Resources

Frequently Asked Questions

About the complaint process

• Who can file a complaint?
• Who can a complaint be filed against?
• What are some of the discriminatory practices?
• What happens when somebody contacts the Commission?
• What must a complaint include?
• What happens when the complaint is filed?
• Is every complaint retained and investigated?
• What if a complainant changes his or her mind?
• Is there an appeal process?
• How long will it take to resolve my complaint?
• Must I pay to file a complaint with the Commission?
• Are complaints confidential?
• Can parties to a complaint submit information to support their case and see the information submitted by the other party?
• What is Preliminary Assessment and when does it occur?
• What do mediators and conciliators do?
• Do the investigators decide the outcome of complaints?
• Is the investigation process long and costly to taxpayers?
• Should I worry about retaliation if I file a complaint or testify in support of someone who files?

On being legally in Canada or not

• When does the Commission consider someone to be legally in Canada?
• If someone is in Canada illegally, does that mean that the Commission would never consider his or her case?
• What can people do if they do not have access to the Canadian Human Rights Act because they are not legally in Canada?

On obesity

• Is obesity covered by the Canadian Human Rights Act under disability?
• Has the Commission accepted cases dealing with obesity?
• Are there many obesity linked complaints filed with the Commission?

On the dress code

• Does the Commission take complaints about dress codes?

On medical information

How much medical information is an employer entitled to know?

Who can file a complaint?

Canadian citizens, permanent residents or persons legally present in Canada can file a complaint under the Canadian Human Rights Act.

Usually the person who has suffered from the discrimination files the complaint but, in certain cases, a complaint may be filed, with the consent of the victim, by a third party, such as a relative or a collective bargaining agent.

Who can a complaint be filed against?

In general, a complaint can be filed against any federally regulated organization.

What are some of the discriminatory practices?

The Canadian Human Rights Act deals with discriminatory behaviour in its various forms. Federally regulated employers, unions and service providers must not, on any of the prohibited grounds of discrimination, do the following:

• deny anyone goods, services, facilities or accommodation available to the general public;
• harass or treat a person differently in a way that is harmful;
• refuse to employ or continue to employ a person;
• discriminate in regard to employment opportunities, such as the application process, promotions, employment benefits or working conditions;
• pursue discriminatory policies;
• communicate hate messages on the Internet or through pre-recorded telephone messages;
• pay men and women differently for work of the same value; or
• retaliate against an individual who files a complaint or who has assisted in any way in the investigation of a complaint.

What happens when somebody contacts the Commission?

When the Commission receives an inquiry, an officer determines whether the matter is one the Commission can deal with. The officer considers the following questions:

• Does the person have the right to file the complaint?
• Has the complaint been filed within one year of the alleged events?
• Does the employer, union or service provider fall under federal jurisdiction?
• Is the situation described considered a discriminatory practice under the Canadian Human Rights Act?
• Is the discrimination based on one of the 11 prohibited grounds listed in the Canadian Human Rights Act?

If the answer to any of these questions is “no,” staff will try to suggest an organization that can help. If the answers are all “yes,” the officer sends a kit to the complainant so that a complaint form can be filed.

Many inquiries we receive do not fall under our legislation, and crucial time can be lost in these circumstances. A simple questionnaire will help both you and the Commission determine if a complaint can be filed.

What must a complaint include?

The complaint form is a legal document that sets out the allegation of discrimination. It gives, in three pages or less, the complainant’s version of events in sufficient detail for the respondent to understand what discrimination is being alleged. The Commission requires that you provide the following information:

• the complainant's name;
• the name and address of the respondent;
• the name of the victim or victims, if the complaint is filed by a third person;
• a description of the events, including dates and locations;
• the prohibited grounds of discrimination; and
• the alleged discriminatory practice.

What happens when the complaint is filed?

A signed copy of the complaint is sent as soon as possible to the respondent (the person or organization against whom the complaint has been filed). The next stage of the complaint process depends on the circumstances of the case. If the complaint is filed more than one year after the incident or if the complaint appears to be beyond the Commission’s jurisdiction, it may be referred to the Commission with a recommendation not to deal with the complaint. Similarly, if a complaint appears to be trivial or made in bad faith, it may also be recommended that it not be dealt with.

In these cases, parties will have the opportunity to send in submissions documenting their position on the matter.

Where another redress procedure is available, the Commission will ask the complainant to first try that process. For example, the complainant may be able to file a grievance under a collective agreement or may be able to appeal a decision by a government department or agency, under another Act of Parliament. Following that process, complainants may be able to return to the Commission if they are not satisfied with the outcome.

The remaining cases will usually be referred to the Alternative Dispute Resolution Branch.

Is every complaint retained and investigated?

No. In some cases, complaints are filed too late, or the Commission finds that they are trivial, vexatious or made in bad faith.

