- What are some basic human rights legal terms and concepts?
- What does discrimination and harassment mean?
- What does the duty to accommodate mean?
- What does undue hardship mean?
- What medical information can an employer ask for?
- What are employee/employer responsibilities in cases of discrimination and harassment?
- What are the prohibited grounds?
- What happens during the human rights complaint process?
- What happens during the Voluntary Resolution Process (VRP)?
- What types of remedies are available in human rights law?
- What happens during a human rights investigation?
- How does a complaint get referred to a hearing and what happens next?
- What happens during Commission-Directed Mediation (CDM)?
- How do I request a section 31 Executive Director deferral and a section 32 Executive Director dismissal?
What are human rights?
Human rights are rights that we all have simply because we are human. In Newfoundland and Labrador these rights are put into practice though the Human Rights Act and the work of the Human Rights Commission.
What does it mean when it is said that human rights legislation is “quasi-constitutional”?
Section 5 of the Human Rights Act states that the Act takes precedence over other Acts where there is a conflict. This means that human rights laws are considered to be more important than other laws where there is a conflict.
What are the legal burdens of proof?
The Complainant must prove that a prima facie case of discrimination exists. The onus then shifts to the Respondent to provide a defence for their actions.
What does prima facie mean?
The Supreme Court of Canada has said that a prima facie case of discrimination is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent.”
Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears,  2 S.C.R. 536 at p. 558
What is Discrimination?
Discrimination is defined as a “distinction, whether intentional or not, which is related to personal characteristics (prohibited grounds) and which imposes a burden, disadvantage or limits access to opportunities in some way”. Discrimination comes in many different forms; for example, racist or sexist comments made directly to a person; stereotypical assumptions that are made based on a person’s presumed traits; or where a rule or policy, which on its face is neutral, still has a discriminatory effect.
Intention to discriminate is not a requirement to a finding of discrimination. “It is the result of the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons, obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.”
Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears,  2 S.C.R. 536 at p. 329
What is harassment?
Harassment is another form of discrimination. The Human Rights Act defines harassment as a “course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.
What does the term “accommodation” mean?
The Human Rights Act states that employers, landlords and service providers are required to accommodate (provide supports to or make alternative arrangements for) human rights related needs to the point of undue hardship. The accommodation should be tailored to the specific needs of the person seeking the accommodation. The goal of accommodation is to ensure that the person can fully and equally participate in society.
What are some examples of accommodations?
- Provision of sign language interpreters/close captioning.
- Flexible work schedules.
- Re-assignment to a position with fewer safety risks if the employee has a functional limitation.
- Modifying dress codes to allow for religious needs.
What are the Complainant’s and the Respondent’s role in the accommodation process?
The duty to accommodate has both a procedural and a substantive component. The procedural component requires “an individualized investigation of accommodation measures and an assessment of an employee’s needs” and the substantive component requires the employer to “make modifications or provide the accommodation necessary (short of undue hardship) in order to allow an employee with … needs to participate fully in the workplace.” The onus is on the employer to demonstrate that it has made reasonable attempts to accommodate an employee to the point of undue hardship; however, the employee also has a duty to cooperate in the accommodation process, which includes facilitating the implementation of reasonable proposals advanced by the employer.
Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC)
What is a good faith qualification or good faith occupational qualification?
The Supreme Court of Canada has established a three-stage analysis for determining whether a discriminatory standard is a good faith (or bona fide) qualification. The standard of proof is on a balance of probabilities and the burden rests with the party seeking to maintain the requirement. The three-stage analysis is as follows:
- Is the discriminatory standard rationally connected to the performance of the job?
- Was the discriminatory standard adopted based on an honest and good faith belief that it was necessary?
- Was the discriminatory standard reasonably necessary to the accomplishment of a legitimate, work-related purpose? (i.e. undue hardship)
British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (1999), 176 D.L.R. (4th) 1,  3 S.C.R.
What is the definition of undue hardship?
An employer or service provider does not need to prove that it is impossible to accommodate a person just that it would result in undue hardship. Undue hardship is meant to be hard though; and does require significant difficulty or expense. What undue hardship means is different in each circumstance.
How do you know if you’ve met the undue hardship requirement?
