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. 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 The rest are settled in mediation or thrown out, abandoned, or withdrawn.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 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’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 Newfoundland and Labrador Human Rights Commission and what it does

The Newfoundland and Labrador Human Rights Commission is the agency that receives and investigates human rights complaints regarding violations of the Newfoundland and Labrador Human Rights Act. It helps people to mediate or settle their complaints. If a complaint can’t be resolved, the commission may refer the case to a board of inquiry for a hearing. The Newfoundland and Labrador Human Rights commission deals with discrimination complaints.

The commission works to resolve complaints. If your complaint falls within its jurisdiction, it will accept it. Then it will encourage you to resolve the complaint through mediation—another attempt to reach a settlement. If that doesn’t work, the commission investigates, then sends the complaint to the commissioners. They can dismiss the complaint, refer the matter to directed mediation and then on to a board of inquiry (for a hearing) if mediation is not successful, or they can refer the matter directly to a hearing. If the decision there is that you were sexually harassed, the other party may be ordered 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 one year from the last incident of harassment.
• You can apply to the commission if the harassment happened in Newfoundland and Labrador, but not at federally regulated workplaces, like banks, airlines, telephone companies, and TV and radio stations. See Am I a federally regulated worker? (And why it matters). If you’re unionized, you must make your complaint through your union. See Working with your union. You’re covered if you’re non-unionized, temporary or permanent, an independent contractor, or undocumented.
• After you submit your complaint, the commission might decide that the harassment you faced doesn’t relate to a ground of discrimination under the act. In that case, the commission will try to refer you elsewhere or provide other supports.
• 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. This is called a deferral. 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 deferred if you are going through a complaint to WorkplaceNL. 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 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 should 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 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.

Intake consultant

The first person you will come in contact with is the intake officer, who may contact you by phone or email. If you and the respondent agree, your complaint will go to early mediation.

Mediator

The job of the mediator 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.

Adjudicator

If your case goes to a hearing, an adjudicator will listen to you and the respondent and make a decision about whether your complaint is justified. If the adjudicator 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 adjudicator 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.” 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 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.
• 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 act, 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

• In most cases, personal information about cases and their parties may be available to the public on the commission’s website and posted on CanLII, a free database for legal decisions in Canada. See how to search for and read decisions on CanLii here. In some cases, the board of inquiry 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 of inquiry 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 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 Human Rights Act lists the remedies that can be ordered at the end of a sexual harassment case, if you are successful. There are many factors that affect the kind of, and the amount of, 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.

Usually, remedies are discussed at the mediation stage. If your complaint ends up at a hearing, remedies are decided then. You can consider what remedies you would like in the monetary and non-monetary categories, including the total amount of money you think you should receive. Be aware that the commission and the board of inquiry look at what kinds of steps you took to reduce the losses you faced because of the harassment. This is called mitigation. If you did not take steps to limit your financial losses—for example, by looking for a new job after having been fired—the board of inquiry 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 there.

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 human rights 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 human rights hearing, an adjudicator can only order remedies allowed under the act. At mediation, a settlement can contain whatever terms and remedies you and the respondent agree on. Read more about mediation and the hearing process below.

The commission process step-by-step

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

• You can call the commission. It is designed to help people file their complaint and protect human rights. The commission staff are trained to help you with the process.
• Public Legal Information Association of Newfoundland and Labrador offers legal information and support to people who experience sexual harassment.
• 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 application form are available online on the commission’s website.

The first step is to fill out the application form. This asks you key questions about what happened. The intake officer will contact you, likely online, to ask follow-up questions about the events and the effect the harassment had on you.

After applying

The commission determines whether the case falls within its jurisdiction. If it does, the intake officer might attempt pre-complaint resolution. This usually involves their calling your employer and trying to have the case resolved right away so that you can safely return to work.

At any time in the process a commission mediator can facilitate mediation. This process might involve in-person or phone-based mediation. It can also be shuttle mediation, where the mediator meets with one side and then the other.

If mediation is not successful, a human rights specialist is assigned to look into the case. They will let you respond to anything the respondent has said using a form called a rebuttal. The human rights specialist will prepare an investigation summary. The NLHRC executive director can review the complaint at any time and decide to either dismiss it, if it doesn’t fall under the Human Rights Act, or present it to the human rights commissioners.

The commissioners will consider the investigation summary. They decide whether there is sufficient evidence to refer the complaint to a board of inquiry for a hearing. Before this, they will often direct it to mediation for one last opportunity to resolve the case.

If your case is referred for a hearing, the board of inquiry will start its formal process.

Process	What this looks like
Pre-complaint resolution	The intake officer will try to quickly resolve the case before the complaint is finalized
Mediation	The commission mediator will work with you to see if there is an opportunity to resolve the issue quickly. The focus of early resolution is to address discrimination and preserve working relationships so that you can continue 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 investigator looks into the case
After you submit your complaint, the commission reviews it and wants to defer because another proceeding is happening	You can ask the commission not to defer your hearing, and the commission will make the final decision. The process and deadline for responding will be included in the notification from the commission
Commission-directed mediation	Another attempt at settlement will be led by the commission’s mediator

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 act. 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. 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 in the process. Commission staff will ask you about early resolution at different stages in the process.

Neither party chooses the mediator. The commission’s mediator is 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 The settlement agreement might include a confidentiality clause or a separate non-disclosure agreement You can have your own lawyer review a settlement agreement before signing it
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 application form, the reply, and the rebuttal will be part of the materials, together with any evidence gathered in the investigation process.

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

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 that 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.

Any time you prepare one of the forms or documents, be sure to send it to the commission’s legal counsel, the respondent, and board of inquiry. You can contact the commission’s legal counsel to make sure you understand what will happen at a pre-hearing conference or the board of inquiry, but the commission’s legal counsel cannot give you legal advice or act as your lawyer. You do not have to get a lawyer to represent you, but, as the board of inquiry process can be complicated and have serious consequences, you may wish to speak to a lawyer about the process and your options.

Preparing for the hearing

Process	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 board of inquiry and the respondent	Get a signed subpoena from the board of inquiry and send it to the witnesses   Deadline: Before the hearing
The commission may schedule a pre-hearing conference where all parties discuss the hearing and try to simplify what comes next	Request any accommodations you need in advance, in writing   Deadline: Well before the hearing

Attending the hearing

The board of inquiry can hold a written hearing where the parties send in their evidence and arguments in writing only. Or it can hold an in-person, video, or phone hearing. If your hearing is in person, it may happen at the commission’s boardroom. The decision-makers are sometimes referred to as adjudicators.

Both sides will make opening statements at the beginning of the hearing and closing statements about the case at the very end. The board of inquiry 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 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 be posted on the commission’s website and 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 the board of inquiry looked at the facts in the case and how they applied the Newfoundland and Labrador Human Rights Act and human rights cases 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 about the process you need to follow to enforce the award File with a court to try to collect the monetary part of the order. The agreement is a legal contract, and the respondent is supposed to follow what it says. You do not need a lawyer to do this
Appeal	You can appeal the adjudicator’s decision to the Supreme Court of Newfoundland and Labrador, General Division

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