*The below is simply an overview. It is not exhaustive of the steps and procedure required by the Human Rights Tribunal. Everything is going fine day to day. Your paper company is doing better. The economy is picking up and you’re starting to see better profits. Management is happy.  Jobs are secure. Employees are content. Then out of the blue, on a Friday morning you receive a Government addressed package in the mail.  You were not expecting anything. Surprise. Your weekend is ruined. You’ve been notified by the Ontario Human Rights Complaint that Peter Griffin, an employee you let go 2 months ago is complaining to the Tribunal that you terminated him because he was black and people could not understand him properly because he had a very heavy accent. But this wasn’t the case you tell yourself. Not in the least bit. We liked Peter. We thought he was a great guy. We could not afford to keep him on.  It was the start of that crappy economic downturn. We were leaking money in all departments. We actually let 7 people go. Was he the only non-white? I do remember come clients complaining.  We never thought it a big deal. I do remember the buyer from staples.ca complaining about his accent.  Who cares though? We didn’t even blink at the complaint.  His race had nothing to do with it you tell yourself again and again. How will make this our company look? We just landed a distribution account with Walmart.

Happy Friday.  I see this situation over and over.  Race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex (including pregnancy), sexual orientation, handicap, age (18 and over), marital status, family status and record of offences…complaints come in all shapes and sizes. The problem you are now in is that you must respond.

Take a quick look at the Human Rights Website. It can be found at http://www.ohrc.on.ca/en.  You should review their response kit that you can find on the website.  I would strongly suggest that to speak to a lawyer. Why deal with this yourself? You sell paper. You are a successful sales company. Don’t flirt with Human Rights Issues. Most employers – understandably – don’t have a clue what to do. I deal with a lot of companies that sometimes do not have proper HR departments or their HR department is located within their parent US company.  It’s understandable. Most employers are simply too busy and do not have time to deal with learning the system. No matter what size company you are – you should find a lawyer that is affordable and that will take care of these types of situations for you.

If you receive a complaint the first thing you should understand is the Human Rights mandate. Since June 2008, the Human Rights Tribunal is now responsible for dealing with all applications brought by individuals with respect to the infringement of the human rights code.  The Ontario Human Rights Code is provincial law which protects people in Ontario against discrimination and harassment, including harassment in the employment context. There are 15 noted grounds of discrimination in the employment. These are what I noted above – race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex (including pregnancy), sexual orientation, handicap, age (18 and over), marital status, family status and record of offences. Also, the human rights code protects employees from trying to assert their human rights for participating in complaint of another person.  If Peter was still working for you – you could not punish him or fire him for complaining.  If anyone supported Peter you could not punish them either.

There you have it.  A very quick background.

Now you are in the position that you need to reply to Peter’s complaint. You don’t have a choice. This rest of this article will give you a very brief overview of the Human Rights Roadmap. You need to speak to a lawyer to get an overview of how you to properly respond to a complaint.
Firstly, individuals have one year after the last incident (if there is an alleged series of incidents then it’s the last incident in a series) to apply to the Tribunal for remedy.  This is six months longer than the past limitation (prior to June 2008). The response form will automatically be provided to you by the Human Rights Tribunal. Once you have received this response form you call your lawyer I cannot stress this enough. If you’re in the Halton region (or anywhere from Mississauga to Hamilton) give me a call and I’ll explain to you what you should do. There is a time limit to reply. You have 35 days to respond to the applicants complained. This needs to be done in proper format. This is why you should have a person with experience handle this. The Human Rights Tribunal is not an entity you should mess with.

The response that you will draft will require you to list witnesses and documents.  You must explain these witnesses and documents can clarify your position of reply. If you do not complete response form properly it will be returned to you completion.  Once the Tribunal receives your response it will ask the applicant if he or she wishes to reply. Their reply to your response is due within 14 days from the receipt of your response.

If the Application is then assigned to a Tribunal mediator, the mediator will try and find a fair resolution to the matter. Mediation is voluntary. The mediator will not decide the matter but rather he/she will propose options to the applicant and yourself to try and find opportunity for resolution that has some satisfaction to both sides.

There may be an integrated mediation which is a part of the Tribunal’s resolution process. This gives both parties the opportunity to tell a tribunal member their side of the story.  The Tribunal plays an active role in the process by asking questions and attempts to find an agreement based on a fair resolution of the matter. Integrated mediation is also voluntary.

There can also be a summary hearing scheduled to help decide the primary issues of an application.  Summary hearings may be appropriate in cases where there are little factual differences between the parties or when the application can be determined less than a day. A summary hearing may also help decide important preliminary issues, such as whether or not the Application is properly within the authority of the Tribunal.

During the course of the human rights complaint, but before the hearing, you will be able to make requests for certain orders. If something new comes up after documents were exchanged, or you need to add parties to the proceedings you can do so.

As the hearing date approaches, you must deliver a witness list to the Tribunal and every other party. This must be done no later than 45 days prior to the first scheduled hearing date. The statements will be similar to a lay witness willsay statements given in the civil litigation context. They will provide a summary overview of the testimony of the witness.  Further, no later than 21 days after the Tribunal sends a confirmation of Hearing to the parties, each party must deliver to the other party a list of all arguably relevant documents in their possession and a copy of each document contained on the list excluding any documents for which it has privilege claims. No later than 45 days prior to the scheduled first day of the Hearing each party must deliver to every other a list of all documents upon which the party intends to rely and a copy of each document or confirmation that the documents have already been provided to the other party.

The final step is the hearing. Normally it’s not recorded. The rules of evidence are not as formal as the litigation context. The cases are presented and a decision is made. What if the hearing does not go your way?  Unfortunately, there is no right of appeal from a Tribunal decision, but a party can ask for a reconsideration of the decision in some cases within 20 days from the date of the decision. There are certain grounds that are required, such as when new facts come to light that were not available at the time of the Hearing and would have had an impact on the Tribunal’s decision or when a when a party did not receive notice of the Hearing and was unable to participate.

The above is the long and the short of some of the procedural routes under the Human Rights Code. The article is by no means determinative of the full and complete requirements mandated by the tribunal. This is not legal advice. If you or your company is required to reply to a an application, please do not hesitate to call me (Matt Lalande, Lawyer) and I will be pleased to sit with you and you and discuss the process in greater detail.  You can email me at matt@employment-law.ca or call Haber & Associates at 905-639-8894.

The alternative is that you fill out the form below and I will get back to you within 60 to 90 minutes.