How to decide whether to file a human rights complaint

Most people don’t do this. In fact, very few people do.

Why?

It’s a long and slow process. If you hire a lawyer to help you, it will be expensive, and if you don’t, you’ll need to do a lot of work yourself.

And the outcome is sometimes not very satisfying.

Some people hope that, at the end of the process, they’ll be told that yes, they were harassed, and it shouldn’t have happened. But that hardly ever happens. Very few complaints ever get to a final ruling. The rest are settled in mediation or thrown out, abandoned, or withdrawn.

So why do people decide to file a complaint?

Some people want to go to court and speak the truth in public. Even if their odds of winning are low.

If that’s what you want, the Human Rights Tribunal can be a good choice.

It’s a shorter process than civil court—usually about a year—whereas civil court cases can take several years. You’re allowed to represent yourself, which means you don’t need to pay for a lawyer. And it’s a little less adversarial than civil court.

The Saskatchewan Human Rights Commission and what it does

The Saskatchewan Human Rights Commission is the agency that receives and investigates human rights complaints regarding violations of the Saskatchewan Human Rights Code. It helps people to mediate or settle their complaints. If a complaint can’t be resolved, the commission may refer the case to the Court of King’s Bench for a hearing. TheSaskatchewan Human Rights Commission and the Court of King’sBench deal with discrimination cases. Sexual harassment is considered sex discrimination.

The commission works to resolve complaints. If your complaint falls within its jurisdiction, it will accept it for investigation. Then it will encourage you to resolve the complaint through mediation. If that doesn’t work, the commission will investigate and then hold a directed mediation—another attempt to reach a settlement. After this step, the commission may refer the case for a hearing at the Court of King’s Bench, where a judge will listen to both sides and decide whether you were sexually harassed. If the judge decides you were, they may order the other party to make amends in some way.

Why consider filing a complaint with the commission

If you decide to file a complaint with the commission, here are a few things you may get out of the process:

• It’s a chance to tell the harasser what they did is not okay.
• You might get back money you lost because of the harassment—maybe you didn’t get a special project or a promotion, or were fired.
• You might get your job back.
• You could request that your workplace make changes that would affect everyone there, not just you, like improving its employee policies and training around sexual harassment.
• It is possible to get some money to recognize the emotional harm you suffered from the harassment.

Pros and cons of going to the commission

Will the commission accept my application?

• You have one year from when the harassment happened to file your complaint with the commission. If the harassment happened more than once, the deadline is from one year of the last incident of harassment. In certain situations, the commission will accept late complaints if you can show the delay was in good faith and the late complaint will not cause significant harm to the respondent. Commission staff decide this on a case-by-case basis.
• You can apply to the commission if the employer is registered or operating in Saskatchewan, but not if you work at federally regulated workplaces, like banks, airlines, telephone companies, and TV and radio stations. See Am I a federally regulated worker? (And why it matters). If you’re unionized, you must make your complaint through your union. See Working with your union. You’re covered if you’re non-unionized, temporary or permanent, an independent contractor, or undocumented.
• After you submit your complaint, the commission might decide that the harassment you faced doesn’t relate to a ground of discrimination under the code. In that case, your complaint will not proceed. You must clearly explain how the harassment or discrimination you experienced relates to sex or another ground of discrimination.
• If you’ve already started a case in civil court, the commission will likely wait until after the case is finished to process your complaint. There are a couple of exceptions to this: f you withdraw the civil case, or if your civil case is dealing with a different issue, that is not included in your human rights complaint—for example, if the civil court case is only about unpaid wages.
• Your complaint may be delayed if you have filed a complaint with the Saskatchewan Workers’ Compensation Board. See Should you apply for workers comp?
• Even if you have another case going on, you still have to apply to the commission within one year of the last incident. You can file your complaint to get it in within the deadline, and then ask the commission to wait to process it until after the other case is resolved.
• If you win your other case, the commission may decide not to hear your complaint. If you lose the case and feel that the other process didn’t deal with the same human rights issues, you can explain this to the commission. It will decide whether your case has been dealt with.
• You can file a complaint against anybody who is sexually harassing you at work—your employer, a co-worker, a supervisor, a customer, or contractor. In your complaint, you can also name the company or organization you were or are working for. Even if your employer is not harassing you, they have to protect you from sexual harassment and a harassing environment. See How can I talk with my employer to get them to stop the harassment?

Who’s who

Complainant

When you apply to the commission, you are the complainant. That means you are the person who is filing a claim that you have been sexually harassed.

