Area of Law: Human Rights
Answer # 834
Filing a human rights complaintRegion: Ontario Answer # 834
Filing a human rights complaint with a human rights commission begins a legal process in which both the person filing and the person or organization complained about have rights. The first requirement is that a complaint relates to a ground of discrimination recognized by the human rights code where the complaint is being filed (federal or provincial). The person who files the complaint is a complainant and the person or organization complained about is the respondent. If you are a complainant, your goal is to have your situation reach the hearing stage.
Is your claim federal or provincial?
If a person feels that he or she has been discriminated against while receiving service from a federal public office, or during employment as a federal employee, or a federally regulated private company, such as a bank, airline, or telephone company, the complaint should be filed with the Canadian Human Rights Commission. All other human rights complaints should be filed with the provincial human rights commission in the jurisdiction where the discrimination is alleged to have occurred. It is important to note that companies that have been incorporated under federal law are not necessarily considered federal corporations for human rights issues and therefore, still fall within provincial jurisdiction.
The Human Rights Tribunal of Ontario (HRTO)
The Human Rights Tribunal of Ontario (HRTO) resolves claims of discrimination and harassment pursuant to the Ontario Human Rights Code. In cases where the complaint cannot be resolved, the HRTO also acts as the decision-making body for all applications claiming a violation of human rights under the Code. The HRTO decision-makers are called vice-chairs, members or adjudicators and have experience, knowledge and training in human rights laws and issues. The Code protects people in Ontario from discrimination and harassment in five circumstances: employment; housing; goods, services and facilities; contracts; and, membership in trade and vocational associations.
A claim of discrimination or harassment can be brought to the HRTO by filing an application. Applications are processed by the HRTO based on its rules and policies, and previous HRTO decisions. If the matter is in the public interest, the HRTO can also refer matters to the Ontario Human Rights Commission (OHRC) so that it can conduct its own inquiry. Similarly, the OHRC may also apply to the HRTO to bring a case to the Divisional Court where it feels the HRTO decision is not consistent with OHRC policies. The OHRC has the right to be informed of applications made to the HRTO, and it receives copies of all applications and responses.
The HRTO Complaint process
1. Filing a complaint
The HRTO process begins when a person, called the applicant, files a completed application form with the HRTO. An application can be filed up-to one year after the discrimination or harassment was experienced. If there was a series of events, you can file up-to one year after the last event. There may be also be exceptions where the Tribunal will extend this time.
The application form can be found online or by contacting the HRTO. Once completed, it can be hand-delivered, mailed, faxed, sent by email, or submitted online on the HRTO website. On the application form, the applicant must identify who they believe is responsible for the human rights violation claimed. This individual or organization is then known as the respondent. There can be more than one respondent.
The applicant must also:
- Provide a detailed first-person account of the situation that led to the claim
- Provide a list of the important witnesses and documents related to the application and briefly explain why each witness can help prove their case
- Inform the HRTO about any relevant documents that other people have and that the applicant needs in order to prepare his or her case
- Identify anyone else who may be affected by the application
If very little information is provided, information is missing, or the complaint does not fall within the scope of the legislation, the HRTO may return the application to the applicant. In such cases, the applicant will be given 20 days to provide the missing information.
The HRTO will send each respondent a copy of the application as soon as it is accepted for processing.
2. Filing a response
Once the respondent receives a copy of the application from the HRTO, they will have 35 days to complete and file a response. It is important that the form be filed within the time period, otherwise, the HRTO could make a finding against the respondent without giving further notice. The response must be filed using the HRTO Response form found on its website.
In addition to completing personal and contact information, the form requires that the respondent either respond fully to the complaint or request an early dismissal, a dismissal, or a deferment of the application.
To be granted an early dismissal of the application, the respondent must qualify under one of the following four situations:
- A claim has been filed in civil court alleging the same human rights violation.
- A complaint was previously filed with the OHRC based on the same facts.
- The applicant signed a full and final release with respect to the matter.
- The issues are under federal jurisdiction.
Dismissal with full response
A dismissal may also be requested by the respondent where another legal proceeding has already dealt with the substance of the complaint. The respondent will need to name the other proceeding and explain how it “in whole or in part appropriately dealt with the substance of the application”, as well as file a full response.
Defer the application
If the facts of the application are already being adjudicated in another proceeding, the respondent may ask that the HRTO defer its processing of the application until that other proceeding is completed. The other proceeding can be:
- a union grievance,
- a claim before another board or tribunal,
- or some other proceeding, such as an arbitration.
If the respondent is not in a position to request a dismissal or deferment of the application, they may still be able to defend their actions by showing that they fall within one of the exemptions set out in the Code. Examples of exemptions include:
- The right to discriminate based on the person not being a Canadian citizen, “where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law”.
- The ability to restrict the use of facilities by sex, “where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency”.
Responding to a human rights complaint can be quite complex. It is advisable to seek the assistance of a lawyer in preparing your response.
3. Mediation and hearing
Once the response is filed, the HRTO first will attempt to resolve the application by helping the parties settle the claim through mediation. In the application and response forms, the parties are asked if they want to participate in mediation. If they agree and the case is settled, the file will be closed. If the parties are unable to reach a resolution during the mediation, or they do not agree to mediation, the application will go directly to the hearing stage.
If a hearing takes place, an adjudicator will address any preliminary issues and listen to information presented by the applicant, the respondent, and by any witnesses. Then the hearing will be closed and the adjudicator will write a decision after reviewing all the information and submissions presented at the hearing.
What can a hearing adjudicator decide?
The decision of the adjudicator can be to dismiss the application, or find that discrimination or harassment occurred. If they decide in favour of the applicant, the HRTO can order a monetary award or order the respondent to ‘do’ something, such as
- an order that the applicant be given an opportunity to return to work,
- to develop policies or hold training sessions for staff,
- correct the discriminatory situation,
- provide housing to the applicant, etc.
How long does the process take?
Generally, the hearing is completed within one year of receiving a completed application form, although most applications can be settled more quickly through the mediation process.
Getting help with the application
For help with your application, you should contact a lawyer or a paralegal. The Human Rights Legal Support Centre also provides legal advice and other assistance to individuals who believe their rights have been violated. However, the Centre does not provide services to respondents.
For more information, or to file a complain, visit the Human Rights Tribunal of Ontario.
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If you need help filing a human rights complaint with the Human Rights Tribunal of Ontario (HRTO), or with other Court proceedings, contact our preferred experts, George Brown Professional Corporation .
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