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Statutes of Newfoundland and Labrador 2010


CHAPTER H-13.1

AN ACT RESPECTING HUMAN RIGHTS

(Assented to June 24, 2010)

Analysis


        1.   Short title

              PART I
INTERPRETATION AND APPLICATION

        2.   Definitions

        3.   Crown bound

        4.   Interpretation

        5.   Application of Act

        6.   Non-application

        7.   Labrador Inuit rights

        8.   Special programs

              PART II
PROHIBITIONS

        9.   Prohibited grounds of discrimination

      10.   Intent

      11.   Goods, services, accommodation, and facilities

      12.   Right to occupy commercial and dwelling units

      13.   Harassment of occupant prohibited

      14.   Discrimination in employment

      15.   Discrimination re: attachment of wages, etc.

      16.   Equal pay for same or similar work

      17.   Harassment in establishment prohibited

      18.   Sexual solicitation prohibited

      19.   Discriminatory publications

      20.   Protection of complainants and others

      21.   Discrimination prohibited in contracts

              PART III
THE COMMISSION

      22.   Commission

      23.   Functions of commission

      24.   Executive director

              PART IV
COMPLAINTS

      25.   Complaints

      26.   Settlement of a complaint

      27.   Investigation of a complaint

      28.   Entering and inspecting building, receptacle or place

      29.   Issuance of warrant - necessary for purposes of investigation

      30.   Definition of "proceeding"

      31.   Discretion to defer

      32.   Dismissal of complaint

      33.   Appeal of dismissal

      34.   Referral to a board of inquiry

              PART V
ADJUDICATION

      35.   Reference to board of inquiry

      36.   Boards of inquiry

      37.   Parties to proceeding

      38.   Procedure and powers of board

      39.   Orders of board

      40.   Appointment continued

      41.   Entry of order

      42.   Appeal of board decision

      43.   Privileged information and protection from prosecution

      44.   Publication of order

              PART VI
GENERAL

      45.   Offence

      46.   Complaint to Provincial Court

      47.   Injunction

      48.   Prosecution

      49.   Technical defect

      50.   Regulations

      51.   RSNL1990 cH-14 Rep.


WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

AND WHEREAS it is recognized in the province that every individual is free and equal in dignity and rights without regard to his or her race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, marital status, family status, source of income and political opinion;

AND WHEREAS it is public policy in the province to recognize the dignity and worth of every person to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the province;

AND WHEREAS it is recognized that every person, having duties to others and to the community to which he or she belongs, is responsible to strive for the promotion and observance of the rights recognized in this Act;

THEREFORE BE IT ENACTED by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Human Rights Act, 2010.

PART I
INTERPRETATION AND APPLICATION

Definitions

        2. In this Act

             (a)  "commercial unit" means a building or other structure, or part of a building or structure, that is used or occupied or is intended, arranged or designed to be used or occupied for manufacturing, selling, reselling, processing, reprocessing, displaying, storing, handling, garaging or distributing personal property, or a space that is used or occupied or is intended, arranged or designed to be used or occupied as a separate business or professional unit or office in a building or other structure or in a part of a building or structure;

             (b)  "commission" means the Human Rights Commission referred to in section 22;

          (c)  "disability" means one or more of the following conditions:

                      (i)  a degree of physical disability,

                     (ii)  a condition of mental impairment or a developmental disability,

                    (iii)  a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or language, and

                    (iv)  a mental disorder;

             (d)  "discrimination" includes the conduct described in subsections 11(1) and (2) and 12(1), section 13, subsections 14(1), (4) and (5) and 16(1), sections 17 and 18, subsection 19(1) and section 20;

             (e)  "employers' organization" means an organization of employers formed for purposes that include the regulation of relations between employers and employees;

              (f)  "employment agency" includes a person who undertakes with or without compensation to obtain employees for employers and a person who undertakes with or without compensation to obtain employment for persons;

             (g)  "establishment" means a place of business or the place where an undertaking or a part of an undertaking is carried on;

             (h)  "executive director" means the executive director referred to in section 24;

              (i)  "family status" means the status of being in a parent and child relationship and, for the purpose of this paragraph, "child" includes a stepchild and an adopted child and "parent" includes a step-parent and an adoptive parent;

              (j)  "harass" means to engage in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

             (k)  "marital status" means the status of being single, engaged to be married, married, separated, divorced, widowed or 2 people living in the same household as if they were married;

              (l)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

            (m)  "pay" means remuneration in any form;

             (n)  "person", in addition to its meaning in the Interpretation Act, includes an employment agency, a trade union and an employers' organization;

             (o)  "self-contained dwelling unit" means a dwelling house, apartment or other similar place of residence that is used or occupied, or is intended, arranged or designed to be used or occupied, as separate accommodation for sleeping and eating;

             (p)  "source of income" means the receipt of income or employment support under the Income and Employment Support Act; and

             (q)  "trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers.

