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 seldom happens. Over half 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 The rest are settled in mediation or thrown out, abandoned, or withdrawn.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 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 Commission can be a good choice.

It can be a shorter process than civil court, where 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 Manitoba Human Rights Commission and what it does

The Manitoba Human Rights Commission is the agency that receives and investigates complaints about violations of the provincial Human Rights Code. It helps people mediate, or settle, their complaints. If a complaint can’t be resolved, there may be a hearing at the Human Rights Adjudication Panel. The Manitoba Human Rights Commission and the HRAP deal with harassment and discrimination cases.

The commission and the HRAP work to resolve complaints. If your complaint falls within the commission’s jurisdiction, it will accept it. Then it will encourage you to resolve the complaint through mediation. If that doesn’t work, the adjudication panel may hold a hearing. If it does, the panel 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 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 and the HRAP

Will the commission accept my complaint?

• 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.
• You can file a complaint with the commission if you work in Manitoba or if the harassment happened in Manitoba, 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. 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.
• 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.
• 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 or not 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.

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 expected to behave neutrally: They aren’t supposed to pick a side or 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 can be established. 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.

Adjudicator

If your case does go to a hearing, an Human Rights Adjudication Panel adjudicator, or decision-maker, will hold a hearing where they will listen to you and the respondent, and make a decision about whether your complaint can be established. Very few cases ever get to the hearing stage. If the decision-maker finds in your favour, they will order the respondent to do various things, like give you money as compensation for what you experienced.

What you’ll have to prove

• If the matter goes to adjudication, the commission is a party to the hearing and will take the lead in establishing that your human rights have been breached. The lawyer for the commission is not your lawyer. But your interests will often align and the commission may call you as a witness to testify in order to prove the discrimination or harassment occurred. You are still entitled to call evidence on your own and to have a lawyer if you want, but the commission will do the major work in terms of proving the code was breached.
• 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 HRAP 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 HRAP 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 HRAP 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

• An HRAP 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 HRAP 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 HRAP 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 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 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

The code lists the remedies that the HRAP 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 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 intake officer 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 HRAP 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 HRAP may lower the amount of money it will award to you for lost income.

The commission’s website lists its past 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 HRAP has ordered in cases like yours, there is an easy place to start. You can search for decisions of the HRAP 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, 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 HRAP can and would likely decide if the case does go to a hearing. Read more about mediation and the hearing processes below.

Even once a matter or complaint has been referred to an adjudicator to hold a hearing, you can resolve the complaint by mediation if both parties agree to try this. The mediation will be conducted by an adjudicator, who is not the adjudicator who has been assigned to hear your case, so that if the mediation is not successful, and the matter does not resolve, the parties still proceed to go through the hearing with the other adjudicator.

The commission 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:

• Commission staff are trained to help you with the process of filing a complaint. You can call or email the commission to book an appointment with one of its human rights officers, who will assess your situation and help you draft a complaint.
• The Community Legal Education Association has a Workplace Sexual Harassment Hotline: 1-877-226-4366. The hotline is staffed by a lawyer who can provide legal information and advice, and make appropriate referrals to agencies and other resources.
• 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 complaint process and instructions are available online on the commission’s website.You can file directly online, or you can send a copy through mail, email, or fax. The commission can mail you copies of the forms if you are having trouble downloading them or don’t have access to a printer. Visit the website for exact contact information.

The first step is to book an appointment with an intake officer who will listen to your story and record the details in the right format to submit. They will ask about the events; about your employer; the effect the harassment had on you; the remedies you are asking for; and whether you are interested in mediation.

After your appointment

The commission decides if the case meets the criteria of discrimination, called a jurisdictional review. If it accepts your complaint, it will be sent to the respondent, who will then have a chance to give an answer to it. That’s called a reply. At this stage the commission might suggest early resolution through mediation.

An investigator is then assigned to look into the case. Based on the investigator’s report, the commission may either dismiss the case or recommend it for a hearing at the Human Rights Adjudication Panel. If it is referred for a hearing, a panel of adjudicators from the HRAP is assigned to the case and the formal hearing process starts. There are also more opportunities for mediation before the hearing process.

Process	What this looks like
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 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
The commission starts an investigation	The commission will send the complaint to the respondent. The respondent will have 30 days to send in a reply
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

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 commission. Remember that, if you agree to a settlement in mediation, your case will not go to a hearing. The HRAP will not write a public decision and your case will wrap up faster. You won’t have to talk at a 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 HRAP. Commission staff will ask you about early resolution at different stages in the process. Mediation is also possible after the respondent has provided their reply. 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 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   You may be asked to 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 Manitoba ombudsman can also hear a complaint about a mediator, staff member, or adjudicator at the Manitoba Human Rights Commission
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 HRAP for a hearing. Your complaint will be part of the commission’s materials, referring the case to the HRAP together with any evidence gathered in the investigation and the investigation report.

The adjudicator from the HRAP will schedule a pre-hearing conference call where all parties will discuss the hearing and try to simplify what comes next. It is scheduled by the adjudicator, after they have all of the materials.

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.

The HRAP 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 submit them.

Anytime you prepare one of the forms or documents, be sure to send it to the HRAP, the respondent and the commission. At the hearing, the commission is one of the parties and will present evidence and make arguments. The commission will present the evidence that it found in its investigation.

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 signed subpoenas from the HRAP 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 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 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 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 at the beginning of the hearing and closing statements about the case at the very end. The HRAP will receive documents and hear from witnesses about what they know about your sexual harassment allegations.

The commission’s lawyer leads 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, ask any questions, or make legal arguments at all.

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 HRAP 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 adjudicator’s decision will explain how they looked at the facts in the case and how they applied the Manitoba Human Rights Code and other cases decided by the HRAP 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
Judicial review	If you think the HRAP didn’t follow the law when making the decision, you can ask a court to review the decision

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