Respondent

The respondent can be anyone who is harassing you or has harassed you at work—your boss, a co-worker, a customer, even a contractor. There may be several respondents. You can file a complaint against both the person who harassed you and your employer for not protecting you.

Representative

You and the respondent are both allowed to have a lawyer represent you through the commission process, or you can represent yourself. The commission will generally communicate only with your representative, and it will be their responsibility to keep you informed.

Intake consultant

As you go through the commission process, you will come in contact with an intake consultant. They meet with you and hear your story, and determine whether to refer you to a mediator.

Mediator

The mediator’s job is to explain the mediation process to you and the respondent, listen to your stories, and try to help you reach an agreement. They are expected to behave neutrally: They’re not supposed to pick a side and they aren’t supposed to favour either you or the respondent. They may explain to you why your case is weak or strong, but they won’t make a decision about whether your complaint is justified. Their goal is to try to reach a solution or solutions that both parties can agree to so your case doesn’t have to go to a hearing.

Judge

If your case does go to a hearing, a judge at the Court of King’s Bench will hold a hearing where they will listen to you and the respondent and make a decision about whether your complaint is justified. Very few cases ever get to the hearing stage. If the judge finds your case is justified, they can also order the respondent to do various things, like give you money as compensation for what you experienced.

What you’ll have to prove

• It’s you, the complainant, who has to show there is enough evidence to go forward to a hearing. If the commission recommends that your case go to a hearing, you will have to convince the judge that there was more than a 50% chance that what happened to you was sexual harassment under the code. This is called the burden of proof on a “balance of probabilities.” The court will use the “reasonable person” standard to decide whether your harasser should have known that their behaviour was unwelcome. This standard considers what a reasonable person in your position would have thought, and what a reasonable person in your harasser’s position would have thought about the situation.
• You’ll have a chance to tell your story, or testify, submit documents, and bring witnesses to the hearing to prove your case. Sexual harassment often occurs without witnesses. However, the commission will still consider your testimony (you stating what happened and how it affected you) even if there are no documents or witnesses to support what you are saying. You may have to prove your case mainly through talking about your story at the hearing and explaining what happened.
• Usually, there needs to be more than one incident. But sometimes one incident can be so serious that it falls under the definition of sexual harassment. Remember, just because you didn’t say “no” or “stop” doesn’t mean that what the respondent did wasn’t sexual harassment. Under the code, the harasser either has to know or should have reasonably known that their behaviour was unwelcome. There may be many reasons why you might not have felt comfortable saying anything when the harassment was happening, like a power imbalance between you and your boss, or your fear that you would get punished if you said anything to an important client.

Other important considerations

• A Court of King’s Bench hearing is usually a public process. Personal information about the cases and their parties may be available to the public and searchable on public internet databases. Occasionally, the court allows parties to request a publication ban, which is an order to stop the respondent or someone else from publishing your name or certain details about your complaint.
• When the Court of King’s Bench writes and publishes a decision, it may include the full name of the parties. But it will publish only the initials of a party who is younger than 18.
• If you need some changes in the commission process, ask in advance or as soon as you can. You can request accommodations of medical needs, religious observances, or language needs. You may have to supply more information, like medical documents.
• The commission has control of the complaint process, and may refuse to proceed at some point even if you want to move the matter forward—for example, if there is a settlement offer that the commission thinks you should take.

Possible outcomes

The Saskatchewan Human Rights Code lists some of the remedies that can be ordered at the end of a sexual harassment case, if you are successful. There are many factors that affect the kind of, and the amount of, any remedies you receive. One might be how vulnerable you were and how much of a power imbalance there was between you and your harasser. There are two categories of remedies.

Monetary compensation

• Damages of up to $20,000 for harm to dignity, feelings, and self-respect.
• Compensation for lost wages or for things you had to pay for yourself because of the harassment, like therapy.

Non-monetary compensation

• Future compliance, or public interest remedies, can be things like changes to your workplace policies. You could, for example, ask for training for the harasser on sexual harassment policies.
• Non-monetary compensation can also include things like your employer taking steps to get you back to a job, either at the same workplace or another one. It can also include transferring your harasser to a different department.

When you complete the intake form, you can indicate the remedies you hope to receive in each of these categories, including the total amount of money you think you should receive. Be aware that the commission and the court look at what kinds of steps you took to reduce the losses you faced because of the harassment. This is called mitigation. If you did not take steps to limit your financial losses—for example, by looking for a new job after having been fired—the court may lower the amount of money it will award to you for lost income.

The commission website lists its past decisions and current cases. You will find summaries of cases, with the court’s orders, including in cases of sexual harassment.

