S.M. 1987-88, c. 25
The Discriminatory Business Practices Act
(Assented to July 17, 1987)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act
"attribute" with reference to a person, means the race, creed, colour, nationality, ancestry, place of origin, sex or geographical location of the person or of a person connected with the person or of nationals of a country where the person engages in business with the government of that country; ("attribut")
"board of adjudication" means a board of adjudication appointed pursuant to section 8; ("tribunal d'arbitrage")
"court" means the Court of Queen's Bench; ("tribunal")
"designated information" means information as to the race, creed, colour, nationality, ancestry, place of origin, sex, or geographical location of a person; ("renseignements désignés")
"director" means the Executive Director of The Manitoba Human Rights Commission; ("directeur")
"engaging in business" includes selling goods or services and buying goods or services; ("faire du commerce")
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; ("ministre")
"person" includes a partnership, an unincorporated association and an agency of any government; ("personne")
"person Connected" when used in relation to another person, means an employee, agent, partner or associate of the other person and, where the other person is a corporation, includes a director, officer, shareholder or member of the corporation; ("personne liée")
"refusal" includes agreement to refuse. ("refus")
Discriminatory business practice.
For the purposes of this Act, it is a discriminatory business practice
(a) to refuse to engage in business with a second person or to refuse or fail to employ, appoint or promote a second person or to dismiss or suspend a second person from employment, where the refusal, failure, dismissal or suspension
(i) is on account of an attribute of the second person, or of a third person with whom the second person engages in business, has engaged in business, or may engage in business, and
(ii) is a condition of the engaging in business of the person refusing, failing, suspending or dismissing and another person; or
(b) to enter into a contract that includes a provision that one of the parties to the contract will refuse to engage in business with a second person or will refuse or fail to employ or promote or will dismiss or suspend from employment a second person on account of an attribute of the second person or of a third person with whom the second person engages, has engaged or may engage in business.
This Act does not apply to
(a) the withholding of services or employment in the course of a lawful strike, lockout or other labour dispute;
(b) a discriminatory business practice that is in accordance with
(i) a policy of the government of Canada directed toward trade with a country other than Canada of persons in a country other than Canada, or
(ii) a policy of the government of Manitoba directed toward persons in provinces other than Manitoba;
(c) such other activities as may be exempted by the regulations.
No person shall engage in a discriminatory business practice.
No person shall, for the purpose of engaging in or assisting in engaging in a discriminatory business practice, seek or agree to seek from a second person and no person shall provide or agree to provide a second person with any designated information in respect of any person.
No negative statement of origin.
No person shall, for the purpose of engaging in or assisting in engaging in a discriminatory business practice, seek or provide a statement, whether written or oral, to the effect that any goods or services supplied or rendered by any person or government do not originate in whole or in part in a specific location, territory or country.
No person in Manitoba shall, for the purpose of engaging in a discriminatory business practice, seek or provide information, whether written or oral, as to whether or not the person or any other person is a member of or has made contributions to or is otherwise associated with or involved in the activities of a charitable, fraternal or service organization.
Where a person selects an employee or prospective employee for employment in connection with a transaction or business opportunity that requires travel outside Canada and the employee or prospective employee is unable to meet visa requirements based on an attribute of that employee, the person may proceed with the transaction or business opportunity but in that event shall make reasonable efforts to offer to the affected employee or prospective employee the next equivalent employment opportunity for which that employee is qualified.
Every person who receives a request, whether oral or in writing, to engage in a discriminatory business practice or to do an act that would be a contravention of subsection 3(2), (3) or (4) shall report the request and the response to the request to the director within 30 days and shall provide the director with such other information in respect of the request as the director may require.
Every person who believes that there has been a contravention of section 3, 4 or 5 may complain in writing to the director.
Where the director receives a complaint under section 6 or has reason to believe that a person is contravening or is about to contravene any provision of this Act or an order or assurance of voluntary compliance made or given under this Act, the director may take any reasonable steps to investigate whether such a contravention has occurred or is about to occur including the appointment of an investigator.
The Human Rights Act applies with such modifications as the circumstances require to an investigation under subsection (1).
