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

Marginal note:Conduct of inquiry

• 164 (1) Subject to subsection (2), after due notice to the Pay Equity Commissioner, the parties to the matter at issue and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel must inquire into the question.

• Marginal note:Dismissal of inquiry

  (2) At any stage of an inquiry into a question requested under section 162, the panel or member conducting the inquiry may dismiss the question if the panel or member is satisfied

  • (a) in the case of a question of jurisdiction, that an inquiry is not warranted; or

  • (b) in the case of any question, that it would be more appropriate in the circumstances for the Pay Equity Commissioner to determine the question.

• Marginal note:Additional powers

  (3) In relation to a hearing of the inquiry, the member or panel may

  • (a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the question;

  • (b) administer oaths;

  • (c) subject to subsection (4), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law;

  • (d) lengthen or shorten any time limit established by the rules of procedure established under subsection 48.9(2) of the Canadian Human Rights Act; and

  • (e) decide any procedural or evidentiary question arising during the hearing.

• Marginal note:Limitation in relation to evidence

  (4) The member or panel must not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

• Marginal note:Witness fees

  (5) Any person summoned to attend the hearing is entitled in the discretion of the member or panel to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court.

Marginal note:Duty of Pay Equity Commissioner on appearing

165 The Pay Equity Commissioner may participate in any inquiry before the member or panel conducting the inquiry if he or she receives notice under subsection 164(1). If he or she participates at an inquiry, then the Pay Equity Commissioner must adopt a position that, in his or her opinion, is in the public interest.

Marginal note:Hearing in public subject to confidentiality order

• 166 (1) A hearing must be conducted in public, but the member or panel conducting the inquiry may, on application, take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the hearing if the member or panel is satisfied, during the hearing or as a result of the hearing being conducted in public, that

  • (a) there is a real and substantial risk that matters involving public security will be disclosed;

  • (b) there is a real and substantial risk to the fairness of the hearing such that the need to prevent disclosure outweighs the societal interest that the hearing be conducted in public;

  • (c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the hearing be conducted in public; or

  • (d) there is a serious possibility that the life, liberty or security of a person will be endangered.

• Marginal note:Confidentiality of application

  (2) If the member or panel considers it appropriate, the member or panel may take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1).

Marginal note:Determination

• 167 (1) Subject to subsection 155(2), at the conclusion of an inquiry into a question of law or jurisdiction referred to the Chairperson of the Tribunal under section 162, the member or panel must determine the question and provide a copy of the determination to the Pay Equity Commissioner and the parties given notice under subsection 164(1).

• Marginal note:Posting of determination

  (2) The member or panel may require an employer — or, if applicable, each employer in a group of employers — to post any determination referred to in subsection (1).

• Marginal note:Panel’s decision

  (3) A decision made by a majority of the members of the panel is the decision of the panel or, if no decision is supported by the majority, the decision of the panel’s chair is the decision of the panel.

Appeal

Marginal note:Appeal — decision or order

• 168 (1) An employer, bargaining agent or other person that is affected by a decision made under paragraph 158(1)(a), 159(1)(a) or 160(1)(a) or an order made under section 119, subsection 157(2), paragraph 158(1)(b), subsection 158(3), subparagraph 159(1)(b)(ii) or paragraph 160(1)(b) or (c) may appeal the decision or order to the Tribunal, in writing, within 30 days after the day on which a copy of the order or notice of the decision is served.

• Marginal note:Order in effect

  (2) An order made under section 119, subsection 157(2), paragraph 158(1)(b), subsection 158(3), subparagraph 159(1)(b)(ii) or paragraph 160(1)(b) or (c) continues to apply during an appeal unless the Tribunal decides otherwise.

• Marginal note:Grounds for appeal

  (3) The application for appeal must state the grounds for appeal and describe the evidence that supports those grounds.

Marginal note:Assignment of member

• 169 (1) On receipt of an application for an appeal, the Chairperson of the Tribunal must assign a member of the Tribunal to hear the appeal, however the Chairperson may assign a panel of three members of the Tribunal to hear the appeal if he or she considers that the complexity of the matters under appeal requires three members.

• Marginal note:Chair of panel

  (2) If a panel of three members is assigned, the Chairperson must designate one of them to be its chair, but the Chairperson is to be the chair if he or she is a member of the panel.

Marginal note:Decision

• 170 (1) The member or panel of members of the Tribunal assigned to hear an appeal may, by order, confirm, vary or rescind the decision or order to which the appeal relates, or refer the decision to which the appeal relates back to the Pay Equity Commissioner for redetermination in accordance with any directions that the member or panel of members considers to be appropriate.

• Marginal note:Other terms

  (2) In addition, the member or panel of members may include in the order any terms that the member or panel, as the case may be, considers equitable to remedy or counteract any consequence of the matter under appeal.

• Marginal note:Panel’s decision

  (3) A decision made by a majority of the members of the panel is the decision of the panel or, if no decision is supported by the majority, the decision of the panel’s chair is the decision of the panel.

• Marginal note:Copy of decision or order

  (4) The member or panel of members must provide a copy of any decision or order made under subsection (1) or (2) to the Pay Equity Commissioner and to the parties to the appeal.

Marginal note:Decision final

171 Every decision made under section 170 is final and is not to be questioned or reviewed in any court.

PART 9Ministerial Staff

Marginal note:Definition of Minister

172 In section 173, minister has the same meaning as in subsection 2(1) of the Public Service Employment Act.

Marginal note:Application

• 173 (1) This Act and section 40.2 of the Canadian Human Rights Act apply, subject to the regulations, with respect to any person appointed by a minister under subsection 128(1) of the Public Service Employment Act as if they were an employee as defined in subsection 3(1) of this Act and their employer were an employer referred to in paragraph 3(2)(a) of this Act, except that, for the purpose of that application, the Governor in Council may, by order, group two or more ministers’ offices for the purpose of establishing and updating a single pay equity plan for any such grouping.

