Dispute Resolution Process
Allegations of discrimination will not necessarily move through all of the stages in the process. Many disputes can be resolved early on, without requiring investigation or referral to the Tribunal.
The Dispute Resolution Process
Inquiry
The Resolution Services Division is the first point of contact for individuals who believe they have been discriminated against by federally regulated employers and service providers. The first step is to determine whether the allegations of discrimination fall within the Commission’s jurisdiction. (See What situations does the Commission address?)
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.
When the allegations of discrimination fall within the Commission’s jurisdiction, they are screened in relation to sections 40 and 41 of the Canadian Human Rights Act. These sections of the Act give the Commission discretion to refuse to deal with certain matters, notably events which occurred more than one year before being brought to the Commission’s attention, or incidents which are trivial or made in bad faith. These sections of the Act also give the Commission discretion to refer inquirers to other redress mechanisms, such as a grievance process, or a process under another piece of legislation.
The Commission may choose to deal with complaints dealt with through another process despite the fact that the parties have signed a
final release if it appears that the human rights issues raised in the complaint have not been addressed in the settlement.
Early Resolution and Preventive Mediation
Once it is determined that the Commission can deal with the allegations, the parties are encouraged to try and settle the matter through alternative dispute resolution. An officer will speak to the parties separately to explore possible solutions to the concerns raised by the inquirer. This process is called “early resolution”.
Early resolution is the first dispute resolution strategy in the Commission's continuum of ADR services. It is a voluntary, on-the-record process of facilitated discussion which takes place as soon as an allegation of discrimination is brought to the Commission's attention, before a formal complaint has been filed. It is less formal and quicker than the Commission’s other ADR services, as it is carried out by telephone rather than face-to-face.
Early resolution is carried out by early resolution advisors based in Edmonton, Montréal and Ottawa through telephone exchanges with each of the parties. This process is sometimes referred to as “shuttle mediation”, with the advisor acting as go-between to communicate offers and counteroffers. When appropriate, early resolution may also be carried out through telephone conferences with both parties.
Because it is provided without delay and without the need to file a complaint, early resolution has particular advantages for parties: it gives them an opportunity to find a solution before the dispute escalates; it can be less threatening than filing a complaint; it makes the process less litigious and increases the likelihood of resolution.
If the parties are prepared to look at options, but find it impractical to do so by telephone, the officer will refer the file to an ADR practitioner. The ADR practitioners are professional and experienced mediators and conciliators with expertise in human rights. They can arrange a confidential, face-to-face meeting between the parties to look at settlement options in greater detail. This process is called “preventive mediation”. It is carried out by the Commission’s ADR practitioners in Vancouver, Edmonton, Toronto, and Ottawa.
As with early resolution, the objective of preventive mediation is to encourage the parties to discuss the issues without delay. The ADR practitioners help to create a safe environment where the parties are on an equal footing, allowing them to honestly and openly explore options for a mutually acceptable resolution.
Both early resolution and preventive mediation are offered to the parties before a formal complaint has been filed. If the parties resolve the matter, the file is closed. In some cases, the parties can ask to have the settlement submitted to the Commission for approval and subsequent monitoring and enforcement.
Filing a Complaint
If the dispute cannot be resolved through early resolution or preventive mediation and the inquirer wishes to pursue the matter, he or she is sent a kit with instructions on how to prepare a complaint form. Complaints are reviewed by early resolution analysts to ensure they contain only the relevant facts and are understandable, that they are signed and dated, and that they meet the basic requirements of the Act. Once a complaint has been accepted by the Commission, the respondent is notified in writing and provided with a copy of the complaint form.
If a complaint raises issues under sections 40 and 41, the parties are asked to provide their comments on the issues in writing. The complaint is then submitted to the commissioners along with the parties’ comments. If the Commission decides not to deal with the complaint, the file is closed. If the Commission decides to deal with the complaint, the matter is processed as explained below. In cases where a complainant has access to another redress procedure, the Commission may decide not to deal with the complaint “at this time”, and the parties are advised that the complainant may return to the Commission when the other procedure has been completed.
Mediation
Complaints that do not raise section 40/41 issues are reviewed to determine whether mediation is appropriate. In general, mediation is only offered to parties if preventive mediation was not attempted prior to the filing of the complaint.
Mediation is carried out by the Commission’s ADR practitioners. It is confidential and voluntary. Mediation is quicker, less adversarial, less expensive and less time-consuming than investigation or litigation. It helps both sides to a complaint check their facts and assumptions, exchange perceptions and ideas, and work towards mutually agreeable settlements. It allows each party to a complaint to understand the other person's position and interests, and it allows each person to be directly involved in working out solutions.
