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

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Act current to 2021-10-07 and last amended on 2021-08-31. Previous Versions

PART 8Dispute Resolution (continued)

Referral to Tribunal

Marginal note:Referral to Tribunal

 At any stage after a notice of a matter in dispute is received under section 147, or a notice of objection or a complaint is filed under any of sections 148 to 152, the Pay Equity Commissioner may refer to the Chairperson of the Tribunal an important question of law or a question of jurisdiction which would, in the Pay Equity Commissioner’s opinion, be more appropriate for the Tribunal to determine.

Marginal note:Chairperson to institute inquiry

  •  (1) On receipt of a referral under section 162, the Chairperson must institute an inquiry by assigning a member of the Tribunal, however the Chairperson may assign a panel of three members if he or she considers that the complexity of the question requires the inquiry to be conducted by 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:Qualification of member

    (3) If the referral involves a question about whether another Act or a regulation made under another Act is inconsistent with this Act or a regulation made under it, the member assigned to the inquiry or, if three members have been assigned, the member chairing the inquiry, must be a member of the bar of a province or the Chambre des notaires du Québec.

  • Marginal note:Question raised subsequently

    (4) If a question as described in subsection (3) arises after a member or panel has been assigned and the requirements of that subsection are not met, the inquiry is to nevertheless proceed with the designated member or panel.

Marginal note:Conduct of inquiry

  •  (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

 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

  •  (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

  •  (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

  •  (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

  •  (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

  •  (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.

 
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