Budget Implementation Act, 2017, No. 1 (S.C. 2017, c. 20)
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Assented to 2017-06-22
PART 4Various Measures (continued)
DIVISION 17Labour and Employment Laws (continued)
R.S., c. L-2Canada Labour Code (continued)
355 Sections 243 and 244 of the Act are replaced by the following:
Marginal note:Order final
243 (1) Every order of the Board is final and shall not be questioned or reviewed in any court.
Marginal note:No review by certiorari, etc.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board in any proceedings under section 242.
Marginal note:Enforcement of orders
244 (1) Any person affected by an order of the Board under subsection 242(4), or the Minister on the request of such a person, may, after 14 days from the day on which the order is made, or from the day provided in the order for compliance, whichever is later, file in the Federal Court a copy of the order, exclusive of reasons.
Marginal note:Registration
(2) On filing in the Federal Court under subsection (1), an order of the Board shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken in respect of it, as if the order were a judgment obtained in that Court.
356 (1) The Act is amended by adding the following after section 246:
DIVISION XIV.1Complaints Relating to Reprisals
Marginal note:Complaint to Board
246.1 (1) Any employee may make a complaint in writing to the Board if they believe that their employer has taken any of the following reprisals against them:
(a) taking action against the employee in contravention of section 208, 209.3, 238, 239, 239.1 or 247.96;
(b) dismissing, suspending, laying off, or demoting the employee, imposing a financial or other penalty on the employee, or otherwise taking any disciplinary action against the employee, because the employee
(i) has made a complaint under this Part, other than a complaint under section 240,
(ii) has provided information regarding the wages, hours of work, annual vacation or conditions of work of any employee or provided any other assistance to the Minister or to an inspector in the exercise or performance of the Minister’s or the inspector’s powers, duties and functions under this Part,
(iii) has testified or is about to testify in a proceeding taken or an inquiry held under this Part, or
(iv) has exercised, or sought to exercise, any right conferred on the employee by this Part;
(c) taking into account the fact that the employee has taken any of the actions referred to in subparagraphs (b)(i) to (iv) in any decision with respect to the promotion or training of the employee; or
(d) threatening to take any of the reprisals referred to in paragraph (b) or (c).
Marginal note:Limitation — dismissal
(2) An employee who has been dismissed shall not make a complaint
(a) under subsection (1) with respect to their dismissal if they have made a complaint under subsection 240(1) that has not been withdrawn; or
(b) under subsection 240(1) if they have made a complaint under subsection (1) with respect to their dismissal that has not been withdrawn.
Marginal note:Time for making complaint
(3) A complaint referred to in subsection (1) shall be made to the Board not later than 90 days after the day on which the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint.
Marginal note:Burden of proof
(4) 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:Suspension of complaint
246.2 (1) If satisfied that the employee must take measures before the complaint made under subsection 246.1(1) may be dealt with, the Board may suspend consideration of the complaint, in whole or in part.
Marginal note:Notice
(2) If the Board suspends a complaint, the Board shall notify the employee in writing and specify in the notice
(a) the measures that the employee must take; and
(b) the period of time within which the employee must take those measures.
Marginal note:End of suspension
(3) The suspension ends when, in the Board’s opinion, the measures specified in the notice have been taken.
Marginal note:Rejection of complaint
246.3 (1) The Board may reject a complaint made under subsection 246.1(1), in whole or in part,
(a) if the Board is satisfied that
(i) the complaint is not within its jurisdiction,
(ii) the complaint is frivolous, vexatious or not made in good faith,
(iii) the complaint has been settled between the employer and the employee,
(iv) there are other means available to the employee to resolve the subject matter of the complaint that the Board considers should be pursued,
(v) the subject matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator, or
(vi) in respect of a complaint made by an employee who is subject to a collective agreement, the collective agreement covers the subject matter of the complaint and provides a third party dispute resolution process; or
(b) if consideration of the complaint was suspended under subsection 246.2(1) and if, in the Board’s opinion, the measures specified in the notice under subsection 246.2(2) were not taken within the specified time period.
Marginal note:Notice of rejection of complaint
(2) If the Board rejects a complaint, it shall notify the employee in writing, with reasons.
Marginal note:Board orders
246.4 If the Board determines that a complaint under subsection 246.1(1) is justified, the Board may, by order, require the employer to cease engaging in or to rescind the reprisal and, if applicable, to
(a) permit the employee who has made the complaint to return to the duties of their employment;
(b) reinstate the employee;
(c) pay to the employee compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid by the employer to the employee;
(d) pay to the employee compensation not exceeding the sum that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer; and
(e) do any other thing that the Board considers equitable for the employer to do to remedy or counteract any consequence of the reprisal.
