H-6
An
Act to extend the laws in Canada that proscribe discrimination
1.
This Act
may be cited as the Canadian Human Rights Act.
1976-77, c. 33, s. 1.
2.
The purpose
of this Act is to extend the laws in Canada to give effect, within the purview
of matters coming within the legislative authority of Parliament, to the
principle that all individuals should have an opportunity equal with other
individuals to make for themselves the lives that they are able and wish to
have and to have their needs accommodated, consistent with their duties and
obligations as members of society, without being hindered in or prevented from
doing so by discriminatory practices based on race, national or ethnic origin,
colour, religion, age, sex, sexual orientation, marital status, family status,
disability or conviction for an offence for which a pardon has been granted.
R.S., 1985, c. H-6, s.
2; 1996, c. 14, s. 1; 1998, c. 9, s. 9.
Prohibited grounds of discrimination
3.
(1) For all purposes of this Act, the prohibited
grounds of discrimination are race, national or ethnic origin, colour,
religion, age, sex, sexual orientation, marital status, family status,
disability and conviction for which a pardon has been granted.
Idem
(2) Where the ground of discrimination is pregnancy or
child-birth, the discrimination shall be deemed to be on the ground of sex.
R.S., 1985, c. H-6, s.
3; 1996, c. 14, s. 2.
Multiple grounds of
discrimination
3.1
For greater
certainty, a discriminatory practice includes a practice based on one or more
prohibited grounds of discrimination or on the effect of a combination of
prohibited grounds.
1998, c. 9, s. 11.
Orders regarding discriminatory practices
4.
A
discriminatory practice, as described in sections 5 to 14.1, may be the subject
of a complaint under Part III and anyone found to be engaging or to have
engaged in a discriminatory practice may be made subject to an order as
provided in sections 53 and 54.
R.S., 1985, c. H-6, s.
4; 1998, c. 9, s. 11.
Denial of good, service, facility or
accommodation
5.
It is a
discriminatory practice in the provision of goods, services, facilities or
accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any
individual,
on a prohibited ground of discrimination.
1976-77, c. 33, s. 5.
Denial of commercial premises or residential
accommodation
6.
It is a
discriminatory practice in the provision of commercial premises or residential
accommodation
(a) to deny occupancy of such premises or accommodation to
any individual, or
(b) to differentiate adversely in relation to any
individual,
on a prohibited ground of discrimination.
1976-77, c. 33, s. 6.
7.
It is a
discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any
individual, or
(b) in the course of employment, to differentiate adversely
in relation to an employee,
on a prohibited ground of discrimination.
1976-77, c. 33, s. 7.
Employment applications, advertisements
8.
It is a
discriminatory practice
(a) to use or circulate any form of application for
employment, or
(b) in connection with employment or prospective
employment, to publish any advertisement or to make any written or oral inquiry
that expresses or implies any limitation,
specification or preference based on a prohibited ground of discrimination.
1976-77, c. 33, s. 8.
9.
(1) It is a discriminatory practice for an employee
organization on a prohibited ground of discrimination
(a) to exclude an individual from full membership in the
organization;
(b) to expel or suspend a member of the organization; or
(c) to limit, segregate, classify or otherwise act in
relation to an individual in a way that would deprive the individual of
employment opportunities, or limit employment opportunities or otherwise
adversely affect the status of the individual, where the individual is a member
of the organization or where any of the obligations of the organization pursuant
to a collective agreement relate to the individual.
(2) Notwithstanding subsection (1), it is not a discriminatory
practice for an employee organization to exclude, expel or suspend an
individual from membership in the organization because that individual has
reached the normal age of retirement for individuals working in positions
similar to the position of that individual.
(3)
[Repealed, 1998, c. 9, s. 12]
R.S., 1985, c. H-6, s.
9; 1998, c. 9, s. 12.
Discriminatory policy or practice
10.
It is a
discriminatory practice for an employer, employee organization or employer
organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment,
referral, hiring, promotion, training, apprenticeship, transfer or any other
matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or
class of individuals of any employment opportunities on a prohibited ground of
discrimination.
R.S., 1985, c. H-6, s.
10; 1998, c. 9, s. 13(E).
11.
(1) It is a discriminatory practice for an employer to
establish or maintain differences in wages between male and female employees
employed in the same establishment who are performing work of equal value.
Assessment of
value of work
(2) In assessing the value of work performed by employees
employed in the same establishment, the criterion to be applied is the
composite of the skill, effort and responsibility required in the performance
of the work and the conditions under which the work is performed.
Separate
establishments
(3) Separate establishments established or maintained by an
employer solely or principally for the purpose of establishing or maintaining
differences in wages between male and female employees shall be deemed for the
purposes of this section to be the same establishment.
Different wages
based on prescribed reasonable factors
(4) Notwithstanding subsection (1), it is not a discriminatory
practice to pay to male and female employees different wages if the difference
is based on a factor prescribed by guidelines, issued by the Canadian Human
Rights Commission pursuant to subsection 27(2), to be a reasonable factor that
justifies the difference.
Idem
(5) For greater certainty, sex does not constitute a reasonable
factor justifying a difference in wages.
No reduction of
wages
(6) An employer shall not reduce wages in order to eliminate a
discriminatory practice described in this section.
Definition of
"wages"
(7) For the purposes of this section, "wages" means
any form of remuneration payable for work performed by an individual and
includes
(a) salaries, commissions, vacation pay, dismissal wages
and bonuses;
(b) reasonable value for board, rent, housing and lodging;
(c) payments in kind;
(d) employer contributions to pension funds or plans,
long-term disability plans and all forms of health insurance plans; and
(e) any other advantage received directly or indirectly
from the individual’s employer.
1976-77, c. 33, s. 11.
Publication of discriminatory notices, etc.
12.
It is a
discriminatory practice to publish or display before the public or to cause to
be published or displayed before the public any notice, sign, symbol, emblem or
other representation that
(a) expresses or implies discrimination or an intention to
discriminate, or
(b) incites or is calculated to incite others to
discriminate
if the discrimination expressed or implied, intended
to be expressed or implied or incited or calculated to be incited would otherwise,
if engaged in, be a discriminatory practice described in any of sections 5 to
11 or in section 14.
1976-77, c. 33, s. 12;
1980-81-82-83, c. 143, s. 6.
13.
(1) It is a discriminatory practice for a person or a
group of persons acting in concert to communicate telephonically or to cause to
be so communicated, repeatedly, in whole or in part by means of the facilities
of a telecommunication undertaking within the legislative authority of
Parliament, any matter that is likely to expose a person or persons to hatred
or contempt by reason of the fact that that person or those persons are
identifiable on the basis of a prohibited ground of discrimination.
Interpretation
(2) For greater certainty, subsection (1) applies in respect of
a matter that is communicated by means of a computer or a group of
interconnected or related computers, including the Internet, or any similar
means of communication, but does not apply in respect of a matter that is
communicated in whole or in part by means of the facilities of a broadcasting
undertaking.
Interpretation
(3) For the purposes of this section, no owner or operator of a
telecommunication undertaking communicates or causes to be communicated any
matter described in subsection (1) by reason only that the facilities of a
telecommunication undertaking owned or operated by that person are used by
other persons for the transmission of that matter.
R.S., 1985, c. H-6, s.
13; 2001, c. 41, s. 88.
14.
(1) It is a discriminatory practice,
(a) in the provision of goods, services, facilities or
accommodation customarily available to the general public,
(b) in the provision of commercial premises or residential
accommodation, or
(c) in matters related to employment,
to harass an individual on a prohibited ground of
discrimination.
(2) Without limiting the generality of subsection (1), sexual
harassment shall, for the purposes of that subsection, be deemed to be
harassment on a prohibited ground of discrimination.
1980-81-82-83, c. 143,
s. 7.
14.1
It is a
discriminatory practice for a person against whom a complaint has been filed
under Part III, or any person acting on their behalf, to retaliate or threaten
retaliation against the individual who filed the complaint or the alleged
victim.
1998, c. 9, s. 14.
15.
