How to decide whether to file a human rights complaint

If you’re reading this, you’re probably considering filing a complaint with the New Brunswick 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.

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. Fewer than 2% of complaints ever get to a final ruling. The rest are thrown out, abandoned, withdrawn, or settled in mediation.

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 New Brunswick Human Rights Commission and what it does

The New Brunswick Human Rights Commission is the agency that deals with discrimination and sexual harassment complaints in the workplace. It receives, mediates, and investigates complaints. If a complaint can’t be resolved, the matter may be referred to a hearing at the Labour and Employment Board. The board is completely separate from the commission. The commission is only able to make the decision to either dismiss a complaint or send it to the board. The board has the authority to make a finding of discrimination and award a variety of remedies.

One law that protects you from discrimination is the New Brunswick Human Rights Act. Sexual harassment under the act is discrimination based on sex.

Why consider filing a complaint with the commission

If you decide to file a complaint with the commission and it goes to the Labour and Employment Board, 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 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 through the commission and the Labour and Employment Board process

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 was continuous, the deadline is one year from 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.
• You can apply to the commission if the sexual harassment occurred in New Brunswick, but not if you work at a federally regulated workplace. 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, or are a volunteer, intern, 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 or fall under an area of the Human Rights Act. In that case, your complaint will be dismissed.
• 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. The commission may help you to mediate or reach a settlement of the human rights case, even while the civil case is underway.
• Your complaint may be delayed or dismissed if you are going through a claim at WorkSafeNB. 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 of discrimination or sexual harassment you suffered. You can file your complaint to get it in within the deadline, and then ask the commission to potentially wait to process it until after the other case is resolved.
• If you win your other case, the commission may decide to dismiss your complaint. If you 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 in the other proceeding.
• You can file a complaint against anybody who is sexually harassing or has sexually harassed you at work—your employer, a co-worker, a supervisor, a customer, or a 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 an obligation under human rights law 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 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.

Mediator

If you agree to mediation, the commission will assign a mediator. Their 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 impartial: They do not pick a side and they do not favour either you or the respondent. They may explain to you why your case is weak or strong, but they do not make a decision about whether your claim is justified. Their goal is to try to reach a resolution that both parties can agree to, so your case gets settled to your satisfaction without the need to go through the whole complaint process.

Investigator

If mediation is not successful, your complaint is investigated by a commission staff member. They prepare a report that includes a recommendation about whether the commission should dismiss your case or send it to be heard by the Labour and Employment Board.

Adjudicator

If your case does go to a hearing, the board adjudicator, also called a chair or vice-chair, will hold a hearing where they will listen to you, the respondent, and the witnesses, review the evidence, and make a decision about whether there was discrimination or harassment. If the decision-maker determines there was, they will order the respondent to do various things like cease the discrimination, give you money as compensation for what you experienced, or implement harassment policies in the workplace. Very few cases reach this stage.

What you’ll have to prove

• It’s you, the complainant, who has to show there is enough evidence to go forward to an investigation and to a hearing. If the commission recommends that your case go to a hearing, you will have to convince the board that there was more than a 50% chance that what happened to you was sexual harassment under the Human Rights Act. This is called the burden of proof on a “balance of probabilities.” The board 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 board will still consider your testimony (you stating what happened and how it impacted 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.
• Even if there was just one incident, it 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. Under the act, the harasser either has to know or should have reasonably known that their behaviour was unwelcome.

Other important considerations

• A board 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. In some cases, the board 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 case.
• When the board writes and publishes a decision, it usually includes the full name of the parties. If you do not want to have your full name published, and you can provide a good reason for this, you can ask the adjudicator to use only your initials in the published decision. This is known as anonymization. You can ask for an anonymized decision at any point. The decision is going to be made on a case-by-case basis.
• If you need some accommodations of medical needs, religious observances, or language needs, ask as soon as you can. You may have to provide more information to support your request, like medical documents.

Possible outcomes

The New Brunswick Human Rights Act lists the remedies that the board can order 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

• 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, such as therapy because of the harassment. Special damages can include the costs you will continue to have, such as future therapy appointments.

Non-monetary compensation

• Non-monetary compensation can also include things like ordering your employer to reinstate you to your position.

When you meet with the commission staff you can discuss what remedies you would like in each of these categories, including the total amount of money you think you should receive. Be aware that the board 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 may lower the amount of money it will award to you for lost income.

The commission website lists the board’s past decisions. You will find summaries of cases, with the board’s orders, including in cases of sexual harassment. The board hearings used to be called a Board of Inquiry—both terms are on the commission website.

If you want to learn more about the kinds of remedies the board has ordered in cases that may be like yours, you can search for decisions 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.

