How to file a human rights complaint – A Guide to the Complaint Process
Can I file a human rights complaint?
Any person may file a complaint that alleges that another has contravened The Human Rights Code of Manitoba. Complaints must generally be filed within one year of the incident(s) that you are concerned about. There is no charge for filing a human rights complaint or for seeking advice about a human rights concern.
The Commission staff is impartial and does not advocate on the part of either party.
What is a contravention of The Code?
The Human Rights Code prohibits unreasonable discrimination in a number of activities, the primary activities being employment, provision of services and rental of premises.
Discrimination under The Code means treating someone differently, without reasonable cause, on the basis of a protected characteristic. Protected characteristics or grounds under The Code are ancestry (including colour and perceived race); nationality or national origin; religion or creed; ethnic background or origin; age; sex (including sex-determined characteristics such as pregnancy); gender identity; sexual orientation; marital or family status; source of income; political belief; physical or mental disability; and social disadvantage.
Prohibited discrimination includes sexual harassment and harassment on the basis of a protected characteristic, such as ancestry. It also includes failure to reasonably accommodate the special needs of a person or group that are based on a protected characteristic, such as disability. Retaliating against someone that has filed a complaint is also contrary to The Code.
How to file a complaint
If you believe that you have been discriminated against, please contact the Manitoba Human Rights Commission. Our services are available in French and English and accessible to person with disabilities. We can also arrange for a translator upon request.
Complaints must generally be filed within one year of the incident(s) that you are concerned about.
Someone from our intake staff will talk with you about your concern and give you the information to help you decide what to do. We can only accept complaints that are within our authority under The Code. However, if something is not our responsibility, we may be able to offer suggestions as to how to help you with your concern. As the complainant, you may stop the complaint process at any stage. It is possible for one person to file a complaint on behalf of another. Before we continue with such a complaint, we usually require the permission of the person on whose behalf the complaint is filed.
What information do I need to provide?
The Intake staff will need information to identify the person or organization ("the respondent") that you ("the complainant") are complaining about. Staff will also need information about your allegations of discrimination, such as what took place and what you believe to be the basis for any discriminatory treatment. You may be asked about possible witnesses and other information relevant to your complaint, such as medical, tenancy, or employment records like cheque stubs or Records of Employment. Depending on your complaint, you may also be asked to sign medical or other consent forms in order that information necessary to the investigation of your complaint can be obtained.
Pre-Complaint Conciliation
Can I get help without filing a formal complaint?
Our mediators may be able to help resolve your concern through pre-complaint mediation. With your agreement, a mediator will telephone the person or organization that you believe has discriminated against you and will explore the possibility of reaching a resolution on an informal basis, without a written complaint.
Pre-complaint mediation is voluntary, and requires both your participation and that of the potential respondent. Pre-complaint mediation discussions are not revealed if the matter proceeds to a formal complaint.
Many potential complainants and respondents find a satisfactory resolution or explanation through this process as it is fast and informal. Any agreement that you reach with the potential respondent is set out in a letter to both of you, to avoid misunderstandings. Usually our file about your contact with us will not be closed until after the terms of the agreement has been carried out. If the potential respondent fails to complete the agreement, you may contact us, and we will take another look at the matter.
The Commission's handout, Guide to Pre-Complaint Mediation, will give you an overview of the mediation process. The mediator assigned to your complaint can also answer any other questions.
Filing a formal complaint
If pre-complaint mediation is not attempted, what happens next?
If you decide to file a formal complaint, our intake staff will draft a complaint for your review and signature. A formal complaint can also be written and filed through, for example, a lawyer or advocate. Once your complaint is registered, a copy will be sent to the respondent and you will receive written confirmation that your complaint has been filed.
It is important to inform the Commission if you move or change your phone number, and since this is your complaint, your participation is required. If you fail to keep in contact or assist, your complaint may be dismissed or terminated by the Board of Commissioners.
What happens once my complaint is sent to the respondent?
An initial review of the complaint will be done by the Commission to determine the appropriate next steps. These steps may include preliminary assessment, mediation, and/or investigation.
Preliminary Assessment
A preliminary assessment may be done to determine if the complaint as filed is within the jurisdiction of the Commission and/or whether the complaint or complainant has disclosed a reasonable ground to support the alleged contravention of The Human Rights Code. A preliminary assessment report would be prepared and submitted to the Board of Commissioners for their consideration. A copy of that report would be provided to you and the respondent and you would have an opportunity to respond before a decision is made.
Pre-Investigation Mediation
You may be advised at an early stage that the Commission offers mediation as an option for the parties to consider.
It is important to note that during mediation no assessment or decision about the complaint is made. Mediation can result in an acceptable resolution to the issues in a shorter time frame than a more formal investigation, and involves the individuals directly affected.
If the complaint cannot be voluntarily resolved, the respondent will be given an opportunity to provide a written response to your complaint.
The Commission's handout, Guide to Mediation, will give you an overview of the mediation process. The mediator assigned to your complaint can also answer any other questions.
Once the Commission receives the Respondent’s Reply, then what happens?
You will be contacted by an investigator, usually in writing, advising you that s/he has been assigned to the complaint. The investigator will send you the respondent's reply to your complaint to review. The investigator will then make an assessment regarding the extent to which further investigation may be required.
Investigation
What does an investigation involve?
Investigations are conducted in an impartial manner. The investigator is not an advocate for you or for the respondent.
