NOTE: This document is merely a guide meant to provide parties with general information about the Human Rights Commission’s dismissal process. It should not be taken as legal advice.
If a party requires legal advice, they will need to retain the assistance of a lawyer at their own expense.
1. Introduction
The Human Rights Act (“the Act”) gives the Executive Director of the Commission the authority to dismiss a complaint at any time before it is referred to a hearing. Specifically, section 32 of the Act sets out this authority as follows:
Dismissal of complaint
- (1) The executive director may, at any time before a complaint is referred to a board of inquiry under section 34, dismiss all or part of the complaint where the executive director is satisfied that
- (a) this Act provides no jurisdiction to deal with the complaint or that part of the complaint;
- (b) the complaint or that part of the complaint is trivial, frivolous, vexatious or made in bad faith; or
- (c) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.
- (2) Where the executive director dismisses all or part of a complaint, the executive director shall serve the parties to the complaint with a written notice of and the reasons for the dismissal.
2. What does the dismissal process look like?
The following are the steps followed by the Commission during the dismissal process:
- The dismissal process under section 32 begins one of two ways:
- A party requests a dismissal review; or
- The Executive Director identifies a complaint for a dismissal review.
- The parties will be notified that the Executive Director will be reviewing the complaint for dismissal.
- The parties have 30 days to provide any further information that may be relevant to the dismissal review.
- The parties may be asked to answer additional questions or to provide legal arguments to support their position.
- The Executive Director reviews all of the information on file and informs the parties of their decision.
- If the Executive Director decides to dismiss the complaint:
- The parties are provided with a Dismissal Letter which would include written reasons for the dismissal.
- If either of the parties disagrees with the Executive Director’s decision, they then have 30 days to make an application to have the decision reviewed by a judge of the Supreme Court of Newfoundland and Labrador.
- If the Executive Director decides not to dismiss the complaint then either:
- The matter may be referred back to a Human Rights Specialist to continue the investigation of the complaint; or
- The matter will be passed onto the Commissioners to review to determine if there is sufficient evidence to proceed to a hearing.
3. When can a complaint be dismissed?
If the Executive Director determines it is plain and obvious that the complaint will not succeed for one of the reasons listed under section 32 of the Act, then the Executive Director may decide to dismiss the complaint.
The Courts have consistently held that a human rights complaint should only be dismissed in the most “plain and obvious” cases;[1] in other words, the Executive Director should only exercise their discretion to dismiss a complaint if it is “plain and obvious that it cannot succeed”.[2]
Whether or not it is “plain and obvious” that a complaint should be dismissed will depend on the information provided to the Commission by the parties. In making the determination, the Executive Director cannot weigh the evidence or prefer one party’s version of events over another. Rather, the Executive Director must take all of the information presented at face value and determine if it is “plain and obvious” that the complaint should be dismissed.
Example of when it is plain and obvious that a complaint should be dismissed:
An older man feels as though he was let go from his job due to age. However, throughout the investigation it became clear that this alleged incident occurred over two years ago. Section 25(2) of the Act makes it clear that a complaint must be filed within 12 months of the alleged violation. Therefore, it is plain and obvious that the complaint should be dismissed as being beyond the Commission’s jurisdiction, due to the 12 month limitation period.
Example of when it is not plain and obvious that a complaint should be dismissed:
A man files a complaint alleging that his employer failed to provide him with a requested accommodation regarding an ongoing back injury. The manager denies ever being informed of the employee’s back injury or the request for accommodation. This is a typical “he said-she said” situation which requires a decision maker to review all the evidence and make a determination on who’s version of events is more trustworthy and credible. Therefore it is not plain and obvious that this complaint should dismissed.
3.1 The Act provides no jurisdiction to deal with the complaint
The Act lays out the Commission’s jurisdiction or ability to deal with a complaint. If a complaint is beyond the jurisdiction of the Act, then the Commission does not have the power or authority to deal with the complaint.
The Commission has the jurisdiction to accept and investigate a complaint if each of the below conditions are met:
- The complaint is made within one year of the alleged contravention of the Act,
- The alleged contravention has a sufficient connection with the province of Newfoundland and Labrador,
- The alleged contravention does not involve a federally-regulated matter,
- The alleged contravention occurred within one of the protected areas listed in the Act, and
- The alleged contravention is based on one or more of the prohibited grounds of discrimination.
If a complaint does not meet the conditions set out above, then it will be considered beyond the jurisdiction of the Commission. As a result, the complaint may be dismissed, or the Commission may decline to accept the complaint in the first place.
