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 November 8, 2016, the Commissioner of Canada Elections entered into a compliance agreement with William Day Construction Limited, pursuant to section 517 of the Canada Elections Act. The text of the compliance agreement is set out in full below.
November 8, 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 William Day Construction 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 133(1) and paragraph 489(1)(a), which make it an offence for an employer to fail to pay an employee for the time off work necessary during his or her hours of work to enable him or her to have – during voting hours – three consecutive hours for the purpose of casting a vote on polling day.
Statements of the Contracting Party
For the purpose of this compliance agreement, the Contracting Party acknowledges the following:
- Mr. William Day, President of William Day Construction 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 most employees – 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. Section 133 further provides that no deduction may be made from an employee's pay with respect to time granted to vote in accordance with section 132.
- Polling day for the 42nd federal general election was on October 19, 2015, and the voting hours in Ontario, where the Contracting Party operates, were from 9:30 a.m. to 9:30 p.m.
- In Timmins, Ontario, employees of the Contracting Party asked to leave 30 minutes before the scheduled end of their shift on polling day to avail themselves of their right – during voting hours – to have three consecutive hours to vote, as they had been scheduled to work a twelve and a half hour shift ending at 7:00 p.m. While their supervisor allowed them to leave at 6:30 p.m., he informed them that they would not be paid for the last 30 minutes of their scheduled shift.
- Ultimately, 27 employees left the work site 30 minutes before the scheduled end of their shift, and were not paid for those 30 minutes.
- The Contracting Party had not previously adopted a policy to give effect to its employees' entitlements under sections 132 and 133 of the Act, nor did it advise its supervisors at the start of the election period of the Contracting Party's obligations pursuant to these provisions of the Act.
- The position adopted by the supervisor in Timmins, Ontario, and the Contracting Party's failure to take measures to ensure that their employees' rights under the Act would be respected, caused the Contracting Party to be in contravention of subsection 133(1) of the Act on polling day for the 42nd federal general election.
- As soon as the Contracting Party learned of this matter, it quickly investigated, and paid its affected employees.
- 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 allowed its employees to take the time off work that was necessary to provide them with three consecutive hours to vote;
- The Contracting Party has fully cooperated with the Commissioner's investigation into this matter, and promptly paid its employees for the half-hour of time off that was provided to them to allow them to vote when informed of the Act's requirements;
- This incident occurred only at a single work site; and
- The Contracting Party has no prior history of non-compliance.
Undertaking and agreement
The Contracting Party undertakes to provide the Commissioner with confirmation that all affected employees have been paid for the last 30 minutes of their shift on polling day for the 42nd general federal election.
The Contracting Party undertakes to develop and adopt a policy – the terms of which are to be acceptable to the Commissioner – within one month of the signing of this compliance agreement. This policy shall
- give effect to its employees' entitlements under sections 132 and 133 of the Act in the future; and
- include 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 such employees who are qualified electors could exercise their right to vote on polling day.
The Contracting Party undertakes to provide evidence to the Commissioner that the policy described in the preceding paragraph has been adopted.
The Contracting Party undertakes to prepare a notice, the contents of which must be entirely satisfactory to the Commissioner, summarizing the facts related to this matter and the contents of this compliance agreement. The proposed text is to be provided to the Commissioner within 30 days of receipt of a copy of this agreement signed by the Commissioner.
The Contracting Party undertakes to post the notice described in the preceding paragraph, on the first page of its website, with prominent placement that is fully accessible to the public, for a minimum period of 30 days beginning as soon as practicable after the Commissioner has approved its content. The Contracting Party further undertakes to provide evidence to the Commissioner that this undertaking has been complied with.
The Contracting Party undertakes to comply with the relevant provisions 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 fulfilment by the Contracting Party of its undertakings 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 Sudbury, in the province of Ontario, this 26th day of October 2016.
William Day Construction Limited
Signed by the Commissioner of Canada Elections, in the City of Gatineau, in the province of Quebec, this 8th day of November 2016.
Yves Côté, QC
Commissioner of Canada Elections