The mediator’s role is to help the parties find acceptable remedies or solutions and reach a fair settlement of the complaint which respects the public interest. Mediation is not a fact-finding process. The mediator is not a decision-maker, and has no authority to impose a settlement.
In general, settlements obtained through mediation are submitted to the commissioners for approval or rejection, and are enforceable through the Federal Court.
Preliminary Assessment
If mediation is not appropriate, or if it is declined by the parties, the complaint is referred to the Investigation Division. A triage is then done to determine if the files will undergo a preliminary assessment or if it will be referred to investigations directly. When conducting a preliminary assessment, the assessor contacts the parties initially by telephone to obtain their initial response. During these discussions, the assessor will have a frank, open discussion with the parties about the likely outcomes of the case, discuss possible remedies and attempt to clarify matters of fact and explain the requirements of the law. While the assessor’s observations and opinions are not binding, the assessment process provides both parties with critical information to help them establish realistic expectations about the case to determine the most effective and efficient way to proceed. The objective of preliminary assessment is to expedite the processing of the complaint. Based on the assessment, the assessor will determine if:
further investigation is required, and the file should be transferred to an investigator for a full investigation;
attempts at settlement should be explored either by the assessor or by sending the complaint to mediation; or
there is sufficient information to bring the case to completion.
In there is sufficient information to complete the case, an assessment report is prepared and disclosed to the parties. The parties are given an opportunity to present written submissions, and the report is then put before the commissioners along with the parties’ submissions. After reviewing the materials, the commissioners can decide to dismiss the complaint if they feel the evidence does not support the allegations. If they feel that the allegations are supported by the evidence, they can either appoint a conciliator or refer the matter to the Canadian Human Rights Tribunal.
Investigation
If a full investigation is required, evidence is gathered about the alleged discrimination according to the principles of procedural fairness, i.e., neutrality and thoroughness. The parties have an obligation to provide relevant evidence to the investigator. It is in the parties’ interests to make sure that all of the relevant facts are available. An investigation report is prepared which contains an analysis of the evidence and a recommendation to the Commission 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. These submissions are shared with the parties for further comment.
The investigation report is then put before the commissioners along with the parties’ submissions. After reviewing the materials, the commissioners can decide to dismiss the complaint if they feel the evidence does not support the allegations. If they feel that the allegations are supported by the evidence, they can either appoint a conciliator or refer the matter to the Canadian Human Rights Tribunal.
Conciliation
Conciliation is the Commission’s last attempt at helping the parties resolve the dispute. It is carried out by the Commission’s ADR practitioners.
Conciliation is similar to mediation in that it offers a structured and controlled environment in which the parties can exchange ideas and work towards a mutually agreeable solution. It differs from mediation, however, in a number of significant ways: it is specifically referred to in the legislation, it is provided on the specific instructions of the Commission, it is mandatory, and the conciliator can disclose settlement offers to the commissioners with the consent of the party making the offer.
Conciliation also differs from mediation in that the accent is on the merits of the case rather than on facilitation. Although the conciliator uses the same techniques as a mediator to encourage discussion and negotiation, he or she is also mandated to give the parties an opinion on the likelihood of success in litigation and the remedies that are likely to be achieved. The fact that conciliation usually takes place after investigation means that the conciliator can rely on the evidence in the investigation report to provide advice to the parties.
Settlements obtained through conciliation are submitted to the commissioners for approval or rejection, and are enforceable through the Federal Court.
Tribunal
The Canadian Human Rights Tribunal is independent of the Commission. The Tribunal holds public hearings into complaints that are referred to it by the Commission.
The Canadian Human Rights Tribunal is similar to a court although its proceedings are more flexible because it is an administrative tribunal. It was created by Parliament to inquire into complaints of discrimination and to decide if what is alleged to have occurred is a discriminatory practice under the Canadian Human Rights Act. The more flexible nature of the Tribunal’s proceedings means that the strict rules of evidence do not have to be followed and many individuals appear before the Tribunal without being represented by a lawyer. The Tribunal's main goal is to ensure that the Canadian Human Rights Act is interpreted and applied fairly and impartially at all hearings.
Parties to a proceeding before the Tribunal have the option of trying to resolve their case through mediation. If a case is resolved prior to the commencement of hearings, the settlement is referred back to the Commission for approval and enforcement.
For more information on the Tribunal, please refer to its web site through the link above.