Seeking a Balance

GUIDELINES FOR THE PRESENTATION OF
COMPLAINTS TO THE CANADIAN HUMAN
RIGHTS COMMISSION FOR PSAC MEMBERS

I    Introduction

PSAC members who are subjected to discriminatory practices contrary to the Canadian Human Rights Act may present complaints under that Act in order to seek redress. PSAC believes that an understanding of the process before the Commission, and the nature of the evidence required, will assist PSAC members in maximizing the chance of succeeding with a complaint. Accordingly, PSAC has prepared these guidelines for its members to assist in pursuing a human rights complaint.

The Canadian Human Rights Commission is established pursuant to the Canadian Human Rights Act. Its primary function is to pursue the goal of eradicating discriminatory practices of employers and service providers which are regulated by the Federal Parliament. This would include the Federal Government and its departments and agencies, crown corporations such as Canada Post, chartered banks, national airlines, interprovincial communications and telephone companies, interprovincial transportation companies and other federally regulated industries.

It is important to understand that the Commission has a variety of roles under the Canadian Human Rights Act. Two primary roles which a complainant should be concerned about is the investigator role and the screening role.

When a complaint is presented, the Commission essentially acts as an investigator. In this role, the Commission assigns a person who will look into the complaint and ultimately make recommendations regarding how it should be dealt with.

Once the investigation is complete, however, the Commission takes on a screening function. This function is actually performed by the members of the Commission appointed under the Canadian Human Rights Act. Their role is to determine whether an inquiry into the complaint by an independent Tribunal is necessary. Generally, if there is a reasonable basis in the evidence supporting the complaint, the Commissioners will decide to refer the complaint to Tribunal for a decision and for an appropriate remedy. The Commissioners themselves do not have the authority to order a remedy for the complainant.

Studies have determined that approximately four to six percent of all complaints filed with the Commission actually get referred to a tribunal for a decision. While many of those complaints not referred are settled or are determined to be outside of the Commission’s jurisdiction, a large proportion of them are dismissed on the basis of the Commission’s conclusion that no discrimination in fact occurred. When you present a Human Rights Complaint, you should ensure that all of the evidence that you have in support of your allegations are presented to the Commission. In Parts IV and V, below, we identify in more detail our suggestions as to what should be presented to the Commission in order to maximize the chance that the complaint will be referred to a Tribunal.

Broadly speaking, the Commission process can be divided into the following phases:

(a) Intake;

(b) Investigation;

(c) Disclosure and Submissions; and

(d) Consideration of Complaint by the Commission.

(a) Intake

(1)  The intake stage follows the initial contact with the Commission. At this point, the Commission determines on a preliminary basis whether it has jurisdiction to consider the complaint. Pursuant to s. 41 of the Act, the Commission may decline to investigate the complaint where it determines that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, that the complaint should be dealt with according to another procedure provided for under an Act of Parliament, that the complaint is trivial, frivolous, vexatious or made in bad faith or that the complaint relates to acts or omissions which are more than one year old.

(2)  With respect to this last issue, the Commission can, in proper cases, consider complaints respecting events that are more than one year old. This could occur, for example, where the complainant was unaware of the particular circumstances or where the complainant had attempted to get a remedy elsewhere prior to going to the Commission. In all cases, it is advisable to at least contact the Commission within the one year time period so that you can establish an intention to pursue a complaint at that time.

(3)  Eventually, you will be required to prepare and sign a complaint form. The complaint form need not be a lengthy and detailed description of the allegations. Rather, it is designed to be a general identification of the incidents complained of and the grounds for discrimination. Complaint forms are often amended when new information comes to light.

(4)  Once the complaint is accepted by the Commission, it will assign the matter to an investigator. Recently, the Commission has undertaken a program to conduct mediation prior to the investigation. Mediation is a process where a neutral third party attempts to assist the parties to settle a complaint. Participating in mediation is voluntary. Mediation will often result in a settlement without having to use the resources of an investigation process.

(b) Investigation

(1)  The investigator’s initial task is to gather and analyse all of the evidence pertaining to the complaint. This not only includes documentary evidence but may involve interviewing witnesses who have been identified by the parties as having relevant information. The Courts have confirmed that investigators do not have to interview every single witness identified by the parties. It is usually sufficient if the investigator interviews the key persons involved in the incidents which give rise to the complaint. The Courts have also confirmed that the investigation itself must be fair and thorough.

