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 occurs. 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 The rest are settled in mediation or thrown out, abandoned, or withdrawn.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 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 may be a shorter process than civil court. 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 Nunavut Human Rights Tribunal and what it does

The Nunavut Human Rights Tribunal is the agency that receives and investigates human rights complaints. It helps people to mediate or settle their complaints. If a complaint can’t be resolved, the tribunal holds a hearing. The tribunal deals with discrimination and harassment cases.

The tribunal staff work to resolve complaints. If your complaint falls within the tribunal’s jurisdiction, it will accept it. Then it will encourage you to resolve the complaint through mediation. If that doesn’t work, the tribunal holds a hearing, listens to both sides, and decides whether you were discriminated against and/or 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 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 tribunal

Will the tribunal accept my complaint?

• You have two years from when the harassment happened to file your complaint with the tribunal. If the harassment happened more than once, the deadline is from two years since the last incident of harassment. In certain situations, the tribunal 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 tribunal if you work in Nunavut or if the harassment happened in Nunavut, but not if you work at a federally regulated workplace. See Am I a federally regulated worker? (And why it matters). Your work status doesn’t matter—if you’re a temporary or seasonal worker, a volunteer or intern, an independent contractor, a temporary foreign worker, or permanent resident, you can still make a complaint. If you are unionized, you should speak with your union and/or a lawyer about whether you must follow a union grievance procedure instead. See Working with your union and How to find and work with a lawyer.
• The harassment you talk about in the complaint must be related to a ground of discrimination under the act (sex, sexual orientation, gender identity, gender expression, among other grounds). If the harassment you faced doesn’t relate to a ground of discrimination, your complaint 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 complaint. There are a couple of exceptions to this: if you withdraw the civil case, or if your civil case deals 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 made a Workers’ Safety and Compensation Commission claim. The exception is if the Workers’ Safety claim doesn’t deal with the same issue. See Should you apply for workers comp?
• Even if you have another case going on, you still have to apply to the tribunal within two years of the last incident. You can file your complaint 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 complaint if the other case dealt with the same issues. If the other case dealt with different issues, you could explain this to the tribunal and you may still be able to go ahead in front of the tribunal.
• If you lose the other 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 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.

Mediator

If you agree to mediation, the tribunal will help you and the respondent settle the case with a tribunal member, an independent mediator, or a community elder serving as the 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 that both parties can agree to, so your case doesn’t have to go to a hearing.

Decision-maker

If your case does go to a hearing, the decision-maker will listen to you and the respondent and determine whether your complaint is proven. Very few cases ever get to the hearing stage. If the decision-maker finds your complaint is proven, they may also 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 tribunal recommends that your case go to a hearing, you will have to convince the decision-maker that there was more than a 50% chance that what you say happened did happen and that it was harassment on one of the grounds outlined in the act. This is called the burden of proof on a balance of probabilities. The tribunal will use the reasonable person standard to decide whether the behaviour was harassment. This means that a reasonable person would know, or ought to know, that the 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. The person does not have to intend to harass you to meet this standard.
• 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 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 it wasn’t sexual harassment. There may be many reasons why you might not have felt comfortable saying anything when the harassment was happening, like a power imbalance between you and your boss, or your fear that you would get punished if you said anything to an important client.

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 Nunavut Human Rights Act 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. 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.

At a hearing, the decision-maker 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 tribunal can and would likely decide if the case does go to a hearing. Read more about the mediation and hearing processes below.

The tribunal 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 tribunal to talk about your options. It is designed to help people file their complaint and protect human rights. The tribunal staff are trained to help you with the process. A Nunavut Human Rights Tribunal human rights officer is available to help at 1-866-413-6478.

You may be able to get legal information or help from:

• The Legal Services Board of Nunavut, which is based in Gjoa Haven, Nunavut (1-867-360-4600), and operates three legal clinics:
  • Kivalliq Legal Services, Rankin Inlet (1-866-606-9400)
  • Kitikmeot Law Centre, Cambridge Bay (1-866-240-4006)
  • Maliiganik Tukisiiniakvik Legal Services, Iqaluit (1-866-202-5593)

To apply for help from these clinics, call a location or the toll-free Civil Law number (1-866-240-4006, ext. 3). Or you can email; you will be interviewed over the phone within a few days. These services are available to eligible applicants.