Each case is decided on its own facts, but meeting the “undue hardship” test may include a consideration of the following:
- Financial cost
- Size of the organization
- Collective Agreement
- Interchangeability of work force and facilities
- Morale of other employers
It is the Complainant who must prove a disability. A disability is one that has a degree of permanence or severity and impairs the employee’s ability to do their job. There is no requirement to disclose your diagnosis, but your employer can ask you for certain information that is job related; for example, your functional limitations in relation to specific job duties and other information necessary to provide the appropriate accommodations. In some cases, an employee’s refusal to comply with their employer’s reasonable request for medical documentation may constitute a failure to meet their duty to cooperate.
RB v. York Region District School Board, 2011 HRTO 213 (CanLII)
Employer responsibilities include:
- Have appropriate policies/procedures in place.
- Publicize them (posted in central locations, in on-boarding materials and on an on-going basis).
- Monitor workplace regularly.
- Respond to complaints quickly and seriously.
- Have resources available to respond to complaints.
- How was complainant told about the resolution?
Employee responsibilities include:
- Report incident to manager/human resources/colleague.
- Be aware of internal resolution policies/procedures.
- Consider other options (union, human rights).
The Act prohibits discrimination on the basis of inherent characteristics that a person acquires or carries with them from birth – matters over which an individual has no choice. They are called prohibited grounds:
- Race, nationality, colour, and ethnic origin are not specifically defined in the Act.
- Social origin refers to a class of people who are defined by their origin within a prescribed geographical area.
- Religion includes adherence to the practices of a particular faith or genuinely held religious beliefs, and not having religious beliefs. Religion differs from religious creed in that religion refers to the particular system of faith or worship that a person adopts (eg. Islam, Christianity).
- A Religious creed is:
- sincerely, freely and deeply held;
- is integrally linked to a person’s identity, self-definition and fulfilment
- is a particular and comprehensive, overarching system of religious belief that governs one’s conduct and practices
- addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence, and
- has some “nexus” or connection to an organization or community that professes a shared system of belief.
- Age is not specifically defined in the Act.
- Disability is defined as one or more of the following conditions:
- a degree of physical disability
- a condition of mental impairment or a developmental disability
- a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or language, and
- a mental disorder.
- The Act also protects people who have or have had a disability; are believed to have or have had a disability; or have or are believed to have a predisposition to developing a disability (perceived disabilities).
- Disfigurement is meant to cover burning, scarring or other disfiguring conditions, but that do not cause and functional limitations. It is not meant to cover piercing or tattooing, unless for religious or cultural reasons.
- Sex / Assigned Sex is the classification of a person as male, female or intersex based on biological attributes, such as external genitalia, reproductive organs, chromosomes and hormones. Generally, individuals are assigned a sex at birth by a medical professional, often on the basis of their external genitalia.
- Sex also includes pregnancy, breast-feeding and sexual harassment.
- Sexual orientation describes an individual’s enduring physical, romantic and/or emotional attraction to another person. Gender identity and sexual orientation are not the same. Transgender people may be of any sexual orientation.
- Gender identity refers to each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex. Gender identity is fundamentally different from a person’s sexual orientation.
- Gender expression refers to how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.
- Marital status is defined as the status of being single, engaged to be married, married, separated, divorced, widowed or 2 people living in the same household as if they were married. Same sex marriage has been legal in the province since 2004.
- Family status is defined as the status of being in a parent and child relationship and, for the purpose of this paragraph, “child” includes a stepchild and an adopted child and “parent” includes a step-parent and an adoptive parent.
- Source of income is defined as being in receipt of income or employment support under the Income and Employment Support Act.
- Political opinion is not specifically defined in the Act. Other provinces have defined “political belief, association or activity” to encompass some form of focused discourse about convictions that are linked to the political organization, political functioning or the political nature of society and does not include beliefs or concerns about discrete social, environmental, medical or other such issues. It is not confined to partisan political beliefs.
- An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of because of the conviction for an offence that is unrelated to the employment of the person.
How do I start the human rights process?
Contact the Human Rights Commission and speak to one of our staff members.
Human Rights Commission
Natural Resources Building, 5th floor
50 Elizabeth Avenue
P.O. Box 8700
St. John’s, NL
Toll Free: 1-800-563-5808
You can also find out general information about the human rights process on our website at thinkhumanrights.ca.
Section 25 of the Human Rights Act states that a person who has “reasonable grounds” for believing that a person has contravened this Act may file with the executive director a complaint in a form acceptable to the Commission.
