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 The rest are settled in mediation or thrown out, abandoned, or withdrawn.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

The PEI Human Rights Commission is an administrative tribunal that deals with certain types of discrimination complaints. One law that protects you from discrimination is the P.E.I. Human Rights Act. Sexual harassment under the act is discrimination based on sex.

The commission’s job is to investigate complaints. If your complaint falls within its jurisdiction, it will accept it. This may lead to mediation. Otherwise, there is an investigation to determine whether your complaint should be referred to a panel of commissioners for a hearing. If the panel decides you were sexually harassed, 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.
• You could request that your workplace make changes that would affect everyone there, not just you, like improving its 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.
• You can file a complaint with the commission if you work in P.E.I. or if the harassment happened in P.E.I., 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 situation, your complaint will be dismissed.
• If you’ve already started a complaint in civil court, the commission will likely wait until after the complaint 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 are going through a process at the Workers Compensation Board of PEI. 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 one-year deadline and the commission would then decide whether 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 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. Also, the employer has the ability to pay whereas others are less likely to. 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.

Mediator

If you agree to mediation, the commission’s mediator will lead the process. 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 do not pick sides 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 is justified. Their goal is to try to reach a settlement that both parties can agree to.

Executive director

The executive director investigates files and decides whether they should be dismissed, discontinued or referred for a hearing.

Panel of commissioners

If your complaint does go to a hearing, there will be a panel of one to three commissioners assigned to your case. 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 complaints ever get to the hearing stage. If the panel finds your complaint is justified, 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

• It’s you, the complainant, who has to show that there is enough evidence to go forward to a hearing. Once the commission accepts that it can hear your complaint, you will have to convince the panel 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 panel 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 complaint. Sexual harassment often occurs without witnesses. However, the commission will still consider your testimony even if there are no documents or witnesses to support what you are saying. You may have to prove your complaint 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

• A panel 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 panel allows parties to request a publication ban, which is an order that the panel makes to stop the respondent or someone else from publishing your name or certain details about your case. Talk to the commission staff in advance about how to request a publication ban.
• When the panel 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 panel 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, talk to the staff as soon as you can. You can ask for accommodations of medical needs, religious observances, or language reasons. You may have to supply more information, like medical documents.

Possible outcomes

The P.E.I. Human Rights Act lists the remedies that the panel 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.

During the process you will need to identify the remedies you would like in each of these categories, including the total amount of money you think you should receive. Be aware that if the matter proceeds to a hearing, the panel 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—by looking for a new job after having been fired, for example—the panel may lower the amount of money it will award you for lost income.

If you want to learn more about the kinds of remedies the panel has ordered in cases that may be like yours, go to the commission’s website. You will find summaries of cases, with panel orders, including cases of sexual harassment. Human rights decisions are available on 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, or commissioner, 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 panel can and would likely decide if the complaint does go 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 may be able to get free or lower-cost legal help:

• You can contact the commission. Staff are trained to help you with the process.
• RISE provides up to four hours of free legal advice and support to eligible people who have experienced sexual violence and workplace 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

The Complaint Form and Guide are available on the commission website.If you need accessible forms or have questions about other languages, contact the commission directly by phone (902-368-4180) or email. You need to apply within one year of the last time the harassment happened. A human rights officer at the commission can help to explain the forms or make sure that you have included everything. You can also discuss your case with an officer before you file.

After you apply

Process	What this looks like
Early resolution	The commission staff will work with you and the respondent 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 accepts your complaint	It will send a copy of your complaint to the respondent, and they will then have a chance to give an answer to it, called a response
After you submit your complaint, you want to withdraw it	If you want to withdraw your complaint, contact the commission staff right away
After you submit your complaint, the commission reviews it and wants to defer because another proceeding is happening	If you want to ask the commission to proceed with the complaint, you can explain how your human rights complaint is different from the other proceeding
After you submit your complaint, the commission reviews it and finds that there’s information missing	Complete the complaint with the missing information and send it back to the commission

Settlement or mediation

A number of complaints are resolved during the intake stage, with the intake officer acting as a go-between to negotiate a settlement. If that doesn’t happen, and if both you and the respondent agree, you can take part in mediation to try to settle your complaint. The process does not determine whether you were sexually harassed according to the act. It is a way of encouraging the parties to settle their dispute without a formal investigation taking place, which could result in your complaint being dismissed or discontinued. If you agree to a settlement in mediation, your complaint will not go to a hearing. The panel will not write a public decision and your complaint will wrap up faster. You won’t have to talk at a hearing about what happened to you, or face questions about it.

Mediators are neutral parties employed by the commission who will not take a side before, during, or after the process.

To learn about what will happen during the mediation, read the commission’s description of mediation.

After the mediation

Process	You might need to do
Report any concerns about your mediator	If you have a problem with your mediator, you can talk to the commission. 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 Talk to the commission 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

Investigation

If your complaint has not been resolved at the intake point, you or the respondent have chosen not to participate in mediation, or the mediation has failed, the following stage is investigation. This is when the executive director reviews your complaint and discontinues or dismisses it, or recommends it for a panel hearing. If you disagree with the executive director’s decision to dismiss or discontinue your complaint, you can ask the commission chair to review the decision.

If you case involves an investigation, the commission’s investigator will contact you and the respondent, talk to witnesses identified by both you and the respondent, and collect documentary evidence.

The hearing

Very few complaints reach the hearing stage. If yours does, the panel clerk 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, along with the deadlines for when to send them.

The panel clerk will schedule a case management conference before the hearing, where all parties will 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 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.

Anytime you prepare one of the forms or documents, be sure to send it to the commission. You and the respondent will also be able to present other documents and witnesses and testify yourself.

Preparing for the hearing

Process	You might want to do
The panel clerk will schedule a case management 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 hearing
Identify people who could be witnesses for your case. Reach out to them and make notes on what they know   Deadline: Determined by the panel clerk	Get signed subpoenas from the panel clerk and send it to witnesses   Deadline: 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.

All parties will make opening statements and closing statements about the case. The panel 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 panel will review all of the evidence that you, the respondent, and the commission have presented both before and during the hearing. They will likely reserve their decision, considering it for a while and writing the reasons. The panel aims to issue a decision in 60 to 90 days.

The decision

The panel will send its decision to you by mail or email. If you have a lawyer, they 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 decision will explain how the panel looked at the facts and evidence in the case, and how they applied the P.E.I. Human Rights Act and other cases decided by the panel 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.

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 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 panel didn’t follow the law when making the decision, you can ask a court to review the decision

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