How to respond to a complaint - A guide for respondents
As you and/or your organization have been named as a respondent to a complaint under The Manitoba Human Rights Code, the following information will assist you to understand the initial complaint process at the Commission:
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.
Who may file a human rights complaint?
Any person may file a complaint alleging another person has contravened The Code. The acceptance of a complaint for registration is not indicative of any finding of merit by the Commission.
What happens if a complaint is filed against me or my organization?
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.
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.
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.
How do I prepare a reply to the complaint?
In your reply, you should respond to each of the points raised in the complaint. In addition, set out any information you think is necessary to clearly explain your overall position in response to the complainant's allegations. Reference should be made to dates, documents and/or witnesses you think will support what you are saying. You may wish to attach to your reply information or documents that you feel are important for the investigator to review.
Once your reply is complete, you should send it to the attention of: Manager of Investigation & Mediation at the Commission.
What happens once the Commission receives my reply?
You will be contacted by the investigator assigned to the complaint, usually in writing, advising you that s/he has been assigned to the investigation of the complaint. The investigator will make an assessment regarding the extent to which further investigation may be required.
It is important to note that, as with the mediator, the investigator is impartial and does not advocate for either party.
What are my obligations in relation to the complaint once it is being investigated?
It is extremely important that you keep the Commission apprised at all times of any change in your address or phone number so that you can be reached, when needed. If you fail to keep in contact with the Commission, or fail to assist in the investigation process, the Board of Commissioners may make a decision on the complaint without input from you.
What does an investigation involve?
The investigator interviews witnesses and obtains documents and information s/he thinks are necessary to thoroughly explore the positions of both parties. S/he prepares a written report ("Investigation Assessment Report") for consideration by the Board of Commissioners. Copies of the report are provided to you and the complainant and 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 complainant, you should advise the investigator.
What role does the Board have after the investigation is complete?
The Board considers the report, any written submissions made by you or the complainant, decisions from courts and human right boards that have a bearing on the complaint, and past legal decisions which apply to your situation.
Where there is insufficient evidence to support a complaint, 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 the case is dismissed, it does not go further.
If 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 Minister of Justice 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 Directed 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. You may choose to hire legal counsel at your own expense (as may complainant). 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.