Below is an overview of each of the jurisdictional limits set out in the Act.
3.1.1 Complaint Filed after the Limitation Period
A complaint must be filed with the Commission within 12 months of the alleged contravention, or in the case of a continuing contravention, within 12 months of the last incidence of the alleged contravention.[3]
A “continuing contravention” involves repeated discriminatory conduct similar in character, so long as there are not significant gaps in time between the alleged incidents. Each incident, on its own, must be able to be considered as a separate violation of the Act for there to be a “continuing contravention”; it must be more than merely one act of discrimination which may have continuing effects or consequences.[4] Examples of a “continuing contravention” include on-going sexual harassment, an on-going failure of an employer to accommodate an employee, or the repeated application of a discriminatory policy or standard.
Example of a continuing contravention:
An employee requested on three different occasions over a period of 14 months for an accommodation to not be scheduled to work on Sundays. The employer failed to address the accommodation request. Even though the first request was more than one year ago, the employee can file a complaint covering all 3 incidents since the most recent incident is within the limitation period, the allegations are similar in character and there were no significant gaps in time between the alleged incidents.
3.1.2 Conduct Outside of Newfoundland and Labrador
The Commission may accept a complaint about conduct that took place outside of Newfoundland and Labrador, if there is a sufficient connection between the alleged discriminatory conduct and the province. Similarly, the Commission may decide to proceed with a complaint even if the respondent is not located within the province.
Example where there is sufficient connection, even though the alleged incident took place outside the Province:
An employee works for a local business within the province and is often required to travel out of province for their work. While on one of the work trips, the employee’s supervisor made multiple harassing comments, in addition to unwelcomed touching. While the conduct itself took place outside of the province, the Commission may still proceed with an investigation into the complaint since the employment relationship is grounded within the province.
Example where there is sufficient connection, even though the Respondent is located outside the Province:
A student writing the Law School Admissions Test alleged that she was discriminated against when the organization administering the test failed to accommodate her disability. The organization administering the test argued that the Commission was without jurisdiction to deal with the matter since their headquarters was located in the United States. The complaint was not dismissed since the test itself was being administered within the province, thereby grounding the Commission’s jurisdiction to deal with the complaint.[5]
The Commission may consider the following information when determining whether there is a sufficient connection with the province to proceed with the complaint:
- The location of the alleged act of discrimination;
- Whether the Respondent was conducting business within the province, as well as any services, goods, accommodations or facilities that it may offer to the public;
- Any contract or employment agreement;
- In the employment setting, the Respondent’s place of business or headquarters, the employee’s usual place or location of employment, and whether the terms of employment require the employee to work outside the province.
3.1.3 Federal Matters
The Canadian Constitution sets out the responsibilities of both federal and provincial governments. If a business is regulated by federal laws, then a complainant would need to file a human rights complaint with the Canadian Human Rights Commission. A complaint filed with the provincial Commission may be dismissed if it is determined that it involves a federally regulated matter. It does not matter if a corporation has been federally or provincially incorporated – what is of concern is whether or not the corporation is regulated by federal laws.
The Canadian Human Rights Commission is the only body in the entire country that has the ability and jurisdiction to deal with complaints that involve federally-regulated matters; please refer to their website for further information on their process.
Federally-regulated matters include, but are not limited to:[6]
- Air transportation
- Interprovincial transportation (i.e. ferries)
- Internet, telephone and cable providers
- Radio and television broadcasting
- Banks
- Postal service
- Some matters relating to Indigenous rights and land reserves
When requesting a dismissal, the Respondent must provide the Commission with information showing that they are in fact a federally regulated corporation. For example, it is not enough to state that the Respondent is an interprovincial trucking company; the Respondent would need to provide information showing that interprovincial trucking is a regular and continuous part of its business that is regulated by federal law.
Example of a complaint that falls under federal jurisdiction:
A security guard at one of the provincial airports wishes to file a complaint alleging discrimination based on sex in the workplace. Airports, including vital areas such as security, are federally regulated under the Aeronautics Act. Therefore, the Newfoundland and Labrador Human Rights Commission does not have the jurisdiction to deal with the complaint. Rather, the employee should file their complaint with the Canadian Human Rights Commission.[7]
3.1.4 Falls Outside of the Protected Areas of Discrimination and Harassment
The Commission only has jurisdiction to deal with complaints that fall within the protected areas of discrimination and harassment listed in the Act.