(1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension,
limitation, specification or preference in relation to any employment is
established by an employer to be based on a bona fide occupational
requirement;
(b) employment of an individual is refused or terminated
because that individual has not reached the minimum age, or has reached the
maximum age, that applies to that employment by law or under regulations, which
may be made by the Governor in Council for the purposes of this paragraph;
(c) an individual’s employment is terminated because that
individual has reached the normal age of retirement for employees working in
positions similar to the position of that individual;
(d) the terms and conditions of any pension fund or plan
established by an employer, employee organization or employer organization
provide for the compulsory vesting or locking-in of pension contributions at a
fixed or determinable age in accordance with sections 17 and 18 of the Pension
Benefits Standards Act, 1985;
(e) an individual is discriminated against on a prohibited
ground of discrimination in a manner that is prescribed by guidelines, issued
by the Canadian Human Rights Commission pursuant to subsection 27(2), to be
reasonable;
(f) an employer, employee organization or employer
organization grants a female employee special leave or benefits in connection
with pregnancy or child-birth or grants employees special leave or benefits to
assist them in the care of their children; or
(g) in the circumstances described in section 5 or 6, an
individual is denied any goods, services, facilities or accommodation or access
thereto or occupancy of any commercial premises or residential accommodation or
is a victim of any adverse differentiation and there is bona fide
justification for that denial or differentiation.
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide
occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide
justification, it must be established that accommodation of the needs of an
individual or a class of individuals affected would impose undue hardship on
the person who would have to accommodate those needs, considering health,
safety and cost.
Regulations
(3) The Governor in Council may make regulations prescribing
standards for assessing undue hardship.
Publication of
proposed regulations
(4) Each regulation that the Governor in Council proposes to
make under subsection (3) shall be published in the Canada Gazette and a
reasonable opportunity shall be given to interested persons to make
representations in respect of it.
Consultations
(5) The Canadian Human Rights Commission shall conduct public
consultations concerning any regulation proposed to be made by the Governor in
Council under subsection (3) and shall file a report of the results of the
consultations with the Minister within a reasonable time after the publication
of the proposed regulation in the Canada Gazette.
Exception
(6) A proposed regulation need not be published more than once,
whether or not it has been amended as a result of any representations.
Making of
regulations
(7) The Governor in Council may proceed to make regulations
under subsection (3) after six months have elapsed since the publication of the
proposed regulations in the Canada Gazette, whether or not a report
described in subsection (5) is filed.
Application
(8) This section applies in respect of a practice regardless of
whether it results in direct discrimination or adverse effect discrimination.
Universality of
service for Canadian Forces
(9) Subsection (2) is subject to the principle of universality
of service under which members of the Canadian Forces must at all times and
under any circumstances perform any functions that they may be required to
perform.
R.S., 1985, c. H-6, s.
15; R.S., 1985, c. 32 (2nd Supp.), s. 41; 1998, c. 9, ss. 10, 15.
16.
(1) It is not a discriminatory practice for a person
to adopt or carry out a special program, plan or arrangement designed to
prevent disadvantages that are likely to be suffered by, or to eliminate or
reduce disadvantages that are suffered by, any group of individuals when those
disadvantages would be based on or related to the prohibited grounds of
discrimination, by improving opportunities respecting goods, services,
facilities, accommodation or employment in relation to that group.
Advice and
assistance
(2) The Canadian Human Rights Commission, may
(a) make general recommendations concerning desirable
objectives for special programs, plans or arrangements referred to in
subsection (1); and
(b) on application, give such advice and assistance with
respect to the adoption or carrying out of a special program, plan or
arrangement referred to in subsection (1) as will serve to aid in the
achievement of the objectives the program, plan or arrangement was designed to
achieve.
Collection of information relating to
prohibited grounds
(3) It is not a discriminatory practice to collect information
relating to a prohibited ground of discrimination if the information is
intended to be used in adopting or carrying out a special program, plan or
arrangement under subsection (1).
R.S., 1985, c. H-6, s.
16; 1998, c. 9, s. 16.
Plans to meet the needs of disabled persons
17.
(1) A person who proposes to implement a plan for
adapting any services, facilities, premises, equipment or operations to meet
the needs of persons arising from a disability may apply to the Canadian Human
Rights Commission for approval of the plan.
Approval of plan
(2) The Commission may, by written notice to a person making an
application pursuant to subsection (1), approve the plan if the Commission is
satisfied that the plan is appropriate for meeting the needs of persons arising
from a disability.
Effect of
approval of accommodation plan
(3) Where any services, facilities, premises, equipment or
operations are adapted in accordance with a plan approved under subsection (2),
matters for which the plan provides do not constitute any basis for a complaint
under Part III regarding discrimination based on any disability in respect of
which the plan was approved.
Notice when
application not granted
(4) When the Commission decides not to grant an application made
pursuant to subsection (1), it shall send a written notice of its decision to
the applicant setting out the reasons for its decision.
1980-81-82-83, c. 143,
s. 9.
18.
(1) If the Canadian Human Rights Commission is
satisfied that, by reason of any change in circumstances, a plan approved under
subsection 17(2) has ceased to be appropriate for meeting the needs of persons
arising from a disability, the Commission may, by written notice to the person
who proposes to carry out or maintains the adaptation contemplated by the plan
or any part thereof, rescind its approval of the plan to the extent required by
the change in circumstances.
Effect where
approval rescinded
(2) To the extent to which approval of a plan is rescinded under
subsection (1), subsection 17(3) does not apply to the plan if the
discriminatory practice to which the complaint relates is subsequent to the
rescission of the approval.
Statement of
reasons for rescinding approval
(3) Where the Commission rescinds approval of a plan pursuant to
subsection (1), it shall include in the notice referred to therein a statement
of its reasons therefor.
1980-81-82-83, c. 143,
s. 9.
Opportunity to make representations
19.
(1) Before making its decision on an application or
rescinding approval of a plan pursuant to section 17 or 18, the Canadian Human
Rights Commission shall afford each person directly concerned with the matter
an opportunity to make representations with respect thereto.
Restriction on
deeming plan inappropriate
(2) For the purposes of sections 17 and 18, a plan shall not, by
reason only that it does not conform to any standards prescribed pursuant to
section 24, be deemed to be inappropriate for meeting the needs of persons
arising from disability.
1980-81-82-83, c. 143,
s. 9.
Certain provisions not discriminatory
20.
A provision
of a pension or insurance fund or plan that preserves rights acquired before
March 1, 1978 or that preserves pension or other benefits accrued before that
day does not constitute the basis for a complaint under Part III that an
employer, employee organization or employer organization is engaging or has
engaged in a discriminatory practice.
R.S., 1985, c. H-6, s.
20; 1998, c. 9, s. 17.
21.
The
establishment of separate pension funds or plans for different groups of
employees does not constitute the basis for a complaint under Part III that an
employer, employee organization or employer organization is engaging or has
engaged in a discriminatory practice if the employees are not grouped in those
funds or plans according to a prohibited ground of discrimination.
R.S., 1985, c. H-6, s.
21; 1998, c. 9, s. 17.
22.
The
Governor in Council may, by regulation, prescribe the provisions of any pension
or insurance fund or plan, in addition to the provisions described in sections
20 and 21, that do not constitute the basis for a complaint under Part III that
an employer, employee organization or employer organization is engaging or has
engaged in a discriminatory practice.
R.S., 1985, c. H-6, s.
22; 1998, c. 9, s. 17.
23.
The
Governor in Council may make regulations respecting the terms and conditions to
be included in or applicable to any contract, licence or grant made or granted
by Her Majesty in right of Canada providing for
(a) the prohibition of discriminatory practices described
in sections 5 to 14.1; and
(b) the resolution, by the procedure set out in Part III,
of complaints of discriminatory practices contrary to such terms and
conditions.
R.S., 1985, c. H-6, s.
23; 1998, c. 9, s. 18.
24.
(1) The Governor in Council may, for the benefit of
persons having any disability, make regulations prescribing standards of
accessibility to services, facilities or premises.
Effect of meeting
accessibility standards
(2) Where standards prescribed pursuant to subsection (1) are
met in providing access to any services, facilities or premises, a matter of
access thereto does not constitute any basis for a complaint under Part III
regarding discrimination based on any disability in respect of which the
standards are prescribed.
Publication of
proposed regulations
(3) Subject to subsection (4), a copy of each regulation that
the Governor in Council proposes to make pursuant to this section shall be
published in the Canada Gazette and a reasonable opportunity shall be
afforded to interested persons to make representations with respect thereto.
Exception
(4) Subsection (3) does not apply in respect of a proposed
regulation that has been published pursuant to that subsection, whether or not
it has been amended as a result of representations made pursuant to that
subsection.