What are “reasonable grounds”?
Reasonable grounds are a set of facts which, when viewed objectively by a reasonable person, would lead that person to conclude that there has likely been a contravention of the Human Rights Act. Reasonable grounds are more than suspicion, but less than absolute proof.
If the following questions can all be answered affirmatively, then the incident will be considered to have reasonable grounds:
- Does the person have or are they seen to have (perceived) a personal characteristic that falls within at least one of the enumerated prohibited grounds in Section 9 of the Human Rights Act?
- Does the alleged discriminatory incident/treatment fall within one of the protected areas (e.g. employment, accommodation and access to services and facilities)?
- Does the employer, trade union, or provider of accommodation, service, facility, or goods operate within the province at the time of the last alleged incident?
- Did the last incident occur within the last 12 months? and
- Are there reasonable grounds to establish some connection between the prohibited grounds and the alleged discriminatory incident/treatment?
Will I need to fill out any forms?
When you first contact our office you may be asked to fill out a Human Rights Application Form. The Human Rights Application Form is your chance to tell us some general information about your allegations. The information contained in the Human Rights Application Form will help us determine if “reasonable grounds” exist. It is very important that you answer all of the questions to the best of your ability. You will be notified if your complaint is accepted.
If your complaint is accepted, the information contained in the Form, with the exception of your personal contact information will be disclosed to the person/business you are complaining about.
Who is the Complainant?
The Complainant is the person who alleges that they have been discriminated against or harassed based on one or more of the prohibited grounds.
Who is the Respondent?
The Respondent is the individual, company or organization that is alleged to have discriminated against or harassed the Complainant. There can be more than one Respondent.
What information goes in a Human Rights Application Form?
The Human Rights Application Form identifies the Complainant and the Respondent(s) and discloses the factual basis for an allegation of discrimination or harassment under the Human Rights Act. It is the contents of the Human Rights Application Form that must be proved or disproved before a Board of Inquiry.
When naming Respondents on a Human Rights Application Form, you are naming the organization(s) and/or individual(s) you believe engaged in discrimination or harassment. The Complainant should attempt to find out the correct legal name of the company or organization that they allege discriminated or harassed them.
The sections of the Human Rights Act that relate to the prohibited ground and protected area are listed as well as the date of the alleged contravention.
The particulars of the complaint will contain a brief description of the action or activity that is alleged to have contravened the Human Rights Act. It will also detail why the Complainant feels that the alleged discriminatory or harassing treatment is related to one or more of the prohibited grounds and should suggest ways in which the complaint could be resolved.
The particulars should be stated as concisely as possible and outline the 5 Ws: who, what, when, where, and why? The Complaint Form should be sufficiently detailed to enable the Respondent to make an informed Reply.
Is there a fee for filing a Human Rights Application Form?
No, there is no fee for contacting our office and filing a Human Rights Application Form.
How long do I have to file a Human Rights Application Form?
A complete and accepted Human Rights Application Form must be received by our office within 12 months after the alleged contravention occurred or, in the case of a continuing contravention, within 12 months after the last incidence of the alleged discrimination or harassment.
The 12 month limitation period starts to run when a person is aware or ought reasonably to be aware of the facts that give rise to his or her complaint.
Does the Human Rights Commission represent me?
No, the Human Rights Commission deals with complaints of discrimination and harassment in a way that is independent, unbiased and neutral. The Commission does not represent you or the person or company you allege has discriminated against or harassed you.
What are my responsibilities once the complaint has been accepted?
It is your responsibility to work with the Human Rights Commission to resolve your complaint. We ask you to do the following:
- Consider ways to resolve your complaint;
- Inform the Commission of any changes to your address, phone numbers or email addresses. Failure to do so may delay the process or may lead to the Commission dismissing your complaint;
- Respond to the Commission in a timely way;
- Give any relevant documents or information to the Commission.
How will the person/company alleged to have contravened the Act be notified of my complaint?
If your complaint is accepted, the information contained in the Human Rights Application Form, with the exception of your personal contact information will be disclosed to the person/business you are complaining about. The “service” of these documents starts a formal legal process.
What do if I am served with a human rights complaint?
Please review the documents in detail. If you are a Respondent, you should consider getting legal advice if you feel necessary. You may also contact the Commission to get general information about the process and next steps.