Applying

The Notification Form you must fill out to file a complaint is available online on the tribunal website, along with a guide to filing. You can submit your application by mail, email, or fax. You can ask the tribunal to mail you a copy of the forms to fill out if you are having trouble downloading them or don’t have access to a computer or printer. Contact the tribunal for help filling out the forms at 1-866-413-6478 or [email protected].

The tribunal’s human rights officer can help with the forms and explain the process. They will listen to your story, ask about the events, the effect the harassment had on you, 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 tribunal will send the notification to the respondent and they will have 60 days to send in a reply. You will be given a copy of the reply.

At this stage the tribunal staff will read the notification and the reply to make sure that the harassment in the complaint is on one of the grounds in the act. The tribunal staff will probably suggest dispute resolution through mediation. If you and the respondent are not able to resolve the complaint through mediation, it will move on to the hearing process.

Process	What this looks like
After you submit your notification, the tribunal reviews it and wants to defer because another proceeding is happening	You can ask the tribunal not to defer your hearing, and the tribunal will make the final decision. The process and deadline for asking the tribunal not to defer the decision will be included in the notification from the tribunal

Mediation

Mediation is the process of trying to settle your case by coming to an agreement with the respondent. Both sides have to 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. There is only a settlement if both sides agree. You can’t be forced to accept a settlement.

The tribunal can help the parties mediate at any point up to a hearing. Tribunal staff will ask you about early resolution at different stages in the process. Mediation is possible after the respondent has provided their reply. Most cases are resolved through early resolution or mediation. Only a small percentage proceed to a hearing.

Neither party chooses the mediator. The tribunal will assign a member, independent mediator, or community elder to mediate your case. The 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.

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. But it also means your case will wrap up faster and you won’t have to talk at the hearing about what happened to you, or face questions about it.

In Nunavut, mediation usually happens by teleconference or by video.

After the mediation

Process	You might need to do
Sign the settlement agreement	If you reach an agreement, sign the agreement. This settlement might include 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 tribunal. It will 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
Enforce the agreement	Send a demand letter telling them to comply with the settlement agreement Contact the tribunal and say the respondent is not complying with the settlement agreement File with the Nunavut Court of Justice 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

Preparing for the hearing

If your complaint is not settled, the tribunal will decide whether your case will proceed to a hearing. Your notification will be part of the tribunal’s materials, together with the reply from the respondent.

The tribunal 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.

Anytime you prepare one of the forms or documents, be sure to send it to both the respondent and the tribunal.

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 summonses from the tribunal 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
The tribunal 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

The pre-hearing conference

The tribunal’s executive director will schedule a pre-hearing conference where all parties discuss the hearing and try to simplify what comes next. The conference will outline how the hearing will proceed. It is scheduled after the tribunal has all of the materials.

You should think in advance about what issues you want to bring up at the pre-hearing conference 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 at this stage.

The hearing

Your hearing will likely happen by video or teleconference, or it may be held in-person in an office or a meeting room. The decision-makers are sometimes referred to as adjudicators, members, or as the panel.

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 statements at the beginning of the hearing explaining what the hearing is about. The tribunal will receive documents and hear from witnesses about what they know about your sexual harassment allegations. At the end, there will be closing statements, explaining what the evidence was and what you are seeking from the tribunal.

When the hearing is coming to an end, the tribunal will review all of the evidence that you and the respondent have presented both before and during the hearing. It can take several months before they present a written decision.

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 may be posted on the tribunal website.

The adjudicator’s decision will explain how they looked at the facts in the case and how they applied the Nunavut Human Rights Act 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’re 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. If you are not happy with the decision, and you think the tribunal didn’t follow the law in the decision, then you can ask a court to review the tribunal’s decision in a process called a judicial review.

Process	You might need to do
Enforce the decision	If the respondent does not do what they are required to do under the settlement agreement, you can: Send a demand letter telling them to comply with the decision Contact the tribunal and tell them the respondent is not complying with the decision File with the Nunavut Court of Justice 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. See How to find and work with a lawyer.
Judicial review	If you think the tribunal didn’t follow the law when making the decision, you can ask a court to review the decision

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