Discriminatory
practice not constituted by variance from standards
(5) Nothing shall, by virtue only of its being at variance with
any standards prescribed pursuant to subsection (1), be deemed to constitute a
discriminatory practice.
1980-81-82-83, c. 143,
s. 11.
25.
In this
Act,
"conviction
for which a pardon has been granted"
«état de personne graciée »
"conviction
for which a pardon has been granted" means a conviction of an individual
for an offence in respect of which a pardon has been granted by any authority
under law and, if granted or issued under the Criminal Records Act, has
not been revoked or ceased to have effect;
"disability"
«déficience»
"disability"
means any previous or existing mental or physical disability and includes
disfigurement and previous or existing dependence on alcohol or a drug;
"employee
organization"
«organisation syndicale»
"employee
organization" includes a trade union or other organization of employees or
a local, the purposes of which include the negotiation of terms and conditions
of employment on behalf of employees;
"employer
organization"
«organisation patronale»
"employer
organization" means an organization of employers the purposes of which
include the regulation of relations between employers and employees;
"employment"
«emploi»
"employment"
includes a contractual relationship with an individual for the provision of
services personally by the individual;
"Tribunal"
«Tribunal»
"Tribunal"
means the Canadian Human Rights Tribunal established by section 48.1.
R.S., 1985, c. H-6, s.
25; 1992, c. 22, s. 13; 1998, c. 9, s. 19.
26.
(1) A commission is hereby established to be known as
the Canadian Human Rights Commission, in this Part and Part III referred to as
the "Commission", consisting of a Chief Commissioner, a Deputy Chief
Commissioner and not less than three or more than six other members, to be
appointed by the Governor in Council.
Members
(2) The Chief Commissioner and Deputy Chief Commissioner are
full-time members of the Commission and the other members may be appointed as
full-time or part-time members of the Commission.
Term of
appointment
(3) Each full-time member of the Commission may be appointed for
a term not exceeding seven years and each part-time member may be appointed for
a term not exceeding three years.
Tenure
(4) Each member of the Commission holds office during good
behaviour but may be removed by the Governor in Council on address of the
Senate and House of Commons.
Re-appointment
(5) A member of the Commission is eligible to be re-appointed in
the same or another capacity.
1976-77, c. 33, s. 21.
27.
(1) In addition to its duties under Part III with
respect to complaints regarding discriminatory practices, the Commission is
generally responsible for the administration of this Part and Parts I and III
and
(a) shall develop and conduct information programs to
foster public understanding of this Act and of the role and activities of the
Commission thereunder and to foster public recognition of the principle
described in section 2;
(b) shall undertake or sponsor research programs relating
to its duties and functions under this Act and respecting the principle
described in section 2;
(c) shall maintain close liaison with similar bodies or
authorities in the provinces in order to foster common policies and practices
and to avoid conflicts respecting the handling of complaints in cases of
overlapping jurisdiction;
(d) shall perform duties and functions to be performed by
it pursuant to any agreement entered into under subsection 28(2);
(e) may consider such recommendations, suggestions and
requests concerning human rights and freedoms as it receives from any source
and, where deemed by the Commission to be appropriate, include in a report
referred to in section 61 reference to and comment on any such recommendation,
suggestion or request;
(f) shall carry out or cause to be carried out such studies
concerning human rights and freedoms as may be referred to it by the Minister
of Justice and include in a report referred to in section 61 a report setting
out the results of each such study together with such recommendations in
relation thereto as it considers appropriate;
(g) may review any regulations, rules, orders, by-laws and
other instruments made pursuant to an Act of Parliament and, where deemed by
the Commission to be appropriate, include in a report referred to in section 61
reference to and comment on any provision thereof that in its opinion is
inconsistent with the principle described in section 2; and
(h) shall, so far as is practical and consistent with the
application of Part III, try by persuasion, publicity or any other means that
it considers appropriate to discourage and reduce discriminatory practices
referred to in sections 5 to 14.1.
(2) The Commission may, on application or on its own initiative,
by order, issue a guideline setting out the extent to which and the manner in
which, in the opinion of the Commission, any provision of this Act applies in a
class of cases described in the guideline.
Guideline binding
(3) A guideline issued under subsection (2) is, until it is
revoked or modified, binding on the Commission and any member or panel assigned
under subsection 49(2) with respect to the resolution of a complaint under Part
III regarding a case falling within the description contained in the guideline.
Publication
(4) Each guideline issued under subsection (2) shall be
published in Part II of the Canada Gazette.
R.S., 1985, c. H-6, s.
27; 1998, c. 9, s. 20.
28.
(1) On the recommendation of the Commission, the
Governor in Council may, by order, assign to persons or classes of persons
specified in the order who are engaged in the performance of the duties and
functions of the Department of Human Resources and Skills Development such of
the duties and functions of the Commission in relation to discriminatory
practices in employment outside the federal public administration as are
specified in the order.
Interdelegation
(2) Subject to the approval of the Governor in Council, the
Commission may enter into agreements with similar bodies or authorities in the
provinces providing for the performance by the Commission on behalf of those
bodies or authorities of duties or functions specified in the agreements or for
the performance by those bodies or authorities on behalf of the Commission of
duties or functions so specified.
R.S., 1985, c. H-6, s.
28; 1996, c. 11, s. 61; 2003, c. 22, s. 224(E); 2005, c. 34, s. 79.
29.
The Governor
in Council, on the recommendation of the Commission, may make regulations
authorizing the Commission to exercise such powers and perform such duties and
functions, in addition to those prescribed by this Act, as are necessary to
carry out the provisions of this Part and Parts I and III.
1976-77, c. 33, s. 23.
30.
(1) Each full-time member of the Commission shall be
paid a salary to be fixed by the Governor in Council and each part-time member
of the Commission may be paid such remuneration, as is prescribed by by-law of
the Commission, for attendance at meetings of the Commission, or of any
division or committee of the Commission, that the member is requested by the
Chief Commissioner to attend.
Additional
remuneration
(2) A part-time member of the Commission may, for any period
during which that member, with the approval of the Chief Commissioner, performs
any duties and functions additional to the normal duties and functions of that
member on behalf of the Commission, be paid such additional remuneration as is
prescribed by by-law of the Commission.
Travel expenses
(3) Each member of the Commission is entitled to be paid such
travel and living expenses incurred by the member in the performance of duties
and functions under this Act as are prescribed by by-law of the Commission.
1976-77, c. 33, s. 24.
31.
(1) The Chief Commissioner is the chief executive
officer of the Commission and has supervision over and direction of the
Commission and its staff and shall preside at meetings of the Commission.
Absence or
incapacity
(2) In the event of the absence or incapacity of the Chief
Commissioner, or if that office is vacant, the Deputy Chief Commissioner has
all the powers and may perform all the duties and functions of the Chief
Commissioner.
Idem
(3) In the event of the absence or incapacity of the Chief
Commissioner and the Deputy Chief Commissioner, or if those offices are vacant,
the full-time member with the most seniority has all the powers and may perform
all the duties and functions of the Chief Commissioner.
1976-77, c. 33, s. 25.
32.
(1) Such officers and employees as are necessary for
the proper conduct of the work of the Commission shall be appointed in
accordance with the Public Service Employment Act.
Contractual
assistance
(2) The Commission may, for specific projects, enter into
contracts for the services of persons having technical or specialized knowledge
of any matter relating to the work of the Commission to advise and assist the
Commission in the exercise of its powers or the performance of its duties and
functions under this Act, and those persons may be paid such remuneration and
expenses as may be prescribed by by-law of the Commission.
1976-77, c. 33, s. 26.
Compliance
with security requirements
33. (1)
Every member of the Commission and every person employed by the Commission who
is required to receive or obtain information relating to any investigation
under this Act shall, with respect to access to and the use of such
information, comply with any security requirements applicable to, and take any
oath of secrecy required to be taken by, individuals who normally have access
to and use of such information.
