Employment Equity Act

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.

• Marginal note:Certificate

  (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

  (8) A determination of a Tribunal under this section is final and, except for judicial review under the Federal Court Act, is not subject to appeal or review by any court.