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

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.

Review

Marginal note:Request for review

• 139 (1) Instead of paying the penalty set out in a notice of violation or the lesser amount that may be paid in lieu of the penalty, the employer, group of employers, bargaining agent or other person named in the notice may, within 30 days after the day on which the notice is served or within any longer period that the Pay Equity Commissioner allows, and in the manner specified in the notice, file a request for review of the acts or omissions that constitute the violation or of the amount of the penalty, or both.

• Marginal note:Grounds for review

  (2) The request for review must state the grounds for review and describe the evidence that supports those grounds.

Marginal note:Variation or cancellation of notice of violation

140 At any time before a request for review is filed in accordance with section 139, the Pay Equity Commissioner may cancel the notice of violation or correct an error in it.

Marginal note:Review

141 On receipt of a request for review made under section 139, the Pay Equity Commissioner must review the facts of the alleged violation, the penalty or both, as the case may be.

Marginal note:Completion of review

• 142 (1) On completion of a review requested under section 139, the Pay Equity Commissioner must determine on a balance of probabilities whether, as the case may be, the employer, group of employers, bargaining agent or other person that requested the review committed the violation, the amount of the penalty was determined in accordance with regulations made under subsection 127(1), or both.

• Marginal note:Violation not committed — effect

  (2) If the Pay Equity Commissioner determines under subsection (1) that the employer, group of employers, bargaining agent or other person did not commit the violation, the proceedings commenced in respect of it are ended.

• Marginal note:Review — with respect to facts

  (3) On completion of a review with respect to the acts or omissions that constitute the alleged violation, if the Pay Equity Commissioner determines that the employer, group of employers, bargaining agent or other person committed the violation, the Pay Equity Commissioner may determine whether the amount of the penalty was determined in accordance with regulations made under subsection 127(1) and if he or she determines that it was not correctly determined, he or she must correct the amount.

• Marginal note:Review — with respect to penalty

  (4) On completion of a review with respect to the amount of the penalty, if the Pay Equity Commissioner determines that the amount of the penalty was not determined in accordance with the regulations, he or she must correct the amount.

• Marginal note:Decision

  (5) The Pay Equity Commissioner must cause the employer, each employer in the group of employers, the bargaining agent or the other person to be served with a notice that sets out his or her decision under this section and the reasons for it and, if the amount of the penalty was confirmed or corrected by the Pay Equity Commissioner, informs the employer, each employer in the group of employers, the bargaining agent or the other person of the time within which and the manner in which the penalty is to be paid.

• Marginal note:Obligation to pay

  (6) The employer, each employer in the group of employers, the bargaining agent or the other person is liable to pay, within the time and in the manner specified in the notice, the amount of the penalty confirmed or corrected by the Pay Equity Commissioner.

• Marginal note:Effect of payment

  (7) If the employer, any employer in the group of employers, the bargaining agent or the other person pays the amount referred to in subsection (6), the Pay Equity Commissioner must accept the amount in complete satisfaction of the penalty in respect of the violation and the proceedings commenced in respect of the violation are ended.

• Marginal note:Decision final

  (8) A decision made under this section is final and is not to be questioned or reviewed in any court.

Recovery of Penalties

Marginal note:Debt to Her Majesty

• 143 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:

  • (a) the amount of a penalty, from the time the notice of violation setting out the amount of the penalty is served; and

  • (b) the amount of a penalty confirmed or corrected in the Pay Equity Commissioner’s notice of decision served under subsection 142(5), from the expiry of the time specified in the notice.

• Marginal note:Limitation or prescription period

  (2) No proceedings to recover the debt may be commenced after the expiry of five years after the day on which the debt became payable.

• Marginal note:Debt final

  (3) A debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 140 or 142.

Marginal note:Certificate

• 144 (1) Any debt referred to in subsection 143(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Pay Equity Commissioner.

• Marginal note:Registration

  (2) Registration in the Federal Court of a certificate issued under subsection (1) has the same force and effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.

General

Marginal note:Admissibility of documents

145 In the absence of evidence to the contrary, a document that appears to be a notice of violation served under subsection 132(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

146 The Pay Equity Commissioner may make public

• (a) the name of an employer, each employer in a group of employers or a bargaining agent that is determined under section 142, or that is deemed by this Act, to have committed a violation;

• (b) the nature of the violation;

• (c) the amount of the penalty imposed; and

• (d) any other information specified by regulations made under paragraph 127(1)(j).

PART 8Dispute Resolution

Matters in Dispute, Objections and Complaints

Marginal note:Notice of matters in dispute

147 If a pay equity committee is established under this Act in respect of a pay equity plan, and if the members of the committee who represent employees and the members of the committee who represent the employer do not agree in respect of a matter at any step leading to the establishment or updating, as the case may be, of the pay equity plan, the employer, a bargaining agent or a member who represents non-unionized employees may notify the Pay Equity Commissioner of the particulars of the matters in dispute and if they do so, they must, as soon as feasible, notify the members of the committee that they have notified the Pay Equity Commissioner.