If you want to learn more about the kinds of decisions the court has ordered in cases like yours, there is an easy place to start. You can search for human rights decisions of the Court of King’s Bench related to sexual harassment and read full case decisions on CanLII, a free database for legal decisions in Canada. See how to search for and read decisions on CanLII here.

At a human rights hearing, a judge can only order remedies allowed under the code. At mediation, a settlement can contain whatever terms and remedies you and the respondent agree on. Usually the mediator will try to help the parties decide on remedies by explaining what the court can and would likely decide if the case does go to a hearing. Read more about mediation and the hearing process below.

The commission process step-by-step

Here we offer the highlights to help you decide whether making a complaint is the right choice for you. While it is possible to proceed with a complaint representing yourself, this is very challenging, time consuming and can affect your mental health. Getting legal assistance can help throughout the process. You may be able to get help from a lawyer for free or at lower cost.

• You can contact the commission. It is designed to help people file their complaints and protect human rights. The commission staff are trained to help you with the process. If your case is referred to the Court of King’s Bench, the commission’s counsel will argue the case in court and will call evidence and witnesses.
• The Shift Project, run by the Public Legal Education Association Saskatchewan, offers up to four hours of free legal advice to people who experience sexual harassment.
• Pro Bono Law Saskatchewan provides free legal services to low-income Saskatchewan residents through 14 clinics across the province. Clients receive up to one hour of free legal advice from a volunteer lawyer.
• JusticeNet is a not-for-profit service for those whose income is too high to qualify for legal aid but too low to afford regular legal fees. To qualify you must have a net family income under $90,000 and be experiencing financial difficulties. Participating lawyers’ reduced rates vary depending on your family size and income.
• Your workplace union, association, or Employee Assistance Program may be able to help you find legal services or cover part of your legal fees.

Applying

A description of the complaint process and the Intake Questionnaire are available on the commission’s website.

The first step is to fill out the questionnaire. This form asks you key questions about what happened. You can file directly online, or you can send a copy in by mail, fax, or email. An intake consultant will then contact you and ask follow-up questions. They will listen to your story and will record the details. They will ask about the events, the effect the harassment had on you, and the remedies you are asking for. You need to apply within one year of the last time the harassment happened or the commission might not accept your complaint.

After applying

The commission decides if the case meets the criteria of discrimination on the basis of sex or other ground, called a jurisdictional review. If it accepts your complaint, the intake consultant might attempt pre-complaint resolution. This usually involves calling your employer, explaining the law, and trying to have the case resolved right away so that you can safely return to work. If this is not successful, your complaint will be sent to the respondent to respond to.

Once both sides have submitted their version of events, a commission mediator will facilitate mediation. This process might involve in-person or phone-based mediation. It can also be shuttle mediation, where the mediator meets with one side and then the other.

If mediation is not successful, a commission investigator is assigned to look into the case. Based on the investigator’s report, the commission may hold directed mediation. This process is one last opportunity to resolve the case. The respondent is instructed to offer a resolution. If the complainant does not accept a reasonable offer, the commission can dismiss the complaint. If the offer is not reasonable, the commission can refer the case to the Court of King’s Bench for a hearing.

If your case is referred for a hearing, the court will start its formal process, including pre-case conferences and a hearing date, similar to other court processes. If the case is referred to the court, the commission’s counsel will present the evidence and call witnesses in court.

Process	What this looks like
Pre-complaint resolution	The intake consultant will try to quickly resolve the case before the complaint is finalized
Mediation	The commission mediator will work with you to see if there is an opportunity to resolve the issue quickly. The focus of early resolution is to address discrimination and preserve working relationships so that you can continue to work there, if that is what you want. The commission staff will talk about this with you and listen to your views
The commission starts an investigation	The commission investigator looks into the case
After you submit your complaint, the commission reviews it and wants to defer because another proceeding is happening	You can ask the commission not to defer your hearing, and the commission will make the final decision. The process and deadline for responding will be included in the notification from the commission
Directed mediation	The commission mediator will ask for a settlement offer from the respondents. If a reasonable settlement is not accepted, the case can be dismissed

Mediation

Mediation is the process of trying to settle your case by coming to an agreement with the respondent, who must also agree to mediation. This process is not to determine whether you were sexually harassed according to the code. It is a way of encouraging the parties to settle their dispute without having to go to a hearing, where someone else will decide if the law was broken. This commission process starts with a period of mediation. Remember that if you agree to a settlement in mediation, your case will not go to a hearing. You won’t have to talk at the hearing about what happened to you, or face questions about it.

