If your organization has been named in a discrimination complaint, you may be involved in the Commission’s dispute resolution process. The Commission’s dispute resolution process is designed to resolve human rights complaints at the earliest opportunity. How a discrimination complaint goes through the Commission’s process depends on the details of the case.
The Commission will be impartial throughout the dispute resolution process. In some cases, however, when a complaint is referred to the Canadian Human Rights Tribunal, the Commission will represent the public interest. That is to say, the Commission will participate in the hearing process in cases where the outcome has the potential to clarify, influence, shape or define human rights law.
The three main stages of the Commission’s dispute resolution process are as follows:
- Stage 1: Before a formal complaint is filed
- Stage 2: After a formal complaint is filed
- Stage 3: After the Commission’s decision
|Note: Depending on the details and the parties involved, a discrimination complaint may only go through one stage, or it may go through all three stages before it is resolved. Although the process is described here in a linear fashion, it is important to know that a complaint does not necessarily go through the process this way. Depending on the details of the complaint, it might skip over certain steps or stages.|
Inquiry and Screening
Every potential discrimination complaint starts with a phone call or a letter to the Commission. The potential complainant would explain why they want to file a discrimination complaint.
As the respondent, your organization will be notified in writing as soon as possible once the Commission receives a discrimination complaint. This is where the complaint process begins for you.
At this stage in the process, the Commission may find that there might be a reason it should not deal with the complaint. If so, your organization will also be sent something called an information sheet. This is a set of factors to be considered by the Commission. The sheet will also have questions you can answer. This is your organization’s opportunity to say whether you think the Commission should deal with the complaint, or not, and why.
At this time you should tell the Commission as soon as possible if you believe:
- The issue does not fall under the Commission’s jurisdiction.
- The issue is not linked to one of the grounds of discrimination.
- The issue is not based on a discriminatory practice in the Act.
- Your organization has an internal dispute resolution process that could be used instead.
- There is another process already dealing with the complaint, or that has already dealt with it.
- The complaint is trivial, frivolous, vexatious or made in bad faith.
- The complaint has not been filed within one year of the alleged discrimination occurring.
Once your position is received, a report is prepared for the Commission members. The report, along with any submissions from your organization and the complainant, are given to the Commission members who will decide whether or not to deal with the complaint.
If the Commission decides to deal with the complaint, mediation could be offered.
The mediation process is voluntary and confidential. It gives both sides the opportunity to explain their understanding of the issue, and then attempts to resolve the concerns that led to the complaint.
Mediators are impartial and do not represent your organization or the complainant.
If the mediation works then both sides must sign a settlement agreement. This agreement would outline what each side has decided to do, to resolve the dispute. This is what we mean when we say the parties have reached a settlement.
If mediation does not work, the discrimination complaint is investigated. Whatever you discussed in mediation cannot be used against you during the investigation.
Dave works in an interprovincial transportation company in Alberta. Last spring, he was in a serious accident that left him paralysed. After rehabilitation, Dave is ready to resume his duties as dispatcher. However, he has lost mobility in his legs and now uses a wheelchair.
Upon his return, he finds that the company building is not accessible for people who use wheelchairs. The washroom is too narrow and the office space needs to be reconfigured to adjust for his needs with an appropriate work station.
He speaks to the owner of the small family company who expresses his concern for the situation. The owner tells Dave that the company can’t afford a ramp, or the necessary renovations to the bathroom and to his work station. Dave is very disappointed and decides to contact the Commission about filing a complaint against his employer.
After speaking with the company owner about Dave’s complaint, a Commission officer asks Dave if he would take part in an informal dispute resolution process. The goal is to bring everyone affected by the issue together to share their views and resolve the conflict.
Dave and the owner agree to meet with a professional mediator who acts as an independent third party.
The mediator hears both sides of the situation and leads a discussion about the cost of renovations and the benefits for the company and the users. Dave and his boss agree to work together to inspect the building and create an action plan to make the space more accessible. The plan will identify immediate needs and set out a schedule for what can be done later as part of regular maintenance.
Dave decides not to take the complaint any further. He comes to an agreement with his employer and notifies the Commission of his decision to withdraw the complaint. The Commission then closes the file.
During the investigation process the Commission will consider the case on its merits. This means that the investigator may:
- Speak with you (or your representative) and the complainant.
- Interview any witnesses.
- Review any supporting documents.
- Decide whether there is evidence to support the allegation(s) in the complaint.
During the investigation, the investigator will normally ask you to provide your response, or supporting information, in writing, but the Commission is open to other ways of doing things. For example, you could ask the investigator to discuss your position by phone.
After the investigation, the investigator prepares a report. The report will make one of three recommendations:
- that the complaint be dismissed;
- that the complaint be sent to conciliation; or
- that the complaint be referred to the Canadian Human Rights Tribunal.
The investigation report will be shared with you and the complainant. You will both be given the chance to make written comments on the report.
The Commission’s Decision
After the investigation, the Commission members will read the investigation report and any comments made by you and the complainant before making a decision.
The Commission members will decide if the complaint should be dismissed, sent to conciliation, or referred to the Tribunal.
Commission decisions are final, so the human rights officer cannot ask the Commission members to change their decision once it is made.
Conciliation is similar to mediation. The difference is that conciliation is mandatory. Both you and the complainant must participate in conciliation as a final attempt to resolve the conflict.
If the Commission decides that your matter should go conciliation, you will normally be given a window of three to four months to try to settle the discrimination complaint. If you cannot reach a settlement in that time, the case could be sent back to the Commission, and possibly to the Canadian Human Rights Tribunal.
If the Commission decides to refer a complaint to the Canadian Human Rights Tribunal, the Commission no longer controls the complaint.
The Tribunal will hold a hearing. It will ask both you and the complainant to provide any documents and call witnesses for support.
In some cases, the Commission will also attend the Tribunal hearing to represent the public interest, in cases where the outcome of the case has the potential to clarify, influence, shape or define human rights law. If this happens, the Commission may also provide documents and call witnesses.
After the hearing, the Tribunal will either dismiss the complaint or find that there has been discrimination. If the Tribunal finds there has been discrimination it can order corrective measures for your organization to resolve the discrimination complaint.
Corrective measures can include ordering your organization to:
- change its policies or practices, or create human rights policies;
- pay the complainant lost wages or give them their job back;
- take human rights awareness training;
- pay for the complainant’s pain and suffering, and any losses caused by the discrimination; or
- compensate the complainant if the discrimination was wilful or reckless.