Crown bound

        3. The prohibitions contained in this Act apply to and bind the Crown and an agency of the Crown.

Interpretation

        4. A provision of the

             (a)  Voisey’s Bay Inuit Impacts and Benefits Agreement dated July 29, 2002, between

                      (i)  Labrador Inuit Association, a corporation incorporated under the laws of Newfoundland and Labrador, and

                     (ii)  Voisey’s Bay Nickel Company Limited, a corporation incorporated under the laws of Newfoundland and Labrador, and

                    (iii)  Inco Limited, a corporation incorporated under the laws of Canada; and

             (b)  Voisey’s Bay Innu Impacts and Benefits Agreement dated July 29, 2002, between

                      (i)  Innu Nation, a corporation incorporated under the laws of Canada, and

                     (ii)  Voisey’s Bay Nickel Company Limited, a corporation incorporated under the laws of Newfoundland and Labrador, and

                    (iii)  Inco Limited, a corporation incorporated under the laws of Canada,

by which preference respecting training, employment and contracting is given or agreed to be given to Inuit as defined under the agreement referred to in paragraph (a) or Innu as defined in the agreement referred to in paragraph (b) shall have effect notwithstanding this Act.

Application of Act

        5. This Act shall take precedence over other Acts where they conflict with this Act whether those Acts were enacted before or after this Act comes into force.

Non-application

        6. A provision of this Act shall not apply to the expression of a limitation, specification, exclusion, denial or preference based on a prohibited ground of discrimination in a pension plan where that discrimination is the result of compliance with a requirement for registration of that plan under the Income Tax Act (Canada).

Labrador Inuit rights

        7. Notwithstanding section 5, this Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act, the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act.

Special programs

        8. (1) On the application of a person, the commission may approve programs designed to prevent, reduce or eliminate disadvantages respecting services, facilities, accommodation or employment that may be or are suffered by a group of individuals where those disadvantages would be, or are based on or related to, a prohibited ground of discrimination of members of that group.

             (2)  Before or after the commission approves a program, the commission may

             (a)  make inquiries concerning the program;

             (b)  vary the program;

             (c)  impose conditions on the program; or

             (d)  withdraw approval of the program

as it thinks appropriate.

             (3)  Nothing done in accordance with a program approved under this section is a violation of this Act.

PART II
PROHIBITIONS

Prohibited grounds of discrimination

      9. (1) For the purpose of this Act, the prohibited grounds of discrimination are race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, marital status, family status, source of income and political opinion.

             (2)  Where this Act protects an individual from discrimination on the basis of sex, the protection includes the protection of a female from discrimination on the basis that she is or may become pregnant.

          (3)  Where this Act protects an individual from discrimination on the basis of disability, the protection includes the protection of an individual from discrimination on the basis that he or she

             (a)  has or has had a disability;

             (b)  is believed to have or have had a disability; or

             (c)  has or is believed to have a predisposition to developing a disability.

          (4)  Where this Act protects an individual from discrimination on the basis of a prohibited ground of discrimination, it also protects the individual from discrimination on the basis of

             (a)  2 or more prohibited grounds of discrimination or the effect of a combination of prohibited grounds; and

             (b)  the individual’s association or relationship, whether actual or presumed, with an individual or class of individuals identified by a prohibited ground of discrimination.

Intent

    10. Discrimination in contravention of this Act does not require an intention to discriminate.

Goods, services, accommodation, and facilities

    11. (1) A person shall not, on the basis of a prohibited ground of discrimination,

             (a)  deny to a person or class of persons goods, services, accommodation or facilities that are customarily offered to the public; or

             (b)  discriminate against a person or class of persons with respect to goods, services, accommodation or facilities that are customarily offered to the public.

             (2)  Notwithstanding subsection (1), a limitation, specification, exclusion, denial or preference because of a disability shall be permitted where that limitation, specification, exclusion, denial or preference is based upon a good faith qualification.

             (3)  Subsection (1) does not apply

             (a)  to accommodation in a private residence, except a private residence that offers bed and breakfast accommodation for compensation;

             (b)  to the exclusion of a person because of that person's sex from accommodation, services or facilities upon the ground of public decency;

             (c)  to accommodation where sex is a reasonable criterion for admission to the accommodation;

             (d)  to a restriction on membership on the basis of a prohibited ground of discrimination, in a religious, philanthropic, educational, fraternal, sororal or social organization that is primarily engaged in serving the interests of a group of persons identified by that prohibited ground of discrimination; or

             (e)  to other situations where a good faith reason exists for the denial of or discrimination with respect to accommodation, services, facilities or goods.

             (4)  Subsection (1) does not prohibit the denial or refusal of accommodation, services, facilities or goods to a person who is less than 19 years of age where the denial or refusal is required or authorized by another Act.

             (5)  For the purpose of this section, "accommodation, services, facilities or goods to which members of the public customarily have access or which are customarily offered to the public" include accommodation, services, facilities or goods that are restricted to a certain segment of the public.

