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4. The Commission’s Dispute Resolution Process

Terms in bold are explained in the glossary in Appendix A of this handbook. 

The Commission’s dispute resolution process is designed to resolve human rights complaints at the earliest opportunity. How a discrimination complaint goes through the Commission’s process depends on the details of the case. This chapter is intended to provide guidance on what your organization can expect if it participates in the Commission’s dispute resolution process. Information about how to respond to a discrimination complaint can be found in Chapter 5.

The process has three main stages. Depending on the details and the parties involved, a discrimination complaint may only go through one stage, or it may go through all three stages before it is resolved. Although the process is described here in a linear fashion, it is important to know that a complaint does not necessarily go through the process this way. Depending on the details of the complaint, it might skip over steps or stages.

The person who files a discrimination complaint is called a complainant.

The respondent is usually the business or organization that is the employer or service provider, not an individual person.

An individual person can be named as a respondent to a discrimination complaint when they are alleged to have harassed the complainant. In these situations there would be two discrimination complaints: one against the organization and another against the individual who is alleged to have harassed the complainant.

The person designated by the respondent to be their representative and handle the discrimination complaint is the respondent’s representative. This person is the main contact for the Commission and responsible for finding out the respondent’s side of the story. The representative should not be named in the complaint.

An allegation is an assertion of discrimination made by a complainant in a complaint form. The complainant will be asked to provide evidence to prove there was discrimination. 

4.1 Stage One: Before a Formal Complaint is Filed

Inquiry and Screening

Every potential discrimination complaint starts with a phone call or a letter to the Commission. The potential complainant would explain why they want to file a discrimination complaint. After the Commission has the complainant’s side of the story, you would be contacted and told that an inquiry has been made. At this point the Commission might offer you and the potential complainant early resolution or preventive mediation.

Early Resolution and Preventive Mediation

In the early resolution process, a human rights officer would work with you (as the respondent’s representative) and the complainant. This is usually done over the telephone.

If early resolution is not appropriate or unsuccessful face-to-face preventive mediation could be offered. During preventive mediation a Commission human rights officer will work with you and the complainant to try to resolve the issue.

Early resolution and preventive mediation are voluntary, and focus on the main issue of the complaint and any practical solutions that might be possible. Early resolution is ‘on-the-record’, which means that information shared by both the complainant and the respondent is recorded and kept in a file. Preventive mediation is confidential. Both processes are intended to move quickly and are often complete within one to two months of the first inquiry.

If you settle the issue at this stage, no discrimination complaint is made and the file is closed.

If the dispute cannot be resolved the Commission will send a complaint kit to the person who made the inquiry. The complaint kit contains the required forms and instructions for filing a complaint. The complainant is responsible for preparing the complaint kit and returning it to the Commission.

4.2 Stage Two: After a Formal Complaint is Filed

Notification

As the respondent, your organization will be notified, in writing, as soon as possible when the Commission receives a discrimination complaint.

If during the screening process the Commission finds that there might be a reason the Commission should not deal with the complaint your organization will also be sent a sheet listing factors to be considered by the Commission. This sheet also has questions you can answer. This is your opportunity (as the respondent’s representative) to say whether you think the Commission should deal with the complaint, or not deal with it, and why.

At this time you should tell the Commission as soon as possible if:

  • The issue does not fall under the Commission’s jurisdiction.
  • The issue is not linked to one of the grounds of discrimination.
  • The issue is not based on a discriminatory practice in the Act.
  • There is a community-based dispute resolution process that could be used instead.
  • There is another process already dealing with the complaint.
  • The complaint is trivial, frivolous, vexatious, or made in bad faith.
  • The complaint has not been filed within one year of the alleged discrimination occurring.

Once your position is received, a report is prepared for the Commission members. The report and any submissions to the report from your organization and the complainant are then given to the Commission members for a decision.

If the Commission decides to deal with the complaint, mediation could be offered. If early resolution and/or preventive mediation were already attempted without success, the Commission may send the discrimination complaint directly to investigation.