(2)  In some cases, a legal issue may arise respecting the complaint. Often the Commission will refer the matter to its legal services section to obtain an opinion or advice on how to address a particular point of law. The Commission is not required to share the legal opinion provided by its lawyers with the complainant or the respondent as it may be subject to privilege between a lawyer and client.

(3)  Once the investigation is complete, the investigator prepares an investigation report and provides it to the parties. The investigation report generally follows a standard format which includes a summary of the allegations and the complainant’s position, a summary of the respondent’s position, a description of the evidence considered by the investigator, a discussion, if necessary, of any legal issues raised by the complaint, and an analysis of the basis for the complaint.

(4)  At the end of the report, the investigator will recommend whether the complaint should be put on hold pending another event, dismissed, referred to conciliation, or referred to a tribunal. Conciliation is, like mediation, a process which is designed to assist the parties to settle the complaint with the help of an independent third party.

(c) Disclosure and Submissions

(1)  Once the investigation report is completed, the report is disclosed to the parties. The report is normally accompanied by a standard letter from the Commission inviting each party, if they so choose, to provide submissions on the investigation report. This is an important opportunity for the parties to address the evidence, analysis, or findings contained in the investigation report as any submissions with respect to the report will be provided to the Commissioners. It is important to remember that the report and the material you submit are the basis upon which the Commissioners will determine whether to refer your complaint to an independent Tribunal.

(2)  Where the parties’ submissions on the report contain new evidence or arguments, they are required to be disclosed to the opposing party for further comment. In these circumstances, the party would have another opportunity to reply to the new submissions. As with the initial submission, these submissions will be provided to the Commission when it considers the complaint.

(d)  Consideration of Complaint by the Commission

(1)  Following the investigation, the Commission will decide how to deal with the complaint. The Commission members are provided with a copy of the investigation report and the parties’ submissions. The Commission may also have access to any legal opinions provided by the Commission’s legal services unit respecting the legal issues raised by the complaint.

(2)  Complaints are considered by meetings of the Commissioners which are scheduled on a regular basis. Neither the complainant nor the respondent are present at these meetings. It is usually the case that the Commissioners will consider a large number of complaints in the space of a short period of time. However, the Commissioners are usually provided with materials in advance of the meeting for their review.

(3)  The Commission is not required to accept a recommendation of the investigator. In addition to holding the complaint, dismissing the complaint, referring the complaint to conciliation, or referring the complaint to tribunal, the Commission may decide to refer the complaint back for further investigation. This may occur where the Commission believes that more investigation is required.

(e)  After the Commission Decision

(1)  After the Commission renders its decision, the parties are informed by a letter from the Secretary of the Commission.

(2)  In the event the Commission determines that the complaint should be referred to a tribunal, the President of the Canadian Human Rights Tribunal will, in due course, appoint a tribunal to inquire into the complaint. The Canadian Human Rights Tribunal is a separate entity from the Commission.

(3)  In the event the Commission refers a complaint to a conciliator, a conciliator will be appointed to attempt to settle the complaint. The conciliator is often an employee of the Commission who is trained in the area of conciliation. If the conciliation does not result in a settlement, the matter is referred back to the Commission for a further decision as to how to dispose of the complaint. At this stage the parties will be given another opportunity to make submissions regarding the complaint.

(4)  For more particular information regarding the process before the Canadian Human Rights Commission, the Commission provides such information generally and on its web site.

While the foregoing summarizes the process before the Commission at various stages, it does not address the substance of the information or evidence which should be presented to the Commission at each stage. The following are some guidelines respecting what you should submit to the Commission.

(a) Intake Stage

(1) At this stage, it is important to provide as much detail as possible regarding the basis for your complaint. For example, if you believe that a supervisor has made a critical comment of you based upon your race, you should provide as much information regarding the incident including who made the comment, when it was made, how it was made, who witnessed it, etc.

(2) In many instances, discrimination is not documented. As a result, it is very important for you to keep a record in writing of what has transpired which you believe is discriminatory. Not only will this assist the investigator in looking at the complaint, it will also assist you in remembering what may have happened in the past. In some cases, the investigation of a complaint can take months or years. It is imperative therefore to do whatever you can to ensure that the evidence is remembered and is as accurate as possible.