Marginal note:Notice of objection

148 If an employer, as opposed to a pay equity committee, carries out, in respect of a pay equity plan, all or any of the requirements, including as adapted by regulation, set out in sections 32 to 38 and 41 to 50, subsection 54(2) or any regulations that apply in respect of or in place of those sections, any employee to whom the pay equity plan relates — or, if any of those employees are unionized employees, any bargaining agent that represents any of those unionized employees — may, within 60 days after the day on which the pay equity plan is posted in accordance with section 55, subsection 57(2), section 83, subsection 85(2) or paragraph 94(1)(b), as the case may be, file a notice of objection with the Pay Equity Commissioner in respect of the pay equity plan that sets out the particulars of the objection.

Marginal note:Complaints — employees

• 149 (1) Any employee to whom a pay equity plan relates who has reasonable grounds to believe that there has been a contravention of any provision of this Act or the regulations — other than sections 32 to 51, 78 and 79 and any regulations made under any of paragraphs 181(1)(b) to (h) — or a contravention, in relation to that plan, of an order of the Pay Equity Commissioner or the Tribunal issued under this Act, and who is affected or is likely to be affected by the alleged contravention may, within 60 days after the day on which they become aware of the alleged contravention, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

• Marginal note:Complaints — employees

  (2) Any employee to whom a pay equity plan relates who has reasonable grounds to believe that the employer has attempted to influence or interfere with the selection by its non-unionized employees of members to represent them on a pay equity committee, or that the employer or a bargaining agent has acted in bad faith or in an arbitrary or discriminatory manner while exercising their powers or performing their duties and functions under this Act, and who is affected or is likely to be affected by the alleged behaviour may, within 60 days after the day on which they become aware of the alleged behaviour, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

Marginal note:Complaints — bargaining agents

• 150 (1) Any bargaining agent that represents unionized employees to whom a pay equity plan relates that has reasonable grounds to believe that there has been a contravention of any provision of this Act or the regulations — other than sections 32 to 51, 78 and 79 and any regulations made under any of paragraphs 181(1)(b) to (h) — or a contravention, in relation to that plan, of an order of the Pay Equity Commissioner or the Tribunal issued under this Act may, within 60 days after the day on which it becomes aware of the alleged contravention, if the alleged contravention affects or is likely to affect the employees to whom the pay equity plan relates, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

• Marginal note:Exception

  (2) Despite subsection (1), a bargaining agent does not have a right to file a complaint referred to in that subsection if the pay equity plan is established or updated without a pay equity committee, or, if section 28, 29, 76 or 77 applies, to file such a complaint in respect to any alleged contravention that takes place during the period in which the plan is established or updated without a committee.

• Marginal note:Complaints — bargaining agents

  (3) Any bargaining agent that represents unionized employees to whom a pay equity plan relates that has reasonable grounds to believe that the employer has attempted to influence or interfere with the selection by its non-unionized employees of members to represent them on a pay equity committee, or that the employer or another bargaining agent has acted in bad faith or in an arbitrary or discriminatory manner while exercising its powers or performing its duties and functions under this Act may, within 60 days after the day on which it becomes aware of the alleged behaviour, if the alleged behaviour affects or is likely to affect the employees to whom the pay equity plan relates, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

Marginal note:Complaints — employer

• 151 (1) If a pay equity committee is established under this Act in respect of a pay equity plan, an employer that has reasonable grounds to believe that a bargaining agent has contravened subsection 24(2) or an order of the Pay Equity Commissioner or the Tribunal issued under this Act may, if the employer is affected or is likely to be affected by the alleged contravention, within 60 days after the day on which it becomes aware of the alleged contravention, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

• Marginal note:Complaints — employer

  (2) If a pay equity committee is established under this Act in respect of a pay equity plan, an employer that has reasonable grounds to believe that a bargaining agent has acted in bad faith or in an arbitrary or discriminatory manner while exercising its powers or performing its duties and functions under this Act may, if the employer is affected or is likely to be affected by the alleged behaviour, within 60 days after the day on which it becomes aware of the alleged behaviour, file a complaint with the Pay Equity Commissioner that sets out the particulars of the complaint.

Marginal note:Complaint to Pay Equity Commissioner

• 152 (1) Any person may file a complaint with the Pay Equity Commissioner if they believe that their employer or bargaining agent has taken reprisal against them in contravention of section 102 or 103. The complaint is to set out the particulars of the complaint.

• Marginal note:Time for making complaint

  (2) A complaint referred to in subsection (1) must be made to the Pay Equity Commissioner within 60 days after the day on which the person knew or, in the Pay Equity Commissioner’s opinion, ought to have known of the action or circumstances giving rise to the complaint.

• Marginal note:Burden of proof

  (3) A complaint made under subsection (1) is itself evidence that the reprisal was actually taken and, if a party to the complaint proceedings alleges that the reprisal was not taken, the burden of proof is on that party.

Marginal note:Extension of time

153 If the Pay Equity Commissioner considers it appropriate in the circumstances, he or she may extend the period within which a notice of objection or a complaint may be filed under any of sections 148 to 152.