Marginal note:Decisions final
246.5 (1) Every decision of the Board made under this Division is final and shall not be questioned or reviewed in any court.
Marginal note:No review by certiorari, etc.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board in any proceedings under this Division.
Marginal note:Enforcement of orders
246.6 (1) Any person affected by an order of the Board under section 246.4, or the Minister on the request of such a person, may, after 14 days from the day on which the order is made, or from the day provided in the order for compliance, whichever is later, file in the Federal Court a copy of the order, exclusive of reasons.
Marginal note:Registration
(2) On filing in the Federal Court under subsection (1), an order of the Board shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken in respect of it, as if the order were a judgment obtained in that Court.
Marginal note:Complaint to Board
246.7 (1) Despite subsection 14(1), the Chairperson or a Vice-Chairperson of the Board, or a member of the Board appointed under paragraph 9(2)(e), may dispose of any complaint made to the Board under this Division and, in relation to any complaint so made, that person
(a) has all the powers, rights and privileges that are conferred on the Board by this Act other than the power to make regulations under section 15; and
(b) is subject to all the obligations and limitations that are imposed on the Board by this Act.
Marginal note:Application of Part I provisions
(2) Subject to sections 246.5 and 246.6, the provisions of Part I respecting orders and decisions of and proceedings before the Board or any member under that Part apply in respect of all orders and decisions of and proceedings before the Board or the member under this Division.
(2) Paragraph 246.1(1)(b) of the Act is amended by adding the following after subparagraph (ii):
(ii.1) has provided information regarding the wages, hours of work, annual vacation or conditions of work of any employee or provided any other assistance to an external adjudicator or a member of the Board in the exercise or performance, in accordance with subsections 12.001(2) or 14(5), of the powers, duties or functions conferred on the Board by this Part,
(3) Section 246.7 of the Act is repealed.
357 Section 251 of the Act is amended by adding the following after subsection (1):
Marginal note:For greater certainty
(1.1) For greater certainty, the inspector may, when exercising the powers referred to in subsection (1), make any finding necessary to determine whether an employee is entitled to any wages or other amounts under this Part, including a finding that the employee was dismissed for just cause for the purposes of section 230 or 235.
Marginal note:Evidence
(1.2) If the employer fails to make or keep any record in respect of an employee that the employer is required to make or keep under this Part — or fails to allow the inspector to examine, take extracts from or make copies of such a record — the inspector may, when exercising the powers referred to in subsection (1), rely on any other available evidence.
358 The Act is amended by adding the following after section 251:
Internal Audit
Marginal note:Internal audit order
251.001 (1) Subject to the regulations, the Minister may, in writing, for the purpose of verifying compliance or preventing non-compliance with this Part, order an employer to, in accordance with the order,
(a) conduct an internal audit of its practices and books, payrolls and other records to determine whether the employer is in compliance with any provision of this Part or the regulations; and
(b) provide a report of the results of the audit to the Minister and to any inspector named in the order.
Marginal note:Contents of order
(2) The Minister shall, in the internal audit order, specify
(a) any industrial establishment and class of employees to which it applies;
(b) the period of time to be covered by the internal audit;
(c) the provisions of this Part or the regulations with respect to which the internal audit was 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 Minister may also specify in the order that the report is to contain any information that the Minister considers appropriate.
Marginal note:Service
(4) Service of the order or of a copy of it shall be by personal service, by registered mail or by any other means prescribed by regulation and, in the case of registered mail, the order or its copy shall be deemed to have been received by the addressee on the seventh day after the day on which it was mailed.
Marginal note:Proof of service
(5) A certificate purporting to be signed by the Minister certifying that a document referred to in subsection (4) was sent by registered mail or by any other means prescribed by regulation to the addressee, accompanied by a true copy of the document and by an identifying post office certificate of the registration or other proof, prescribed by regulation, that the document has been sent or received, is admissible in evidence and is proof of the statements contained in the certificate, without proof of the signature or official character of the person appearing to have signed the certificate.
Marginal note:Report — non-compliance
(6) If the employer determines that it had not complied with any provision referred to in the order, the employer shall set out in the report the nature of the employer’s non-compliance and the steps that have been or will be taken by the employer to comply with the provision.
Marginal note:Report — wages and other amounts
(7) If the employer determines that any wages or other amounts to which an employee is entitled under this Part are owed, the employer shall also state in the report the name of the employee, the amount owed for the period of time covered by the internal audit, the method used to determine the amount owed and any payment subsequently made to the employee with respect to that amount owed.
Marginal note:Inspection and complaint not precluded
(8) For greater certainty, nothing in this section precludes an inspection from being made, or a complaint from being dealt with, under this Part.
Marginal note:False information
(9) No employer shall make a false or misleading statement in a report.