Many complaints are now settled through mediation or other procedures that do not require investigation. If a case cannot be resolved through mediation or other procedures, the Commission will then investigate the case further.

What if a complainant changes his or her mind?

A complainant may ask the Commission’s permission to withdraw a complaint at any time during the complaint process.

Is there an appeal process?

The complainant or the respondent can ask the Federal Court of Canada to review decisions made by the Commissioners or by the Canadian Human Rights Tribunal. It may be possible to appeal the Federal Court’s decision all the way to the Supreme Court of Canada.

How long will it take to resolve my complaint?

The length of time required to resolve an issue varies from case to case. If both the complainant and the respondent are willing to find a solution, the Commission will appoint a mediator to help parties come to a mutual agreement. In other situations, a complaint must go through the investigation process and then through the process of litigation.

Must I pay to file a complaint with the Commission?

Filing a complaint is free of charge, and complainants do not need a lawyer to file a complaint with the Commission. However, complainants and respondents can choose to be represented by a lawyer at any time during the complaint process. If the parties involved in a complaint choose to hire a lawyer, the costs will not be covered by the Commission, as it does not provide funding for private legal representation.

Are complaints confidential?

The Commission attempts to preserve confidentiality, to the extent possible, during the complaint process.

Keeping confidential such documents as complaint forms, investigation reports and expert opinions, and the information they contain, helps to ensure the integrity of the Commission’s investigative process and ensures that the rights and reputations of individuals affected by a complaint, including complainants, respondents and witnesses, are not unduly jeopardized.

Confidentiality also encourages individuals to cooperate with the processing and potential settlement of human rights complaints, thus contributing to more thorough and timely outcomes.

Complainants, respondents and witnesses are asked to avoid discussing the matters dealt with in complaints in a public forum or with the media during the complaint process.

If the Commission decides to refer a complaint to the Canadian Human Rights Tribunal for further inquiry, then the subject matter of the complaint may become a matter of public record, and as such, may not remain fully confidential.

Can parties to a complaint submit information to support their case and see the information submitted by the other party?

Before an investigation report is sent to the Commissioners for review and decision, both parties are invited to review the investigator’s report and make a last submission to the Commissioners to support their case. If parties decide to send in a submission, it is cross-disclosed to the other party.

What is Preliminary Assessment and when does it occur?

Preliminary assessment is aimed at clarifying and narrowing the issues to ensure the fair, efficient and timely handling of complaints.

The Commission expects this approach will lead to appropriate, timely solutions by reducing investigation time, identifying broad public interest cases early, identifying those cases that could be referred to a confidential mediation process immediately, or even settling the case outright.

What do mediators and conciliators do?

Mediation is one form of dispute resolution that parties involved in a complaint enter into voluntarily. A mediator is an impartial facilitator. He or she helps the parties to communicate effectively and work towards a resolution. A mediator can help the parties examine the advantages and disadvantages of possible options for resolution, can provide information and advice on the law and on past settlements in similar cases, and can help formalize an agreement reached by the parties. The mediator has no decision-making authority and does not provide legal advice. He or she represents the public interest rather than the interests of the parties in the dispute.

Conciliation is another form of dispute resolution provided by the Commission. In addition to offering mediation, the Commission can appoint a conciliator when it believes that a complaint can be resolved. The conciliator guides discussions between the complainant and the employer, union or service provider (called the respondent) as they attempt to reach a resolution that satisfies both sides. Taking into account the facts of the case, Commission policy and decisions made in similar cases by the Canadian Human Rights Tribunal, the conciliator works with the parties to find solutions that fit the circumstances of the case and satisfy the public interest. Like the mediator, a conciliator has no decision-making authority and does not provide legal advice. He or she represents the public interest rather than the interests of the parties in the dispute.

Do the investigators decide the outcome of complaints?

No, investigators are impartial fact finders who gather and analyze the evidence needed to assess the allegation in the complaint. On the basis of the evidence gathered and as part of their report, they will make a recommendation to the Commissioners.

Only Commissioners (the Chief Commissioner and up to seven members) can decide on complaints. If they conclude that the evidence supports the allegation, they can send the case to the Canadian Human Rights Tribunal, which will hear all the evidence.

Although the Commissioners will give serious consideration to the recommendations of the investigator, they will also carefully examine the submissions of the parties. Their decision will not always reflect the recommendation made by the investigator. Commissioners can also decide to send a case to conciliation to help the parties reach a settlement.

Is the investigation process long and costly to taxpayers?

Although the length of an investigation varies, depending on the nature of the case, the Commission is determined to keep the investigation process efficient in terms of time and costs.

The average age of our cases is now under 12 months, a significant achievement compared to the average of 25.3 months in December 2002. Although the process must remain flexible, it must also maintain procedural fairness, as stipulated by the courts.

