Commissioner Of Canada Elections
Canada Elections Act
This notice is published by the Commissioner of Canada Elections, pursuant to section 521 of the Canada Elections Act, S.C. 2000, c. 9.
On December 16, 2016, the Commissioner of Canada Elections entered into a compliance agreement with Shell Canada Limited, pursuant to section 517 of the Canada Elections Act. The text of the compliance agreement is set out in full below.
December 16, 2016
Yves Côté, QC
Commissioner of Canada Elections
Pursuant to section 517 of the Canada Elections Act (the Act), the Commissioner of Canada Elections (the Commissioner) and Shell Canada Limited (the Contracting Party) enter into this agreement aimed at ensuring compliance with the Act.
The provisions of the Act that are applicable are subsection 132(1) and paragraph 489(1)(a), which make it an offence for an employer to fail to allow the time off work necessary during an employee's hours of work that would enable the employee to have–during voting hours–three consecutive hours for the purpose of casting a vote on polling day.
Statements by the Contracting Party
For the purpose of this compliance agreement, the Contracting Party acknowledges the following:
- Mr. Michael Crothers, President and Country Chair of Shell Canada Limited, is entering into this compliance agreement on behalf of the Contracting Party, and has the authority to do so.
- Section 132 of the Act provides that employees who are qualified as electors–other than certain employees working for some transportation companies–are entitled, during voting hours, to three consecutive hours for the purpose of casting their vote on polling day. If an employee's hours of work do not allow for those three consecutive hours on polling day, the employer must grant the time for voting that is necessary to provide those three consecutive hours.
- The Contracting Party is the employer of certain employees working at the Shell Albian Sands (SAS), located to the north of Fort McMurray, Alberta, where some of the Contracting Party's employees work twelve-hour shifts.
- On October 12, 2015, the Contracting Party provided paid time off and transportation for SAS employees who were otherwise scheduled to work on polling day, to an advance polling station, to allow them to cast a ballot for the purposes of the 42nd federal general election.
- Polling day for the 42nd federal general election was on October 19, 2015, and the voting hours in Alberta were from 7:30 a.m. to 7:30 p.m.
- On polling day, the Contracting Party declined requests for time off work to allow SAS employees who were qualified electors to have–during voting hours–three consecutive hours for the purpose of casting their vote.
- On October 20, 2015, a member of the Contracting Party's SAS human resource team sent an email to an SAS supervisor with proposed language to be provided in answer to inquiries made by employees whose request for time off to vote on polling day had been denied. The email incorrectly stated that, with respect to the federal general election, the Contracting Party had the option of providing three consecutive hours to vote either at an advance poll, or on polling day, and since the Contracting Party had provided paid time off and transportation to and from an advance poll, it had fulfilled its obligations. The email also stated that this information had been confirmed with Elections Canada by an Employee Relations Advisor for the Contracting Party.
- The Contracting Party subsequently agreed to have the Employee Relations Advisor in question interviewed by investigators, and facilitated this by flying relevant personnel from Fort McMurray and Calgary to Edmonton for such discussions to occur at the Commissioner's investigators' request.
- The Employee Relations Advisor acknowledged providing this information to the Human Resources employee who subsequently sent the email described above, and has indicated that the decision not to allow time off to vote on polling day after having provided employees paid time off and transportation to and from the advance polls was based upon an understanding of prior discussions and advice received in the context of a previous provincial election. The Employee Relations Advisor has acknowledged that this information was incorrectly attributed to Elections Canada.
- In an effort to further cooperate in the Commissioner's investigation, the Contracting Party provided the Commissioner's investigators with the Contracting Party's Code of Conduct, as well as its current short-term leave policy that includes a general provision that requires employees be granted paid leave to vote where their work schedule does not provide them with the "legislated time required" to vote. The Contracting Party acknowledges that the short term leave policy did not specifically recognize that employees who are qualified electors were entitled to paid time off to allow them to have–during voting hours–three consecutive hours during which to vote during polling day for a federal election.
- The position adopted by the Contracting Party at SAS on polling day for the 42nd federal general election was contrary to subsection 132(1) of the Act.
- The Contracting Party acknowledges and accepts responsibility for these acts.
- The Contracting Party understands that acknowledgement of non-compliance does not constitute a guilty plea in the criminal sense and that no record of conviction is created as a result of admitting responsibility for acts that could constitute an offence.
- The Contracting Party acknowledges that the Commissioner has advised it of its right to be represented by counsel and it has had the opportunity to obtain counsel.
Factors considered by the Commissioner
In entering into this compliance agreement, the Commissioner took into account the factors set out in paragraph 32 of the Compliance and Enforcement Policy of the Commissioner of Canada Elections, including the following factors:
- The Contracting Party cooperated fully and in good faith with the investigation into this matter;
- This was an isolated occurrence and there is no evidence of other incidents of non-compliance within the Contracting Party's operations;
- The Contracting Party has no prior history of non-compliance;
- Before entering into this compliance agreement, the Contracting Party has drafted a notice describing the contents of the compliance agreement for the purpose of publication as directed by the terms herein, which notice has been approved by the Commissioner; and
- Before entering into this compliance agreement, the Contracting Party has adopted a new and more detailed policy with respect to the voting rights of its employees during federal elections, which policy has been approved by the Commissioner.
The above-mentioned policy gives effect to the Contracting Party's employees' entitlements under sections 132 and 133 of the Act. It includes provisions indicating that the policy will be communicated to supervisors and employees of the Contracting Party after the issue of the writ for any federal election in an electoral district where employees who are qualified electors could exercise their right to vote on polling day.
Undertaking and agreement
The Contracting Party undertakes to post the notice described above that has been approved by the Commissioner, on the first page of its website, with prominent placement in a manner that is fully accessible to the public for 30 days beginning as soon as practicable after the Commissioner has signed the compliance agreement.
The Contracting Party also undertakes to cause to be published the contents of the notice referred to in the foregoing paragraph, at its own cost, with prominent format and placement acceptable to the Commissioner, in one edition of both the trade publication Oil Sands Review (a quarterly publication) and the Fort McMurray Today newspaper, and to provide a copy of those publications to the Commissioner as evidence of compliance with this undertaking not more than three months from the date upon which the Commissioner signed this compliance agreement.
The Contracting Party, through its President and Country Chair, undertakes to inform its Board of Directors of the contents of this compliance agreement within 30 days of its signature, and to advise the Commissioner, as soon as practicable, that this undertaking has been complied with.
The Contracting Party undertakes to comply with the relevant provision of the Act in the future.
The Contracting Party consents to the publication of this compliance agreement in the Canada Gazette and on the Commissioner's website.
The Commissioner agrees that the fulfillment by the Contracting Party of its undertaking in this compliance agreement will constitute compliance with the agreement.
Pursuant to subsection 517(8) of the Act, the Commissioner and the Contracting Party recognize that once this compliance agreement is entered into, the Commissioner will be prevented from referring this matter for prosecution to the Director of Public Prosecutions unless there is non-compliance with the terms of the compliance agreement, and in any event, the Director of Public Prosecutions cannot institute such a prosecution unless non-compliance is established.
Signed on behalf of the Contracting Party in the City of Calgary, in the province of Alberta, this 6th day of December 2016.
President and Country Chair
Shell Canada Limited
Signed by the Commissioner of Canada Elections, in the City of Gatineau, in the province of Quebec, this 16th day of December 2016.
Yves Côté, QC
Commissioner of Canada Elections