Complaints

The Dispute Resolution Process

When a member of the public contacts the Canadian Human Rights Commission, their inquiry is dealt with by inquiries staff at headquarters or in a regional office. As a result of an initial contact, one of the following can occur:

• when matters are not within the jurisdiction and mandate of the Commission, individuals are referred to an organization that can address their concerns. Where this is not possible, individuals are advised that the Commission is unable to help and the matter is closed or discontinued;
• an intake kit with a complaint form is sent out if the matters raised are within the jurisdiction and mandate of the Commission;
• the issue raised is referred to another branch of the Commission for a possible policy initiative or for action by the Discrimination Prevention Branch.

When the matters raised by a member of the public are within the jurisdiction and mandate of the Commission the parties may be offered preventive mediation. This is an informal process that gives the parties the opportunity to resolve a dispute before a formal complaint is filed.

• If the matter is resolved between the parties through preventive mediation, the file is closed;
• If the matter is not resolved, the complainant can file a formal complaint.

If the complaint raises issues under sections 40 or 41 of the Canadian Human Rights Act, a Section 40/41 analysis is submitted to the Members of the Commission for a decision on whether to deal with the case or not to deal with it. This is used, for example, where the complainant has access to another grievance procedure which may resolve the issue, or where the complaint is out of time or beyond the Commission’s jurisdiction.

When the complaint does not raise issues under sections 40 or 41 (or if the Members of the Commission decide to deal with the complaint after reviewing the analysis) the Commission carries out a Preliminary Assessment. This process provides the parties with an opportunity to clarify the issues and establish realistic expectations. Possible outcomes of preliminary assessment are:

• the complaint is settled;
• parties agree to participate in mediation;
• a report is prepared to guide and speed up the investigation;
• the complainant is referred to a more appropriate grievance or review procedure;
• a report is prepared and submitted to the Commission recommending the disposition of the complaint on the merits;
• parties decide that the issues raised in the complaint could be effectively addressed through a policy study by the Commission, through the Commission’s work in discrimination prevention, or through another type of public interest initiative.
• After a preliminary assessment, if the assessment did not result in a final decision by the Commission, the complaint may be referred to mediation or investigation.

At mediation a facilitated discussion take place between parties to a complaint. This process is confidential and voluntary. The parties are assisted to check their facts and assumptions, exchange perceptions and ideas, and work towards mutually agreeable settlements. If a settlement is reached it is submitted to the Commissioners for approval. If the mediation does not result in a settlement the complaint is referred to investigation.

At investigation evidence is gathered about the alleged discrimination according to the principles of procedural fairness, i.e.,neutrality and thoroughness. An Investigation Report is prepared which contains an analysis of the evidence and a recommendation on the disposition of the complaint. The report is disclosed to the parties and they are given an opportunity to present written submissions to the Commission. The submissions are cross-disclosed to the parties for written comment.

The Members of the Commission decide the disposition of complaints put before them, resulting in one of the following outcomes:

• approval of settlements reached by the parties through the mediation process;
• referral of a complaint to conciliation where parties are given an opportunity to resolve the complaint with the assistance of a conciliator appointed by the Commission. Conciliation may be approached in two ways:
  • The merits of the case, the available remedies and the public interest issues are assessed. If the complaint is settled Minutes of Settlement are submitted to the Members of the Commission for approval. If the complaint is not settled the complaint along with the assessor’s and conciliator’s report are returned to the Members of the Commission for a decision on whether the case should go before the Canadian Human Rights Tribunal.
  • conciliation takes place and proceeds directly to the Tribunal if a settlement is not reached between the parties. If the complaint is settled Minutes of Settlement are submitted to the Members of the Commission for approval.
• referral of a complaint to the Tribunal for further inquiry.

The Tribunal offers parties another opportunity to resolve their complaint through Pre-Tribunal mediation. If the complaint is settled Minutes of Settlement are submitted to the Members of the Commission for their approval. If the complaint is not settled the complaint proceeds to Tribunal hearings where a decision is made to either substantiate the complaint and order a remedy or to dismiss the complaint

• dismissal of a complaint when Members of the Commission determine that further inquiry by a tribunal is not warranted.