The longer it takes to address the matters raised in a complaint, the higher the costs. For example, a case settled at mediation may cost a few thousand dollars. A case referred to the Tribunal can cost a hundred times more.

Should I worry about retaliation if I file a complaint or testify in support of someone who files?

No. It is a criminal offence for anyone to threaten, intimidate or discriminate against a person who complains, gives evidence or helps with a complaint. The Canadian Human Rights Act provides for fines of up to $50,000 for threatening, intimidating or discriminating against an individual who has filed a complaint, or for hampering an investigation. The Commission can also investigate and deal with complaints of retaliation against persons who file a complaint.

On being legally in Canada or not

When does the Commission consider someone to be legally in Canada?

To assess whether someone is legally in Canada, the Commission will look at the facts of the case and to the Canadian Human Rights Act, as well as the Immigration Guidelines. Specific attention will be paid to section 40 of the Canadian Human Rights Act. In general, the Commission only has jurisdiction over complainants who are considered to be legally in Canada.

Subsection 40(6) of the Canadian Human Rights Act states the following:

(6) Where a question arises under subsection (5) as to the status of an individual in relation to a complaint, the Commission shall refer the question of status to the appropriate Minister and shall not proceed with the complaint unless the question of status is resolved thereby in favour of the complainant.

If someone is in Canada illegally, does that mean that the Commission would never consider his or her case?

Each case presented to the Commission is determined on its facts and examined through the lens of the Canadian Human Rights Act.

The Commission is a creature of statute and therefore at all times must act within the framework of its enabling legislation, the Canadian Human Rights Act. The Commission can only act on complaints for which it has jurisdiction (over the complainant, the respondent and the complaint itself). And, certainly, the Commission determines each case (including jurisdictional ones) on its individual merits, based on the facts.

Subsection 40(5) of the Canadian Human Rights Act states the following:

(5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice
  
 (a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada;

(b) occurred in Canada and was a discriminatory practice within the meaning of section 5, 8, 10, 12 or 13 in respect of which no particular individual is identifiable as the victim; or

(c) occurred outside Canada and the victim of the practice was at the time of the act or omission a Canadian citizen or an individual lawfully admitted to Canada for permanent residence. 

What can people do if they do not have access to the Canadian Human Rights Act because they are not legally in Canada?

Such people may wish to seek their own legal advice, as the Commission does not give legal advice to potential complainants.

Such people may also wish to take a look at their rights under the Canadian Charter of Rights and Freedoms, as well as to determine whether any internal complaint mechanism exists within the federal agency against which they allege discriminatory conduct. In that way, they may clarify what redress remains available to them.

On Obesity

Is obesity covered by the Canadian Human Rights Act under disability?

Obesity in and of itself is not a prohibited ground of discrimination listed in the Act, but in some cases, it can be linked to the ground of disability, under the Act.

Obesity would be considered a disability if an employer, co-worker, or a service provider is alleged to have perceived and treated the complainant as if that person is disabled or if the obesity is because of a medical condition.

Has the Commission accepted cases dealing with obesity?

The Commission has accepted cases dealing with obesity in circumstances where there is a perception that a person is disabled as a result of their weight, or where the obesity was caused by a medical condition.

The alleged discrimination might include refusing to hire someone because that person is perceived as incapable of doing the job.

It could be harassment because of someone's size-weight. It could be failure to accommodate someone's obesity in provision of service.

Normally, simply being slightly overweight would not be considered a disability.

Are there many obesity linked complaints filed with the Commission?

There are very few complaints filed about obesity. The number has been constant for many years and remains at 5 to 10 cases a year.

On the Dress code

Does the Commission take complaints about dress codes?

At the federal level, dress codes do not violate the Canadian Human Rights Act, unless, for example, a dress code prohibits an employee from wearing an item of clothing or a piece of jewellery required under the tenets of that employee’s religion. The Commission would also deal with the following complaints:

• complaints about facial hair and grooming where grooming standards conflict with religious practices or duties (such as the requirement that members of the Sikh religion keep their hair and beard uncut) or where grooming standards cannot be complied with because of a disability; and
• complaints from women who are required to wear revealing uniforms (they may file complaints on the basis of sex).

On medical information

How much medical information is an employer entitled to know?

When a person’s disability or health issue prevents him or her from performing a job’s essential duties, it is not discriminatory for an employer to refuse to hire that person. For example, a person may require a certain level of colour vision in order to perform a specific job safely and efficiently. A particular skill or qualification can be specified if the preference is based on a bona fide occupational requirement. For more information on bona fide occupational requirements, see our publications Bona Fide Occupational Requirements and Bona Fide Justifications under the Canadian Human Rights Act, available on our website.

As to questions that employers should avoid asking during an interview, please see our publication A Guide to Screening and Selection in Employment, available on our website.

To contact federal or provincial privacy commissioners, please visit their website.