1 INTERNAL GUIDE FOR PROCESSING COMPLAINTS ONTARIO HUMAN RIGHTS COMMISSION MARCH 2007 TABLE OF CONTENTS INQUIRY INTAKE PRIORITY HANDLING PROCEDURE (P.H.P.) WITHDRAWAL & CANNOT OBTAIN EVIDENCE SECTION 34 MEDIATION SETTLEMENT INVESTIGATION CONCILIATION DISCLOSURE REMEDIES RECONSIDERATION SECTION 37 DECISION - MAKING BY THE COMMISSION
2 This document has been prepared to assist Commission staff in the processing and handling of human rights complaints. It is a dynamic document in that it is subject to change as there are new developments or approaches in best practices, computer software, procedures, Commission Policies and the law. It is designed as an internal staff document geared for staff that are familiar with Commission procedures, acronyms and internal systems and has not been formally approved or adopted by the members of the Ontario Human Rights Commission. At all times staff maintain discretion to deal with each complaint in an objective and efficient manner. These recommendations, suggestions or directions are not binding on the Commission or Commission staff in the processing and handling of human rights complaints and should not be relied upon as creating an expectation as to how any particular matter may, or may not, be dealt with. INQUIRY Quality Standards This section on Inquiry operates in conjunction with the Quality Standards for Inquiry, and should considered together with the Inquiry Quality Standards. Click here for the Quality Standards for Inquiry Definition An inquiry refers to any contact made with the Ontario Human Rights Commission (the Commission ) by an individual, group or organization. Inquiries are completely and promptly dealt with by providing information or advice, referral to another agency, or referral to an Intake Officer or other staff of the Commission. An inquiry may require looking up information in a reference manual or placing a telephone call to verify an outside source. Inquiries are documented in the Case Management Information System ( CMIS ) Centralized Inquiry & Intake Services The Commission provides centralized inquiry and intake services to the public. Should individuals request a meeting with the Commission for the purpose of making an inquiry, they will be referred to the Inquiry and Intake Office unless there is an accommodation need, based on a Code ground, identified by the inquirer. The first contact with the Commission can be by telephone, TTY (Teletypewriter), fax, letter, or in person. Therefore, the Inquiry and Intake Office completes all intake work (public inquiries, intake services, complaint packages). Time Frame An inquiry may be made by telephone, TTY, fax, letter, or in person. Telephone calls that must be returned should be handled within the same day and will be handled no later than 48 hours after initial contact. All attempts to contact callers should be documented. Mail will be responded to or handled within 21 calendar days from receipt of the letter. An Inquiry is usually limited to a one-time transaction with the person making the inquiry. A complainant s or respondent s call about the status of a case, is not considered an inquiry as such a call is not documented on file. The Inquiry and Intake Office in Toronto handle all inquiries from across Ontario centrally.
3 How to Handle Inquiries The Inquiry Service Representative will demonstrate keen listening, judgement, assertiveness, sensitivity, patience and diplomacy to persons assessing the Commission s services. The Inquiry Service Representative, however, must not: Attempt to act as counsellor or to in any way be seen to be giving legal advice (e.g., should not say that the person has grounds to fire an employee); Be pressured into prolonging the interview; Give a commitment to attempt to resolve an issue which is outside the scope of the Commission s and the Inquiry Service Representative s mandate; Advise that the complainant has a good complaint, or make any predictions of a possible outcome since the facts are not before the Inquiry Service Representative to make this judgment. Judgement, experience, a blend of sensitivity, good listening skills, assertiveness and diplomacy will be used at all times to ensure that such "advisory" sessions are kept as short as possible. On average, an Inquiry Service Representative should spends 10 minutes or less in responding to a routine inquiry An Inquiry Service representative can apply discretion in handling an inquiry. For example, in a housing or employment complaint where the unit or job is still available or harassment is occurring and the circumstances warrant it, contact with the respondent may be attempted immediately (the same day). This may facilitate the resolution of the complaint by obtaining the apartment or job for the complainant, or stopping the harassment from continuing. Challenging Customers Every person has a right to file a human rights complaint under the Ontario Human Rights Code. However, in the provision of service, staff of the Commission is not required to tolerate verbal and other abuses from customers. There may be occasions when a person making a telephone inquiry is verbally abusive to the Inquiry Service Representative receiving the inquiry and becomes challenging in the