PART IICompliance (continued)
Marginal note:Privileged information
34 (1) Information obtained by the Commission under this Act is privileged and shall not knowingly be, or be permitted to be, communicated, disclosed or made available without the written consent of the person from whom it was obtained.
Marginal note:Evidence and production of documents
(2) No member of the Commission or person employed by it who obtains information that is privileged under subsection (1) shall be required, in connection with any legal proceedings, other than proceedings relating to the administration or enforcement of this Act, to give evidence relating to that information or to produce any statement or other writing containing that information.
Marginal note:Communication or disclosure of information
(3) Information that is privileged under subsection (1) may, on any terms and conditions that the Commission considers appropriate, be communicated or disclosed to a minister of the Crown in right of Canada or to any officer or employee of Her Majesty in right of Canada for any purpose relating to the administration or enforcement of this Act.
(4) Nothing in this section prohibits the communication or disclosure of information for the purposes of legal proceedings relating to the administration or enforcement of this Act.
Marginal note:Employer’s consent required
(5) No information obtained by the Commission or a Tribunal under this Act may be used in any proceedings under any other Act without the consent of the employer concerned.
PART IIIAssessment of Monetary Penalties
(a) without reasonable excuse, fails to file an employment equity report as required by section 18;
(b) without reasonable excuse, fails to include in the employment equity report any information that is required, by section 18 and the regulations, to be included; or
(c) provides any information in the employment equity report that the employer knows to be false or misleading.
Marginal note:Continuing violations
(2) 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:Violations not offences
Marginal note:Assessment of monetary penalty
36 (1) The Minister may, within two years after the day on which the Minister becomes aware of a violation, issue a notice of assessment of a monetary penalty in respect of the violation and send it by registered mail to the private sector employer.
(2) The amount of a monetary penalty shall not exceed
Marginal note:Factors to be considered
(3) In assessing the amount of a monetary penalty, the Minister shall take into account
Marginal note:Notice of assessment of monetary penalty
37 A notice of the assessment of a monetary penalty shall
(a) identify the alleged violation;
(b) specify the amount of the monetary penalty; and
(c) specify the place where the employer may pay the monetary penalty.
Marginal note:Employer’s options
Marginal note:Copy of application
(2) If the Minister receives a written application, the Minister shall send a copy of it to the Chairperson.
Marginal note:Copy of notice of assessment
(3) If an employer who is issued a notice of assessment of a monetary penalty fails to exercise one of the options set out in subsection (1) within the period referred to in that subsection, the Minister shall send a copy of the notice to the Chairperson.
- 1995, c. 44, s. 38;
- 1998, c. 9, s. 40.
Marginal note:Review by Tribunal
39 (1) On receipt of a copy of a written application or a copy of a notice of assessment, the Chairperson shall establish a Tribunal consisting of one member selected from the Canadian Human Rights Tribunal to review the assessment and shall
(a) send, by registered mail, a request that the employer appear before the Tribunal at the time and place set out in the request to hear the allegations against the employer in respect of the alleged violation; and
(b) in writing, advise the Minister who issued the notice of assessment of the time and place set out in the request.
Marginal note:Failure to appear before Tribunal
(2) Where an employer to whom a request is sent fails to appear before a Tribunal at the time and place set out in the request, the Tribunal shall consider all the information that is presented to it by the Minister in relation to the alleged violation.
Marginal note:Opportunity to make representations
(3) In conducting its review, a Tribunal shall provide the Minister and the employer with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations to it with respect to the alleged violation.
Marginal note:Determination of Tribunal
(4) Where at the conclusion of its proceedings a Tribunal determines that the employer
(a) has not committed the alleged violation, the Tribunal shall immediately inform the employer and the Minister of its determination and no further proceedings shall be taken against the employer in respect of the alleged violation; or
(b) has committed the alleged violation, the Tribunal shall immediately
(i) issue to the Minister a certificate, in the prescribed form, of its determination that sets out an amount, not exceeding the applicable amount set out in subsection 36(2), determined by the Tribunal to be payable by the employer in respect of the violation, and
(ii) send a copy of the certificate to the employer by registered mail.
Marginal note:Factors to be considered
(5) In determining an amount under subparagraph (4)(b)(i), a Tribunal shall take into account the factors set out in subsection 36(3).
Marginal note:Burden of proof
(6) In proceedings under this section, the Minister has the burden of proving, on a balance of probabilities, that an employer has committed the alleged violation.
(7) A certificate that purports to have been issued by a Tribunal under subparagraph (4)(b)(i) is evidence of the facts stated in the certificate, without proof of the signature or official character of the person appearing to have signed the certificate.
Marginal note:Determinations are final
- 1995, c. 44, s. 39;
- 1998, c. 9, s. 41;
- 2002, c. 8, s. 182.
Enforcement of Monetary Penalties
Marginal note:Registration of certificate
40 (1) A certificate issued under subparagraph 39(4)(b)(i) may be registered in the Federal Court and when registered has the same force and effect, and all proceedings may be taken on the certificate, as if the certificate were a judgment in that Court obtained by Her Majesty in right of Canada against the employer named in the certificate for a debt in the amount set out in the certificate.
Marginal note:Recovery of costs and charges
(2) All reasonable costs and charges associated with registration of the certificate are recoverable in like manner as if they were part of the amount determined by the Tribunal under subparagraph 39(4)(b)(i).
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