Disclosure
(2)
Every member of the Commission and every person employed by the Commission
shall take every reasonable precaution to avoid disclosing any matter the
disclosure of which
(a) might be injurious to
international relations, national defence or security or federal-provincial
relations;
(b) would disclose a
confidence of the Queen’s Privy Council for Canada;
(c) would be likely to
disclose information obtained or prepared by any investigative body of the
Government of Canada
(i) in relation to national security,
(ii) in the course of investigations pertaining to the
detection or suppression of crime generally, or
(iii) in the course of investigations pertaining to
particular offences against any Act of Parliament;
(d) might, in respect of
any individual under sentence for an offence against any Act of Parliament,
(i) lead to a serious disruption of that individual’s
institutional, parole or mandatory supervision program,
(ii) reveal information originally obtained on a
promise of confidentiality, express or implied, or
(iii) result in physical or other harm to that
individual or any other person;
(e) might impede the
functioning of a court of law, or a quasi-judicial board, commission or other
tribunal or any inquiry established under the Inquiries Act; or
(f) might disclose legal
opinions or advice provided to a government department or body or privileged
communications between lawyer and client in a matter of government business.
1976-77, c. 33, s. 27.
34. (1)
The head office of the Commission shall be in the National Capital Region
described in the schedule to the National Capital Act.
Other offices
(2) The Commission may establish such regional or branch
offices, not exceeding twelve, as it considers necessary to carry out its
powers, duties and functions under this Act.
Meetings
(3) The Commission may meet for the conduct of its affairs at
such times and in such places as the Chief Commissioner considers necessary or
desirable.
1976-77, c. 33, s.
28.
Majority is a decision of the Commission
35. A decision of the majority
of the members present at a meeting of the Commission, if the members present
constitute a quorum, is a decision of the Commission.
1976-77, c. 33, s.
28.
36. (1)
For the purposes of the affairs of the Commission, the Chief Commissioner may
establish divisions of the Commission and all or any of the powers, duties and
functions of the Commission, except the making of by-laws, may, as directed by
the Commission, be exercised or performed by all or any of those divisions.
Designation of presiding
officer
(2) Where a division of the Commission has been established
pursuant to subsection (1), the Chief Commissioner may designate one of the
members of the division to act as the presiding officer of the division.
1976-77, c. 33, s.
28.
37. (1)
The Commission may make by-laws for the conduct of its affairs and, without
limiting the generality of the foregoing, may make by-laws
(a) respecting the calling of meetings of the Commission or
any division thereof and the fixing of quorums for the purposes of those
meetings;
(b) respecting the conduct of business at meetings of the
Commission or any division thereof;
(c) respecting the establishment of committees of the
Commission, the delegation of powers, duties and functions to those committees
and the fixing of quorums for meetings thereof;
(d) respecting the procedure to be followed in dealing with
complaints under Part III that have arisen in Yukon, the Northwest Territories
or Nunavut;
(e) prescribing the rates of remuneration to be paid to
part-time members of the Commission and any person engaged under subsection
32(2); and
(f) prescribing reasonable rates of travel and living expenses
to be paid to members of the Commission and any person engaged under subsection
32(2).
(2) No by-law made under paragraph (1)(e)
or (f) has effect unless it is approved by the
Treasury Board.
R.S., 1985, c. H-6,
s. 37; 1993, c. 28, s. 78; 1998, c. 9, s. 21; 2002, c. 7, s. 126.
38. The full-time members of the
Commission are deemed to be persons employed in the public service for the
purposes of the Public Service Superannuation Act and to be employed in
the federal public administration for the purposes of the Government
Employees Compensation Act and any regulations made under section 9 of the Aeronautics
Act.
R.S., 1985, c. H-6,
s. 38; 2003, c. 22, s. 137(E).
Definition of "discriminatory
practice"
39. For the purposes of this
Part, a "discriminatory practice" means any practice that is a
discriminatory practice within the meaning of sections 5 to 14.1.
R.S., 1985, c. H-6,
s. 39; 1998, c. 9, s. 22.
40. (1)
Subject to subsections (5) and (7), any individual or group of individuals
having reasonable grounds for believing that a person is engaging or has
engaged in a discriminatory practice may file with the Commission a complaint
in a form acceptable to the Commission.
Consent of victim
(2) If a complaint is made by someone other than the individual
who is alleged to be the victim of the discriminatory practice to which the
complaint relates, the Commission may refuse to deal with the complaint unless
the alleged victim consents thereto.
Investigation commenced by
Commission
(3) Where the Commission has reasonable grounds for believing
that a person is engaging or has engaged in a discriminatory practice, the
Commission may initiate a complaint.
Limitation
(3.1) No complaint may be initiated under subsection (3) as a
result of information obtained by the Commission in the course of the
administration of the Employment Equity Act.
Complaints may be dealt with
together
(4) If complaints are filed jointly or separately by more than
one individual or group alleging that a particular person is engaging or has
engaged in a discriminatory practice or a series of similar discriminatory
practices and the Commission is satisfied that the complaints involve
substantially the same issues of fact and law, it may deal with the complaints
together under this Part and may request the Chairperson of the Tribunal to
institute a single inquiry into the complaints under section 49.
No complaints to be considered
in certain cases
(5) No complaint in relation to a discriminatory practice may be
dealt with by the Commission under this Part unless the act or omission that
constitutes the practice
(a) occurred in Canada and the victim of the practice was
at the time of the act or omission either lawfully present in Canada or, if
temporarily absent from Canada, entitled to return to Canada;
(b) occurred in Canada and was a discriminatory practice
within the meaning of section 5, 8, 10, 12 or 13 in respect of which no
particular individual is identifiable as the victim; or
(c) occurred outside Canada and the victim of the practice
was at the time of the act or omission a Canadian citizen or an individual
lawfully admitted to Canada for permanent residence.
(6) Where a question arises under subsection (5) as to the
status of an individual in relation to a complaint, the Commission shall refer
the question of status to the appropriate Minister and shall not proceed with
the complaint unless the question of status is resolved thereby in favour of
the complainant.
No complaints to be dealt with
in certain cases
(7) No complaint may be dealt with by the Commission pursuant to
subsection (1) that relates to the terms and conditions of a superannuation or
pension fund or plan, if the relief sought would require action to be taken
that would deprive any contributor to, participant in or member of, the fund or
plan of any rights acquired under the fund or plan before March 1, 1978 or of any
pension or other benefits accrued under the fund or plan to that date,
including
(a) any rights and benefits based on a particular age of
retirement; and
(b) any accrued survivor’s benefits.
R.S., 1985, c. H-6,
s. 40; R.S., 1985, c. 31 (1st Supp.), s. 62; 1995, c. 44, s. 47; 1998, c. 9, s.
23.
40.1 (1)
In this section, "designated groups"
«groupes désignés»
"designated
groups" has the meaning assigned in section 3 of the Employment Equity
Act;
"employer"
«employeur»
"employer"
means a person who or organization that discharges the obligations of an
employer under the Employment Equity Act.
(2) No complaint may be dealt with by the Commission pursuant to
section 40 where
(a) the complaint is made against an employer alleging that
the employer has engaged in a discriminatory practice set out in section 7 or
paragraph 10(a); and
(b) the complaint is based solely on statistical
information that purports to show that members of one or more designated groups
are underrepresented in the employer’s workforce.
1995, c. 44, s. 48.
Commission to deal with complaint
41. (1)
Subject to section 40, the Commission shall deal with any complaint filed with
it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to
which the complaint relates ought to exhaust grievance or review procedures
otherwise reasonably available;
(b) the complaint is one that could more appropriately be
dealt with, initially or completely, according to a procedure provided for
under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the
Commission;
(d) the complaint is trivial, frivolous, vexatious or made
in bad faith; or
(e) the complaint is based on acts or omissions the last of
which occurred more than one year, or such longer period of time as the
Commission considers appropriate in the circumstances, before receipt of the
complaint.
Commission may decline to deal with complaint
(2) The Commission may decline to deal with a complaint referred
to in paragraph 10(a) in respect of an employer
where it is of the opinion that the matter has been adequately dealt with in
the employer’s employment equity plan prepared pursuant to section 10 of the Employment
Equity Act.
Meaning of "employer"
(3) In this section, "employer" means a person who or
organization that discharges the obligations of an employer under the Employment
Equity Act.
R.S., 1985, c. H-6,
s. 41; 1994, c. 26, s. 34(F); 1995, c. 44, s. 49.
42. (1)
Subject to subsection (2), when the Commission decides not to deal with a
complaint, it shall send a written notice of its decision to the complainant
setting out the reason for its decision.
Attributing fault for delay
(2) Before deciding that a complaint will not be dealt with
because a procedure referred to in paragraph 41(a)
has not been exhausted, the Commission shall satisfy itself that the failure to
exhaust the procedure was attributable to the complainant and not to another.
1976-77, c. 33, s.
34.