• Marginal note:Exclusion

  (2) Despite subsection (1), nothing in this Act or section 40.2 of the Canadian Human Rights Act applies with respect to any person appointed as a student staff member by a minister under subsection 128(1) of the Public Service Employment Act.

PART 10Miscellaneous Provisions

Marginal note:Wages

174 An employee who is party to, or has been summoned to attend at, a proceeding before the Tribunal under this Act and who attends is entitled to be paid by the employer at the employee’s regular rate of wages for the time spent at the proceeding that would otherwise have been time at work.

Marginal note:Manner and form

175 The Pay Equity Commissioner may establish the manner and form for submitting or filing notices, applications and complaints that are to be submitted to or filed with the Pay Equity Commissioner.

Marginal note:Posting of documents

176 The Pay Equity Commissioner may require an employer — or, if applicable, each employer in a group of employers — to post any decision, order, notice of violation or other document issued by that Commissioner.

Marginal note:Copies as evidence

177 Any document purporting to be certified by the Pay Equity Commissioner to be a copy of or extract from a document, or to be a printout of or extract from electronic data, made under paragraph 118(3)(e) or subsection 118(5) is evidence of the nature and content of the original document or data and has the same probative force as the original document or data would have if it were proven in the ordinary way.

Marginal note:Immunity

178 No action or other proceeding of a civil nature lies against the Pay Equity Commissioner, or any person acting on behalf or under the direction of that Commissioner, in respect of anything that is done or omitted to be done in good faith while exercising or purporting to exercise their powers or performing or purporting to perform their duties and functions under this Act.

Marginal note:Evidence in civil suits precluded

179 The Pay Equity Commissioner, his or her delegate, any person who has accompanied or assisted the Pay Equity Commissioner in carrying out his or her duties and functions, and any member of the Tribunal is not competent or compellable to appear as a witness in any civil action, suit or other proceeding between private parties respecting information obtained in the exercise of their powers or the performance of their duties and functions.

Marginal note:Enforcement of order

180 An order made under subsection 91(1) or 118(4), section 119, subsection 120(1) or 157(2), paragraph 158(1)(b), subsection 158(3), subparagraph 159(1)(b)(ii), paragraph 160(1)(b) or (c) or subsection 170(1) or (2) may, for the purpose of enforcement, be made an order of the Federal Court by following the usual procedure or by the Pay Equity Commissioner filing in the Registry of that court a copy of the order certified by the Pay Equity Commissioner to be a true copy.

Marginal note:Regulations

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

  • (a) exempting, with or without conditions, any employer, employee or position, or any class of employers, employees or positions, from the application of any provision of this Act;

  • (b) prescribing a manner for determining the monetary value of any forms of remuneration payable for work performed by an employee, for the purpose of the calculation of the compensation associated with a job class;

  • (c) respecting the obligations of an employer or, if a pay equity committee has been established, that committee, in regards to the determination of differences in compensation for the purpose of section 60, when the employer or committee, as the case may be, has determined that there are no predominantly male job classes, including its obligations in relation to the determination, based on different criteria than those set out in sections 36 to 38, of the predominantly female or predominantly male job classes;

  • (d) providing for changes to the information required to be included in a pay equity plan under section 51 — or setting out additional information required to be included in it — as a result of regulations made under paragraph (c);

  • (e) establishing methods of calculating factors for the purpose of paragraphs 49(1)(d) and 50(1)(c);

  • (f) adapting the rules, criteria and factors set out in sections 32 to 50 for the purpose of their being applied under subsection 78(1);

  • (g) specifying, for the purpose of subsection 78(1), any changes that are to be excluded for the purpose of the revision of a pay equity plan;

  • (h) specifying the changes that are required to be included in the document referred to in subsection 79(2);

  • (i) respecting the posting of anything that is required to be posted under this Act, including the accessibility of the thing posted;

  • (j) respecting lump sums under subsection 88(2);

  • (k) respecting the submission to the Pay Equity Commissioner, by employers, of any document that they are required to retain under this Act, including the time, manner and form in which they are to be submitted;

  • (l) prescribing rules respecting the confidentiality or disclosure of any information obtained under this Act;

  • (m) prescribing any additional conditions or parameters related to the use of internal audits referred to in section 120;

  • (n) prescribing the time within which notices — other than a notice under section 147 or 148 — and applications are to be submitted to or filed with the Pay Equity Commissioner;

  • (o) prescribing any conditions or criteria that an employer or group of employers must meet in order for the Pay Equity Commissioner to grant an authorization under section 108, 109 or 112;

  • (p) respecting the application of this Act with respect to any person appointed by a minister, as defined in section 172, under subsection 128(1) of the Public Service Employment Act, including in order to

    • (i) exempt from the application of any provision of this Act or the regulations, with or without conditions, all persons or classes of persons so appointed or any position or employer, class of positions or employers or minister’s office or grouping of ministers’ offices created by an order made under subsection 173(1), and

    • (ii) provide that any provision of this Act or the regulations applies to all persons or classes of persons so appointed or to any position or employer, class of positions or employers or minister’s office or grouping of ministers’ offices created by an order made under subsection 173(1) in the manner and to the extent provided for in the regulations made under this paragraph and adapt that provision for the purpose of that application;

  • (q) prescribing anything that is to be prescribed under this Act; and

  • (r) generally, for carrying out the purposes and provisions of this Act.

• Marginal note:Adaptation of Act to certain employers

  (2) The Governor in Council may make regulations to adapt any provision of this Act or the regulations to accommodate employers referred to in section 11.