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 occurs. The majority of complaints never 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 The rest are settled in mediation, or thrown out, abandoned, or withdrawn.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 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 Commission can be a good choice.

It may be a shorter process than civil court. 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 Nova Scotia Human Rights Commission and what it does

If you’re reading this, you’re probably considering filing a complaint with the Nova Scotia Human Rights Commission. This guide explains how the process works, and the pros and cons of this process, so you can decide whether it’s an avenue you want to pursue.

The Nova Scotia Human Rights Commission is the agency that receives and investigates discrimination cases. One law that protects you from discrimination is the Nova Scotia Human Rights Act. The commission helps people to mediate or settle their complaints. If a complaint can’t be resolved, the commission might refer the case to a Board of Inquiry hearing.

If your complaint falls within the commission’s jurisdiction, it will accept it. Then it will encourage you to resolve the complaint through settlement discussions guided by the complaint officer or through a resolution conference. If that doesn’t work, a Board of Inquiry might hold a hearing, listen to both sides, and decide whether you were sexually harassed. If it decides you were, it 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, or get a reference for a new one.
• You could request that your workplace make changes that would affect everyone there, not just you, such as improving their 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 that it is in the public interest to extend the deadline, but this is very rarely done.
• You can file a complaint with the commission if you work in Nova Scotia or if the harassment happened in Nova Scotia, but not if you work at a federally regulated workplace. 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.
• You need to be 19 years old to submit a complaint to the commission. If you are under 19, your parent or legal guardian will need to submit the complaint on your behalf.
• After you submit your complaint, the commission might decide that the harassment you faced doesn’t relate to a ground of discrimination under the act. In that case, your complaint will not proceed.
• 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: if 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 made a claim with the Workers’ Compensation Board of Nova Scotia. 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 as if 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 to report sexual harassment to your employer. 

Who’s who

Complainant

When you file a complaint with the commission, you are the complainant. That means you are the person who is filing a complaint 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. If you are represented by a lawyer, the commission will generally communicate only with your representative, and it will be their responsibility to keep you informed.

Human rights officer

The process will start with contact with a human rights officer. They will ask questions and listen to your story. Based on this conversation, they will fill in the complaint form. The human rights officer will also usually attempt to settle the dispute at the outset by working with you and the respondent to see if there is a resolution that works for everyone.

Mediator

A human rights officer may also act as a mediator at a resolution conference. Their job is to explain the resolution conference 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.

Any settlement reached between the parties needs to be approved by the commission before it is official. However, if a human rights officer has helped the parties reach the settlement, then there is a very good chance that the settlement will be approved.

Chair

If the case is referred to the Board of Inquiry, there will be a chair who will lead the hearing. In most cases, the chair will be the only member of the Board of Inquiry, but in some cases, there may be a panel of adjudicators.

Board of Inquiry

If your case does go to a hearing, the Board of Inquiry 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 decision-maker finds it is justified, they will 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 Board of Inquiry that there was more than a 50% chance that what happened to you was sexual harassment under the act. This is called the burden of proof on a balance of probabilities. You will first need to show that the behaviour set out in your complaint did occur, and that the person who harassed you knew, or should have known, that their behaviour was unwelcome. The Board of Inquiry 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. 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. The Board of Inquiry must decide whether the harasser should nevertheless have known that their conduct was unwelcome.

Other important considerations

• A Board of Inquiry hearing is usually a public process. In most cases, personal information about the cases and their parties may be available to the public and searchable on public internet databases. You may request a full or partial publication ban, which is an order to stop the respondent, the media, or someone else from publishing the details covered by the ban such as your full name, but the board has only granted this type of request under special circumstances.
• When the Board of Inquiry writes and publishes a decision, it usually includes the full name of the parties. But it will publish only the initials of a party that is younger than 18. If you do not want to have your full name published, and you can provide a good reason for this, you can ask the chair to use only your initials in the published decision. This known as anonymization. You can ask for an anonymized decision at any point after you apply. The decision is going to be made on a case-by-case basis.
• 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.

Possible outcomes

There are many factors that affect the kind of, and the amount of, remedies you might 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

• General damages compensate you for the loss of or harm to dignity, feelings, and self-respect.
• Special damages compensate you for lost wages, or for things you had to pay for yourself because of the harassment, such as therapy. Special damages can include the costs you will continue to have, such as future therapy appointments.

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 giving you a reference letter, or 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 meet with the human rights officer you can discuss what remedies you ar seeking in each of these categories, including the total amount of money you think you should receive. Be aware that the Board of Inquiry looks 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 Board of Inquiry may lower the amount of money it will award to you for lost income.

The commission website lists past Board of Inquiry decisions. You will find summaries of cases, with the panel’s orders, including in cases of sexual harassment.

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

At a hearing, the decision-maker, known as an adjudicator or board member, can only order remedies based on ordering future compliance with the act by the respondent or on repairing any injury caused to the complainant (including through monetary and non-monetary compensation). 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 Board of Inquiry can and would likely decide if the case does go to a hearing. Read more about mediation and the hearing processes below.

The commission process step-by-step

Here we offer the highlights to help you decide whether making a claim is the right choice for you. While it is possible to proceed with a claim 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 for free or lower cost.

