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Human Rights Complaints

Q. Under what circumstances can I file a Human Rights Complaint?

The Human Rights Code is a complex piece of legislation, and it is a very powerful tool when used properly. If you feel you have a human rights complaint, seek legal advice before you proceed on your own. Although the Code is very powerful and you feel you may be a member of a protected group, you need to make sure that your Complaint involves some type of discrimination or harassment on the basis of an enumerated ground, such as disability, family status, marital status, race or ethnicity, creed (religion), age, among a few others. Further, discrimination must fall within a designated social area, such as employment, provision of services/ facilities, contracts, membership in a trade or vocational association or housing. Government programs and services, policing, admission to a post-secondary program or institution, treatment as a member of your union, a refusal of any type of commercial service generally available to the public, and so forth, are also included as social areas where discrimination can take place. If you are not sure, contact my office.

Further, time frames on a Complaint are no more than a year following the last incident of discrimination. The rules for filing, submission of documentation, what kind of evidence that needs to be provided and when, identification of witnesses, and other rules of procedure are confusing, and very specific to this Tribunal. The onus is on the Complainant to show that a human rights violation had taken place.

Q. What happens after a Complaint (called an Application under the Code) is filed?

Somebody from the Human Rights Tribunal will review your Application to make sure it is complete, the name of the respondent or respondents (the individuals or entities about which you are complaining) are named properly and their contact information is accurate, and the Application is clearly showing what you are complaining about and what happened.

An Application can be sent back if it is incomplete, lacks key information or appears to be clearly outside of the jurisdiction of the Tribunal. Otherwise, the respondent or respondents in your application will be served and will be given a time frame in which to reply to your allegations.

Q. What happens if a respondent does not respond to an Application?

The Tribunal will then make an interim order for the respondent to respond within a certain time frame, as well as make attempts to ensure that the respondent is aware of the Application and has been properly served. A case can proceed in the absence of a response after all efforts are made, but the Applicant (the person who made the complaint) must still satisfy the Tribunal that their Complaint falls within the jurisdiction of the Tribunal, has been filed within the time limit (or if not within the time limit has proper reason and with good faith done has done so as soon as they were able to), and that there was a violation of the Code. In other words, this is not a default judgment – you still have to prove your case.

Q. What happens once there is a response by the respondents?

The Applicant has an opportunity within a certain number of days to file a type of rebuttal (or reply), especially if the respondent raises new issues or provides a response that has facts that differ than those outlined in the Application. A reply is not necessary, but it is a step that provides the Applicant with the opportunity to clarify issues.

Afterwards, any number of things can happen. A case can go to Mediation (if both parties wish to try this step). A case direction is issued for the filing of witness lists, documents, will-say statements, and so forth. Either party can file a Request for Order During Proceedings, such as if the respondent, for example, feels the case is outside of the jurisdiction, out of time, frivolous and vexatious, or lacks merit, or so forth. The Applicant can file to add a party or to amend their Application. If the case is not settled, withdrawn or dismissed for any of the above reasons, the case goes to a Hearing, where parties and witnesses are heard, documents are provided under oath, and a decision is made (usually at some point after the Hearing is over). Because of the variant paths an Application can take, it is important to have legal advice and/or representation at each stage.

Q. What kinds of remedies can the Human Rights Tribunal award me if I win?

A successful applicant can be awarded lost wages, expenses (as documented), general damages (a type of ‘pain and suffering’ award), an order to an employer to re-instate an employee, or a landlord to provide a specific housing unit (if this is desired by the Applicant), human rights workshops for the company, an order to draft and implement specific directives in a company to assist it to comply with the Code in the future, a letter of apology, and numerous other remedies. The Tribunal was granted more authority since the changes were put into place to reduce duplication between the civil court system and the various tribunals that can also hear specialized matters.

Q. What if I win my case against my ex-employer (or other respondent) and the Tribunal ordered them to pay, but they failed to do so?

These Orders can be enforced through the courts, but it is best to seek legal advice as to what steps to take with the Tribunal and the court to enforce the order. However, in my history with the Tribunal, most cases do settle without a Hearing, and if there was a Hearing and an Order was made – the respondents have been cooperative. In some cases, a judicial review of a Tribunal decision can be filed by a respondent that disagrees with a decision, but this can only be filed for specific reasons.

Q. Is there a human rights procedure for issues under federal jurisdiction?

Yes, there is the Canadian Human Rights Act, which receives complaints about the federal government or any other business or agency under federal jurisdiction. You cannot complain about the federal government or about any entity that is federally regulation through the Human Rights Tribunal of Ontario. You complain through the federal system instead.

Q. Does your office represent persons or businesses against whom a human rights complaint was filed?

Absolutely! I worked with many respondents with respect to complaints filed against them.

Q. What protection do individuals and businesses have with regards to having frivolous and vexatious complaints filed against them?

This is no different from a court system, where a respondent would need to file a response to the allegations, and if the respondent feels none of them are true, this can be stated. The Application can also be dismissed relatively quickly, if a respondent can show that an application has been made on frivolous or vexatious grounds, lacks merit, is out of jurisdiction or is out of time, or failing that – it can be dismissed at a Hearing. The burden of proof is on the Applicant to prove discrimination, not on the Respondent to prove it isn’t true.

If you received an Application against you, call my office.