The protected areas of discrimination and harassment include:
- (i)Goods, services, accommodation, and facilities customarily offered to the public
- (ii)Occupation of commercial and dwelling units
- (iii)Employment
- (iv)Contracts
- (v)Publications and advertisements
(i) Goods, services, accommodation, and facilities customarily offered to the public
The Act states that no one shall deny a person or discriminate against a person with respect to goods, services, accommodations and facilities which are customarily offered to the public.[8] For example, restaurants, bars, service stations, buses, taxis, hospitals, schools and government services would all be included under this section of the Act.
When trying to determine if a “goods, service, accommodation or facility” is customarily offered to the public, the Commission will consider the following questions:[9]
- What is the “goods, service, accommodation or facility” that is the subject matter of the complaint?
- What is the public that is being served?
- Was the service customarily available to the public?
It is important to note that the term “offered to the public” has been interpreted to include goods, services, accommodations, and facilities that have been offered to a restricted segment of the public (i.e. accommodation in a women’s shelter or counselling services offered only to students on a university campus).[10]
It should be noted that this section of the Act does have certain exceptions built into it. A respondent may raise any one of the following exceptions as a defence under this section:[11]
- Accommodation in one’s own private residence is not an accommodation offered to the public, except for a private residence which operates as a B&B,
- An exclusion due to a person’s sex based upon the grounds of public decency (i.e. public changing rooms),
- Where sex is a reasonable criterion for admission to a certain accommodation (i.e. an all-female dormitory),
- Certain restrictions on membership to a religious, philanthropic, educational, fraternal, sororal or social organizations,
- A denial or refusal to a person who is less than 19 years of age where the denial or refusal is required or authorized by another Act (i.e. denying the purchase of alcohol to someone who is underage), or
- Other situations where a good faith reason exists for the denial of or discrimination with respect to goods, services, accommodations and facilities.
(ii) Occupation of commercial and dwelling units
No person or landlord shall deny a person occupancy of a commercial or rental unit, nor shall they discriminate against a person with respect to a term or condition within the rental agreement.[12] This section of the Act covers the occupation/rental of both “commercial units” and “self-contained dwelling units”.
A “commercial unit” is any building or structure, or part thereof, which is used is used for commercial or business related reasons. A “self-contained dwelling unit” means any house, apartment or other similar place of residence that is used as separate accommodation for sleeping and eating. If it is plain and obvious that a rental unit does not meet the definition of either “commercial unit” or “self-contained dwelling unit”, then the Executive Director may dismiss the complaint.
Example of a rental unit that does not meet the definition of a “self-contained dwelling unit”:
A landlord is looking to rent out a bedroom in the basement of their home. While the basement does have its own living space, the kitchen is located on the main floor and is shared with the landlord. This rental would not meet the definition of a “self-contained dwelling unit” as there is no separate accommodation for eating.
This section of the Act also sets out exceptions or defences specific to the rental properties. A respondent may raise one of the following exceptions:
- Building Designated as 55 plus: Under the Act, a landlord is permitted to designate all the rental units within a building as 55 plus, such that at least one person in each rental unit must have reached the age of 55 years old to qualify. It should be noted that in order for a landlord to rely on this exception, every rental unit in that building must be similarly reserved for persons who have reached the age of 55 years old.[13]
- Renting a Unit in a Private Residence: If a landlord is renting out a bedroom in their private residence where the landlord and tenant will share common spaces, the Act will not apply.[14]
(iii) Employment
An employer – or a person acting on behalf of the employer – shall not deny a person employment, shall not terminate a person’s employment, or otherwise discriminate against a person with regards to employment.[15] Therefore, an employer or a person acting on behalf of an employer may be held liable under the Act for discrimination or harassment in the workplace.
In order to prove discrimination in the employment setting, a complainant must first show that there existed an employment relationship. Sometimes this is obvious, such as the case with contractual employees; however, this is not always the case.
The courts will look at two factors to help determine if an employment relationship exists:
- (a) the control exercised by an employer over the working conditions and remuneration of the worker, and
- (b) the corresponding dependency on the part of the worker.[16]
It is not always plain and obvious if there exists an employment relationship or not. Therefore, the courts will look at the control an employer has over the working conditions, including planning shifts, setting wages, recommending for promotions, etc. Similarly, the courts will look to how dependent a worker is on an employer – i.e. does the worker function on their own, or do they require direction and instructions from the employer to fulfill the job requirements?