43. (1)
The Commission may designate a person, in this Part referred to as an
"investigator", to investigate a complaint.
Manner of investigation
(2) An investigator shall investigate a complaint in a manner
authorized by regulations made pursuant to subsection (4).
Power to enter
(2.1) Subject to such limitations as the Governor in Council may
prescribe in the interests of national defence or security, an investigator
with a warrant issued under subsection (2.2) may, at any reasonable time, enter
and search any premises in order to carry out such inquiries as are reasonably
necessary for the investigation of a complaint.
Authority to issue warrant
(2.2) Where on ex parte application a judge of the Federal
Court is satisfied by information on oath that there are reasonable grounds to
believe that there is in any premises any evidence relevant to the
investigation of a complaint, the judge may issue a warrant under the judge’s
hand authorizing the investigator named therein to enter and search those
premises for any such evidence subject to such conditions as may be specified
in the warrant.
Use of force
(2.3) In executing a warrant issued under subsection (2.2), the
investigator named therein shall not use force unless the investigator is
accompanied by a peace officer and the use of force has been specifically
authorized in the warrant.
Production of books
(2.4) An investigator may require any individual found in any
premises entered pursuant to this section to produce for inspection or for the
purpose of obtaining copies thereof or extracts therefrom any books or other
documents containing any matter relevant to the investigation being conducted
by the investigator.
Obstruction
(3) No person shall obstruct an investigator in the
investigation of a complaint.
Regulations
(4) The Governor in Council may make regulations
(a) prescribing procedures to be followed by investigators;
(b) authorizing the manner in which complaints are to be
investigated pursuant to this Part; and
(c) prescribing limitations for the purpose of subsection
(2.1).
R.S., 1985, c. H-6,
s. 43; R.S., 1985, c. 31 (1st Supp.), s. 63.
44. (1)
An investigator shall, as soon as possible after the conclusion of an
investigation, submit to the Commission a report of the findings of the
investigation.
Action on receipt of report
(2) If, on receipt of a report referred to in subsection (1),
the Commission is satisfied
(a) that the complainant ought to exhaust grievance or
review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt
with, initially or completely, by means of a procedure provided for under an
Act of Parliament other than this Act,
it shall refer the complainant to the appropriate
authority.
(3) On receipt of a report referred to in subsection (1), the
Commission
(a) may request the Chairperson of the Tribunal to
institute an inquiry under section 49 into the complaint to which the report
relates if the Commission is satisfied
(i) that,
having regard to all the circumstances of the complaint, an inquiry into the
complaint is warranted, and
(ii) that the
complaint to which the report relates should not be referred pursuant to
subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates
if it is satisfied
(i) that,
having regard to all the circumstances of the complaint, an inquiry into the
complaint is not warranted, or
(ii) that the
complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
(4) After receipt of a report referred to in subsection (1), the
Commission
(a) shall notify in writing the complainant and the person
against whom the complaint was made of its action under subsection (2) or (3);
and
(b) may, in such manner as it sees fit, notify any other
person whom it considers necessary to notify of its action under subsection (2)
or (3).
R.S., 1985, c. H-6,
s. 44; R.S., 1985, c. 31 (1st Supp.), s. 64; 1998, c. 9, s. 24.
Definition of "Review Committee"
45. (1)
In this section and section 46, "Review Committee" has the meaning
assigned to that expression by the Canadian Security Intelligence Service
Act.
Complaint involving security
considerations
(2) When, at any stage after the filing of a complaint and
before the commencement of a hearing before a member or panel in respect of the
complaint, the Commission receives written notice from a minister of the Crown
that the practice to which the complaint relates was based on considerations
relating to the security of Canada, the Commission may
(a) dismiss the complaint; or
(b) refer the matter to the Review Committee.
(3) After receipt of a notice mentioned in subsection (2), the
Commission
(a) shall notify in writing the complainant and the person
against whom the complaint was made of its action under paragraph (2)(a) or (b); and
(b) may, in such manner as it sees fit, notify any other
person whom it considers necessary to notify of its action under paragraph 2(a) or (b).
(4) Where the Commission has referred the matter to the Review
Committee pursuant to paragraph (2)(b), it shall not
deal with the complaint until the Review Committee has, pursuant to subsection
46(1), provided it with a report in relation to the matter.
Application of the Canadian
Security Intelligence Service Act
(5) Where a matter is referred to the Review Committee pursuant
to paragraph (2)(b), subsections 39(2) and (3) and
sections 43, 44 and 47 to 51 of the Canadian Security Intelligence Service
Act apply, with such modifications as the circumstances require, to the
matter as if the referral were a complaint made pursuant to section 42 of that
Act except that a reference in any of those provisions to "deputy
head" shall be read as a reference to the minister referred to in
subsection (2).
Statement to be sent to person
affected
(6) The Review Committee shall, as soon as practicable after a
matter in relation to a complaint is referred to it pursuant to paragraph (2)(b), send to the complainant a statement summarizing such
information available to it as will enable the complainant to be as fully
informed as possible of the circumstances giving rise to the referral.
R.S., 1985, c. H-6,
s. 45; 1998, c. 9, s. 25.
46. (1)
On completion of its investigation under section 45, the Review Committee
shall, not later than forty-five days after the matter is referred to it pursuant
to paragraph 45(2)(b), provide the Commission, the
minister referred to in subsection 45(2) and the complainant with a report
containing the findings of the Committee.
Action on receipt of report
(2) After considering a report provided pursuant to subsection
(1), the Commission
(a) may dismiss the complaint or, where it does not do so,
shall proceed to deal with the complaint pursuant to this Part; and
(b) shall notify, in writing, the complainant and the
person against whom the complaint was made of its action under paragraph (a) and may, in such manner as it sees fit, notify any
other person whom it considers necessary to notify of that action.
1984, c. 21, s. 73.
47. (1)
Subject to subsection (2), the Commission may, on the filing of a complaint, or
if the complaint has not been
(a) settled in the course of investigation by an
investigator,
(b) referred or dismissed under subsection 44(2) or (3) or
paragraph 45(2)(a) or 46(2)(a),
or
(c) settled after receipt by the parties of the notice
referred to in subsection 44(4),
appoint a person, in this Part referred to as a
"conciliator", for the purpose of attempting to bring about a
settlement of the complaint.
(2) A person is not eligible to act as a conciliator in respect
of a complaint if that person has already acted as an investigator in respect
of that complaint.
Confidentiality
(3) Any information received by a conciliator in the course of
attempting to reach a settlement of a complaint is confidential and may not be
disclosed except with the consent of the person who gave the information.
1976-77, c. 33, s.
37; 1984, c. 21, s. 74.
Referral of a settlement to Commission
48. (1)
When, at any stage after the filing of a complaint and before the commencement
of a hearing before a Human Rights Tribunal in respect thereof, a settlement is
agreed on by the parties, the terms of the settlement shall be referred to the
Commission for approval or rejection.
Certificate
(2) If the Commission approves or rejects the terms of a
settlement referred to in subsection (1), it shall so certify and notify the
parties.
Enforcement of settlement
(3) A settlement approved under this section may, for the
purpose of enforcement, be made an order of the Federal Court on application to
that Court by the Commission or a party to the settlement.
R.S., 1985, c. H-6,
s. 48; 1998, c. 9, s. 26.
48.1 (1)
There is hereby established a tribunal to be known as the Canadian Human Rights
Tribunal consisting, subject to subsection (6), of a maximum of fifteen
members, including a Chairperson and a Vice-chairperson, as may be appointed by
the Governor in Council.
Qualifications for appointment
of members
(2) Persons appointed as members of the Tribunal must have
experience, expertise and interest in, and sensitivity to, human rights.
Legal qualifications
(3) The Chairperson and Vice-chairperson must be members in good
standing of the bar of a province or the Chambre des notaires du Québec for at
least ten years and at least two of the other members of the Tribunal must be
members in good standing of the bar of a province or the Chambre des notaires
du Québec.
Regional representation
(4) Appointments are to be made having regard to the need for
regional representation in the membership of the Tribunal.
Appointment of temporary
members — incapacity
(5) If a member is absent or incapacitated, the Governor in
Council may, despite subsection (1), appoint a temporary substitute member to
act during the absence or incapacity.
Appointment of temporary
members — workload
(6) The Governor in Council may appoint temporary members to the
Tribunal for a term of not more than three years whenever, in the opinion of
the Governor in Council, the workload of the Tribunal so requires.
