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 The rest are settled in mediation or thrown out, abandoned, or withdrawn.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

The Yukon Human Rights Commission is the agency that receives and investigates complaints about violations of the Yukon Human Rights Act. It helps people to mediate or settle their complaints. If a complaint can’t be resolved, depending on the evidence, it may go to a hearing at the Yukon Human Rights Panel of Adjudicators. The Yukon Human Rights Commission and the YHRPA both deal with discrimination cases, but are separate from one another.

The commission and the YHRPA work to resolve human rights complaints. If your complaint falls within the commission’s jurisdiction, it will accept it for investigation. The commission encourages complaints being resolved through mediation. If that doesn’t work, the commission will investigate the complaint to determine whether there is a reasonable basis for it to proceed to a hearing. If the commission determines that there is a reasonable basis, the YHRPA 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 YHRPA

Will the commission accept my complaint?

• You have 18 months from when the harassment happened to file your complaint with the commission. If the harassment happened more than once, the deadline is 18 months from 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 the harassment happened in Yukon, but not if you work at federally regulated workplaces. 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, or 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. 
• 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 might decide to 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 made a Yukon Workers’ Compensation Health and Safety Board claim for workers comp.
• Even if you have another case going on, you still have to file a complaint with the commission within 18 months 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. 

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.

Investigator

An investigator may look into your complaint and create an investigation report assessing your complaint.

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. The mediator is usually the commission’s director or legal counsel.

Adjudicator

If your case does go to a hearing, a YHRPA 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

• 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 YHRPA 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 YHRPA 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 YHRPA 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

• A YHRPA 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 rare cases, the YHRPA allows parties to request an order protecting identity, which is an order to stop the respondent or someone else from publishing your name or certain details about your case. Ask for a publication ban: Form 8.
• When the YHRPA 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 your matter is referred to the YHRPA. The decision is 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 act lists the remedies that the YHRPA can order at the end of a sexual harassment case, if you are successful. There are many factors that affect the kind and extent 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 fill out your complaint you can list the remedies you would like in each of these categories, including the total amount of money you think you should receive. Be aware that the YHRPA 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 YHRPA may lower the amount of money it will award to you for lost income.

The YHRPA 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 YHRPA has ordered in cases like yours, there is an easy place to start. You can search for decisions of the YHRPA 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 YHRPA 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

You may be able to get some free or low-cost legal information relevant to your situation. Here are some things to try:

• 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.
• The commission runs an automated chatbot called Spot. Spot helps you document your experiences of harassment or discrimination, either for yourself or to share with the commission as part of your complaint.
• 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.

Filing a complaint

The complaint form and instructions are available online on the commission website. You can file directly online, or you can send a copy by mail, email, or fax. You can ask the commission to mail you copies of the forms to fill out if you are having trouble downloading them or don’t have access to a printer. Visit the website for exact contact information.

The main form you need is the complaint form. Filling out your complaint to the commission might take more time than you expect. You will need to fill in a lot of details, like information about your employer; the effect the harassment had on you; the remedies you are asking for; whether you are interested in mediation. You must file your complaint within 18 months of the last time the harassment happened.

You can file directly online, or you can send a copy by mail or email.

After you file a complaint

Once you have submitted your complaint, the director will review it to determine whether it meets the criteria to establish discrimination. If it does, the director will accept the complaint for investigation. The complaint is then sent to the respondent, who will have a chance to give an answer, or response. You’ll also get a chance to give an answer to their response, called a rebuttal. There will also be opportunities for early resolution at this stage.

An investigator is then assigned to look into the case. Based on the investigator’s report, the commission will decide if the case should go to a hearing. If it is referred for a hearing, a panel of the YHRPA is assigned to the case and the formal hearing process starts. There are more opportunities for mediation before the hearing process.

The investigator’s report and any responses from you and the respondent will be shared with the commission members, who review everything and decide if the case should be referred to the YHRPA for a hearing.

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 stay 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 45 days to send in a response. You will have a chance to reply to the response if you want—this is called a rebuttal
After you submit your complaint, the commission reviews it and may need to defer because another proceeding is happening	You can ask the commission not to defer the investigation of your complaint, 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 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.

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 YHRPA 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. Mediation is a confidential process.

The commission can help the parties mediate at any point up to a hearing before the YHRPA. Commission staff will ask you about early resolution as soon as your complaint is accepted for investigation—30% of cases settle through an early resolution. Mediation is also possible after the respondent has provided their response. Most cases are resolved through mediation or early resolution. Only a small percentage proceed to a hearing.

Mediators are staff of the commission—usually the commission’s legal counsel or director. 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.

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 concerns about your mediator	If you believe your mediator has been discriminatory or has engaged in misconduct, but not if you just don’t like their style of mediation, you can file a separate complaint with the Yukon Human Rights Commission
Enforce the agreement	Send a demand letter Approach the commission for help enforcing the non-monetary award if the respondent breaches the settlement File with the Supreme Court of Yukon 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 YHRPA for a hearing.

The YHRPA, also called the panel, will schedule a pre-hearing conference call where all parties, the adjudicator and the commission will discuss the hearing, and try to simplify what comes next. It is scheduled by the panel 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 relevant to your complaint. You should send a letter or email listing any issues you want to discuss at the pre-hearing conference to the panel and to all of the parties at least seven days before the conference. 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.

The YHRPA 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.

Any time you prepare one of the forms or documents, be sure to send it to the YHRPA, the respondents, and the commission. At the hearing, the commission is one of the parties and will present evidence and make arguments.

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   Forms: None   Deadline: Before the deadline to submit the witness statements and list to the commission and the respondent	Get a signed order to appear from the YHRPA and send it to the witnesses Deadline: Before the hearing
Work with the commission lawyer by sharing documents and telling them about potential witnesses. Make sure they can make the best possible case
The panel will schedule a pre-hearing conference call where all parties, the adjudicator, and the commission will discuss the hearing and try to simplify what comes next. It is scheduled by the panel	Request any accommodations you need in advance, in writing   Deadline: Well before hearing

Attending the hearing

If your hearing is in person, it will likely happen in a location like a meeting room at a hotel. The decision-makers are 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 YHRPA will receive documents and hear from witnesses about what they know about your sexual harassment allegations.

The commission’s lawyer will present the evidence and ask questions of you and the other witnesses. The lawyer is there to present the case, in the public interest. Occasionally, complainants also bring witnesses, ask questions, and make legal arguments.

When the hearing is complete, the adjudicator will consider all of the evidence that you and the respondent presented during the hearing. They will likely reserve their decision, deliberating for a while and writing the reasons. This can take several months.

The decision

The YHRPA 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 Yukon Human Rights Act and other 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 to enforce the non-monetary award Apply to the Supreme Court of Yukon to have the monetary part of the order enforced. The decision is a legal document, and the respondent must follow what it says. This is a complicated process and you should get help from a lawyer to do this
Appeal	If you think the YHRPA didn’t follow the law when making the decision, you can appeal it to the Supreme Court of Yukon

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