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. A fraction of claims 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 The rest are settled in mediation or thrown out, abandoned, or withdrawn.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 claim?

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, which can take several years or more. 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 British Columbia Human Rights Tribunal and what it does

The British Columbia Human Rights Tribunal is an administrative tribunal where you can file a formal complaint saying you’ve been sexually harassed. It is less formal than a court, but more formal than many other legal processes. The tribunal deals with discrimination cases. One law that protects you from discrimination is the British Columbia Human Rights Code. Sexual harassment under the code is discrimination based on sex.

The tribunal’s job is to resolve complaints. If your application falls within the commission’s jurisdiction, it will accept it. Then it will give you the option of resolving the complaint through an early settlement meeting or mediation. If that’s not successful, the likely next step is a tribunal hearing, where it listens to both sides and decides 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 tribunal

If you decide to file a complaint with the tribunal, 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, like improving their employee policies and training around sexual harassment.
• It is possible to get some money to recognize the loss of dignity you suffered from the harassment.

Pros and cons of going to the tribunal

Will the tribunal accept my application?

• You have one year from when the harassment happened to file your application with the tribunal. If the harassment happened more than once, the deadline is one year from the last incident of harassment. In certain situations, the tribunal will accept late applications if you can show the delay was in good faith and the late application will not cause significant harm to the respondent.
• You can apply to the tribunal if you work in British Columbia or if the harassment happened in B.C., but not at federally regulated workplaces, like banks, airlines, telephone companies, and TV and radio stations. If you’re unionized, you must make your complaint through your union. You’re covered if you’re non-unionized, temporary or permanent, an independent contractor, or undocumented After you submit your application, the tribunal might decide that the harassment you faced doesn’t relate to a ground of discrimination under the code. In that case, your application will not proceed.
• If you’ve already started a case in civil court, the tribunal will likely wait until after the case is finished to process your application, or the civil case will be paused until the tribunal process is done. 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 application may be affected if you have filed a claim with WorkSafeBC. See Should you apply for workers comp?
• Even if you have another case going on, you must still apply to the tribunal within one year of the last incident of harassment. You can file your application to get it in within the deadline, and then ask the tribunal to wait to process it until after the other case is resolved.
• If you win your other case, the tribunal may decide not to hear your application. 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 tribunal. It will decide whether or not your case has already been dealt with.
• You can file an application against anybody who is sexually harassing you at work—your employer, a co-worker, a supervisor, a customer, or contractor. In your application, 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 apply to the tribunal, you are the applicant. 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 an application against both the person who harassed you and your employer for not protecting you. If you’re unionized, you may be able to include your union as a respondent if it discriminated against you.

Representative

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

Mediator

If both parties agree to mediation, the tribunal 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 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.

Member

If your case does go to a hearing, the tribunal will assign a member. Their job is to 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 member 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. Once the tribunal accepts that it can hear your case, you will have to convince it that there was more than a 50% chance that what happened to you was discrimination under the code. This is called the burden of proof on a balance of probabilities. The tribunal will use the “reasonable person” standard to decide whether your harasser ought to 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 tribunal 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 what happened.
• Usually, there needs to be more than one incident. But sometimes, one episode 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 tribunal 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 tribunal allows parties to request a publication ban, which is an order that the tribunal makes to stop the respondent or someone else from publishing your name or certain details about your case. To ask for a publication ban use Form 7.1.
• When the tribunal writes and publishes a decision, it usually includes the full name of the parties. But it will publish only the initials of a party who 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 tribunal to use only your initials in the published decision. This is 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. For more information on how to request an anonymized decision, read this guide from the tribunal.
• If you need some changes in the process to help you take part at the tribunal, ask in advance or as soon as you can. You can approach the registrar of the tribunal for accommodations of medical needs, religious observances, or language needs. You may have to supply more information, like medical documents.

Possible outcomes

The Human Rights Code lists the remedies that the tribunal 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, 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 your employer to develop a sexual harassment policy or training for the harasser on sexual harassment policies.
• Non-monetary compensation would be your being reinstated in your job.