R.S., 1985, c. 31
(1st Supp.), s. 65; 1998, c. 9, s. 27.
48.2 (1)
The Chairperson and Vice-chairperson are to be appointed to hold office during
good behaviour for terms of not more than seven years, and the other members
are to be appointed to hold office during good behaviour for terms of not more
than five years, but the Chairperson may be removed from office by the Governor
in Council for cause and the Vice-chairperson and the other members may be
subject to remedial or disciplinary measures in accordance with section 48.3.
Acting after expiration of
appointment
(2) A member whose appointment expires may, with the approval of
the Chairperson, conclude any inquiry that the member has begun, and a person
performing duties under this subsection is deemed to be a part-time member for
the purposes of sections 48.3, 48.6, 50 and 52 to 58.
Reappointment
(3) The Chairperson, Vice-chairperson or any other member whose
term has expired is eligible for reappointment in the same or any other
capacity.
R.S., 1985, c. 31
(1st Supp.), s. 65; 1998, c. 9, s. 27.
Remedial and disciplinary measures
48.3 (1)
The Chairperson of the Tribunal may request the Minister of Justice to decide
whether a member should be subject to remedial or disciplinary measures for any
reason set out in paragraphs (13)(a) to (d).
Measures
(2) On receipt of the request, the Minister may take one or more
of the following measures:
(a) obtain, in an informal and expeditious manner, any
information that the Minister considers necessary;
(b) refer the matter for mediation, if the Minister is
satisfied that the issues in relation to the request may be appropriately
resolved by mediation;
(c) request of the Governor in Council that an inquiry be
held under subsection (3); or
(d) advise the Chairperson that the Minister considers that
it is not necessary to take further measures under this Act.
(3) On receipt of a request referred to in paragraph (2)(c), the Governor in Council may, on the recommendation of
the Minister, appoint a judge of a superior court to conduct the inquiry.
Powers
(4) The judge has all the powers, rights and privileges that are
vested in a superior court, including the power to
(a) issue a summons requiring any person to appear at the
time and place specified in the summons in order to testify about all matters
within the person’s knowledge relative to the inquiry and to produce any
document or thing relative to the inquiry that the person has or controls; and
(b) administer oaths and examine any person on oath.
(5) The judge may engage the services of counsel and other
persons having technical or specialized knowledge to assist the judge in
conducting the inquiry, and may establish the terms and conditions of their
engagement and, with the approval of the Treasury Board, fix and pay their
remuneration and expenses.
Inquiry in public
(6) Subject to subsections (7) and (8), an inquiry shall be
conducted in public.
Confidentiality of inquiry
(7) The judge may, on application, take any appropriate measures
and make any order that the judge considers necessary to ensure the
confidentiality of the inquiry if, after having considered all available
alternative measures, the judge is satisfied that
(a) there is a real and substantial risk that matters
involving public security will be disclosed;
(b) there is a real and substantial risk to the fairness of
the inquiry such that the need to prevent disclosure outweighs the societal
interest that the inquiry be conducted in public; or
(c) there is a serious possibility that the life, liberty
or security of a person will be endangered.
Confidentiality of application
(8) If the judge considers it appropriate, the judge may take
any measures and make any order that the judge considers necessary to ensure
the confidentiality of a hearing held in respect of an application under
subsection (7).
Rules of evidence
(9) In conducting an inquiry, the judge is not bound by any
legal or technical rules of evidence and may receive, and base a decision on,
evidence presented in the proceedings that the judge considers credible or
trustworthy in the circumstances of the case.
Intervenors
(10) An interested party may, with leave of the judge, intervene
in an inquiry on any terms and conditions that the judge considers appropriate.
Right to be heard
(11) The member who is the subject of the inquiry shall be given
reasonable notice of the subject-matter of the inquiry and of the time and
place of any hearing and shall be given an opportunity, in person or by
counsel, to be heard at the hearing, to cross-examine witnesses and to present
evidence.
Report to Minister
(12) After an inquiry has been completed, the judge shall submit
a report containing the judge’s findings and recommendations, if any, to the
Minister.
Recommendations
(13) The judge may, in the report, recommend that the member be
suspended without pay or removed from office or that any other disciplinary
measure or any remedial measure be taken if, in the judge’s opinion, the member
(a) has become incapacitated from the proper execution of
that office by reason of infirmity;
(b) has been guilty of misconduct;
(c) has failed in the proper execution of that office; or
(d) has been placed, by conduct or otherwise, in a position
that is incompatible with the due execution of that office.
Transmission of report to Governor in Council
(14) When the Minister receives the report, the Minister shall
send it to the Governor in Council who may, if the Governor in Council
considers it appropriate, suspend the member without pay, remove the member
from office or impose any other disciplinary measure or any remedial measure.
R.S., 1985, c. 31
(1st Supp.), s. 65; 1998, c. 9, s. 27.
48.4 (1)
The Chairperson and Vice-chairperson are to be appointed as full-time members
of the Tribunal, and the other members are to be appointed as either full-time
or part-time members.
Functions of Chairperson
(2) The Chairperson is the chief executive officer of the
Tribunal and has supervision over and direction of its work, including the
allocation of work among the members and the management of the Tribunal’s
internal affairs.
Functions of Vice-chairperson
(3) The Vice-chairperson shall assist the Chairperson and shall
perform the functions of the Chairperson if the Chairperson is absent or unable
to act or the office of Chairperson is vacant.
Acting Chairperson
(4) The Governor in Council may authorize a member of the
Tribunal to perform the functions of the Chairperson on a temporary basis if
the Chairperson and Vice-chairperson are absent or unable to act or if both of
those offices are vacant.
R.S., 1985, c. 31
(1st Supp.), s. 65; 1998, c. 9, s. 27.
48.5 The full-time members of the
Tribunal shall reside in the National Capital Region, as described in the
schedule to the National Capital Act, or within forty kilometres of that
Region.
R.S., 1985, c. 31
(1st Supp.), s. 65; 1998, c. 9, s. 27.
48.6 (1)
The members of the Tribunal shall be paid such remuneration as may be fixed by
the Governor in Council.
Travel expenses
(2) Members are entitled to be paid travel and living expenses
incurred in carrying out duties as members of the Tribunal while absent from
their place of residence, but the expenses must not exceed the maximum limits
authorized by the Treasury Board directives for employees of the Government of
Canada.
Deemed employment in federal
public administration
(3) Members are deemed to be employed in the federal public
administration for the purposes of the Government Employees Compensation Act
and any regulations made under section 9 of the Aeronautics Act.
1998, c. 9, s. 27;
2003, c. 22, s. 224(E).
48.7 The head office of the
Tribunal shall be in the National Capital Region, as described in the schedule
to the National Capital Act.
1998, c. 9, s. 27.
48.8 (1)
The registrar and the other officers and employees necessary for the proper
conduct of the work of the Tribunal shall be appointed in accordance with the Public
Service Employment Act.
Technical experts
(2) The Chairperson may engage persons having technical or
special knowledge to assist or advise members of the Tribunal in any matter and
may, with the approval of the Treasury Board, fix their remuneration and
reimburse their expenses in the same manner as the expenses of members of the
Tribunal are reimbursed.
1998, c. 9, s. 27.
48.9 (1)
Proceedings before the Tribunal shall be conducted as informally and
expeditiously as the requirements of natural justice and the rules of procedure
allow.
Tribunal rules of procedure
(2) The Chairperson may make rules of procedure governing the
practice and procedure before the Tribunal, including, but not limited to,
rules governing
(a) the giving of notices to parties;
(b) the addition of parties and interested persons to the
proceedings;
(c) the summoning of witnesses;
(d) the production and service of documents;
(e) discovery proceedings;
(f) pre-hearing conferences;
(g) the introduction of evidence;
(h) time limits within which hearings must be held and
decisions must be made; and
(i) awards of interest.
(3) Subject to subsection (4), a copy of each rule that the
Tribunal proposes to make shall be published in the Canada Gazette and a
reasonable opportunity shall be given to interested persons to make
representations with respect to it.
Exception
(4) A proposed rule need not be published more than once,
whether or not it has been amended as a result of any representations.
1998, c. 9, s. 27.
49. (1)
At any stage after the filing of a complaint, the Commission may request the
Chairperson of the Tribunal to institute an inquiry into the complaint if the
Commission is satisfied that, having regard to all the circumstances of the
complaint, an inquiry is warranted.