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:

• The Public Legal Education and Information Service of New Brunswick may be able to provide you with general advice on the types of rights you hold.
• You can call the commission. The commission staff can provide some guidance throughout the process.
• 211 New Brunswick is a free and confidential 24/7 phone and text service that connects individuals to services in the province. You can call or text 2-1-1 to be connected with trained professionals to help find support services.
• 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

An outline of the complaint process and the forms you need are available on the commission website.You can file your complaint by mail or email. You can also ask the commission to send you a complaints kit and more information about the process. You can call the commission at 1-888-471-2233 if you have questions about completing the forms.Remember that you need to apply within one year of the last time the harassment happened.

Once you have submitted your complaint form, the commission staff will open a file and determine if the complaint falls within its jurisdiction and if there is sufficient information to proceed. Your complaint could be dismissed at this stage.

Mediation

If your complaint is accepted, you will be encouraged to participate in mediation to try 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 act. It is a way of encouraging the parties to settle their dispute without having to go through the complaint process or to a hearing, where someone else will decide if the law was broken. This process is optional, but favoured by the commission. Remember that if you agree to a settlement in mediation, your case will not go to a hearing. The board 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. Commission staff 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.

Process	You might need to do
Early resolution	The commission staff 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 a relationship with your workplace 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
Sign the settlement agreement	If you reached an agreement, sign the agreement. You can certainly seek independent legal advice for the agreement, but at your own cost    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 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.   The New Brunswick ombudsman can also hear a complaint about a mediator or staff member at the New Brunswick Human Rights Commission
Enforce the agreement	Talk to the commission if the respondent is not complying with the settlement agreement, although the commission likely didn’t close the file until the conditions were met    Depending on the breach of the agreement, it is possible that the only forum to proceed with is the courts. The commission will be able to say if it can help you with the issue Depending on the conditions, you may have to file with a court to have some conditions 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

Investigation

If mediation is not successful, the respondent will have the chance to read the complaint and respond to it. You will get a copy of their response. The commission will review all the submissions and may dismiss the complaint or assign an investigator. The investigator looks into the case, talking to witnesses and reviewing documents. Based on the investigator’s report, the commission may either dismiss the case or recommend it for a hearing at the board. If it is referred for a hearing, board adjudicators are assigned to the case and the formal hearing process starts.

Process	What this looks like
The commission starts an investigation	The commission’s investigator will contact you and the respondent and may talk to the relevant witnesses
Once the investigation is completed, the commission reviews it and may refer the complaint to the board	The parties have a chance to review the investigator’s report and provide clarification or additional documents. The commission members then discuss the case at a commission meeting. The parties will be advised in writing of the decision of the members

The hearing

The commission will decide whether to refer your case to the board for a hearing. Your complaint, the respondent’s response, your rebuttal, and the commission’s decision to refer the matter will be part of the commission’s materials sent to the board. 

The board is completely separate from the commission. The outcome or findings from the investigator are not considered, and the evidence and witness testimony are presented as new.

The parties before the board are you, the respondent, and the commission. The commission does not represent you or the respondent; it represents the public interest. In the event that you are not legally represented, the commission will have carriage of the complaint and will help you present the evidence.

The chairperson from the board will schedule a pre-hearing conference call where all parties will discuss the hearing and try to simplify what comes next. Questions that are covered might be the location of the hearing, the number of witnesses who will testify, the expected length of the hearing, if there are preliminary issues to deal with first, and if the parties can agree on documents before the start of the hearing.

You should think in advance about what issues you want to bring up during this call.

You and the respondent will also be able to present documents and witnesses, and testify yourselves.

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   Deadline: Before the deadline to submit the witness statements and list to the commission and the respondent	Get a signed summons from the board and send it to the witness Deadline: Before the hearing
The adjudicator 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 hearing

Attending the hearing

The decision-makers are sometimes referred to as adjudicators, chairs, or as the panel.

If you haven’t taken part in mediation already, the adjudicator 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 and closing statements about the case. The board will receive documents and hear from witnesses about what they know about your sexual harassment allegations.

When the hearing is coming to an end, the adjudicator 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 will send its decision to you by mail or email. If you have a lawyer, your lawyer will get a copy. A board hearing is public and its decisions are posted on the CanLII website, a free database for legal decisions in Canada. See how to search for and read decisions on CanLII here.

The adjudicator’s decision will explain how they looked at the facts, the evidence in the case, and how they applied the act and other cases decided by the board and the courts to your situation. They will state whether your complaint was successful and whether you were sexually harassed according to the law and the evidence. 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 help you 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.
Judicial review	If you think the board didn’t follow the law or did not take important facts into consideration when making the decision, you can ask a court to review the decision. There are specific delays and rules to file a judicial review application, so you should consult with a lawyer about this process

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