Right to occupy commercial and dwelling units

      12. (1) A person, directly or indirectly, alone or with another, by himself or herself, or by the interposition of another, shall not, on the basis of a prohibited ground of discrimination,

             (a)  deny to a person or class of persons occupancy of a commercial unit or a self-contained dwelling unit; or

             (b)  discriminate against a person or class of persons with respect to a term or condition of occupancy of a commercial unit or a self-contained dwelling unit.

             (2)  Notwithstanding subsection (1), a limitation, specification, exclusion, denial or preference because of a disability shall be permitted where that limitation, specification, exclusion, denial or preference is based upon a good faith qualification as determined by the commission.

             (3)  Subsection (1) does not prevent a landlord from using income information, credit checks, credit references, rental history, guarantees or other similar business practices in selecting prospective occupants.

             (4)  Subsection (1) as it relates to age and family status, does not apply to the renting or leasing, the offering for rent or lease, or the advertising for rent or lease of a commercial unit or self-contained dwelling unit, where the unit is a rental unit in premises in which every rental unit is reserved for rental to a person who has reached the age of 55 years, or to 2 or more persons, at least one of whom has reached the age of 55.

Harassment of occupant prohibited

      13. A person, directly or indirectly, alone or with another, by himself or herself only, or by the interposition of another, shall not harass a person or class of persons who occupies a commercial unit or a self-contained dwelling unit on the basis of a prohibited ground of discrimination.

Discrimination in employment

      14. (1) An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment on the basis of a prohibited ground of discrimination, or because of the conviction for an offence that is unrelated to the employment of the person.

             (2)  Subsection (1) does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.

             (3)  An employer, or a person acting on behalf of an employer, shall not use, in the hiring or recruitment of persons for employment, an employment agency that discriminates against a person seeking employment on the basis of a prohibited ground of discrimination.

             (4)  A trade union shall not exclude a person from full membership or expel or suspend or otherwise discriminate against one of its members or discriminate against a person in regard to his or her employment by an employer, on the basis of a prohibited ground of discrimination.

             (5)  A person shall not use or circulate a form of application for employment or publish an advertisement in connection with employment or prospective employment or make a written or oral inquiry in connection with employment that expresses either directly or indirectly

             (a)  a limitation, specification or preference based on a prohibited ground of discrimination; or

             (b)  an intent to

                      (i)  dismiss from employment,

                     (ii)  refuse to employ or rehire, or

                    (iii)  discriminate against

a person on the basis of a prohibited ground of discrimination,

but this subsection does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.

             (6)  The provisions of subsections (1), (4) and (5) as to age shall not apply to

             (a)  prevent the operation of a good faith retirement or pension plan;

             (b)  operation of the terms or conditions of a good faith retirement or pension plan which have the effect of a minimum service requirement; or

             (c)  operation of the terms or conditions of a good faith group or employee insurance plan.

             (7)  Paragraph (6)(a) does not apply to a provision of a good faith retirement or pension plan requiring a person to retire at an age set out in the plan.

             (8)  This section does not apply to an employer

             (a)  that is an exclusively religious, fraternal or sororal organization that is not operated for private profit, where it is a reasonable and genuine qualification because of the nature of the employment; or

             (b)  with the exception of subsection (5) as it applies to advertising, in respect of the employment of a person to provide personal services.

             (9)  The right under this section to equal treatment with respect to employment is not infringed where a judge is required to retire on reaching a specified age under the Provincial Court Act, 1991.

           (10)  In paragraph (8)(b) and subsection 15(5),

             (a)  "employer" means a person who employs a person to provide personal services to him or her or to a member of his or her family; and

             (b)  "personal services" means work of a domestic, custodial, companionship, personal care, child care, or educational nature, or other work within the private residence that involves frequent contact or communication with persons who live in the residence.

Discrimination re: attachment of wages, etc.

      15. (1) An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment because of that person's pay

             (a)  from another or previous employer having been; or

             (b)  from him or her or another employer being or becoming

subject to

             (c)  attachment or seizure in satisfaction of a claim against; or

             (d)  alienation, assignment or transfer by

that person, but discrimination based on a good faith occupational qualification with respect to persons whose duties include the collecting, receiving or depositing of money belonging to the employer does not constitute a failure to comply with this subsection.

             (2)  An employer, or a person acting on behalf of an employer, shall not use, in the hiring or recruitment of persons for employment, an employment agency that discriminates against persons seeking employment for a reason that would be, in regard to an employer or person acting on behalf of an employer, discrimination under subsection (1).

             (3)  A trade union shall not exclude a person from full membership or expel or suspend or otherwise discriminate against a member or discriminate against a person in regard to his or her employment by an employer for a reason that would be, in regard to an employer or a person acting on behalf of an employer, discrimination under subsection (1).