Chairperson to institute
inquiry
(2) On receipt of a request, the Chairperson shall institute an
inquiry by assigning a member of the Tribunal to inquire into the complaint,
but the Chairperson may assign a panel of three members if he or she considers
that the complexity of the complaint requires the inquiry to be conducted by
three members.
Chair of panel
(3) If a panel of three members has been assigned to inquire
into the complaint, the Chairperson shall designate one of them to chair the
inquiry, but the Chairperson shall chair the inquiry if he or she is a member
of the panel.
Copy of rules to parties
(4) The Chairperson shall make a copy of the rules of procedure
available to each party to the complaint.
Qualification of member
(5) If the complaint 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 inquire into the complaint 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.
Question raised subsequently
(6) If a question as described in subsection (5) arises after a
member or panel has been assigned and the requirements of that subsection are
not met, the inquiry shall nevertheless proceed with the member or panel as
designated.
R.S., 1985, c. H-6,
s. 49; R.S., 1985, c. 31 (1st Supp.), s. 66; 1998, c. 9, s. 27.
50. (1)
After due notice to the Commission, the complainant, the person against whom
the complaint was made and, at the discretion of the member or panel conducting
the inquiry, any other interested party, the member or panel shall inquire into
the complaint and shall give all parties to whom notice has been given a full
and ample opportunity, in person or through counsel, to appear at the inquiry,
present evidence and make representations.
Power to determine questions of
law or fact
(2) In the course of hearing and determining any matter under
inquiry, the member or panel may decide all questions of law or fact necessary
to determining the matter.
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 complaint;
(b) administer oaths;
(c) subject to subsections (4) and (5), 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; and
(e) decide any procedural or evidentiary question arising
during the hearing.
Limitation in relation to evidence
(4) The member or panel may not admit or accept as evidence anything
that would be inadmissible in a court by reason of any privilege under the law
of evidence.
Conciliators as witnesses
(5) A conciliator appointed to settle the complaint is not a
competent or compellable witness at the hearing.
Witness fees
(6) 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.
R.S., 1985, c. H-6,
s. 50; 1998, c. 9, s. 27.
Duty of Commission on appearing
51. In appearing at a hearing,
presenting evidence and making representations, the Commission shall adopt such
position as, in its opinion, is in the public interest having regard to the
nature of the complaint.
R.S., 1985, c. H-6,
s. 51; 1998, c. 9, s. 27.
Hearing in public subject to confidentiality
order
52. (1)
An inquiry shall be conducted in public, but the member or panel conducting the
inquiry may, on application, take any measures and make any order that the
member or panel considers necessary to ensure the confidentiality of the
inquiry if the member or panel is satisfied, during the inquiry or as a result
of the inquiry being conducted in public, that
(a) there is a real and substantial risk that matters
involving public security will be disclosed;
(b) there is a real and substantial risk to the fairness of
the inquiry such that the need to prevent disclosure outweighs the societal
interest that the inquiry be conducted in public;
(c) there is a real and substantial risk that the
disclosure of personal or other matters will cause undue hardship to the
persons involved such that the need to prevent disclosure outweighs the
societal interest that the inquiry be conducted in public; or
(d) there is a serious possibility that the life, liberty
or security of a person will be endangered.
Confidentiality of application
(2) If the member or panel considers it appropriate, the member
or panel may take any measures and make any order that the member or panel
considers necessary to ensure the confidentiality of a hearing held in respect
of an application under subsection (1).
R.S., 1985, c. H-6,
s. 52; 1998, c. 9, s. 27.
53. (1)
At the conclusion of an inquiry, the member or panel conducting the inquiry
shall dismiss the complaint if the member or panel finds that the complaint is
not substantiated.
Complaint substantiated
(2) If at the conclusion of the inquiry the member or panel
finds that the complaint is substantiated, the member or panel may, subject to
section 54, make an order against the person found to be engaging or to have
engaged in the discriminatory practice and include in the order any of the
following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and
take measures, in consultation with the Commission on the general purposes of
the measures, to redress the practice or to prevent the same or a similar
practice from occurring in future, including
(i) the
adoption of a special program, plan or arrangement referred to in subsection
16(1), or
(ii) making an
application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the
discriminatory practice, on the first reasonable occasion, the rights,
opportunities or privileges that are being or were denied the victim as a
result of the practice;
(c) that the person compensate the victim for any or all of
the wages that the victim was deprived of and for any expenses incurred by the
victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all
additional costs of obtaining alternative goods, services, facilities or
accommodation and for any expenses incurred by the victim as a result of the
discriminatory practice; and
(e) that the person compensate the victim, by an amount not
exceeding twenty thousand dollars, for any pain and suffering that the victim
experienced as a result of the discriminatory practice.
(3) In addition to any order under subsection (2), the member or
panel may order the person to pay such compensation not exceeding twenty
thousand dollars to the victim as the member or panel may determine if the
member or panel finds that the person is engaging or has engaged in the
discriminatory practice wilfully or recklessly.
Interest
(4) Subject to the rules made under section 48.9, an order to
pay compensation under this section may include an award of interest at a rate
and for a period that the member or panel considers appropriate.
R.S., 1985, c. H-6,
s. 53; 1998, c. 9, s. 27.
Orders relating to hate messages
54. (1)
If a member or panel finds that a complaint related to a discriminatory
practice described in section 13 is substantiated, the member or panel may make
only one or more of the following orders:
(a) an order containing terms referred to in paragraph
53(2)(a);
(b) an order under subsection 53(3) to compensate a victim
specifically identified in the communication that constituted the
discriminatory practice; and
(c) an order to pay a penalty of not more than ten thousand
dollars.
(1.1) In deciding whether to order the person to pay the penalty,
the member or panel shall take into account the following factors:
(a) the nature, circumstances, extent and gravity of the
discriminatory practice; and
(b) the wilfulness or intent of the person who engaged in
the discriminatory practice, any prior discriminatory practices that the person
has engaged in and the person’s ability to pay the penalty.
(2) No order under subsection 53(2) may contain a term
(a) requiring the removal of an individual from a position
if that individual accepted employment in that position in good faith; or
(b) requiring the expulsion of an occupant from any
premises or accommodation, if that occupant obtained such premises or
accommodation in good faith.
R.S., 1985, c. H-6,
s. 54; 1998, c. 9, s. 28.
54.1 (1)
In this section, "designated groups"
«groupes désignés»
"designated
groups" has the meaning assigned in section 3 of the Employment Equity
Act; and
"employer"
«employeur»
"employer"
means a person who or organization that discharges the obligations of an
employer under the Employment Equity Act.
Limitation of order re employment equity
(2) Where a Tribunal finds that a complaint against an employer
is substantiated, it may not make an order pursuant to subparagraph 53(2)(a)(i) requiring the employer to adopt a special program,
plan or arrangement containing
(a) positive policies and practices designed to ensure that
members of designated groups achieve increased representation in the employer’s
workforce; or
(b) goals and timetables for achieving that increased
representation.
(3) For greater certainty, subsection (2) shall not be construed
as limiting the power of a Tribunal, under paragraph 53(2)(a),
to make an order requiring an employer to cease or otherwise correct a
discriminatory practice.
1995, c. 44, s. 50.
55. and 56. [Repealed, 1998, c. 9, s.
29]
57. An order under section 53 or
54 may, for the purpose of enforcement, be made an order of the Federal Court
by following the usual practice and procedure or by the Commission filing in
the Registry of the Court a copy of the order certified to be a true copy.
R.S., 1985, c. H-6,
s. 57; 1998, c. 9, s. 29.
Application respecting disclosure of
information
58. (1)
Subject to subsection (2), if an investigator or a member or panel of the
Tribunal requires the disclosure of any information and a minister of the Crown
or any other interested person objects to its disclosure, the Commission may
apply to the Federal Court for a determination of the matter and the Court may
take any action that it considers appropriate.
Canada Evidence Act
(2) An objection to disclosure shall be determined in accordance
with the Canada Evidence Act if
(a) under subsection (1), a minister of the Crown or other
official objects to the disclosure in accordance with sections 37 to 37.3 or
section 39 of that Act;
(b) within 90 days after the day on which the Commission
applies to the Federal Court, a minister of the Crown or other official objects
to the disclosure in accordance with sections 37 to 37.3 or section 39 of that
Act; or
(c) at any time, an objection to the disclosure is made, or
a certificate is issued, in accordance with sections 38 to 38.13 of that Act.