When trying to determine if someone is to be considered “a person acting on behalf of the employer”, one must look to the authority the employer vests in that person and whether they have any control over the working conditions of the employees. This was discussed in the recent Board of Inquiry decision of Howe v SureHire. In order for a person to be considered as acting on behalf of the employer, they would need to have authority to make decisions about employees’ employment status and their working conditions, such as setting job requirements, determining which prospective employees should be hired, or the remuneration of the employee.
Therefore, there must exist some relationship involving control and/or dependency between the complainant and the employer, or a person acting on behalf of an employer, in order for a complaint to fall under the protected area of employment.
(iv) Contracts
The Act provides protections when it comes to the formation of contracts. Specifically, no one can discriminate against a person or include terms in the contract that discriminates against a person on the basis of one or more of the prohibited grounds of discrimination.[17] It should be noted that the Act does provide exceptions for certain contracts relating to insurance, both personal and group, as well as pensions.[18]
(v) Publications and advertisements
The Act prohibits discrimination when it comes to publications and advertisements. No person shall publish or display a notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against a person on the basis of a prohibited ground of discrimination.[19]
3.1.5 No Prohibited Ground of Discrimination
For a complaint to be within the Commission’s jurisdiction, it must be connected to at least one of the prohibited grounds listed under the Act. The complainant must show that they have one or more of the personal characteristics protected under the Act, and that the discrimination or harassment they faced was based on that prohibited ground(s). The prohibited grounds of discrimination are as follows:[20]
- Race, colour, or nationality
- Ethnic or social origin
- Religious creed or religion
- Age
- Disability or disfigurement
- Sex, including pregnancy
- Sexual orientation
- Gender identity or gender expression
- Marital or family status
- Source of income
- Political opinion
While it may be easy to prove the existence of some of these personal characteristics, such as with age or family status, others may prove to be more challenging.
For example, in order for a condition to be considered a disability, the following criteria must be met:
- (i)The disability must arise out of the person’s physical or mental illness or condition;
- (ii)The illness or condition must be persistent and ongoing; and
- (iii)The illness or condition must impose a significant limitation on the person’s ability to function normally.[21]
Similarly, a complainant may need to show how a belief or practice is connected to their religion or creed. A complainant must be able to demonstrate that they sincerely believe that a certain practice or belief is religious in nature, in that it is either:
- (i)Objectively required by the religion; or
- (ii)That they subjectively believe that it is required by the religion; or
- (iii)That they sincerely believe that the practice creates a personal, subjective connection to the divine or the subject or object of their spiritual faith, and as long as that practice has a nexus with religion.[22]
Thus, a complainant must be able to demonstrate that they possess the personal characteristic protected by the Act; what is required will largely depend on the prohibited ground of discrimination and the circumstances. For more detailed information regarding the prohibited grounds of discrimination, please refer to the Commission’s FAQ section.
3.2 The complaint is trivial, frivolous, vexatious or made in bad faith
A complaint may be dismissed if it is determined that it is trivial in nature. In order for a complaint to be trivial, it must be trifling, inconsiderable, or of small worth/importance;[23] in other words, the complaint raises no significant issues worthy of further exploration.
Example of a trivial complaint:
- A man with seasonal allergies submits a complaint that he is discriminated in the work place on the basis of disability. The man claims that he is unable to park his vehicle in half of the parking spaces due to overhanging trees releasing pollen. However, the man is able to use other parking spots in the lot, but claims they are a further walk than the ones located under the trees. This complaint would likely be dismissed as trivial since the man is still able to drive to work, park his car, and complete his job as required.
A frivolous complaint is one that is not seriously intended, or one that lacks any arguable basis or merit in either law or fact.[24]
Examples of a frivolous complaint:
- A complaint, which in essence, is identical to a previously decided human rights complaint where there was a finding of no discrimination. In other words, the complaint entails the same fact scenario, the same ground for discrimination, the same protected area, etc.[25]
- A complaint which provides absolutely no evidence to support their allegation that they were discriminated against based on one of the prohibited grounds. It would be reasonable for the Executive Director to dismiss a complaint that is based solely on bald, unsubstantiated assertions.[26]
A complaint may be labeled as vexatious and therefore dismissed if it is determined that it was filed for malicious or otherwise inappropriate reasons. In other words, where the aim of the complaint is either to create trouble for, harass, annoy, or otherwise embarrass the respondent.[27]
Examples of a vexatious complaint:
- A tenant is evicted from their apartment and subsequently files a complaint against the landlord. Throughout the investigation, no evidence of discrimination was provided, rather the evidence indicated that the motive for filing