             (4)  A person shall not use or circulate a form of application for employment or publish an advertisement in connection with employment or prospective employment or make a written or oral inquiry in connection with employment that expresses either directly or indirectly

             (a)  a limitation, specification or preference as to a person; or

             (b)  an intent to

                      (i)  dismiss from employment,

                     (ii)  refuse to employ or retire, or

                    (iii)  discriminate against

a person

for a reason that would be, in regard to an employer or a person acting on behalf of an employer, discrimination under subsection (1).

             (5)  This section, with the exception of subsection (4) as it applies to advertising, does not apply to an employer in respect of the employment of a person to provide personal services.

Equal pay for same or similar work

      16. (1) An employer, or a person acting on behalf of an employer, shall not establish or maintain differences in wages between employees employed in the same establishment who are performing, under the same or similar working conditions, the same or similar work on jobs requiring the same or similar skill, effort and responsibility on the basis of a prohibited ground of discrimination, except where that payment is made under

             (a)  a seniority system; or

             (b)  a merit system.

             (2)  Employees employed in the same establishment who are performing under the same or similar working conditions, the same or similar work on jobs requiring the same or similar skill, effort and responsibility shall have

             (a)  opportunities for training and advancement; and

             (b)  pension rights and insurance benefits

without discrimination on the basis of a prohibited ground of discrimination.

             (3)  An employer shall not reduce the wages of an employee in order to comply with subsection (1).

Harassment in establishment prohibited

      17. A person in an establishment shall not harass another person in the establishment on the basis of a prohibited ground of discrimination.

Sexual solicitation prohibited

      18. (1) A person who is in a position to confer, grant or deny a benefit or advancement to another person shall not engage in sexual solicitation or make a sexual advance to that person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome.

             (2)  A person who is in a position to confer or deny a benefit or advancement to another person shall not penalize, punish or threaten reprisal against that person for the rejection of a sexual solicitation or advance.

Discriminatory publications

      19. (1) A person shall not

             (a)  publish or display; or

             (b)  permit to be published or displayed on lands or premises or in a newspaper, through a radio or television broadcasting station, or by means of another medium which he or she runs or controls,

a notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against a person or a class of persons on the basis of a prohibited ground of discrimination.

             (2)  Nothing in this section interferes with the free expression of opinions upon a subject by speech or in writing.

Protection of complainants and others

      20. A person, employer or trade union shall not evict, discharge, suspend, expel or otherwise discriminate against a person because he or she has made a complaint or given evidence or helped in respect of the initiation or furtherance of a complaint or other proceeding under this Act.

Discrimination prohibited in contracts

      21. (1) A person shall not, in making available to a person a contract that is offered to the public,

             (a)  discriminate against a person or class of persons on the basis of a prohibited ground of discrimination; or

             (b)  include terms in the contract that discriminate against a person or class of persons on the basis of a prohibited ground of discrimination.

             (2)  The right under subsection (1) does not apply to discrimination on the basis of disability within the meaning of subparagraph 2(c)(ii) or (iii) where a person refuses to contract with another person who does not have the legal capacity to contract.

             (3)  The right under subsection (1) is not infringed where

             (a)  a contract of automobile, life, accident or sickness or disability insurance;

             (b)  a contract of group insurance between an insurer and an association or person;

             (c)  a life annuity;

             (d)  a pension contract; or

             (e)  a contract, other than one mentioned in paragraphs (a) to (d), that is prescribed in the regulations as a contract or one of a category of contracts

that differentiates or makes a distinction, exclusion or preference on good faith grounds because of disability, age or family status.

PART III
THE COMMISSION

Commission

      22. (1) The Human Rights Commission is continued.

             (2)  The commission shall be composed of 3 or more members appointed by the Lieutenant-Governor in Council.

             (3)  Appointments to the commission shall be made in a manner that ensures that it is composed of members who collectively possess experience with human rights issues and an interest in and sensitivity to human rights.

             (4)  The Lieutenant-Governor in Council shall designate one member as chairperson and another as vice-chairperson.

             (5)  A member shall be appointed for a term of 5 years and shall hold office until he or she is reappointed or his or her successor is appointed.

             (6)  The Lieutenant-Governor in Council may fill a vacancy in the membership of the commission and that person shall be appointed to hold office for the remainder of the term of office of the member being replaced.

             (7)  The Lieutenant-Governor in Council may determine the remuneration for services and allowances for travelling and other expenses that shall be paid to members.

             (8)  A quorum of the commission is a majority of the commissioners or 3 members, whichever is the lesser.

             (9)  A decision of a quorum of the commission is the decision of the commission and in the event of an equality of votes on a matter, the chairperson or, in the absence of the chairperson, the vice-chairperson, has a deciding vote.