• You can call the commission and talk to a human rights officer before filing a complaint. The commission staff are trained to help you file your complaint.
• The commission has developed a complaint self-assessment that lets you see if your situation falls under human rights protection.
• The Dalhousie Legal Aid Service is a community-based office in Nova Scotia and a clinical program for law students at the Schulich School of Law at Dalhousie University. The DLAS serves low-income individuals. It has experience filing complaints with the commission and can help guide you through the process.
• The Halifax Workers’ Action Centre is an organization whose aim is to improve conditions for low-waged and marginalized workers. If you are low income, WAC offers free legal advice, which may help you regarding filing a complaint with the commission.
• 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 family net 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

The complaints process starts with a conversation with a human rights officer, either in person at one of the three commission offices or by phone. Visit the website for contact information. The human rights officer will listen to your story and record the details in the right format to submit. They will ask about the events, your employer, the effect the harassment had on you, the remedies you are asking for, and whether you are interested in mediation. You need to apply within one year of the last time the harassment happened. 

After your appointment

The human rights officer will talk to the respondent and collect documents or information about what happened. They will let you know if your situation does not fall under the Human Rights Act. They may also try to settle the matter between the parties right at the outset.

The human rights officer may schedule a resolution conference for you and the respondent. This is the first step in most of the cases at the commission. If you are not able to resolve the issue with the human rights officer acting as a mediator, the commission will continue to investigate your case. Based on the investigation, the commission may either dismiss the case or recommend it for a hearing at the Board of Inquiry. If you are not happy with the decision, you can ask the chair of the commission to take another look.

At any stage, the commission might suggest another attempt to resolve the case through mediation.

If your case is referred for a hearing, a panel of one or three adjudicators is appointed to a Board of Inquiry and the formal hearing process starts.

Process	What this looks like
Resolution conference	The human rights officer 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 at your workplace, if that is what you want. The commission staff will talk about this with you and listen to your views
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
The commission dismisses your complaint	You can ask the chair to review the decision. Details of how to request a review and the deadline for making the request will be sent to you with the decision

Mediation

The resolution conference is the stage where the commission tries to settle your case by coming to an agreement between the parties through mediation. This process is not to determine whether you were sexually harassed according to the act. 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. Resolution conferences are scheduled in all commission cases. Remember that, if you agree to a settlement in mediation, your case will not go to a hearing. The Board of Inquiry will not write a public decision and your case will wrap up faster. 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 up to a hearing before the Board of Inquiry. The human rights officer will ask you about early resolution at different stages in the process. Most cases are resolved through mediation or early resolution. Only a small percentage proceed to a hearing.

The human rights officer will mediate the case. They are a neutral party 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 it confidential from the other side.

After the mediation

Process	You might need to do
Sign the settlement agreement	If you reached agreement, sign the agreement Sign a settlement that includes a confidentiality clause or a separate non-disclosure agreement
Report any concerns about your mediator	If you have a problem with your human rights officer, 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 Apply to the commission to reopen the process if the respondent is not complying with the settlement agreement File with a court to have the monetary part of the order 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 Board of Inquiry for a hearing. Your complaint form will be part of the materials, together with any evidence gathered in the investigation process. The chief justice appoints a panel of one or three members to hear the case.

The Board of Inquiry 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.

The Board of Inquiry may schedule a pre-hearing conference call where all parties discuss the hearing and try to simplify what comes next. You should think in advance about what issues you want to bring up at the call by reviewing the documents and witness statements you have received from the respondent. 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 might feel intimidated by this person, or you just might not want this person involved in the process. This is something you would raise as an issue and it would be dealt with at this call.

Anytime you prepare one of the forms or documents, be sure to send it to the Board of Inquiry, and the respondent. The commission is also a party at the Board of Inquiry and will present evidence of its investigation. The Board of Inquiry can use either a traditional court-like process or a restorative process. You can contact the human rights officer to make sure you understand what will happen at the Board of Inquiry. A Board of Inquiry process is complicated and can have serious consequences. Speak to a lawyer about the process and your options.

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	Get a signed subpoena from the Board of Inquiry and send it to the witnesses   Deadline: Before the hearing
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 Board of Inquiry 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

If your hearing is in person, it may happen at the commission offices, or in another location, like a meeting room at a hotel. The decision-makers are sometimes referred to as adjudicators or as members of the board. One member will be the chair of the board.

The commission will likely offer you and the respondent one last chance to try to mediate. If you have already gone through an unsuccessful mediation or you don’t want to do this, the hearing will begin. Both sides will make opening statements at the beginning of the hearing and closing statements about the case at the very end. The commission will also have a lawyer at the Board of Inquiry and present evidence. The Board of Inquiry 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 questions of you and the other witnesses. The lawyer is there to present the case, in the public interest.

When the hearing is coming to an end, the Board of Inquiry 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 Board of Inquiry 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 decision will explain how they looked at the facts in the case and how they applied the Nova Scotia Human Rights Act and other cases decided by a Board of Inquiry to your situation. They will state whether your complaint was successful and whether 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 agreement 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. See How to find and work with a lawyer.
Appeal	If you think the Board of Inquiry didn’t follow the law when making the decision, you can ask a court to review the decision

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