If you are an employee of a Respondent company (a person named) you should talk to your supervisor or your human resources department.
Our mediator will contact both parties within 2 weeks to discuss our voluntary resolution path and ways in which the complaint can be resolved.
If the parties are not able to resolve the matter through voluntary resolution, the complaint will be assigned to a Human Rights Specialist for an investigation.
What is a Reply and when is it filed?
Once a complaint has been assigned to a Human Rights Specialist for an investigation, the Respondent is asked to file a Reply. A Reply is the Respondent’s opportunity to provide their side of the story. The Commission requests a Reply within 60 days. You may also be asked for other relevant information or documents, the names of potential witnesses or to give a signed statement. Your Reply will be disclosed to the Complainant.
What is a Rebuttal and when is it filed?
Once the Respondent(s) files a formal Reply, the Complainant may file a Rebuttal Form. A Rebuttal is the Complainant’s opportunity to provide comments on the Reply and respond to any new or inconsistent information raised by the Respondent(s). A Rebuttal is encouraged, but is not necessary. If you file a Rebuttal it will be disclosed to the Respondent(s).
What happens next?
The Human Rights Specialist’s job is to review and investigate the complaint to the extent warranted in the circumstances. Each investigation is different and depends on the facts of each case. The Commission has control over the timing and course of the investigation and determines what evidence is relevant. A Human Rights Specialist can interview witnesses, attend at work sites or other locations, and demand and review documents, if required.
The next step in our process is called a Case Assessment. We will review all of the information in the file and determine what level of investigation is warranted in the circumstances. You will be notified of this decision.
The parties to a complaint are given many opportunities throughout the process to respond to the evidence that is obtained as part of the investigation. Any relevant information that you give to the Human Rights Specialist (or that they discover) during the investigation will be shared with the other party, in the spirit of full disclosure. Both parties will have an opportunity to respond to the investigation before the Human Rights Commissioners review the complaint.
Can I withdraw my complaint once it is served on the Respondent?
Yes, section 25(5) of the Human Rights Act allows a Complainant to withdraw the complaint at any time before the beginning of a hearing.
What is an abandoned complaint?
Part of your responsibility as a Complainant is maintaining contact with the Commission and responding to our requests for contact or information from you. If you fail to do so, there is a risk that your file will be considered to be “abandoned” by you. An abandoned file will be concluded without any further investigation and will be forwarded to our Commissioners, who may decide to dismiss your complaint on the basis that it has been abandoned by the Complainant.
Is the human rights process confidential?
Yes, the human rights process is confidential unless it has been referred to a Board of Inquiry, which is a public hearing. Relevant information is not disclosed to anyone, other than a party to a complaint during the investigation process. Once the complaint is referred to a Board of Inquiry, the hearing itself is open to the public and the decision reached by the Board of Inquiry is published on our website and possibly elsewhere. If you feel that your interest in protecting your personal information outweighs the public interest of full disclosure, you must make your wishes known to the Board of Inquiry before the hearing.
Am I protected from retaliation?
Yes, section 20 of the Human Rights Act protects people who have made a complaint or given evidence or helped in other respects from certain retaliatory actions.
What is the VRP process?
The Human Rights Commission is mandated to try to help the parties resolve their complaint. As a first step, the parties are encouraged to attempt the Voluntary Resolution Path.
The goal of the Voluntary Resolution Path (VRP) is to resolve the complaint in a way that is acceptable to the Complainant and the Respondent(s). The Commission’s Mediator will discuss ways to try to find a settlement of the dispute. The Mediator will not advocate or represent either party, but may suggest ways to settle and may offer information to both parties, such as general information about the types of awards that may be made. The mediator will also ask the parties to consider ways in which the complaint can be resolved.
What are the benefits of VRP?
VRP is a faster alternative to the normal human rights investigatory route. The majority of complaints that enter VRP are resolved within 2-3 months. The process is completely voluntary and confidential. The parties, with the help of a Mediator, control the process and the outcome. Mediations can be either informal (a phone call or email) or formal (a face to face meeting). Resolutions are creative and vary according to the circumstances of each case.
Is there a fee for VRP?
No, there is no fee to participate in the VRP process.
Does the Human Rights Commission’s Mediator represent me?
No, the Commission’s Mediator does not represent either party. The Mediator, however, can provide the parties with general information about the process and remedies that might be typically available in human rights law.