Functions of commission

      23. The commission shall

             (a)  promote the principle that every person is equal in dignity and rights without regard to a prohibited ground of discrimination;

             (b)  promote an understanding of, acceptance of and compliance with this Act;

             (c)  distribute information and develop and conduct educational programs and research designed to eliminate discriminatory practices related to a prohibited ground of discrimination;

             (d)  advise and assist government departments, and agencies of the government, and co-ordinate their activities where these activities concern human rights;

             (e)  advise the government on suggestions, recommendations and requests made by private organizations, groups and individuals where these suggestions, recommendations and requests concern human rights;

              (f)  co-operate with and help a person, an organization or a group concerned with human rights, whether within or outside the province;

             (g)  report as required by the minister on the business and activities of the commission; and

             (h)  consider, investigate or administer a matter or activity relating to human rights referred to the commission by the Lieutenant-Governor in Council or the minister.

Executive director

      24. (1) An executive director of the commission and those officers and employees that are necessary for the purpose of giving effect to this Act shall be appointed in the manner established by law.

             (2)  The executive director of the commission shall

             (a)  be the chief executive officer and secretary to the commission; and

             (b)  perform the duties and functions prescribed for him or her by this Act, by the commission or by the regulations.

             (3)  The Lieutenant-Governor in Council may determine the remuneration for services and allowances for travelling and other expenses that shall be paid to the executive director and other officers and employees employed under subsection (1).

PART IV
COMPLAINTS

Complaints

      25. (1) A person who has reasonable grounds for believing that a person has contravened this Act may file with the executive director a complaint in a form acceptable to the commission.

             (2)  A complaint made under subsection (1) shall be made within 12 months after the alleged contravention occurs or, in the case of a continuing contravention, within 12 months after the last incidence of the alleged contravention.

             (3)  Where a complaint is made by a person other than the person who it is alleged was dealt with contrary to this Act, the executive director may refuse to accept the complaint unless the person alleged to be offended against consents.

             (4)  The executive director shall serve each person who is alleged to have contravened this Act with a copy of the complaint unless the complaint is dismissed by the executive director or the commission under section 32.

             (5)  A person who makes a complaint under this section may withdraw the complaint at any time before the beginning of a hearing under section 35.

Settlement of a complaint

      26. (1) After the executive director receives a complaint, the executive director, or a person acting on behalf of the executive director, shall, by mediation or other appropriate means, assist the parties to the complaint in attempting to settle it unless the complaint is dismissed, deferred or referred to a board of inquiry under this Part.

             (2)  Where the executive director, or a person acting on behalf of the executive director, effects a settlement of a complaint he or she shall report the settlement to the commission.

             (3)  Where the executive director or a person acting on behalf of the executive director effects a settlement of a complaint, the executive director shall notify the parties that no further action shall be taken with regard to the complaint unless the terms of a settlement are not complied with.

             (4)  Where the terms of a settlement are not complied with, the executive director may reopen the complaint and proceed as if a settlement had not been effected.

             (5)  A complaint shall be considered settled for the purpose of this Act only if the executive director approves the settlement and agrees to its terms.

             (6)  The executive director, and a person acting on behalf of the executive director under this section, shall not disclose information obtained under this section concerning a settlement agreement that would identify a party to the agreement, unless the party consents to the disclosure.

             (7)  Where a settlement of a complaint is achieved under this section, proceedings under this Part with respect to the complaint cease.

Investigation of a complaint

      27. (1) The executive director, or a person acting on behalf of the executive director shall, unless a complaint is dismissed or deferred under this Part, review and investigate a complaint to the extent the executive director, or the person acting on behalf of the executive director, considers warranted in the circumstances.

             (2)  For the purpose of investigating a complaint, the executive director, or a person acting on behalf of the executive director, may

             (a)  make oral or written inquiries of a person who has or may have information relevant to the complaint;

             (b)  demand the production for examination of documents and records that are or may be relevant to the complaint; and

             (c)  on giving a receipt for them, remove a document and record referred to in paragraph (b) from the building, receptacle or place where they are kept for the purpose of copying or taking extracts from them.

          (3)  Where a person refuses or fails

             (a)  to respond to any inquiry or to comply with a demand made by the executive director, or a person acting on behalf of the executive director, under paragraph (2)(a) or (b); or

             (b)  to permit the removal of documents or records by an investigator under paragraph (2)(c),

the executive director may apply to a judge of the Provincial Court for an order requiring the person to respond to the inquiry, to comply with the demand or to permit the removal.

          (4)  On application, a judge of the Provincial Court may make an order referred to in subsection (3), and another order that he or she considers necessary, to enable the executive director, or a person acting on behalf of the executive director, to exercise a power referred to in subsection (2), where  the judge

             (a)  is satisfied, by information on oath or affirmation, that there are reasonable grounds for the exercise of the power; and

             (b)  is satisfied that the person in respect of whom the order is sought has refused or failed to cooperate in one or more of the ways referred to in subsection (3).

Entering and inspecting building, receptacle or place

    28. (1) For the purpose of investigating a complaint, the executive director, or a person acting on behalf of the executive director, may enter and inspect a building, receptacle or place that in his or her opinion may provide information relating to the complaint.

