Third

Session, 46th General Assembly

Elizabeth II, 2010

BILL 31

AN ACT RESPECTING HUMAN RIGHTS

Received and Read the First Time ............................................................................

June 14, 2010

Second Reading ...........................................................................................................June

17, 2010

Committee .............................................................................................

Amendment

June 17, 2010

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE FELIX

COLLINS

Minister of Justice

and Attorney General

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would revise the Human Rights Code of the province.

Prominent among the changes are

the inclusion of the statement

that discrimination may be intentional and unintentional in nature;

a re-definition of what

constitutes discrimination on the basis of disability; and

expansion of the protection

against discrimination on the basis of source of income.

This Bill also contains provisions to

permit a more expedited process for the evaluation and treatment of complaints

by the commission.

A BILL

AN ACT RESPECTING HUMAN RIGHTS

Analysis

Short title

PART

INTERPRETATION AND APPLICATION

Definitions

Crown bound

Interpretation

Application of Act

Non-application

Labrador Inuit rights

Special programs

PART

PROHIBITIONS

Prohibited grounds of discrimination

Intent

Goods, services, accommodation, and

facilities

Right to occupy commercial and dwelling

units

Harassment of occupant prohibited

Discrimination in employment

Discrimination re: attachment of wages,

etc.

Equal pay for same or similar work

Harassment in establishment prohibited

Sexual solicitation prohibited

Discriminatory publications

Protection of complainants and others

Discrimination prohibited in contracts

PART

III

THE COMMISSION

Commission

Functions of commission

Executive director

PART

COMPLAINTS

Complaints

Settlement of a complaint

Investigation of a complaint

Entering and inspecting building,

receptacle or place

Issuance of warrant - necessary for

purposes of investigation

Definition of "proceeding"

Discretion to defer

Dismissal of complaint

Appeal of dismissal

Referral to a board of inquiry

PART

ADJUDICATION

Reference to board of inquiry

Boards of inquiry

Parties to proceeding

Procedure and powers of board

Orders of board

Appointment continued

Entry of order

Appeal of board decision

Privileged information and protection

from prosecution

Publication of order

PART

GENERAL

Offence

Complaint to Provincial Court

Injunction

Prosecution

Technical defect

Regulations

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

(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

(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;

(

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

(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

(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

(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.

(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;

(

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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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

(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.

Earl G. Tucker, Queen's Printer