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

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Act current to 2022-11-16 and last amended on 2021-08-31. Previous Versions

PART 8Dispute Resolution (continued)

Resolution by Pay Equity Commissioner

Marginal note:Role of Pay Equity Commissioner

  •  (1) Subject to subsection (2), if 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 must

    • (a) attempt to assist the parties to settle all or any part of the matter that he or she considers appropriate for settlement; and

    • (b) determine, in accordance with sections 156 to 160 and subject to section 162, any matters that, in the Pay Equity Commissioner’s opinion, are either not appropriate for settlement or cannot be settled by the parties.

  • Marginal note:Dismissal – reasons

    (2) The Pay Equity Commissioner may dismiss all or any part of a matter in dispute, objection or complaint if, in his or her opinion,

    • (a) it is trivial, frivolous, vexatious or made in bad faith;

    • (b) it is beyond the jurisdiction of the Pay Equity Commissioner; or

    • (c) its subject-matter has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under an Act of Parliament, other than this Act, or a collective agreement.

  • Marginal note:Dismissal — late filing

    (3) Subject to section 153, the Pay Equity Commissioner must dismiss an objection or complaint if a notice of objection or a complaint was not filed within the period specified in section 148 to 152, as the case may be.

  • Marginal note:Notice

    (4) The Pay Equity Commissioner must notify the parties, in writing, of his or her decision to dismiss all or any part of a matter in dispute, objection or complaint. The notice must set out the reasons for the decision and specify the time within which and the manner in which a party may request a review of the decision under section 161.

Marginal note:Voluntary settlement

  •  (1) If the parties agree to settle all or any part of a matter in dispute, objection or complaint, with or without the assistance of the Pay Equity Commissioner, the parties must provide the Pay Equity Commissioner with the terms of the settlement, in writing.

  • Marginal note:Effect of voluntary settlement

    (2) On receipt of the terms of a settlement, all or any part of the matter in dispute, objection or complaint that has been settled is deemed to be withdrawn unless the Pay Equity Commissioner is of the opinion that it is appropriate in the circumstances to continue to deal with it despite the settlement.

Marginal note:Investigation

  •  (1) The Pay Equity Commissioner may conduct an investigation into all or any part of a matter in dispute, objection or complaint referred to in subsection 154(1).

  • Marginal note:Joined investigation

    (2) If the Pay Equity Commissioner is of the opinion that two or more matters in dispute, objections or complaints involve substantially the same issues of fact or law, he or she may join the investigations into the matters in dispute, objections or complaints.

  • Marginal note:Notification

    (3) The Pay Equity Commissioner must notify the parties when he or she commences an investigation.

  • Marginal note:Discontinuance of investigation

    (4) The Pay Equity Commissioner may discontinue the investigation of all or any part of a matter in dispute, objection or complaint if he or she is of the opinion that

    • (a) there is insufficient evidence to pursue the investigation; or

    • (b) any of the circumstances mentioned in paragraphs 154(2)(a) to (c) applies.

  • Marginal note:Notice of discontinuance

    (5) The Pay Equity Commissioner must notify the parties of his or her decision to discontinue all or any part of an investigation. The notice must set out the reasons for the decision and specify the time within which and the manner in which a party may request a review of the decision under section 161.

Marginal note:Determination of matter in dispute

  •  (1) In order to determine a matter in dispute in respect of which the Pay Equity Commissioner has received notice under section 147, the Pay Equity Commissioner must, subject to subsection 155(2), give the employer, the bargaining agent, if the bargaining agent selected a person to be a member of the pay equity committee, and the member that represents non-unionized employee, if any, an opportunity to present evidence and make representations.

  • Marginal note:Order settling matter in dispute

    (2) After giving the opportunity to present evidence and make representations under subsection (1), the Pay Equity Commissioner must make an order in writing settling the matter in dispute in respect of the establishment or updating of a pay equity plan. The order must specify the time within which and the manner in which it may be appealed.

  • Marginal note:Effect of order

    (3) If specified in the order, the contents of the order are deemed to form part of the pay equity plan.

Marginal note:Determination of objection

  •  (1) After concluding the investigation of an objection in respect of which a notice was filed under section 148, the Pay Equity Commissioner must,

    • (a) if he or she finds that all or any part of the objection is not substantiated, dismiss the objection in whole or in part; or

    • (b) if he or she finds that all or any part of the objection is substantiated, make an order in writing directing the employer to, within the time specified in the order,

      • (i) take any measures that the Pay Equity Commissioner considers appropriate in relation to the pay equity plan in question, including the payment of any differences in compensation and interest that are owed to employees in accordance with any of sections 60 to 63 or 88, with any adaptations that may be required, or

      • (ii) amend the pay equity plan.

  • Marginal note:Amendments to pay equity plan

    (2) If the Pay Equity Commissioner makes an order under subparagraph (1)(b)(i) or (ii), the employer must provide to the Pay Equity Commissioner, within the time specified in the order, the amendments that have been made to the pay equity plan. If the Pay Equity Commissioner did not, under paragraph (1)(b), order the employer to pay any differences in compensation and interest, the employer must notify the Pay Equity Commissioner of any differences in compensation and interest payable to employees as a result of those amendments.

  • Marginal note:Order to pay compensation and interest

    (3) If the Pay Equity Commissioner finds that the employer determined the differences in compensation and interest payable incorrectly, the Pay Equity Commissioner may order the employer to, within the time specified in the order, pay any difference in compensation and interest determined by the Pay Equity Commissioner.