When you fill out your application you can list what remedies you would like in each of these categories. Be aware that the tribunal 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 tribunal may lower the amount of money it might award to you for lost income.

If you want to learn more about the kinds of remedies the tribunal has ordered in cases like yours, there is an easy place to start. The BC tribunal website contains summaries of cases, with tribunal orders, including cases of sexual harassment. If you want to read full case decisions, visit CanLII. This is 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 the tribunal member, 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 tribunal can and would likely decide if the case does go to a hearing. Read more about mediation and the hearing processes below.

The tribunal process step-by-step

You may be able to get help from a lawyer for free. Here are some places that offer free or lower-cost legal services:

• The BC Human Rights Clinic provides free legal advice on human rights cases. If you have a case that has been accepted by the tribunal and need legal help, apply within 30 days of receiving notification. The clinic might be able to help you at the mediation or the hearing, depending on your circumstances. The staff can determine if you are eligible.
  
  If your case is ready to move forward to mediation, a clinic lawyer might be able to meet with you to prepare for the mediation. They might also be able to attend the mediation with you. Clinic lawyers also can sometimes provide free representation if your case goes to a full hearing, but this is not guaranteed. The type of help that the clinic will be able to give you is decided on a case-by-case basis.
• There is a specialized program for people experiencing sexual harassment in the workplace run by the Community Legal Assistance Society (CLAS). It can give legal advice on sexual harassment cases, including B.C. and Canadian human rights complaints. You can apply for legal assistance through its Sexual Harassment Advice, Response, and Prevention program (SHARP).
• You can contact Access Pro Bono for 30 minutes of free legal advice if you have a low income. The lawyers can provide advice on how to navigate the tribunal process. They may even be able to help draft letters and basic legal documents for you, depending on your circumstances.
• 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

The application is available online on the tribunal website.You can also ask the tribunal to mail you copies of the forms if you have trouble downloading them or don’t have access to a printer. If you need accessible forms or have questions about other languages, contact the tribunal directly by phone or email.

The main form you need is Form 1.1 (the individual application form). Anyone who wants to make a complaint to the tribunal needs to fill out this form. If you are under 18 years old, you’ll need a litigation guardian, and they will also need to fill out Form 1.2.

You can file directly online, through mail, or by email. Visit the website for exact contact information.

After you apply

After you apply, you’ll get a letter from the tribunal with your case file number. This does not mean that the tribunal has accepted your application. It is just the way it tracks your file. If you are filing your complaint yourself, you must use this number in all future communication with the tribunal.

Process	What this looks like
The tribunal accepts your application	It will send a copy of your application to the respondent and they will then have a chance to give an answer to it, called a response
After submitting your application, you want to withdraw it	If you want to withdraw your application before the respondent has acted on it, you can. Your case will simply be closed and nothing more will happen. Use Form 7.1 to withdraw your complaint
After you submit your application, the tribunal reviews it and wants to defer because another proceeding is happening	If you want to ask the tribunal to proceed with the application, file a response explaining why by the deadline in the notice
After you submit your application, the tribunal reviews it and sends a notice of intent to dismiss	To ask the tribunal not to dismiss your case, file a response by the deadline in the notice
After you submit your application, the tribunal reviews it and finds that there’s information missing	Complete the application with the missing information and send it back to the tribunal

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. Mediation 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 process is optional, but highly encouraged by the tribunal. Remember that if you agree to a settlement in mediation, your case will not go to a hearing. The tribunal 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.

Before the mediation

Process	You might need to do
Receive the notice of mediation, including the date, time and location for mediation	Make a request for accommodation   Make a request for separate rooms so you don’t have to sit with the respondent. You can make this request over the phone or in an email to the BCHRT office   Plan for emotional support before, during, and after the mediation

If you and the respondent reach an agreement, you will sign two documents: the settlement agreement and a confirmation of settlement. The settlement agreement will have all the things you and the respondent agreed to. The confirmation of settlement is a document that tells the tribunal that you have settled your case so the tribunal won’t schedule a hearing.