The Mediator’s role is to foster open discussion to help the parties resolve the matter at an early state.
What does the term “without prejudice” mean?
During the Voluntary Resolution process, either party can make an offer or suggest an idea for settlement on a “without prejudice” basis. This means that the offer or idea cannot be used later in the investigation process if a complaint is not settled, unless the party making the offer wants it to become part of the file.
How do I prepare for a formal mediation?
Mediation is not an adversarial process and it is much less formal than an adjudication hearing. Both parties are asked to prepare a very short summary of the story and provide ideas on how to resolve the complaint.
You are free to bring your own lawyer or support person to the mediation.
What are examples of the types of solutions the parties can reach?
VRP can result in many types of settlements, including specific (actual proven losses) and/or general damages (pain and suffering), reference letters, apologies, reinstatement, creation of new policies and procedures, and human rights training.
What happens if the parties are unable to reach an agreement?
If the parties do not agree to enter VRP or they are not able to resolve the complaint, the file will be given to a Human Rights Specialist for an investigation. The file will not lose its place in the Human Rights Specialist’s queue of investigations. The Human Rights Specialist will not have had any previous involvement in the file and will not be aware of anything that was said during VRP.
Can the parties return to VRP after the complaint has been assigned to a Human Rights Specialist for an investigation?
Yes, in fact the Commission encourages the parties to return to VRP at any stage in the human rights process.
If your complaint is referred to the Voluntary Resolution Path (VRP) or Commission-Directed Mediation (CDM), the Complainant will be asked to submit a proposal for resolution of the complaint. You must keep in mind that whether you are trying to resolve your complaint at the VRP or the CDM stage, there has been no ruling as to whether discrimination occurred. Only an adjudicator can make such a ruling.
What is a proposal?
A proposal is the Complainant’s suggestions for resolution of the complaint. This is what the person is looking for in order to resolve the complaint. This can be either money or a non-financial remedy.
What types of remedies are available in human rights law?
Remedies in human rights law are intended to put the Complainant in the position they would have been in if the alleged discriminatory action had not occurred. It is not intended to punish the Respondent.
Typical remedies in human rights law include:
- Reference letter
- Human Rights training for the Respondent
- Policy change with the Respondent
- Lost wages
- General Damages
What is reinstatement?
If you were terminated from your job as a result of discrimination, you may be able to get your job back. While this is used in rare circumstances, it is a remedy that is available in human rights law.
What are general damages?
General damages are typically awarded for injury to dignity, hurt feelings and humiliation caused by the discrimination act. In the last three hearings held in NL, general damages were as follows:
- A Complainant who experienced harassment in the workplace: $5,000.00
- A Complainant who was denied a job because of her gender: $7,000.00
- A Complainant who was denied the use of a taxi service because of her service animal: $5,000.00
Some of the factors that may be considered when determining general damages are:
- The impact the discrimination had on you
- How badly you were treated
- The vulnerability of the Complainant
- Whether the discrimination happened on one occasion or over a long period of time.
How do I calculate lost wages?
Lost wages may be claimed if you experienced actual financial losses since the alleged discriminatory conduct, for example your termination. If you earned other income since your termination, then this income must be considered as part of your claim.
Example: If you were terminated on January 1, 2017 but you were unable to find other work for approximately one month, then you may be able to claim lost wages for that period of time. If you found other work but at a reduced rate of pay, then you can also potentially claim the difference in your previous salary and your new salary. For example, you previously worked for an employer and made $20 per hour during a 40 hour work week. If you found work with a new employer for $13 per hour for the same 40 hour work week, you may be able to claim the difference $7.00 per hour from the date of termination until the date of resolution.
Please note that the Complainant has a duty to mitigate his or her losses.
What is mitigation?
There is a duty in human rights law for a Complainant to mitigate or reduce his or losses. This means that if you are terminated, you have an obligation to make reasonable efforts to try to find other work so that you reduce your financial losses. This may mean taking lesser paid work or expanding the job search area. In any proposal where a Complainant is seeking lost wages, a respondent will likely ask for information to support this claim. This may mean providing income tax returns and information about the efforts you made to find other work.
What is involved with human rights training?
Human rights training can be provided to the Respondent to make them aware of their rights and obligations under the Human Rights Act. This may help to prevent a similar occurrence of the alleged discrimination in the future.
