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

Full Document:  

Act current to 2022-09-22 and last amended on 2021-08-31. Previous Versions

PART 5Pay Equity Commissioner (continued)

Information and Reports (continued)

Marginal note:Provision of data to Minister

 The Pay Equity Commissioner must provide the Minister, on the request of and in the form specified by the Minister, with any data that the Minister requires to evaluate whether the purpose of the Act is being met.

Marginal note:Annual report

  •  (1) The Pay Equity Commissioner must prepare an annual report to the Senate and the House of Commons on the administration and enforcement of this Act. The report may include information on systemic or emerging pay equity issues.

  • Marginal note:Transmission of report and copy

    (2) Within three months after the end of each fiscal year, the Pay Equity Commissioner must cause the report to be transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in those Houses and provide the Minister and the Minister of Justice with a copy of the report.

PART 6Investigations and Audits

Marginal note:Compliance audit

  •  (1) The Pay Equity Commissioner may, for a purpose related to verifying compliance or preventing non-compliance with this Act or the regulations, conduct a compliance audit of any employer or bargaining agent on whom this Act imposes an obligation.

  • Marginal note:Notification

    (2) The Pay Equity Commissioner must notify the employer or bargaining agent to be audited that he or she will commence a compliance audit.

  • Marginal note:Powers

    (3) The Pay Equity Commissioner may, for the purpose of conducting a compliance audit,

    • (a) enter any place — including a conveyance — other than a dwelling-house, in which he or she has reasonable grounds to believe there is any record, report, electronic data or other document, or any information or thing, relevant to that purpose;

    • (b) examine any record, report, electronic data or other document or thing that is found in the place and make copies of it or take extracts from it;

    • (c) use or cause to be used any computer system at the place to examine any electronic data referred to in paragraph (b);

    • (d) reproduce any document from any electronic data referred to in paragraph (b), or cause it to be reproduced, in the form of a printout or other output;

    • (e) take the record, report or other document referred to in paragraph (b) or the printout or other output referred to in paragraph (d) for examination or copying;

    • (f) use or cause to be used any copying equipment at the place to make copies of any document; and

    • (g) order any person in the place to establish their identity to the Pay Equity Commissioner’s satisfaction, or to the satisfaction of the Pay Equity Commissioner’s delegate, as the case may be.

  • Marginal note:Production of document or data

    (4) The Pay Equity Commissioner may make an order in writing requiring an employer or bargaining agent to produce for examination or reproduction all or part of any record, report, electronic data or other document that the Pay Equity Commissioner believes on reasonable grounds contain any information relevant to the purpose of conducting a compliance audit.

  • Marginal note:Copies

    (5) The Pay Equity Commissioner may

    • (a) make copies or take extracts from the record, report, electronic data or other document produced under an order made under subsection (4); and

    • (b) reproduce any document from such electronic data, or cause it to be reproduced, in the form of a printout or other output.

  • Marginal note:Additional powers

    (6) If, in the course of exercising the powers set out in subsection (3), the Pay Equity Commissioner identifies an issue that, in his or her opinion, requires investigation, he or she may exercise the powers set out in paragraphs 121(a) to (e).

  • Marginal note:Completion of compliance audit

    (7) On completion of a compliance audit, the Pay Equity Commissioner may

    • (a) identify measures that the employer or bargaining agent is to take to remedy a non-compliance issue, and give notice, in writing, of those measures and the time within which they are to be taken to the employer or bargaining agent; or

    • (b) if he or she does not identify measures under subsection (a), issue an order under section 119.

  • Marginal note:Order — failure to take measures

    (8) If the Pay Equity Commissioner is satisfied that the employer or bargaining agent, as the case may be, has not taken the measures identified in a notice under paragraph (7)(a) within the time specified in the notice, he or she may issue an order under section 119.

Marginal note:Power to order termination of contravention

 If the Pay Equity Commissioner has reasonable grounds to believe that an employer, employee or bargaining agent is contravening or has contravened a provision of this Act or the regulations, or an order of the Pay Equity Commissioner or the Tribunal issued under this Act, he or she may, subject to subsections 118(7) and (8), make an order in writing requiring the employer, employee or bargaining agent to terminate the contravention within the time specified in the order or to take any measures specified in the order, within the time specified in the order, to ensure that the contravention does not continue or reoccur. The order must specify the time within which and the manner in which it may be appealed.

Marginal note:Internal audit order

  •  (1) Subject to the regulations, the Pay Equity Commissioner may, in writing, for a purpose related to verifying compliance or preventing non-compliance with this Act, order an employer to

    • (a) conduct an internal audit of its practices and records, reports, electronic data or other documents to determine whether the employer is in compliance with any provision of this Act or the regulations; and

    • (b) provide a report of the results of the audit to the Pay Equity Commissioner.

  • Marginal note:Contents of order

    (2) The Pay Equity Commissioner must, in the internal audit order, specify

    • (a) the employer to which it applies;

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

    • (c) the provisions of this Act or the regulations with respect to which the internal audit is being 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 Pay Equity Commissioner may also specify in the order that the report is to contain any information specified in the order that he or she considers appropriate.

  • Marginal note:Report — non-compliance

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

  • Marginal note:Compliance audit not precluded

    (5) For greater certainty, nothing in this section precludes the Pay Equity Commissioner from conducting a compliance audit under section 118.

Marginal note:Powers — investigation or application

 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

  •  (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

 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

 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

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

Purpose

Marginal note:Purpose of penalty

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

Regulations

Marginal note:Regulations

  •  (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

 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

 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

 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

 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

  •  (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.

 
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