Mediation

The mediation process is voluntary and confidential. It gives people the opportunity to explain their sides of the issue and try to resolve the concerns that led to the complaint.

Mediators are impartial. This means they will not represent your organization or the complainant. If the mediation works then both parties must sign a settlement agreement. This agreement would outline what each party agreed to do to resolve the dispute. This is called “reaching a settlement.”

If mediation does not work, the discrimination complaint is investigated. Whatever you discussed in mediation cannot be used against you during the investigation.

Investigation

During the investigation process the Commission will consider the case on its merits. This means that the investigator will:

  • Speak with you (as the respondent’s representative) and the complainant.
  • Interview any witnesses.
  • Review any supporting documents.
  • Decide whether there is evidence to support the allegation(s) in the complaint.

During the investigation, the investigator will normally ask you to provide your response, or supporting information, in writing, but the Commission is open to other ways of doing things. For example, you could ask the investigator to discuss your position by phone. See Chapter 5 for more information about responding to a discrimination complaint.

After the investigation, the investigator prepares a report. The report will recommend that the complaint be dismissed, sent to conciliation or referred to the Tribunal for further examination.

The investigation report will be shared with you and the complainant. You will both be given the chance to make written comments on the report.

The Commission’s Decision

After the investigation, the Commission members will read the investigation report and any comments made by you and the complainant before making a decision.

The Commission members will decide if the complaint should be dismissed, sent to conciliation, or referred to the Tribunal for further examination.

Commission decisions are final, so the human rights officer cannot ask the Commission members to change their decision once it is made.

4.3 Stage Three: After the Commission’s Decision

Conciliation

Conciliation is similar to mediation. However, it is mandatory for both you and the complainant to participate in conciliation as a final attempt to deal with the conflict.

You would normally be given a window of three to four months to try to settle the discrimination complaint. If you cannot reach a settlement, the case could be sent back to the Commission members for a decision.

The Tribunal

If a complaint is referred to the Tribunal, the Commission no longer controls the complaint.

The Tribunal will hold a hearing. It will ask both you and the complainant to hand in any documents and call witnesses for support.

In some cases, the Commission will also attend the Tribunal hearing to represent the public interest. A matter is in the public interest when the decision has the potential to clarify, influence, shape or define human rights law. If this happens, the Commission may also hand in documents and call witnesses.

After the hearing, the Tribunal will decide whether there has been discrimination. The Tribunal will either dismiss the complaint or find that there has been discrimination. If the Tribunal finds there has been discrimination it can order corrective measures for your organization to resolve the discrimination.

Corrective measures can include making your organization:

  • change its policies, practices or by-laws, or create human rights protection policies
  • pay the complainant lost wages or give them their job back
  • take human rights awareness training
  • pay for the complainant’s pain and suffering, and any losses caused by the discrimination 
4.4 Judicial Review

If you or the complainant disagrees with a decision made by the Commission or by the Tribunal, you can ask the Federal Court to review the decision. This is called a judicial review. If the Federal Court agrees with the person who made the request, it will send the case back to the Commission or the Tribunal. The Commission or Tribunal will be required to review the case again.

5. Preparing a Response to a Discrimination Complaint

Terms in bold are explained in the glossary in Appendix A of this handbook. 

When the Commission notifies your organization that a discrimination complaint has been made against it, you can prepare a response to the complaint. A response is your organization’s side of the story.

It is important to tell the Commission your side of the story. Tell Commission staff if you need help to explain your organization’s side of what happened. The Commission has an obligation to deal with the complaint, whether or not your organization decides to participate in the dispute resolution process. The Commission will make its decision based on whatever information can be obtained. If your First Nation does not participate, the complaint could be sent to the Tribunal for further inquiry, even if you have a valid defence.

The Commission will be impartial throughout the dispute resolution process. This means that it will not take your side or the complainant’s. In some cases, however, the Commission will represent the public interest, if the complaint is referred to the Tribunal. More information on what to expect if you participate in the Commission’s dispute resolution process can be found in Chapter 4 of this handbook.

5.1 Planning Your Response

Before taking any action it is important to plan how you will prepare your response. You can use the checklist in Appendix F to help you prepare your response.

