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. Fewer than a dozen complaints ever get to a final ruling. The rest are settled in conciliation or thrown out, abandoned or withdrawn.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—although it can take two years—whereas civil court cases can be even longer. 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 Northwest Territories Human Rights Commission and Human Rights Adjudication Panel and what they do

The NWT Human Rights Commission is the agency that receives and investigates human rights complaints under the Northwest Territories Human Rights Act. It helps people to mediate or settle their complaints. If a complaint can’t be resolved, there may be a hearing at the commission’s Human Rights Adjudication Panel. The NWT Human Rights Commission and the HRAP deal with 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 HRAP holds a hearing, 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, like 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 two years from when the harassment happened to file your complaint with the commission. If the harassment happened more than once, the deadline is from two years 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 apply to the commission if you work in the NWT or if the harassment happened in the NWT, 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. 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, your complaint will not proceed.
• If you’ve already started a case in civil court, the commission will likely wait until after the case is finished to process your complaint. There are a couple of exceptions to this: if you withdraw the civil case, or if your civil case is dealing with a different issue that is not included in your human rights complaint. For example, if the civil court case is only about unpaid wages.
• Your complaint may be delayed if you have taken a complaint to the Workers’ Safety and Compensation Commission. See Should you apply for workers comp?
• Even if you have another case going on, you still have to apply to the commission within two years of the last incident. You can file your complaint to get it in within the deadline, and then ask the commission to wait to process it until after the other case is resolved.
• If you win your other case, the commission may decide not to hear your complaint. If you lose the case and feel as if the other process didn’t deal with the same human rights issues, you can explain this to the commission. It will decide whether your case has been dealt with.
• You can file a complaint against anybody who is sexually harassing you at work—your employer, a co-worker, a supervisor, a customer, or 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 to protect you from sexual harassment and a harassing environment. See How to report sexual harassment to your employer.

Who’s who

Complainant

When you file a complaint with the commission, you are the complainant. That means you are the person who is filing a complaint that you have been sexually harassed.

Respondent

The respondent can be anyone who is harassing you or has harassed you at work—your boss, a co-worker, a customer, even a contractor. There may be several respondents. You can file a complaint against both the person who harassed you and your employer for not protecting you.

Representative

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

Human rights officer

A human rights officer will help you fill out the complaint form. If the complaint is accepted by the executive director, a human rights officer answers any questions you have and explains the process. Then a human rights officer works with the parties to try to resolve the matter through dispute resolution.

Executive director

The executive director is the decision-maker about whether a complaint can be heard and, later, whether it can go the adjudication panel.

Investigator

The investigator is a human rights officer assigned to gather information about the complaint and write a report that is given to the executive director, who makes a recommendation to the commission as to whether the complaint should be heard by the adjudication panel.

Adjudicator

An HRAP adjudicator will 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 adjudicator finds your complaint is justified, 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 commission recommends that your case go to a hearing, the HRAP will consider whether your complaint is covered by the Human Rights Act and how legal precedents apply.
• 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 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

• 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 or HRAP process, ask 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 act 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 human rights officer you can discuss what remedies you are looking for 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.

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 act. 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 went to a hearing. 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 affect your mental health. Getting legal assistance can help throughout the process.

You can call the commission to talk about your options. It is designed to help people file their complaint and protect human rights. The commission staff are trained to help you with the process.

Applying

The complaint process and instructions are outlined on the commission’s website.

The first step is an appointment with a human rights officer, who will listen to your story and will help you fill out the complaint form. They will ask about the events; your employer; the effect the harassment had on you; what you have done to try to resolve the issue; the remedies you are asking for; and whether you are interested in mediation. Remember that you need to apply within two years of the last time the harassment happened.

After your appointment

The executive director decides if the case meets the criteria of discrimination. If they accept your complaint, it will be sent to the respondent and they will then have a chance to meet with the human rights officer to discuss it. At this stage the commission will suggest dispute resolution through mediation.

Restorative dispute resolution

Restorative dispute resolution is the commission’s term for mediation. This 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; it is a way of encouraging the parties to settle their dispute without having to go to a hearing, where someone else will decide if the law was broken. 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 the hearing about what happened to you, or face questions about it.

A facilitator leads the process. Most cases are resolved through mediation. Only a small percentage proceed to a hearing.

Neither party chooses the facilitator. Facilitators 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. If the matter is resolved, the outcome is not made public.

After the mediation

Process	You might need to do
Sign the settlement agreement	If you reached agreement, sign the agreement   Sign a settlement that includes a confidentiality clause or a separate non-disclosure agreement
Report any concerns about your facilitator	If you have a problem with your facilitator, you can talk to the commission. They’ll consider your request if your facilitator has been discriminatory or has engaged in misconduct, but not if you just don’t like their style of mediation. You will need to explain the reasons for your concerns (who, what, when, where), the steps you think should be taken to deal with the issue, and the result you are looking for
Enforce the agreement	Send a demand letter Apply to the commission to reopen the process if the respondent is not complying with the settlement agreement File with a court to have the monetary part of the order enforced. Your agreement is a legal document, or contract, and the respondent must follow what it says. This is a complicated process and you should get help from a lawyer to do this

The investigation

If your complaint is not resolved through dispute resolution, a human rights officer is assigned to investigate by collecting information about the complaint. They may talk to  people involved in the matter and gather documents and other records that are relevant.

The investigator’s report summarizes the information they gathered and weighs the complaint information in relation to the Human Rights Act and relevant case law.

The investigator will meet with you and the respondent to review their draft report and you both will have a chance to suggest changes. The final report goes to the executive director, who makes a recommendation to the commission as to whether the complaint should go forward to the HRAP or be dismissed.

The commission makes the final decision as to whether to send the complaint to the HRAP.

The HRAP hearing

An adjudicator from the HRAP will be assigned to handle your complaint. They will encourage you and the respondent to take part in restorative justice mediation. This structured process involves everyone sitting in a circle and having an equal chance to speak.

If mediation is unsuccessful and your complaint goes to a hearing, the participants are you, the respondent, and the director of human rights. After they have all the relevant materials, the adjudicator will schedule a pre-hearing conference. The purpose is to give everyone a chance to discuss the complaint as well as notify you as to when a hearing will take place.

The HRAP website contains a thorough explanation of the hearing process.

Preparing for the hearing

Things to do	You might need to do
Identify people who could be witnesses for your case. Reach out to them and make notes on what they know	Get witness attendance forms from the HRAP and send them to the witnesses   Deadline: Before the hearing
Prepare your questions and evidence and be ready to tell your story at the hearing	Request any accommodations you need in advance, in writing   Deadline: Well before the hearing

Attending the hearing

If you haven’t taken part in mediation already, the adjudicator will 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 review documents and hear from witnesses about what they know about your sexual harassment allegations. You and the respondent will be able to cross-examine the other’s witnesses.

When the hearing is coming to an end, the adjudicator will consider all of the evidence that you and the respondent have presented both before and during the hearing. They will 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 the CanLII website.      

The adjudicator’s decision will explain how they looked at the facts in the case and how they applied the NWT Human Rights Act 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. See How to find and work with a lawyer.
Judicial review	If you think the HRAP didn’t follow the law when making the decision, you may file an appeal in the Supreme Court of the Northwest Territories

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