(b) Investigation Stage

(1) Throughout the investigation stage, the investigator may discuss the evidence with you to clarify what it is or to determine whether any other evidence exists. You should attempt to keep the investigator as informed as possible regarding any new information you may obtain or recall. It is strongly recommended that the communication of such information to the investigator be confirmed in writing.

(2) Moreover, where you believe that certain witnesses ought to be interviewed by the investigator, it is important to provide as much information as possible as to why those witnesses are important. The investigator is not obliged to interview each and every witness you identify unless the investigation would not be thorough without hearing from those witnesses.

(3) During the investigation, you will likely be provided with a summary of the respondent’s position. In many cases, the respondent refers to information which you are not aware of or which you may wish to respond to in any event. As with the intake stage, as much information as possible should be provided to respond to the respondent’s position. Do not hesitate to ask the investigator to obtain further information in the event it is necessary to properly reply to the respondent’s position.

(c)  Disclosure and Submissions

(1)  As indicated above, when the investigator completes the investigation report, the parties are entitled to make submissions on it.

(2)  In many cases, complainants simply provide a brief written comment regarding the findings of the report without submitting additional documentation. The Commissioners may not, however, have access to that additional documentation. As a result, it is imperative that you ensure that all of the important documents respecting your complaint are placed before the Commission with your submissions on the investigation report.

(3)  It is obviously important to provide specific submissions and evidence where the investigator recommends the dismissal of your complaint or otherwise makes findings against you. However, even where the investigator finds in your favour, it is important to provide all of the information and evidence necessary to support the basis for your complaint. This is because the Commissioners are not bound by the recommendation and may be influenced by the Respondent’s submissions.

(4)  Keep in mind that the respondent will also make submissions on the report which may very well convince the Commission to dismiss your complaint. A positive report therefore should not go without comment. Rather, the evidence which supports your complaint should be summarized in a submission and filed with the Commission so that it has all of the information it needs to make a decision.

(5)  Providing this information at this stage is also important in the event that a judicial review application is subsequently initiated in the Federal Court to set aside the decision. Generally speaking, the Commission cannot be criticized in a judicial review application for failing to consider evidence that you had not given to it. Accordingly, providing as much evidence as possible is necessary to protect yourself in the event you wish to take the matter to the Federal Court. In certain circumstances, however, evidence which was not before the Commission may be tendered to the Federal Court where, for example, it is alleged that the Commission breached the rules of procedural fairness.

(6)  As noted above, if the opposing party raises new matters in their submission, you will be provided with a copy for your comment. As with the submissions on the investigation report, you should always take advantage of this opportunity as this is your last chance to provide information to the Commission which contradicts the respondent’s position.

(1)  You should emphasize in your submissions the facts which support your complaint as well as the evidence which supports those facts. If you know the Respondent’s position, you should present any facts or evidence to respond to it.

(2)  The Commission is required ultimately to act in the public interest. Where a case raises important issues of discrimination, particularly where the issues are matters of principle which might impact upon others, the Commission may be more interested in referring the matter to a tribunal for an inquiry. If possible, therefore, your submissions should emphasize the broad impact of your complaint.

(3)  Do not forget to address any legal issues which are raised by your complaint. In some cases, this may require legal research and references to legal precedents which support your position.

(4)  When the Commission invites submissions on the report or any other materials filed by the opposing party, it usually specifies that your submissions can be up to ten pages in length. While this is an administrative guideline, the Courts are not likely to view it as being binding. If you require more than ten pages to address the issues raised by the report or the respondent’s position, then you should do so.

(5)  Having said that, at all times you should try to be as concise and focussed as possible. Your actual written submission will usually not exceed ten pages. However, it may be the case that all of the documentary evidence will exceed that page limit.

If the Commission renders a decision with respect to your complaint that you disagree with, judicial review in the Federal Court is an option. Judicial review applications should be commenced within thirty days of the date you are informed of the Commission decision. The Federal Court’s authority is limited by the grounds set out in the Federal Court Act and the case law which has developed regarding the authority of the Commission to investigate and consider human rights complaints. You may wish to seek legal advice regarding the process before the Federal Court.