The commission can help the parties mediate at any point in the process. Commission staff will ask you about early resolution at different stages in the process. Mediation is possible after the respondent has provided their response, or during or after an investigation. Most cases are resolved through mediation or early resolution. Only a small percentage proceed to a hearing.

Neither party chooses the mediator. The commission will assign one to your case. Mediators are neutral parties who will not take a side before, during, or after the process. They work with both sides to try to find a resolution that works for everyone. You can provide information or show documents to a mediator and request they keep them confidential from the other side.

After the mediation

Process	You might need to do
Sign the memorandum of agreement	If you reached agreement, sign the agreement The memorandum of agreement might include a “confidentiality clause” or a separate non-disclosure agreement
Report any concerns about your mediator	If you have a problem with your mediator, you can talk to the commission. They’ll consider your request if your mediator has been discriminatory or has engaged in misconduct, but not if you just don’t like their style of mediation. You will need to explain the reasons for your concerns (who, what, when, where), the steps you think should be taken to deal with the issue, and the result you are looking for
Enforce the agreement	Send a demand letter File with a court to have the monetary part of the agreement enforced. Your agreement is a legal document, or contract, and the respondent must follow what it says. This is a complicated process and you should get help from a lawyer to do this

The hearing

The commission will decide whether to refer your case to the court for a hearing. Your complaint will be part of the commission’s materials, referring the case to the court, together with any evidence gathered in the investigation and the investigation report.

The judge will schedule a pre-hearing conference call where all parties will discuss the hearing and try to simplify what comes next. It is scheduled after all of the materials have been filed.

Throughout the hearing process, the commission is one of the parties and its counsel, or lawyer, presents evidence and makes arguments. The commission counsel will present the evidence that they found in their investigation. You do not need to have a lawyer or present your own evidence, though some complainants chose to.

At the pre-hearing conference, the parties can raise questions or objections to different evidence or witnesses. For example, the respondent might be trying to bring a witness to the hearing who has nothing to do with the sexual harassment you experienced. You can work with commission counsel to ask about anything you are concerned about.

The court and commission counsel will correspond with you, asking you for information, documents or witness lists at different stages of the process. You will be sent the forms you need to use for each stage of the process, along with the deadlines for when to send them.

Preparing for the hearing

Things to do	You might want to do
Identify people who could be witnesses for your case. Reach out to them and make notes on what they know. Discuss these potential witnesses with the commission counsel   Deadline: Before the deadline to submit the witness statements and list to the commission and the respondent Work with the commission lawyer to make sure that they understand what happened and the result you want. Share documents and tell them about potential witnesses. Make sure they can make the best possible case
Work with the commission lawyer to make sure that they understand what happened and the result you want. Share documents and tell them about potential witnesses. Make sure they can make the best possible case
The court will schedule a pre-hearing conference where all parties discuss the hearing and try to simplify what comes next	Request any accommodations you need in advance, in writing   Deadline: Well before the hearing

Attending the hearing

The hearing will usually happen at a courthouse. Both sides will make opening statements and closing statements about the case. The court will receive documents and hear from witnesses about what they know about your sexual harassment allegations.

The commission’s lawyer will lead the evidence and ask the questions of you and the other witnesses. They are there to present the case, in the public interest. You don’t need to bring any witnesses or ask any questions to make legal arguments at all. However, you should be prepared to answer questions from the commission lawyer and from the respondent, or respondent’s lawyer.

When the hearing is coming to an end, the judge will review all of the evidence that you and the respondent have presented both before and during the hearing. They will likely reserve their decision, considering it for a while and writing the reasons. This can take several months.

The decision

The Court of King’s Bench will send its decision to you by mail or email. If you have a lawyer, your lawyer will get a copy. It will also be posted on the CanLII website.          

The judge’s decision will explain how they looked at the facts in the case and how they applied the Saskatchewan Human Rights Code and human rights cases to your situation. They will state whether your complaint was successful and proved that you were sexually harassed according to the law. If your complaint was successful, the decision will outline the remedies you will be receiving.

If you are happy with the decision and the remedies, you will need to make sure that the respondent follows the orders in the decision. If the respondent doesn’t do what they’re ordered to do, you can take steps to enforce the decision.

Process	You might need to do
Enforce the decision	Send a demand letter Ask the commission to enforce the award File with a court to have the monetary part of the order enforced. The court order is a legal contract, and the respondent must follow what it says. This is a complicated process and you should get help from a lawyer to do this
Appeal	If you think the court didn’t follow the law when making the decision, you can start an appeal

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