Section 40 Canadian Human Rights Act
Section 40 Canadian Human Rights Act 1985 is about Complaints. It is under Part III (Discriminatory Practices and General Provisions) of the Act.
Complaints
(1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
Consent of victim
(2) If a complaint is made by someone other than the individual who is alleged to be the victim of the discriminatory practice to which the complaint relates, the Commission may refuse to deal with the complaint unless the alleged victim consents thereto.
Investigation commenced by Commission
(3) Where the Commission has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, the Commission may initiate a complaint.
Limitation
(3.1) No complaint may be initiated under subsection (3) as a result of information obtained by the Commission in the course of the administration of the Employment Equity Act.
Complaints may be dealt with together
(4) If complaints are filed jointly or separately by more than one individual or group alleging that a particular person is engaging or has engaged in a discriminatory practice or a series of similar discriminatory practices and the Commission is satisfied that the complaints involve substantially the same issues of fact and law, it may deal with the complaints together under this Part and may request the Chairperson of the Tribunal to institute a single inquiry into the complaints under section 49.
Multiple allegations
(4.1) If a complaint alleging a discriminatory practice under section 11 also includes allegations to which section 11 does not apply, the Pay Equity Division may
(a) exercise the powers and perform the duties and functions of the Commission under this Part with respect to the complaint as filed; or
(b) at any stage after the filing of the complaint, sever the complaint and refer to the Commission some or all of the allegations that do not allege a discriminatory practice under section 11.
New complaint
(4.2) If the Pay Equity Division refers allegations severed from a complaint to the Commission under paragraph (4.1)(b), the Commission is deemed to have received a new complaint for the purposes of section 40.
No complaints to be considered in certain cases
(5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice
(a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada;
(b) occurred in Canada and was a discriminatory practice within the meaning of section 5, 8, 10 or 12 in respect of which no particular individual is identifiable as the victim;
(c) occurred outside Canada and the victim of the practice was at the time of the act or omission a Canadian citizen or an individual lawfully admitted to Canada for permanent residence.
Determination of status
(6) Where a question arises under subsection (5) as to the status of an individual in relation to a complaint, the Commission shall refer the question of status to the appropriate Minister and shall not proceed with the complaint unless the question of status is resolved thereby in favour of the complainant.
No complaints to be dealt with in certain cases
(7) No complaint may be dealt with by the Commission pursuant to subsection (1) that relates to the terms and conditions of a superannuation or pension fund or plan, if the relief sought would require action to be taken that would deprive any contributor to, participant in or member of, the fund or plan of any rights acquired under the fund or plan before March 1, 1978 or of any pension or other benefits accrued under the fund or plan to that date, including
(a) any rights and benefits based on a particular age of retirement; and
(b) any accrued survivor’s benefits.
See also:
– Section 39 Canadian Human Rights Act (Definition of discriminatory practice)
– Section 38.4 Canadian Human Rights Act (Absence or incapacity of Pay Equity Commissioner)