It is very important that you assist the investigator with the investigation. S/he will prepare a written report ("Investigation Assessment Report") for consideration by the Board of Commissioners. Copies of the report will be provided to you and the respondent. Both of you will have an opportunity to respond in writing before the Board of Commissioners considers the matter.
At any stage of the investigation process, if you wish to explore resolving the complaint with the respondent through mediation, you should advise the investigator and a mediator will be assigned to determine if a settlement can be reached at this stage.
Board of Commissioners
What is the role of the Board of Commissioners after the investigation is complete?
The Board considers the investigator's report, any written submissions made by you or the respondent and decisions from courts and human rights boards that have a bearing on your complaint.
Where there is insufficient evidence to support a complaint, or no contravention of The Code is found, or the Board is satisfied that the complaint is frivolous or vexatious, the Board will dismiss it. Once a case has been dismissed it does not go any further. Where the Board finds that the complaint should not be dismissed, it may provide the parties with the opportunity to discuss settlement (Board directed settlement negotiations) and/or request that an adjudicator be appointed by the Chief Adjudicator from a selected list as outlined in The Code, to hear the complaint. You will be notified, in writing, of whatever decision the Board makes and the reasons for it.
May I attend the Board’s meeting when the complaint is being discussed?
The Board's meetings are not open to the public. Complainants and respondents are, however, given opportunities to ensure that all relevant information is brought to the Board's attention, through the investigative process and in response to the Investigation Assessment Report prepared by the investigator.
Board-Directed Mediation
What is Board Directed Mediation?
Board Directed Mediation is a voluntary mediation or settlement negotiation process in which Commission staff acts as an impartial facilitator and assists the parties to resolve the issues raised in the complaint.
The parties may prefer to agree to a settlement of the issues raised in the complaint, rather than having an adjudicator decide if the complaint has merit through a public adjudication hearing.
Will I have to meet with the other party face to face?
Not always. The Board Directed Mediation process is led by the mediator who will use whatever means the parties are most comfortable with or interested in to try and resolve the complaint. Board Directed Mediation usually starts with a discussion of possible settlement options and each party providing the mediator with their settlement position. The mediator then relays those settlement positions to the other party and this is called "shuttle negotiations". In some cases, the mediator will provide the parties with an opportunity to meet in person and discuss their settlement positions, but this is not necessary.
What does a settlement usually include?
The mediator is impartial and cannot provide the parties with legal advice. The mediator will identify issues based on the evidence. This will include thinking about how much financial compensation will compensate for the discrimination, which may include general damages, lost wages or reimbursement for out-of-pocket expenses, as well as the possibility of changing a discriminatory policy or practice or offering an apology. The mediator may refer to adjudication decisions and prior settlements to set the expectations of the parties.
What if the Complainant refuses to accept a Respondent's settlement offer?
The Human Rights Code has a section that lets the Respondent ask the Board to review a settlement offer and decide if it reasonably addresses the effect of the discrimination described in the complaint, given the strengths and weaknesses of the evidence. The Complainant has the opportunity to provide the Board with their position in writing (maximum 5 pages) on why the settlement offer is not reasonable but must do so by a set deadline, which is usually 2-3 weeks before the Board of Commissioner’s next scheduled meeting.
If the Board decides the offer is reasonable, the Complainant will get another opportunity to accept it. If the Complainant rejects that offer, the Commission will terminate the complaint proceedings. Once a complaint is referred to an adjudication hearing and the Board Directer Mediation process is over, the Respondent can no longer ask the Board to review a settlement offer.
How does the Board decide if the offer is reasonable?
The Board will review the Respondent's offer and any submission from the complainant about why the offer is not reasonable. It will consider whether or not the offer adequately addresses the effect of the discrimination described in the complaint, given the strengths and weaknesses of the evidence. It may consider decisions from courts or other adjudicators on similar issues. It may also consider if the offer addresses the public's interest in ensuring a similar situation does not arise again (e.g. Respondent agrees to implement a sexual harassment policy).
In some cases, the Board may decide the offer is reasonable only if certain minor changes or modifications are made to it. If this happens, the Respondent has the opportunity to agree to the changes before that offer is presented to the Complainant.
Is the Board’s decision final?
There is no procedure by which the Board's decision may be appealed. The Ombudsman may however review the Board's processes and may make recommendations on how they may be improved. There is also a judicial review process which means that a Justice in the Court of Queen's Bench will determine whether the Board made a legal error in reaching its decision.
The Commission’s Guide to Board Directed Mediation provides more detailed information about this stage in the complaint process. The mediator assigned to your complaint can also answer any other questions.
A Human Rights Hearing
What happens if a complaint is referred to a public hearing?
The adjudication process is independent of the Manitoba Human Rights Commission. After receiving a request from the Board to appoint an adjudicator, the Chief Adjudicator selects an independent adjudicator from a list of those appointed under The Code. A notice of the hearing will be in local newspapers and on the Commission's website so that interested members of the media and public may attend.
When a complaint is referred to adjudication, the lawyer for the Commission presents the case at the hearing on the behalf of both the Commission and the complainant. Respondents may choose to hire legal counsel at their own expense (as may complainants). Hearings are usually open to the public.
At the conclusion of a hearing, the adjudicator makes a ruling in a written decision. The adjudicator may dismiss the complaint or may order a remedy. Remedies can include money for lost wages, expenses, or injury to dignity, and may require specific action by the respondent to address the discrimination.
Is the adjudicator’s decision final?
Adjudicators' decisions are subject to review by the courts if grounds for judicial review exist.
All adjudicators' recent decisions can be found on the Commission's website.