359 Subsection 251.01(4) of the Act is replaced by the following:
Marginal note:Limitation
(4) An employee who has been dismissed is not permitted to make a complaint under subsection (1) on the grounds that the employee considers the dismissal to be unjust. However, the employee may file a complaint under subsection (1) if it relates only to the payment of their wages or other amounts to which they are entitled under this Part, including amounts referred to in subsection 230(1) or (2) or 235(1).
360 The heading before section 251.1 of the Act is replaced by the following:
Inspector’s Orders
Marginal note:Compliance order
251.06 (1) If an inspector is of the opinion that an employer is contravening or has contravened a provision of this Part, its regulations or any condition of a permit issued under subsection 176(1), the inspector may issue a compliance order in writing requiring the employer to terminate the contravention within the time that the inspector may specify and take any step, as specified by the inspector and within the time that the inspector may specify, to ensure that the contravention does not continue or reoccur.
Marginal note:Limitation
(2) An inspector shall not issue a compliance order under subsection (1),
(a) to take any measure that could be set out in an order made under subsection 242(4) or section 246.4; or
(b) to pay wages or other amounts to which an employee is entitled under this Part.
Marginal note:Service of order
(3) Service of an order or of a copy of it shall be by personal service, by registered mail or by any other means prescribed by regulation and, in the case of registered mail, the order or its copy shall be deemed to have been received by the addressee on the seventh day after the day on which it was mailed.
Marginal note:Proof of service
(4) A certificate purporting to be signed by the Minister certifying that a document referred to in subsection (3) was sent by registered mail or by any other means prescribed by regulation to the addressee, accompanied by a true copy of the document and by an identifying post office certificate of the registration or other proof, prescribed by regulation, that the document has been sent or received, is admissible in evidence and is proof of the statements contained in the certificate, without proof of the signature or official character of the person appearing to have signed the certificate.
361 (1) Paragraph 251.1(1.1)(a) of the Act is replaced by the following:
(a) in the case where the employee made a complaint under subsection 251.01(1) that was not rejected under subsection 251.05(1), the 24 months, plus any extension of the period for making the complaint that is granted by the Minister under subsection 251.01(3), immediately before the day on which the complaint was made or, if there was a termination of employment prior to the complaint being made, the 24 months immediately before the date of termination; and
(2) Subsection 251.1(1.1) of the Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after paragraph (a):
(a.1) in the case where the payment order was issued to the employer on the basis of, in whole or in part, a report provided under subsection 251.001(1), the 24 months immediately before the day on which the order to provide the report was served; and
(3) Paragraph 251.1(1.1)(b) of the Act is replaced by the following:
(b) in any other case, the 24 months immediately before the day on which an inspection under this Part, during the course of which the inspector made the finding referred to in subsection (1), began.
(4) Subsections 251.1(1.2) to (4) of the Act are replaced by the following:
Marginal note:Complaint unfounded
(2) An inspector dealing with a complaint of non-payment of wages or other amounts to which an employee is entitled under this Part shall notify the employee in writing that their complaint is unfounded if the inspector concludes that the employer has paid to the employee all wages and other amounts to which the employee is entitled under this Part for the period of six months, plus any extension of the period for making the complaint that is granted by the Minister under subsection 251.01(3), immediately before the day on which the complaint was made.
Marginal note:Notice of voluntary compliance
(2.1) An inspector dealing with a complaint of non-payment of wages or other amounts to which an employee is entitled under this Part shall notify the employee in writing that the employer has voluntarily paid to the employee all wages and other amounts owing if
(a) the inspector concludes that the employer has, since the complaint was made, paid to the employee all wages and other amounts owing for the period of 24 months, plus any extension of the period for making the complaint that is granted by the Minister under subsection 251.01(3), immediately before the day on which the complaint was made and for any subsequent period specified by the inspector; and
(b) the inspector has not issued a payment order or a notice of unfounded complaint with respect to the complaint.
Marginal note:Service of order or notice
(3) Service of a payment order or a copy of it, of a notice of unfounded complaint, or of a notice of voluntary compliance shall be by personal service, by registered mail or by any other means prescribed by regulation and, in the case of registered mail, the order, copy or notice shall be deemed to have been received by the addressee on the seventh day after the day on which it was mailed.
Marginal note:Proof of service
(4) A certificate purporting to be signed by the Minister certifying that a document referred to in subsection (3) was sent by registered mail or by any other means prescribed by regulation to the addressee, accompanied by a true copy of the document and by an identifying post office certificate of the registration or other proof, prescribed by regulation, that the document has been sent or received, is admissible in evidence and is proof of the statements contained in the certificate, without proof of the signature or official character of the person appearing to have signed the certificate.
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