Where the director has reasonable and probable grounds to believe that a person is engaging in or has engaged in a discriminatory business practice or is contravening or has contravened subsection 3(2), (3) or (4) or section 4 or 5, the director may order the person to comply with this Act to remedy the discriminatory business practice or discontinue the contravention specified in the order.
Where the director proposes to make an order under subsection (1), a notice of the director's proposed order shall be served on each person to be named in the order, together with written reasons for the proposed order.
The director shall include in a notice under subsection (2) information that, if no person mails or delivers within 15 days after the day of service of the notice an objection in writing, the director may make the order as proposed.
Where no objection to a proposed order is received by the director under subsection (3) within 15 days or such longer period as the director may allow, the director may make the order.
Mediation where there is objection.
Where an objection to a proposed order under subsection (1) is received, the director shall seek to mediate between the parties.
Where an attempt at mediation pursuant to subsection (5) is unsuccessful, the director shall refer the matter to the minister who shall appoint forthwith a board of adjudication which board shall appoint a time for and hold a hearing concerning the proposed order.
Decision of board of adjudication.
After a hearing under subsection (6), the board of adjudication may order the director to make the proposed order under subsection (1) or to refrain from making it and to take such action as the board considers the director should have taken under this Act.
A board of adjudication may attach such terms and conditions to its order as it considers proper to give effect to the purposes of this Act.
The director, the person who objected under subsection (5) and such other persons as the board of adjudication may specify are parties to the proceedings before the board of adjudication and the director shall have carriage of the proceedings.
Subsection 21(3), section 22 and subsections 23(1) and (2) of The Human Rights Act apply to the board of adjudication.
Where it is necessary for the protection of the public or of any person, the director may make an order under subsection (1) to take effect immediately and the director shall serve forthwith each person named in the order with a copy of the order together with written reasons therefor and a notice that, if no persons mails or delivers, within 15 days after the day of service of the notice, an objection in writing, the order is final and binding.
Effect of demand for a hearing.
Where a person served with a copy of the order under subsection (11) objects to the order, subsections (5) to (9) apply with such modifications as the circumstances require.
An order referred to in subsection (11) in respect of which an objection is made ceases to have effect 30 days after it is made unless the board of adjudication directs that the order is to continue to have effect until the hearing is concluded.
Subject to section 9, every decision made by a board of adjudication is final and binding on the parties to the adjudication.
Adjudication enforceable as a judgment.
A party to an adjudication may file in the court a certified copy of a decision or order of the board with respect to the adjudication and upon being filed the decision or order is, subject to subsection (16), enforceable as a judgment of the court.
An application for review under section 9 does not stay the effect of the order unless the court or the board of adjudication grants a stay until the disposition of the application for review.
Within 30 days of the making of a decision or order by a board of adjudication or within such further period as the court may allow, a party to the adjudication may apply to the court for a review of the decision or order.
A party applying for review pursuant to subsection (1) shall, within seven days of applying, serve a copy of the application on the other party and the board of adjudication.
Forthwith upon being served with a copy of an application for review of a decision or order, the board of adjudication shall file with the court the record of the proceedings relating to the decision or order.
In connection with an application under this section, the court may vary or set aside a decision or order of a board of adjudication or may direct the board of adjudication to make any other decision or order that the board is authorized to make under this Act, where the court is satisfied that
(a) the board of adjudication exceeded its jurisdiction with respect to the adjudication; or
(b) there is an error of law on the face of the record; or
(c) there was a breach of the principles of natural justice in the course of the adjudication.
Where the director proposes to make an order under section 8, any person affected by the proposed order may enter into a written assurance of voluntary compliance with the director or, where all persons affected by the proposed order consent, the director may make a consent order and the notice and appeal provisions of section 8 do not apply to the consent order.
An assurance of voluntary compliance or consent order is binding and may be enforced in the same way as an order made under section 8.
A person who enters into an assurance of voluntary compliance shall undertake not to engage in a discriminatory business practice or other contravention of this Act and any such assurance may contain other terms and conditions acceptable to the director including requirements for posting security for reimbursing the government for investigation and other costs.
The director shall maintain available for public inspection a record of
(a) assurances of voluntary compliance entered into under this Act, and
(b) orders made under this Act, other than orders in respect of which hearings or appeals are pending.