          (2)  The executive director, or a person acting on behalf of the executive director, exercising a power of entry and inspection under this section shall, on request,

             (a)  produce identification; and

             (b)  give reasons for requiring entry to the building, receptacle or place.

          (3)  The executive director, or a person acting on behalf of the executive director, shall obtain the consent of the owner or occupier of a building, receptacle or place before entering and inspecting it or any part of it if

             (a)  the public is not customarily admitted to the building, receptacle or place or that part of the building, receptacle or place; or

             (b)  the public is not customarily admitted to the building, receptacle or place or that part of the building, receptacle or place on the day or during the time when the investigator wishes to enter and inspect it.

          (4)  Where consent to enter and inspect a building, receptacle or place of the type or in the circumstances described in subsection (3) is withheld by the owner or occupier of the building, receptacle or place, the executive director, or a person acting on behalf of the executive director, may not enter and inspect that building, receptacle or place generally, or in the circumstances described in subsection (3), unless authorized to enter and inspect by a warrant issued under section 29.

Issuance of warrant - necessary for purposes of investigation

      29. (1) On application of the executive director, or a person acting on behalf of the executive director, a Provincial Court judge may, if satisfied by information on oath or affirmation that there are reasonable grounds to believe that access to a building, receptacle or place is necessary for the purpose of an investigation of a complaint, issue a warrant authorizing the person named in the warrant to enter and inspect that building, receptacle or place on the days and during the times specified in the warrant.

          (2)  On application of the executive director, or a person acting on behalf of the executive director, a Provincial Court judge may, if satisfied by information on oath or affirmation that there are reasonable grounds to believe that

             (a)  this Act has been contravened; and

             (b)  a document, record or thing that may afford evidence of the contravention is likely to be found in the building, receptacle or place specified in the information,

issue a warrant authorizing the person named in the warrant

             (c)  to enter and search that building, receptacle or place on the days and during the times specified in the warrant; and

             (d)  to remove the document, record or thing and another document, record or thing that the person who executes the warrant believes on reasonable grounds affords evidence of the contravention under this Act.

          (3)  Where a document or record is removed from a building, receptacle or place under subsection (2), the executive director, or a person acting on behalf of the executive director,

             (a)  may make copies of or take extracts from the document or record; and

             (b)  shall promptly return the document or record to the person who produced it or to the building, receptacle or place from which it was removed.

Definition of "proceeding"

    30. In sections 31 and 32, "proceeding" includes a proceeding authorized by another Act and a grievance proceeding under a collective agreement.

Discretion to defer

    31. (1) Where the executive director determines that another proceeding is capable of appropriately dealing with the substance of a complaint, the executive director may, at any time before the complaint is referred to a board of inquiry under section 34, defer further consideration of the complaint until the outcome of the other proceeding.

          (2)  In making a determination under subsection (1), the executive director shall consider all relevant factors, including the subject matter and nature of the other proceeding and the adequacy of the remedies available in the other proceeding in the circumstances.

          (3)  Where the executive director defers consideration of a complaint, the executive director shall serve the parties to the complaint with a written notice of and the reasons for the deferral.

Dismissal of complaint

    32. (1) The executive director may, at any time before a complaint is referred to a board of inquiry under section 34, dismiss all or part of the complaint where the executive director is satisfied that

             (a)  this Act provides no jurisdiction to deal with the complaint or that part of the complaint;

             (b)  the complaint or that part of the complaint is trivial, frivolous, vexatious or made in bad faith; or

             (c)  the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.

             (2)  Where the executive director dismisses all or part of a complaint, the executive director shall serve the parties to the complaint with a written notice of and the reasons for the dismissal.

Appeal of dismissal

    33. Where a complaint or part of a complaint is dismissed, a party to the complaint may, within 30 days after service of the written notice of the dismissal, apply for judicial review of the dismissal by filing an application with the Trial Division and serving it on all the parties to the complaint and the executive director.

Referral to a board of inquiry

    34. (1) The commission shall refer a complaint to a board of inquiry for a hearing where

             (a)  the complaint has not been dismissed under section 32 and the commission believes there is sufficient evidence to proceed;

             (b)  the parties to the complaint are unable to settle the complaint; and

             (c)  the executive director is of the opinion that the complaint should not be deferred under section 31.

          (2)  Where the commission refers a complaint to a board of inquiry, the executive director shall serve the parties to the complaint with a written notice of the referral.

          (3)  The commission may refer 2 or more complaints together under subsection (1) where the commission is satisfied that it is fair and reasonable to do so.

PART V
ADJUDICATION

Reference to board of inquiry

      35. Where the commission refers a matter to a board of inquiry under subsection 34(1) or where a judge of the Trial Division orders the commission to refer a matter to a board of inquiry on an appeal under section 33, the commission shall refer the matter to the chief adjudicator of the panel appointed under section 36 who shall hear the matter or refer it to another panel member.