Ask yourself:

  • Who should be responsible for preparing the response?
  • Who are the other parties to the discrimination complaint?
  • When do I consider settling the complaint?

Who should be responsible for preparing the response?

The respondent should designate one person to be their representative and handle the complaint. This person is the main contact for the Commission and responsible for finding out and presenting the respondent’s side of the story.

The respondent’s representative should not be named in the complaint. This avoids bias or the appearance of bias and makes it easier to resolve the complaint.

Bias occurs when a person who handles a dispute has, or appears to have, some reason – personal, political, business, or otherwise – to favour one party over the other. For example, a person who is alleged to have harassed a complainant should not be the person representing the respondent, because they could appear biased. 

Who are the other parties to the discrimination complaint?

Sometimes there are other people or organizations that are not named in a complaint, but need to be included to better understand the situation. If the discrimination complaint cannot be resolved without another party, for example, Indian and Northern Affairs Canada, then you should tell the Commission as soon as possible. Depending on what the human rights issues are, the complainant may need to file a second complaint.

When do I consider settling the complaint?

From the beginning you (as the respondent’s representative) and the respondent (for example, Chief and Council) will have to decide how you think the complaint could be resolved. Once you have thought about possible solutions, write them down and share them with the Commission. You can do this at any time throughout the Commission’s dispute resolution process.

5.2 Steps for Preparing a Response

1. Gather information related to the complaint.

Being informed about all of the details related to a discrimination complaint will help you explain the respondent’s side of the story.

Start a file. Keep copies of everything related to the complaint. This includes writing down any decisions that are made about the complaint.

Ask yourself:

  • What kind of discrimination is being alleged?
  • Is there a community-based dispute resolution process that could be used instead?
  • Is there any reason why the Commission should not deal with the complaint?
  • What do you know about the events that led to the discrimination complaint?

What kind of discrimination is being alleged?

Understanding what kind of discrimination is being alleged is an important part of resolving the issues effectively. This means understanding what ground of discrimination is being alleged, as well as the discriminatory practice that it is being linked to. Refer to Chapter 2 for more information about the elements of a discrimination complaint.

Is there a community-based dispute resolution process that could be used instead?

The Commission supports the use of community-based dispute resolution processes that are fair, flexible, effective and efficient. The Commission’s practice is to refer discrimination complaints back to community-based dispute resolution processes, when they are available. You should notify the Commission as soon as possible, if your community has a dispute resolution process that meets the criteria discussed in Chapter 6 of this handbook.

Is there any reason why the Commission should not deal with the complaint?

Tell the Commission as soon as possible if you believe:

  • The issue does not fall under the Commission’s jurisdiction.
  • The issue is not linked to one of the grounds of discrimination.
  • The issue is not based on a discriminatory practice in the Canadian Human Rights Act (the Act).
  • There is a community-based dispute resolution process that could be used instead.
  • The complaint is trivial, frivolous, vexatious, or made in bad faith.
  • The complaint has not been filed within one year of the alleged discrimination occurring.

What do you know about the events that led to the discrimination complaint?

Learn more about the events that led to the complaint to make sure you understand the respondent’s side of the story.

Make a list of the people you need to talk to about the complaint and what documents will need to be reviewed.

Talk to the people involved in the complaint to learn their side of the story. Ask as many questions as you need to, to understand what the complaint is about.

Carefully review any documents that are relevant to the complaint.

Remember to respect confidentiality. Remind the people involved that they also have a responsibility to keep the complaint private.  

2. Examine the discrimination allegation(s).

There are three ways to show that the discrimination did not happen or that it was allowed by the Act:

  • No discrimination occurred; there is a reasonable explanation for what happened.
  • The discrimination is necessary, because avoiding it would cause undue hardship.
  • The discrimination is part of a special program or policy.

No discrimination occurred; there is a reasonable explanation for what happened.

Review the allegations in the complaint, any records related to the allegations and anything you learned from talking to people. If there is a reasonable explanation that can be supported with evidence, the discrimination may be justified. Using evidence, explain your side of the story to the Commission representative and the complainant.

