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The Complaint Process

What we do?

The Human Rights Act is a provincial law that protects people in Newfoundland and Labrador from discrimination and harassment. The Human Rights Commission is the government agency that administers the Human Rights Act.

What is Discrimination?

Discrimination occurs when you are treated differently, unfairly or unequally because of certain personal characteristics. These personal characteristics (or prohibited grounds) are listed in section 9 of the Human Rights Act.

What is harassment?

Harassment is any objectionable or offensive behavior that is known, or should reasonably be known, to be unwelcome. Harassment may be intended or unintended.
Harassment will normally involve a series of incidents; however, a single incident may be harassment if it would be considered severe or extreme to a reasonable person.
Some possible examples of harassment include:

  • Verbal abuse, yelling, or threats;
  • Degrading or offensive remarks;
  • Spreading malicious gossip or rumours;
  • Inappropriate communication through email, social media, or texts;
  • Actual or threatened physical contact of an unwelcomed nature; or
  • Bullying or intimidation.

Abuse of authority, discriminatory harassment, and sexual harassment are also all forms of harassment. [1]

[1] See the Government of Newfoundland and Labrador’s Harassment Free Workplace Policy, June 2018.

What is the Human Rights Application Form?

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 to accept your complaint.

Can the Human Rights Commission accept my complaint?

We only have jurisdiction (or the ability to act) where:

  • The alleged complaint occurred within certain protected areas:
    • at work or while looking for work
    • membership in a trade union
    • accessing public services, such as health care, education, stores and restaurants
    • renting a home or an apartment or leasing a business space
    • publications
    • contracts
  • The alleged complaint is based on one of the prohibited grounds (e.g. disability, race, religion).
  • The alleged complaint is made within one year of the alleged contravention.
  • The alleged contravention occurred in Newfoundland and Labrador.

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 the Complainant or the Respondent. The Human Rights Commission process is confidential between the parties. That means that any relevant information will be disclosed to the opposite party.

For example:

The Human Rights Commission can accept your complaint if a landlord refuses to rent to you because you are on social assistance and have small children.

COMPLAINT = PROTECTED AREA (TENANCY) + PROHIBITED GROUND (SOCIAL CONDITION and FAMILY STATUS) + NEGATIVE TREATMENT (NOT ABLE TO RENT AN APARTMENT)

Not all unfair situations, however, fall under the jurisdiction of the Human Rights Commission. The Commission cannot accept your complaint if you are having problems with a co-worker or supervisor because of a personality conflict rather than one of the prohibited grounds. The situation might not be acceptable or be considered respectful workplace behaviour, but in this situation the treatment would not be considered discriminatory.

NO COMPLAINT = PROTECTED AREA (EMPLOYMENT) + NEGATIVE TREATMENT (BULLYING) BUT NO PROHIBITED GROUND

There are also some exceptions listed in the Human Rights Act. For more information on whether your situation might fall under one of these exceptions contact our office here.

You will be notified if the Human Rights Commission can accept your complaint. However, acceptance of a complaint, does not mean that your allegations are proven. It only means that the Commission has determined that the complaint falls within its jurisdiction and that you have supplied enough information for the Commission to believe that there may have been a contravention of the Human Rights Act.

The person claiming that they were discriminated against or harassed is called the Complainant. The person or organization the Complainant claims discriminated against or harassed them is called the Respondent. There can be more than one Respondent.

Protection from Retaliation

Section 20 of the Human Rights Act protects you from retaliation if you’ve made a complaint, given evidence in a complaint or helped in respect of the initiation or furtherance of a complaint.

This means that you’re protected once your complaint is accepted by the Commission, even if it hasn’t been officially sent to the person you’re complaining about. However, you will need to prove that the person who retaliated against you knew that the complaint was accepted.

Voluntary Resolution Path (VRP)

The Human Rights Commission is mandated to try to help parties resolve their own complaints. Early voluntary resolution (VRP) works well because it is faster, easier, cheaper and the parties control the outcome. VRP is not about arguing who is wrong or right, but instead is an opportunity for the parties to try to work together to come up with a solution to resolve the complaint.

VRP can take many forms: by phone, by email or face to face. The Commission’s mediator will discuss ways to try to find a settlement of the dispute. The mediator will not advocate for 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 Commission’s mediator will also not make a finding of discrimination or harassment.

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. You can get your own legal advice or have a support person assist you at any time throughout this process.

Human Rights Investigation

If the parties do not agree to mediation and/or the complaint is not resolved, the file will be given to a Human Rights Specialist to investigate the complaint. The Specialist will not have had any previous involvement with the case.

The Human Rights Specialist will ask the Respondent(s) to file a formal Reply to the complaint, within 60 days of the referral to investigation. The Complainant is given a chance to respond to the Reply if they so choose and respond to Reply via Rebuttal. The Human Rights Specialist may also ask the parties for any other documents, the names of potential witnesses and signed statements, where necessary.

The Human Rights Specialist will then review and investigate the complaint to the extent warranted in the circumstances. The investigation will be thorough, neutral and unbiased. Both the Complainant and the Respondent(s) can respond to the investigation before the Human Rights Commissioners review the complaint.

The Commission will try to conclude the investigation as soon as possible. The actual time will vary according to the complexities of the complaint, Commission caseloads, and other factors.

Section 32 – Executive Director Deferral and Dismissal Power

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 on the complaint. The Commission may defer a complaint at a parties request or if it is otherwise appropriate under the Human Rights Act. Consult the Human Rights Commission’s FAQ on requesting a deferral or dismissal here.

At any point during the human rights process, a complaint or part of a complaint, may be dismissed if it is outside the jurisdiction of the Human Rights Act; 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.

If a complaint is dismissed, a Complainant can seek judicial review of the decision in the Supreme Court of Newfoundland and Labrador, General Division. For more information on the Law Courts please see here.

Decision by Human Rights Commissioners

After all parties have responded to the investigation, the complaint and all evidence will be reviewed by our Human Rights Commissioners. For more information on who the Commissioners are please see here.

Where the Commissioners decide that the evidence does not support the allegations:

  • The Commissioners will dismiss the complaint. A Complainant can then file an application for judicial review in the Supreme Court of Newfoundland and Labrador, General Division if they disagree with the decision. For more information on the Law Courts please see here; or,

Where the Commissioners believe there is sufficient evidence:

  • The Commissioners may decide that the complaint should be referred to “Commission-Directed Mediation” to enable the parties a final opportunity, with the assistance of a mediator, to try to resolve the complaint; and/or
  • The Commissioners may decide that the complaint should be heard by a Board of Inquiry.

Board of Inquiry Hearing

Each complaint is heard before one Adjudicator 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.

Legal counsel for the Commission is not the lawyer for the Complainant or the Respondent(s). The role of Commission counsel is to represent the public interest.

The Commission takes the lead in presenting the complaint and both the Complainant and the Respondent(s) will have a chance to present their own evidence and arguments. Parties may retain legal counsel, though it is not necessary. Parties can  present their own evidence and make arguments to the Board of Inquiry on their own behalf.

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.

It is worth noting that very few matters proceed to an adjudication hearing. Most are resolved some other way.

A Board of Inquiry can make a finding of discrimination and harassment and make certain orders. The Board of Inquiry will also provide a written decision which sets out their reasons for the decision.  The order is binding on the parties.

Our process is confidential as between the parties, unless 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.

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. For more information about the Law Courts please see here.