Boards of inquiry

      36. (1) The Lieutenant-Governor in Council shall appoint a panel of persons to act as members of boards of inquiry.

             (2)  A panel appointed under subsection (1) shall consist of at least 6 persons, one of whom shall be appointed by the Lieutenant-Governor in Council as chief adjudicator.

             (3)  Persons appointed under subsection (2) shall possess experience, knowledge or training with respect to human rights law and issues.

             (4)  The members of a panel appointed under this section shall not be members of the commission.

             (5)  Members of the panel shall be appointed for a term of 3 years and are eligible for reappointment.

             (6)  The Lieutenant-Governor in Council may terminate the appointment of a member of the panel for cause.

             (7)  Members of a panel shall be paid remuneration and expenses at rates fixed by the Lieutenant-Governor in Council.

Parties to proceeding

      37. (1) The parties to a proceeding before a board of inquiry with respect to a complaint are

             (a)  the commission, which shall have the carriage of the complaint;

             (b)  the person named in the complaint as the complainant;

             (c)  a person named in the complaint who is alleged to have been dealt with contrary to this Act;

             (d)  a person named in the complaint who is alleged to have contravened this Act; and

             (e)  a person specified by the board, upon notice, and after that person has been given an opportunity to be heard against his or her joinder as a party.

             (2)  A copy of the complaint shall be annexed to the notice of the hearing that is given to a party other than the commission.

Procedure and powers of board

      38. (1) A board of inquiry has the powers of a commissioner appointed under the Public Inquiries Act, 2006.

             (2)  A board of inquiry shall inquire into the matters referred to it and give full opportunity to all parties to present evidence and make representations, through counsel or otherwise.

             (3)  A board of inquiry shall hear a complaint referred to it without undue delay.

Orders of board

      39. (1) A board of inquiry

             (a)  shall, where it finds that a complaint is not justified, order that the complaint be dismissed; and

             (b)  may, where it finds that a complaint is justified in whole or in part, order the person against whom the finding was made to do one or more of the following:

                      (i)  to stop the contravention complained of,

                     (ii)  to refrain in future from committing the same or a similar contravention,

                    (iii)  to make available to the person discriminated against the rights, opportunities or privileges he or she was denied contrary to this Act,

                    (iv)  to provide compensation to the person discriminated against, including compensation for all or a part of wages or income lost or expenses incurred because of the discriminatory action, and

                     (v)  to take whatever other action the board considers appropriate.

             (2)  A board of inquiry may make whatever order as to costs that it considers appropriate.

             (3)  An order of a board of inquiry shall be binding on all parties.

             (4)  An order or decision of a board of inquiry shall be made in writing, together with a written statement of the reasons for the order or decision and copies of them shall be provided to the parties.

Appointment continued

      40. Where a board of inquiry has begun to consider, review, hear and decide upon a matter that has been referred to it, and appointment of a member expires before he or she gives a decision, the appointment of that member shall, for the purpose of deciding upon that matter, be considered to have been extended and the member continues to have all the power conferred by this Act to consider, review, hear and decide upon that matter.

Entry of order

      41. An order made by a board of inquiry may be filed with the Registrar of the Supreme Court and upon its registration is enforceable in the same manner as an order or a judgment of the Trial Division.

Appeal of board decision

      42. (1) A party to a proceeding before a board of inquiry may appeal an order or decision of the board by way of application to the Trial Division.

             (2)  Where the grounds of the appeal consist wholly or partly of a question of fact or of mixed fact and law, an appeal shall not be made without leave of a judge of the Trial Division.

             (3)  An application for leave to appeal made under subsection (2) shall be made by way of originating application, without giving notice to other interested parties, within 30 days of the receipt by the appellant of the order of the board of inquiry.

             (4)  A judge may, after taking into consideration those matters that he or she considers appropriate, grant leave to appeal.

             (5)  An application made under subsection (1) shall be filed with the court within

             (a)  30 days of the date leave to appeal was granted, where the appeal is one to which subsection (2) applies; or

             (b)  30 days of the date the appellant receives a copy of the order of the board of inquiry, where the appeal is not one to which subsection (2) applies.

             (6)  An application made under subsection (1) shall be served, together with all affidavits in support, on the board of inquiry and each party to the proceeding before the board at least 5 days before the return date and the application shall be returnable not later than 15 days after filing with the court.

             (7)  The court may confirm, reverse or vary the order of the board and may make an order that the board may make under section 39.

             (8)  The commencement of an appeal under this section does not operate as a stay of proceedings of the order of a board of inquiry unless the court orders otherwise.

             (9)  The commission shall provide to a judge on the hearing of an appeal all papers and documents in its possession which may affect the matter being appealed.

Privileged information and protection from prosecution

      43. (1) A member of the commission or a person employed in the administration of this Act shall not be required to give evidence or produce records obtained in the course of an investigation under this Act in a proceeding, except

             (a)  to a board of inquiry appointed under this Act to deal with a matter to which that information is relevant; or

             (b)  in an appeal under section 42 of this Act.