The discrimination is necessary, because avoiding it would cause undue hardship.

Even a decision that is discriminatory may be justified, if there is good reason or it could not be avoided. If this is the case you (as the respondent’s representative) must be able to explain the reason.

Ask yourself three questions to decide if the discrimination is necessary:

  • Was the action or decision based on a legitimate reason?
  • Was the action or decision carried out in good faith?
  • Was the action or decision reasonably necessary?

Was the action or decision based on a legitimate reason?

There must be a legitimate reason for the discrimination based on job or service requirements.

Was the action or decision carried out in good faith?

Unintentional discrimination sometimes happens. If it happens, it is important to show that there was an honest, or good faith, belief that the particular action or decision was necessary.

Was the discrimination reasonably necessary?

Decide if the discrimination could have been avoided or minimized, by asking yourself:

  • Are there ways to include more people?
  • Are there options that would not be discriminatory?

Once you have considered these questions, decide if changes can be made to the policy, practice, by-law or building that caused the complaint, to make it less discriminatory. As an employer and/or service provider it is your responsibility to provide alternative arrangements for people whenever possible. If changes would cost too much, or create risks to health or safety your organization may be able to claim undue hardship. However, it is not enough to claim undue hardship based on an assumption or opinion, or by simply saying there is some cost. To prove undue hardship, evidence must be provided as to the nature and extent of the hardship.

The discrimination is part of a special program or policy.

A special program is any plan, arrangement, rule, policy or legislative provision designed to advance the equality of disadvantaged groups. It is not a discriminatory practice to adopt or carry out a special program. Any federally regulated organization can have one.

The reason for the group’s disadvantage must be related to one of the grounds of discrimination or membership in any of the designated groups defined in the Employment Equity Act (women, members of visible minorities, people with disabilities and Aboriginal people).

The courts have determined specific criteria and principles that ensure special programs are consistent with human rights principles. The basic rules set out by the courts are as follows:

  • A special program must advance equality.
  • A special program must address genuine disadvantage.
  • A special program must be tailored to meet the actual needs of the disadvantaged group.
  • The impact of the special program on third parties must be considered.
  • Special programs must be proportional to the degree of under-representation or disadvantage.
  • The special program should be temporary.

More information about responses to a discrimination complaint can be found in Chapter 2 of this handbook.

5.3 Making First Nation Legal Traditions and Customary Laws Part of the Process

There are steps that your organization can take to make sure that the Commission considers your First Nation’s legal traditions and customary laws when it deals with a discrimination complaint.

Ask yourself:

  •  Is there a First Nation legal tradition or customary law that affects how the complaint should be understood?

The Interpretive Provision of the Canadian Human Rights Act

The Canadian Human Rights Act includes a provision that requires the Commission, the Tribunal and the courts to consider First Nations legal traditions and customary laws when applying the Act. This rule has certain limits. The First Nation legal tradition or customary law must respect gender equality.

The interpretive provision states:
In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs or services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and collective rights and interests, to the extent that they are consistent with the principle of gender equality.  

Is there a legal tradition or customary law that affects how the complaint should be understood?

If your organization has identified a legal tradition or customary law that may affect your response to a discrimination complaint, you should:

  1. Identify the legal tradition or customary law, and how it relates to the action or decision that led to the complaint.
  2. Document how the legal tradition or customary law forms part of your First Nation’s culture. This includes explaining the purpose, or goal, of the legal tradition or customary law, and what it means to follow it.
  3. Determine who and how many people in your community follow the legal tradition or customary law.
  4. Determine how long your community has been following the legal tradition or customary law.
  5. Consider if the legal tradition or customary law can be followed in a less discriminatory way.

Document this process!

It will really help your organization to tell its story if you can show that you gave careful thought to the impact and consequences of your legal traditions and customary laws on peoples’ human rights.  

5.4 Aboriginal and Treaty Rights

The Commission cannot decide issues related to Aboriginal and treaty rights. If the complaint is referred to the Tribunal for a hearing, the Tribunal will consider any issues related to Aboriginal and treaty rights.