  • Marginal note:Integration of amendments to plan

    (4) The employer or group of employers, as the case may be, must integrate the amendments to the pay equity plan into the final version of the pay equity plan posted in accordance with subsection 55(1) or 57(2), section 83, subsection 85(2) or paragraph 94(1)(b), as the case may be. The employer — or, if applicable, each employer in a group of employers — must post a notice to inform employees to whom the plan relates of the amendments to the final version of the pay equity plan.

  • Marginal note:Notice

    (5) The Pay Equity Commissioner must notify the parties, in writing, of his or her decision to dismiss all or any part of the objection. The notice must set out the reasons for the decision and specify the time within which and the manner in which the decision may be appealed.

Marginal note:Determination of complaint

  •  (1) After concluding the investigation of a complaint filed under any of sections 149 to 151, the Pay Equity Commissioner must,

    • (a) if he or she finds that all or any part of the complaint is not substantiated, dismiss the complaint in whole or in part; or

    • (b) if he or she finds that all or any part of the complaint is substantiated,

      • (i) in respect of a complaint filed under any of subsections 149(1), 150(1) or 151(1), make an order in writing under section 119, or

      • (ii) in respect of a complaint filed under any of subsections 149(2), 150(3) or 151(2), make an order in writing requiring the employer or bargaining agent to terminate the behaviour 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 behaviour does not continue or reoccur.

  • Marginal note:Order made under subparagraph (1)(b)(ii)

    (2) An order made under subparagraph (1)(b)(ii) must specify the time within which and the manner in which it may be appealed.

  • Marginal note:Notice

    (3) The Pay Equity Commissioner must notify, in writing, the parties of his or her decision to dismiss all or any part of the complaint. The notice must set out the reasons for the decision and specify the time within which and the manner in which the decision may be appealed.

Marginal note:Determination — complaint about reprisal

  •  (1) After concluding the investigation of a complaint filed under section 152, the Pay Equity Commissioner,

    • (a) must, if he or she finds that all or any part of the complaint is not substantiated, dismiss the complaint in whole or in part;

    • (b) must, if the complaint involves an alleged contravention of section 102 and he or she finds that all or any part of the complaint is substantiated, make an order in writing requiring the employer to cease engaging in or to rescind the reprisal and may, if applicable, make an order in writing requiring the employer to

      • (i) permit the employee who filed the complaint to return to the duties of their employment,

      • (ii) reinstate the employee,

      • (iii) pay to the employee a sum not exceeding the sum that, in the Pay Equity Commissioner’s opinion, is equivalent to the compensation that would, but for the reprisal, have been paid by the employer to the employee,

      • (iv) pay to the employee a sum not exceeding the sum that, in the Pay Equity Commissioner’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer, and

      • (v) do any other thing that the Pay Equity Commissioner considers equitable for the employer to do to remedy or counteract any consequence of the reprisal; or

    • (c) must, if the complaint involves an alleged contravention of section 103 and he or she finds that all or any part of the complaint is substantiated, make an order in writing requiring the bargaining agent to cease engaging in or to rescind the reprisal and may, if applicable, make an order in writing requiring the bargaining agent to

      • (i) reinstate or admit the person as a member of the trade union or employee organization,

      • (ii) rescind any reprisal taken in respect of and pay a sum to the person, not exceeding the sum that, in the Pay Equity Commissioner’s opinion, is equivalent to any financial or other penalty imposed on the person by the bargaining agent, and

      • (iii) do any other thing that the Pay Equity Commissioner considers equitable for the bargaining agent to do to remedy or counteract any consequence of the reprisal.

  • Marginal note:Notice

    (2) The Pay Equity Commissioner must notify the parties, in writing, of his or her decision to dismiss all or any part of the complaint. The notice must set out the reasons for the decision and specify the time within which and the manner in which the decision may be appealed.

Review

Marginal note:Review

  •  (1) A party to a matter in dispute, objection or complaint referred to in subsection 154(1) may, within 30 days after receiving notice of a decision made under subsection 154(2) or (3) or 156(4), request a review of that decision by the Pay Equity Commissioner.

  • Marginal note:Extension of time

    (2) If the Pay Equity Commissioner considers it appropriate in the circumstances, he or she may extend the 30-day period within which a person may request a review under subsection (1).

  • Marginal note:Grounds for review

    (3) The request for review must state the grounds for review and set out the evidence that supports those grounds.

  • Marginal note:Review

    (4) On receipt of a request for review made under subsection (1), the Pay Equity Commissioner must review the decision.

  • Marginal note:Powers

    (5) After concluding the review, the Pay Equity Commissioner must

    • (a) confirm the decision to dismiss some or all of the matter in dispute, objection or complaint;

    • (b) investigate any part of the matter in dispute, objection or complaint for which the decision to dismiss was not confirmed under paragraph (a);

    • (c) confirm the decision to discontinue the investigation of some or all of the matter in dispute, objection or complaint; or

    • (d) investigate any part of the matter in dispute, objection or complaint for which the decision to discontinue was not confirmed under paragraph (c).

  • Marginal note:Decision

    (6) The Pay Equity Commissioner must cause the parties to be served with a notice that sets out the Pay Equity Commissioner’s decision under this section and the reasons for it.

  • Marginal note:Decision final

    (7) Every decision made by the Pay Equity Commissioner under any of paragraphs (5)(a) to (d) is final and is not to be questioned or reviewed in any court.

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.

 
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