             (2)  The minister, the commission, a member of the commission, the executive director, a person designated by the executive director to inquire into a complaint or a member of a board of inquiry constituted under this Act is not liable for loss or damage suffered by a person because of anything done or omitted to be done in good faith in the exercise or supposed exercise of the powers conferred by this Act.

Publication of order

      44. The commission may publish an order of a board of inquiry and the reasons and recommendations of the board of inquiry in whatever manner it considers advisable.

PART VI
GENERAL

Offence

      45. (1) A person who

             (a)  does anything prohibited by or refuses or neglects to do anything required under this Act;

             (b)  deprives, abridges or attempts to deprive, abridge or restrict a person or class of persons in the enjoyment of a right under this Act;

             (c)  makes a false statement or answer to a question put to him or her under this Act;

             (d)  hinders, obstructs, molests or interferes with, or attempts to hinder, obstruct, molest or interfere with, the commission, a person acting under the authority of the commission, the executive director, a board of inquiry or another person acting under the authority of this Act in the exercise of his or her duties or powers under this Act; or

             (e)  fails, refuses or neglects to comply with an order of a board of inquiry, or a part of an order,

is guilty of an offence and liable on summary conviction

              (f)  where a natural person, to a fine not exceeding $500; and

             (g)  where a trade union, employers' organization, employment agency or a person other than a natural person, to a fine not exceeding $1,000.

             (2)  Where an employer is convicted of an offence under this Act because of his or her having suspended, transferred, laid off or discharged an employee contrary to this Act, a Provincial Court judge may, after consideration has been given by the judge to all circumstances of the case, including wages, salary or remuneration earned with another employer by the employee, in addition to imposing a fine under subsection (1), order the employer

             (a)  to pay compensation for loss of employment to the employee, not exceeding the sum that in the opinion of the judge is equivalent to the wages, salary or remuneration that would have accrued to the employee up to the date of conviction but for the suspension, transfer or discharge, and the provision of the order shall be enforceable against the employer in the same manner as a judgment of a Provincial Court judge in a civil action; and

             (b)  to reinstate the employee in his or her employ, at the date that in the opinion of the judge is just and proper under the circumstances, in the position the employee would have held but for the suspension, transfer, layoff or discharge.

             (3)  Where an employer is convicted of an offence under this Act, because of his or her having underpaid an employee contrary to this Act, a Provincial Court judge shall, in addition to imposing a fine under subsection (1), order the employer to pay to the employee the outstanding difference between the wages actually paid to the employee and the wages which are in the opinion of the Provincial Court judge payable according to this Act.

             (4)  An order under subsection (3) shall be enforceable against the employer in the same manner as a judgment of the judge in a civil action, but the right of an employee to take another proceeding for recovery of the amount of wages to which he or she is entitled according to this Act is not barred except by satisfaction of that amount and section 737 of the Criminal Code shall not be applied in disposing of a prosecution for an offence referred to in subsection (3).

             (5)  For the purpose of subsection (2) or (3), a Provincial Court judge has jurisdiction to make an order referred to in that subsection, notwithstanding the amount of money involved.

             (6)  A conviction in accordance with subsection (1) does not operate as a bar to further prosecution for the continued contravention or failure to comply in accordance with subsection (1) and, where there is a continuing contravention or failure to comply, each day's continuance constitutes a separate offence.

Complaint to Provincial Court

      46. Nothing in this Act restricts the right of an aggrieved person to initiate proceedings or to lay a complaint before a court of summary jurisdiction for an alleged contravention of or failure to comply with this Act, but, if a complaint is laid, then sections 25 to 39 shall not be applied in respect of that complaint.

Injunction

      47. (1) Where a person has been convicted of an offence under this Act, the commission may apply to a judge of the Trial Division for an order enjoining the person so convicted from continuing the offence.

             (2)  The judge may make whatever order he or she considers appropriate, and the order may be entered and enforced in the same manner as other orders or judgments of the Trial Division.

Prosecution

      48. A prosecution for an offence under this Act may be brought against an employers' organization or a trade union in the name of that organization or trade union, and an act or thing done or omitted by an officer, official or agent of an employers' organization or trade union within the scope of his or her authority to act on behalf of the employers' organization or trade union shall be considered to be an act or thing done or omitted by the employers' organization or trade union as well as being the personal act or omission of that officer, official or agent.

Technical defect

      49. A proceeding under this Act shall not be considered invalid because of a defect in form or a technical irregularity.

Regulations

      50. (1) The Lieutenant-Governor in Council may make regulations generally, to give effect to the purpose of this Act.

             (2)  A regulation made under subsection (1) may be limited as to time or place or both.

             (3)  The minister, on the recommendation of the commission, may make regulations respecting time limits for the purpose of Parts IV and V.

RSNL1990 cH-14 Rep.

      51. The Human Rights Code is repealed.