When will the complaint be investigated? By whom?
If the parties do not agree to enter the Voluntary Resolution Path (VRP) and/or the complaint is not resolved, the file will be given to a Human Rights Specialist for an investigation.
What is the role of the Human Rights Specialist?
The Human Rights Specialist’s role is to conduct an independent, thorough and unbiased investigation into the facts as alleged. The Commission must act with procedural fairness towards the parties during an investigation. This means that the Complainant and Respondent(s) must be aware of the evidence adverse to their interests. During an investigation, the Human Rights Specialist may interview witnesses, attend at work sites or other locations and demand and review documents, as required.
How is an investigation conducted?
Each investigation is different and depends on the factors of each case. While no rigid standard is set out in the Human Rights Act as to how a particular investigation should be carried out, the investigation must be thorough, unbiased and complete. What a complete investigation entails is dependent on the facts of each particular case. The Commission has control over the investigation and determines the relevance, timing and course of an investigation.
A standard investigation is conducted in order to gather relevant evidence. This might include interviewing the parties and non-party witnesses, gathering and reviewing documentary evidence, locating and obtaining expert witness opinion, gathering statistical data, gathering information to rebut claims advanced by parties and finally, analysis of the information collected.
Parties are given many opportunities throughout the process to respond to the evidence that is obtained as part of the investigation.
The Respondent’s may wish to submit a Reply Form. The purpose of this form is to provide the Commission with a summary of the information on which the complaint is based. The Complainants have the option then to submit a Rebuttal Form following the Reply from the Respondents. The purpose of this form is to provide the Complainant’s the opportunity to respond to any new points raised in the Respondent’s Reply Form. For both parties the Commission will not be able to advise you on what to include in your form, but can assist you with general questions.
What type of documentary evidence is gathered?
Examples of documents that the Complainant might submit include: medical reports and/or charts, Records of Employment (RoE), pay stubs, termination letters, performance evaluations, requests of accommodation, emails from Respondent(s), rent receipts, and mitigation efforts.
Examples of documents that the Respondent(s) might submit include: receipts for assistive devices or services, company financial records (especially if alleging the high cost of an accommodation request would be undue hardship), accommodation history, anti-discrimination policies, employee records, performance evaluations, disciplinary records, emails from Complainant, and photographs.
Relevant portions of any document pertinent to the investigation will be copied and provided to the other party as soon as possible after it is received at the Commission’s office.
What happens next?
The next step in our process is called a Case Assessment. We will review all of the information in the file and determine what level of investigation is warranted in the circumstances. You will be notified of this decision.
What is an Investigation Report?
An Investigation Report may be drafted after the investigation is completed. The Report summarizes the information gathered and attaches all of the relevant evidence. The Report does not contain a recommendation from Commission staff as to whether a complaint should proceed to a Board of Inquiry. The Report is forwarded to the Complainant and Respondent(s) for their review and comments. If a party raises new evidence in response to the Report, the opposing party is advised accordingly.
Must I respond to a request by a Human Rights Specialist?
Yes, it is an offense not to co-operate with Commission staff during an investigation and they have the right to obtain a warrant from a Provincial Court judge under certain circumstances. Please refer to S. 29 of the Human Rights Act for further details.
How long does an Investigation take?
Unfortunately, an investigation takes a very long time to complete. For this reason, we strongly encourage participation in voluntary resolution throughout the process.
What happens after the Investigation Report is completed?
The Investigation Report plus any additional comments and a non-binding, but privileged legal opinion, are provided to the Human Rights Commissioners, who then decide whether or not there is sufficient evidence for the complaint to proceed to a Board of Inquiry.
Who are the Human Rights Commissioners?
The Commissioners are appointed by the Lieutenant-Governor in Council for a term of 3 years. Appointments shall be made in a manner that ensures that it is composed of members who collectively possess experience with human rights issues and an interest in and sensitivity to human rights.
What is the role of the Human Rights Commissioners?
Human Rights Commissioners act in many ways, most significantly, by promoting an understanding of, acceptance of and compliance with the Human Rights Act, 2010. In addition, they attend regular meetings where Commissioners make decisions on the disposition of complaints, special programs and the strategic direction of the Human Rights Commission.
Who makes the decision to dismiss a complaint or to refer it to a Board of Inquiry?
Human Rights Commissioners review the complaint and all of the evidence and then decide whether or not to refer the complaint to a Board of Inquiry.
