)(c) is

  • (a) $30,000 for an employer that, at the time the notice of violation is served,

    • (i) is considered to have 10 to 99 employees for the purposes of paragraph 8(a) or 9(a), as the case may be, or

    • (ii) if the employer has posted one or more notices referred to in subsection 65(1), is considered to have less than 100 employees for the purposes of paragraph 69(b) or 70(b), as the case may be, in respect of the most recently-posted notice;

  • (b) $30,000 for a bargaining agent representing some or all of the unionized employees of an employer referred to in paragraph (a);

  • (c) $50,000 for an employer that, at the time the notice of violation is served,

    • (i) is considered to have 100 or more employees for the purposes of paragraph 8(b) or 9(b), as the case may be, or

    • (ii) if the employer has posted one or more notices referred to in subsection 65(1), is considered to have 100 or more employees for the purposes of paragraph 69(a) or 70(a), as the case may be, in respect of the most recently-posted notice; or

  • (d) $50,000 for a bargaining agent representing some or all of the unionized employees of an employer referred to in paragraph (c).

Pay Equity Commissioner’s Powers, Duties and Functions

Marginal note:Powers regarding notices of violation

128 The Pay Equity Commissioner may

• (a) establish the form of notices of violation; and

• (b) establish, in respect of each violation, a short-form description to be used in notices of violation.

Commission of Violations

Marginal note:Violations

129 Every employer, group of employers, bargaining agent or other person that contravenes a provision or order designated by regulations made under paragraph 127(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with regulations made under paragraph 127(1)(c).

Marginal note:Liability of parties to violation

130 If an employer or bargaining agent commits a violation, any of the following persons who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the employer or bargaining agent has been proceeded against in accordance with this Part:

• (a) any officer, director, agent or mandatary of the employer or bargaining agent;

• (b) any senior official of the employer or bargaining agent; or

• (c) any other person authorized to exercise managerial or supervisory functions on behalf of the employer or bargaining agent.

Marginal note:Employees or agents or mandataries

131 An employer or bargaining agent is liable for a violation that is committed by any of their employees or agents or mandataries acting in the course of their employment or the scope of their authority as agent or mandatary, whether or not the employee or agent or mandatary that actually committed the violation is identified.

Marginal note:Notice of violation

• 132 (1) If the Pay Equity Commissioner has reasonable grounds to believe that an employer, group of employers, bargaining agent or other person has committed a violation, he or she may issue a notice of violation and must cause it to be served on the employer, each employer in the group of employers, the bargaining agent or the other person.

• Marginal note:Contents

  (2) The notice of violation must

  • (a) name the employer, bargaining agent or other person that is believed to have committed the violation or, if it is believed that a group of employers committed, the violation, each employer in that group;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the penalty for the violation;

  • (d) set out any lesser amount determined in accordance with the regulations that may be paid in complete satisfaction of the penalty if paid within the time and in the manner prescribed by regulation;

  • (e) inform the employer, group of employers, bargaining agent or other person of their right to contest the facts of the alleged violation, the penalty or both, by way of review, and specify the time within which and the manner in which to do so in accordance with section 139;

  • (f) inform the employer, group of employers, bargaining agent or other person of the time within which and manner in which the penalty set out in the notice is to be paid; and

  • (g) inform the employer, each employer in the group of employers, the bargaining agent or the other person that, if they do not pay the penalty or exercise their right referred to in paragraph (e) within the time and in the manner prescribed by regulation, they will be considered to have committed the violation and that they are liable for the penalty set out in the notice.

Rules About Violations

Marginal note:Certain defences not available

• 133 (1) An employer, group of employers, bargaining agent or other person named in a notice of violation does not have a defence by reason that the employer, group of employers, bargaining agent or other person

  • (a) exercised due diligence to prevent the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the employer, group of employers, bargaining agent or other person.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse if the act or omission to which the violation relates could have been the subject of a charge for an offence under this Act but for section 135 applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Continuing violation

134 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:For greater certainty

135 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation period

• 136 (1) No notice of violation may be issued in respect of a violation more than two years after the day on which the Pay Equity Commissioner becomes aware of the acts or omissions that constitute the alleged violation.

• Marginal note:Certification by Pay Equity Commissioner

  (2) A document appearing to have been issued by the Pay Equity Commissioner, certifying the day on which the acts or omissions that constitute the alleged violation became known to him or her, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and, in the absence of evidence to the contrary, is proof that the Pay Equity Commissioner became aware of the acts or omissions on that day.

Responsibility

Marginal note:Notices with penalty — payment

137 If a notice of violation sets out a penalty and the employer, group of employers, bargaining agent or other person named in the notice pays, within the time and in the manner specified in the notice, the amount of the penalty or the lesser amount set out in the notice,

• (a) they are deemed to have committed the violation in respect of which the amount is paid;

• (b) the Pay Equity Commissioner must accept that amount in complete satisfaction of the penalty; and

• (c) the proceedings commenced in respect of the violation are ended.

Marginal note:Failure to act

• 138 (1) An employer, bargaining agent or other person that neither pays a penalty set out in a notice of violation nor requests a review within the specified time is considered to have committed the violation and is liable for the penalty.

• Marginal note:Failure to act — group of employers

  (2) If a group of employers does not pay a penalty set out in a notice of violation or request a review within the specified time, each employer in the group of employers is considered to have committed the violation and is liable for the penalty.