R.S., 1985, c. H-6,
s. 58; 1998, c. 9, s. 30; 2001, c. 41, s. 45.
Intimidation or discrimination
59. No person shall threaten,
intimidate or discriminate against an individual because that individual has
made a complaint or given evidence or assisted in any way in respect of the initiation
or prosecution of a complaint or other proceeding under this Part, or because
that individual proposes to do so.
1976-77, c. 33, s.
45.
60. (1)
Every person is guilty of an offence who
(a) [Repealed, 1998, c. 9, s. 31]
(b) obstructs a member or panel in carrying out its
functions under this Part; or
(c) contravenes subsection 11(6) or 43(3) or section 59.
(2) A person who is guilty of an offence under subsection (1) is
liable on summary conviction to a fine not exceeding $50,000.
Prosecution of employer or
employee organization
(3) A prosecution for an offence under this section may be
brought against an employer organization or employee organization and in the
name of the organization and, for the purpose of the prosecution, the
organization is deemed to be a person and any act or thing done or omitted by
an officer or agent of the organization within the scope of their authority to
act on behalf of the organization is deemed to be an act or thing done or
omitted by the organization.
Consent of Attorney General
(4) A prosecution for an offence under this section may not be
instituted except by or with the consent of the Attorney General of Canada.
Limitation period
(5) A prosecution for an offence under this section may not be
instituted more than one year after the subject-matter of the proceedings
arose.
R.S., 1985, c. H-6,
s. 60; 1998, c. 9, s. 31.
61. (1)
The Commission shall, within three months after December 31 in each year,
prepare and submit to Parliament a report on the activities of the Commission
under this Part and Part II for that year, including references to and comments
on any matter referred to in paragraph 27(1)(e) or (g) that it considers appropriate.
Special reports
(2) The Commission may, at any time, prepare and submit to
Parliament a special report referring to and commenting on any matter within
the scope of its powers, duties and functions if, in its opinion, the matter is
of such urgency or importance that a report on it should not be deferred until
the time provided for submission of its next annual report under subsection
(1).
Annual report of Tribunal
(3) The Tribunal shall, within three months after December 31 in
each year, prepare and submit to Parliament a report on its activities under
this Act for that year.
Transmission of report
(4) Every report under this section shall be submitted by being
transmitted to the Speaker of the Senate and to the Speaker of the House of
Commons for tabling in those Houses.
R.S., 1985, c. H-6,
s. 61; 1998, c. 9, s. 32.
61.1 The Minister of Justice is
responsible for this Act, and the powers of the Governor in Council to make
regulations under this Act, with the exception of section 29, are exercisable
on the recommendation of that Minister.
1998, c. 9, s. 32.
62. (1)
This Part and Parts I and II do not apply to or in respect of any
superannuation or pension fund or plan established by an Act of Parliament
enacted before March 1, 1978.
Review of Acts referred to in
subsection (1)
(2) The Commission shall keep under review those Acts of
Parliament enacted before March 1, 1978 by which any superannuation or pension
fund or plan is established and, where the Commission deems it to be
appropriate, it may include in a report mentioned in section 61 reference to
and comment on any provision of any of those Acts that in its opinion is
inconsistent with the principle described in section 2.
1976-77, c. 33, s.
48.
Application in the territories
63. Where a complaint under this
Part relates to an act or omission that occurred in Yukon, the Northwest
Territories or Nunavut, it may not be dealt with under this Part unless the act
or omission could be the subject of a complaint under this Part had it occurred
in a province.
R.S., 1985, c. H-6,
s. 63; 1993, c. 28, s. 78; 2002, c. 7, s. 127.
Canadian Forces and Royal Canadian Mounted
Police
64. For the purposes of this
Part and Parts I and II, members of the Canadian Forces and the Royal Canadian
Mounted Police are deemed to be employed by the Crown.
1976-77, c. 33, s.
48.
65. (1)
Subject to subsection (2), any act or omission committed by an officer, a
director, an employee or an agent of any person, association or organization in
the course of the employment of the officer, director, employee or agent shall,
for the purposes of this Act, be deemed to be an act or omission committed by
that person, association or organization.
Exculpation
(2) An act or omission shall not, by virtue of subsection (1),
be deemed to be an act or omission committed by a person, association or organization
if it is established that the person, association or organization did not
consent to the commission of the act or omission and exercised all due
diligence to prevent the act or omission from being committed and,
subsequently, to mitigate or avoid the effect thereof.
1980-81-82-83, c.
143, s. 23.
66. (1)
This Act is binding on Her Majesty in right of Canada, except in matters
respecting the Yukon Government or the Government of the Northwest Territories
or Nunavut.
(2) [Repealed,
2002, c. 7, s. 128]
Idem
*(3) The exception referred to in subsection (1) shall come into
operation in respect of the Government of the Northwest Territories on a day to
be fixed by proclamation.
* [Note: The
exception shall come into operation when all the provisions of the Human
Rights Act, S.N.W.T. 2002, c. 18 and An Act to Amend the Public Service
Act, S.N.W.T. 2003, c. 16 are in force, see
SI/2004-63; all the aforementioned provisions in force July 1, 2004.]
(4) The exception referred to in subsection (1) shall come into
operation in respect of the Government of Nunavut on a day to be fixed by order
of the Governor in Council.
R.S., 1985, c. H-6,
s. 66; 1993, c. 28, s. 78; 2002, c. 7, s. 128.
67. Nothing in this Act affects
any provision of the Indian Act or any provision made under or pursuant
to that Act.
1976-77, c. 33, s.
63.
RELATED PROVISIONS
-- R.S., 1985, c. 31 (1st Supp.), s. 68:
68. Every Tribunal appointed
prior to the coming into force of this Act shall continue to act as though this
Part had not come into force.
-- 1998, c. 9, ss. 33, 34:
Definition of
"commencement day"
33. (1) In
this section, "commencement day" means the day on which this section
comes into force.
Members cease to hold office
(2) Subject to subsections (3), (4) and (5), the members
of the Human Rights Tribunal Panel cease to hold office on the commencement
day.
Continuing jurisdiction of
Human Rights Tribunal
(3) The members of any Human Rights Tribunal appointed
under the Canadian Human Rights Act before the commencement day have
jurisdiction with respect to any inquiry into the complaint in respect of which
the Human Rights Tribunal was appointed.
Continuing jurisdiction of
Review Tribunal
(4) The members of any Review Tribunal constituted under
the Canadian Human Rights Act before the commencement day have
jurisdiction with respect to any appeal against a decision or order of a Human
Rights Tribunal.
Continuing jurisdiction of
Employment Equity Review Tribunal
(5) The members of any Employment Equity Review Tribunal
established under section 28 or 39 of the Employment Equity Act before
the commencement day have jurisdiction over any matter in respect of which the
Tribunal was established.
Supervision by Chairperson of
Canadian Human Rights Tribunal
(6) The Chairperson of the Canadian Human Rights Tribunal
has supervision over and direction of the work of any Human Rights Tribunal,
Review Tribunal or Employment Equity Review Tribunal referred to in subsection
(3), (4) or (5).
Remuneration
(7) Each member of a Human Rights Tribunal, Review
Tribunal or Employment Equity Review Tribunal referred to in subsection (3),
(4) or (5), other than such a member who is appointed as a full-time member of
the Canadian Human Rights Tribunal, shall be paid such remuneration as may be
fixed by the Governor in Council.
Travel expenses
(8) Each member of a Human Rights Tribunal, Review
Tribunal or Employment Equity Review Tribunal referred to in subsection (3),
(4) or (5) is entitled to be paid travel and living expenses incurred in
carrying out duties as a member of that Tribunal while absent from their place
of residence, but the expenses must not exceed the maximum limits authorized by
Treasury Board directive for employees of the Government of Canada.
-- 1998, c. 9, ss. 33, 34:
Commission employees serving the Human Rights Tribunal Panel
34. (1) This Act does not affect the status of an
employee who, immediately before the coming into force of this subsection,
occupied a position in the Canadian Human Rights Commission and performed
services on a full-time basis for the Human Rights Tribunal Panel, except that
the employee shall, on the coming into force of this subsection, occupy that position
in the Canadian Human Rights Tribunal.
Definition of
"employee"
(2) In this section, "employee" has the same
meaning as in subsection 2(1) of the Public Service Employment Act.