The Supreme Court of Canada stated in Cooper v. Canada (Human Rights Commission)  S.C.J. No.115 that a Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint has been made out. Rather, its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission’s role, then, is that of assessing the sufficiency of the evidence before it.
What do I do if I disagree with the Commissioners decision to dismiss a complaint?
You will be provided with written reasons for the dismissal of your complaint. Section 32 of the Human Rights Act allows a party to apply for judicial review of the dismissal by filing an Application with the Trial Division of the Supreme Court of Newfoundland and Labrador. (http://www.court.nl.ca/supreme/)
In what circumstances shall the Commissioners refer a complaint to a Board of Inquiry?
The Commissioners shall refer a complaint to a Board of Inquiry in the following circumstances:
- The complaint has not been dismissed or deferred by the Executive Director of the Human Rights Commission;
- There is sufficient evidence to proceed; and
- The parties are unable to settle the complaint.
What does “sufficient evidence to proceed” mean?
The Commissioners assess the available evidence in order to decide whether or not an inquiry is warranted.
The Commissioners must apply the collective experience and common sense of the Commission members in order to bring an objective perspective to the evidence to determine whether there is a reasonable chance that the complaint will succeed.
A bare assertion of discrimination is not enough (i.e.“I was discriminated against”) but it does not require proof on the balance of probabilities that the Complainant has a prima facie case of discrimination. Essentially, the Commissioners look at whether the Complainant’s case been taken out of the “realm of conjecture”.
What is Commission-Directed Mediation?
If the Commissioners determine that there is sufficient evidence to support the allegations, the complaint, as a first step, will be referred to “Commission-Directed Mediation”. This enables the parties a final opportunity, with the assistance of a Mediator, to try to resolve the matter.
How it works:
- The Mediator will contact the parties and the entire “Commission-Directed Mediation” process may take place over the telephone or by e-mail if the parties do not want to attend a formal mediation.
- In some cases, the Mediator may meet with the parties in person, if they are willing, to discuss settlement options.
- The mediator will have read the Investigation Report and is familiar with previous Human Rights decisions so he/she can assist the parties to consider the strengths and weaknesses of their respective cases, what evidence supports their respective positions, and the possible remedies that an adjudicator can order.
The Commission usually allows 60 days for the parties to reach a settlement during “Commission-Directed Mediation”. (If the parties are not making “good faith” efforts, the Mediator may end the process before this or if the parties are close to a settlement, the time may be extended).
“Commission-Directed Mediation” is a confidential process and a “last chance” to make a confidential settlement before the Board of Inquiry is appointed.
What happens at a Board of Inquiry?
When Commission-Directed Mediation fails or the Commissioners refer a complaint to a Board of Inquiry at first instance, the Chief Adjudicator is advised and he/she in turn selects a member of a panel of adjudicators to hear the matter in a public hearing.
The parties to a Board of Inquiry are the Commission, which has carriage of the complaint, the Complainant and the Respondent(s). The Board has the power, upon serving proper notice, to add a party to the proceeding. The Board has the powers of a Commissioner under the Public Inquiries Act, 2006 including the power to enforce the attendance of witnesses. A Board of Inquiry shall inquire into the matters referred to it and give full opportunity to all parties to be heard.
It is worth noting that very few matters proceed to an adjudication hearing. Most are resolved some other way.
While there are no formal pre-hearing procedures, generally parties will attempt to agree upon, to the extent possible, what evidence will be entered by consent and the scheduling of witnesses. Boards of Inquiry may call pre-hearing conferences to assist in delineating and refining the key issues to be addressed at the hearing.
What is the role of the Commission at the Board of Inquiry?
The Commission takes the lead in presenting the complaint and both the Complainant and the Respondent(s) will have a chance to present their evidence and arguments by either choosing to be represented by legal counsel or to present their own evidence and make arguments to the Board of Inquiry on their own behalf. The Commission represents the public interest at a Board of Inquiry.
Does the Commission’s lawyer represent me?
No, the Commission’s lawyer is not the lawyer for the Complainant or the Respondent(s). The role of Commission counsel is to present the complaint and represent the public interest. In presenting the complaint to the Board of Inquiry, the Commission limits its presentation of the complaint to what it determines to be in the public interest.
Who are Human Rights Adjudicators?