After the mediation

Process	You might need to do
Sign the settlement agreement	If you reached agreement, sign the agreement
Report any concerns about your mediator	If you believe that the mediator has breached the BCHRT’s Mediators’ Code of Conduct, you can first raise your concern with the mediator directly, and then, if it is not resolved, write to the chair of the tribunal. 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. When you report your concern, you should provide your BCHRT file number. The tribunal chair will get back to you within three weeks
Enforce the agreement	Send a demand letter   Apply to the tribunal to enforce the award if the respondent breaches settlement   Talk to a lawyer about starting a court case to enforce the settlement

The hearing

You’ve made an application to the tribunal, have chosen not to participate in mediation, or your mediation failed, and now you’ve received your hearing notice. This will tell you the date, time, and location of your hearing. If you have a valid reason for needing to reschedule the hearing date, tell the registrar right away.

The tribunal can hold hearings in person, in writing, by telephone, and by other electronic means if it thinks it is appropriate. A party may object to the hearing format and the adjudicator will consider the party’s arguments, and decide whether the hearing format chosen by the tribunal is appropriate.

The tribunal may schedule a case conference where all parties discuss the hearing and try to simplify what comes next. It can be scheduled anytime leading up to the hearing. The case conference includes you (if you’re self- or partially self-representing), the respondents, any lawyers involved and a case manager or registrar from the BCHRT. Most case conferences are run by case managers. Case conferences usually happen by phone.

Now it’s time to prepare, if you don’t have a lawyer to represent you. Mostly, you will want to get your evidence, witnesses, and arguments ready.

Preparing for the hearing

Process	You might want to do
File witness statements with the respondent and the tribunal   Form: Form 9.3 Deadline: 21 calendar days after getting the notice of hearing	If a witness does not want to attend, get a signed summons to witness from the tribunal and send it to the witness   Form: Form 8 (Summons to Witness) Deadline: Before the hearing
Create a list of your documents that you have and send to the respondent. Send copies of your documents to the respondent   List documents that you want to claim privilege over and send the list to the respondent   Form: Form 9.1 to the tribunal Deadline: As soon as possible; at least 35 days after receiving the response	Request an order during proceedings to ask for additional documents from the respondent   Form: Form 7.1 Deadline: None
Review all the respondent’s witness statements and documents. Identify gaps and inconsistencies. Prepare cross-examination questions   Deadline: Before the hearing	If you don’t think the respondent’s witnesses should attend the hearing, file a request for an order using Form 7.1
Tell all your witnesses the date, time, and location of the hearing and arrange when and how you will meet them   Deadline: As soon as you get the notice of confirmation of hearing	Request to reschedule the hearing date   Deadline: As soon as possible
Send your remedy sought and disclosure of documents related to remedy to the respondent and the tribunal   Forms: Form 9.4 (Remedy Sought); Form 9.5 (Complainant’s Documents Disclosure Regarding Remedy) Deadline: 21 days after receiving the notice of hearing	Add witnesses that you didn’t include in your initial list by filing an updated witness list   Form: Form 9.1 Deadline: Before the hearing
Prepare for the case conference by identifying issues that might need to be addressed before the hearing	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 tribunal offices or in another location, like a meeting room at a hotel.

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

When the hearing is coming to an end, the member 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 tribunal 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 CanLII, a free database for legal decisions in Canada. See how to search for and read decisions on CanLII here.

The member’s decision will explain how they looked at the facts in the case and how they applied the B.C. Human Rights Code and other cases decided by the tribunal 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 satisfied 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 File with a court to have the monetary part of the order enforced. The order is legally binding, and the respondent must follow what it says. This is a complicated process and you should get help from a lawyer to do this
Judicial review	If you think the tribunal didn’t follow the law when making the decision, or made an error in understanding your evidence, you can ask a court to review the decision. This is a complicated process for which you should seek legal advice

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