A person that incurs loss or damage as a result of a contravention of this Act may bring an action in court for compensation and, in addition to any other remedy, the court may award exemplary damages against the person who contravened the Act.
Every person against whom an order is made under section 8 or 15 or who is convicted of an offence under clause 19(1)(d) or (e) is, in addition, at the discretion of the director or board of adjudication making the order or of the judge convicting, ineligible to enter into a contract to provide goods or services to the government or any agency of the government for a period of up to five years from the date of the making of the order or of the conviction.
A provision in a contract that provides for a matter that is a discriminatory business practice is a nullity and is severable from the contract.
Where any provision of this Act is contravened, notwithstanding any other remedy or any penalty, the minister or any person who complains of injury due to the contravention may apply to the court for an order prohibiting the continuation or repetition of the contravention or the carrying on of any activity specified in the application.
A person subject to an order under subsection (1) may apply to the court for an order varying or rescinding that order.
Any notice or document required by this Act to be served or given may be served or given personally or by registered mail addressed to the person to whom notice is to be given at his or her last known address and, where notice is served or given by mail, the service shall be deemed to have been made on the fifth day after the day of the mailing unless the person to whom notice is given establishes that he or she through absence, accident, illness or other cause beyond his or her control, did not receive the notice or did not receive the notice until a later date.
Every person employed in the administration of this Act, including any person making an inspection or an investigation shall keep confidential all matters that come to his or her knowledge in the course of his or her duties, employment, inspection or investigation and shall not communicate any such matters to any other person except
(a) as may be required in connection with the administration of this Act or any proceeding under or in accordance with this Act;
(b) to the court in any proceeding under or in accordance with this Act;
(c) to inform the person involved of a discriminatory business practice and of any information relevant to the person's rights under this Act;
(d) with the consent of the person to whom the information relates; or
(e) as otherwise required by law.
A copy of an order or assurance of voluntary compliance purporting to be certified by the director is, without proof of the office or signature of the director, receivable in evidence as prima facie proof of the facts stated therein for all purposes in any action, proceeding or prosecution.
Every person who, knowingly
(a) furnishes false information in an investigation under this Act;
(b) fails to comply with any order or assurance of voluntary compliance made or entered into under this Act;
(c) obstructs a person making an investigation;
(d) contravenes subsection 3(2), (3), or (4); or
(e) contravenes section 5; is guilty of an offence and is liable on summary conviction, in the case of an individual, to a fine of not more than $5, 000. and, in the case of a corporation, to a fine of not more than $50, 000.
Where a corporation has been convicted of an offence under subsection (1)
(a) every director of the corporation; and
(b) every officer, servant or agent of the corporation who was in whole or in part responsible for the conduct of that part of the business of the corporation that gave rise to the offence, who authorized, permitted or acquiesced in the offence is guilty of an offence and is liable on summary conviction to a fine of not more than $5, 000.
No proceeding under this section shall be commenced more than two years after the time when the subject matter of the proceeding arose.
The director shall report annually within three months after the end of each fiscal year to the minister on the administration of this Act and on such other matters related to this Act as the director considers advisable or the minister may require, and the report shall set out, in respect of the preceding fiscal year,
(a) the names of all persons who entered into assurances of voluntary compliance under this Act;
(b) the names of all persons against whom orders, other than orders in respect of which hearings or appeals are pending, were made under this Act;
(c) the number of complaints received by the director respecting discriminatory business practices and other contraventions of the Act together with,
(i) the number of complaints mediated and the results of the mediations, and
(ii) the number of complaints acted on and the action taken;
(d) the number and nature of the requests and responses reported to the director in accordance with section 5, the action taken thereon and the results of the action taken; and
(e) the names of all persons convicted of an offence under this Act, including the offence for which each was convicted and, in each case, the penalty imposed.
The minister shall forthwith after receiving a copy of a report under subsection (1) table the report before the Legislative Assembly if it is in session and if not, within 15 days after the opening of the next ensuing session thereof.
The Lieutenant Governor in Council may, by regulation, exempt any person or class of persons from any provision of this Act.
The Crown in right of Manitoba is bound by this Act.
This Act may be referred to as Chapter D80 in the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a date fixed by proclamation.