Human Rights Adjudicators are appointed by the Lieutenant-Governor in Council pursuant to section 36 of the Human Rights Act. Adjudicators appointed shall possess experience, knowledge or training with respect to human rights law and issues.
Adjudicators are independent of the Commission and report directly to the Chief Adjudicator. Commission staff only assist with the administrative details of holding a Board of Inquiry.
What happens if I disagree with the Order of the Board of Inquiry?
The Complainant and Respondent(s) have the right to appeal the decision of a Board of Inquiry to the Supreme Court of Newfoundland and Labrador, General Division within thirty days (30) from the date on which the person who wishes to appeal receives the order of the Board of Inquiry. The Supreme Court can confirm, reverse, or vary the decision and orders of the Board of Inquiry.
When the Commissioners decide that there is sufficient evidence to proceed, they will usually offer the parties a final opportunity to resolve their case before appointing an adjudicator for a public hearing.
The Commission mediator acts as an impartial facilitator to assist the parties to resolve the issues raised in the complaint.
The mediator’s services are provided free of charge to the parties.
If you are the Complainant, the sufficiency of evidence test does not mean that your case will be successful. There must be a full hearing with evidence and argument etc.
If you are the Respondent, the matter has not been dismissed outright by the Commissioners. This means the Complainant has passed the “second hurdle.”
Even if the parties have tried VRP before, now that the investigation is complete and both parties have more fats and information about the case, they may wish to try again to resolve their complaint.
How it Works:
- This is a voluntary process. All the Commission asks is that you speak to our mediator to discuss the complaint further.
- The mediator will contact the parties and the entire CDM process may take place over the telephone or by e-mail if the parties do not want to attend a formal mediation.
- In some cases, the mediator may meet with the parties in person, if they are willing, to discuss settlement options.
- The mediator will read the Investigation Report and is familiar with previous Human Rights decisions so they can assist the parties to consider the strengths and weaknesses of their respective cases, what evidence supports their respective positions, and the possible remedies the adjudicator can order.
The Commission usually allows 60 days for the parties to reach a settlement during CDM.
(If the parties are not making “good faith” efforts, the mediator may end the process before this and id the parties are close to a settlement the time may be extended.)
CDM is a confidential process and a “last chance” to make a confidential settlement before the Board of Inquiry is appointed.
How do I request a section 31 Executive Director deferral and a section 32 Executive Director dismissal?
If the Complainant has already started a grievance, court action, or other process that deals with the same issues contained in the complaint, it may be deferred or put “on hold” while awaiting the outcome of that other process. During the time of deferral, no further steps will be taken by the Commission or the complaint.
A complaint or part of a complaint may be dismissed by the Executive Director if it is outside the jurisdiction of the Human Rights Act, 2010; if it is frivolous, trivial, vexatious or made in bad faith; or where the substance of the complaint has been dealt with in another proceeding.
The Executive Director may defer or dismiss a complaint at a party’s request or if it is otherwise appropriate under the Human Rights Act, 2010. A request should be made in writing and should provide specific reasons for the deferral or dismissal. Be sure to include any documentary evidence you may have to support the request.
The following steps are followed when a deferral or dismissal is requested:
- The Executive Director notifies the parties of the decision to review the complaint.
- The parties are given 30 days to provide their arguments or any further information regarding the decision to dismiss or defer.
- After considering all of the information provided by the parties, the Commission’s Legal Counsel provides an opinion to the Executive Director as to whether the complaint should be dismissed or deferred.
- Once the Executive Director makes a decision regarding deferral or dismissal, the parties are notified in writing of the reasons for the decision.
- If the complaint is dismissed, the Complainant can make an application for judicial review to the Supreme Court of Newfoundland and Labrador. (http://www.court.nl.ca/supreme/)
As of September 2016, there has been one decision from the Newfoundland and Labrador courts regarding the Executive Director’s power of dismissal. The Executive Director dismissed Mr. Chiasson’s complaint under section 32(1) (c) of the Act because the subject matter of the complaint had been dealt with in a labour arbitration. The Supreme Court of Newfoundland and Labrador held that three questions must be asked prior to a dismissal:
- Was there concurrent jurisdiction to decide human rights issues?
- Was the previously decided legal issue essentially the same as what was being complained of to the Human Rights Commission?
- Was there an opportunity for the complainant to know the case to be met and have a chance to meet it?