transaction. Examples are: the caller is not responding to the assistance provided or not answering questions in a coherent manner, not listening to or adhering to the information provided by the Inquiry Services Representative (ISR) and all attempts to respond professionally to the caller have failed. The ISR receiving the inquiry should inform the caller that the telephone interview will be terminated if the verbal abuse does not stop immediately. If the abuse continues, the staff member should terminate the call. Such occurrences should be reported to the Supervisor or Manager. Customers also become challenging through correspondence to staff of the Commission. Such customers often write numerous letters even though the matter or issue has been addressed, is not within the Commission s jurisdiction and they have been so advised, but continue to write to staff of the Commission. In these circumstances, when copies (cc :) of letters addressed to staff are received at the Commission's office the letter will be reviewed to determine if an issue(s) is raised which requires the Commission's response. In such an instance, the ISR should contact the writer for more information about the issue and, if the issue warrants further action, the ISR will issue a complaint package to the writer. If the issue does not warrant further action by the Commission the ISR will input the information into the inquiries database in case the matter comes to the attention of the Commission at a later date. The matter will then be closed out as an inquiry. The person may be advised that the Commission will not respond to further inquiries.
4 If a challenging customer calls with information regarding a discriminatory act, but does not want to pursue the matter and merely requests that the Commission document the information for future reference, then the ISR should make a record of this call in the Inquires Database using a Record of Inquiries form, and close the inquiry. The caller must provide his or her full name and must be advised of the six-month limitation under section 34 of the Code if he or she intends to file a complaint at a later date. For more information on challenging customers, see the Commission s Guidelines for Dealing with Challenging Customers Possible outcomes of inquiries The Inquiries Service Representative records all inquiries of a potential complaint, on a record of inquiry through the Commission s inquiry database. The information on the record of inquiry should include the caller's name, telephone number(s), address(s), the nature of the call, and the outcome of the call. Possible outcomes of an inquiry are: On the same date of initial contact, if the inquirer s concerns fall under the Human Rights Code, the Inquiry Service Representative issues a Complaint Package to the inquirer. The Package includes a Complaint Form to be filled out and is mailed to the inquirer within 24 hours. Upon receipt by the Commission, the completed Complaint Form is referred to an Intake Officer for assessment and complaint processing if a ground and social area under the Code have been identified. Even if Commission staff s assessment is that the matter is not one, which the Commission could deal with, the inquirer is entitled to a Complaint Package. Such an inquirer will be advised of section 34, its possible application and outcome if a complaint is filed. When it is clear that the inquirer s concerns are not within the mandate of the Commission or are clearly subject to a section 34 not deal with decision, the Inquiry Service Representative will advise the caller, make note of the section 34 assessment and, if the caller still insists on receipt thereof, will send a Complaint Package to the inquirer. The caller is referred to another agency or organization. However, it is imperative that all callers be advised of the 6 month limitation period to file a complaint in section 34 of the Code, and the giving of such advice should always be included in the Record of Inquiry. No caller should be told that he or she must (or is required to) pursue or exhaust all other avenues first before he or she is allowed to file a complaint with the Commission. He or she can be told that they may pursue other avenues first but that they should file their complaint with the Commission within 6 months. The inquirer is provided with information, which was sought, and/or information regarding the services of the Commission and no further action is taken. The inquirer is advised that, in the opinion of staff, the matter does not fall under the Code, and therefore, further action may not be necessary. However, where the caller continues to have concerns he or she has a right to file a complaint where he or she believes that a right under the Code has been infringed (Code, s. 32(1)) but should be advised that the Commission may exercise its discretion under s. 34(1) of the Code. The fact that this information was given is to be recorded in CMIS. It is imperative that the documentation of a call includes the inquirer s statements/questions, the staff s advice to the inquirer s and the action taken, should this information be required for future reference. This is particularly relevant for later analysis under section 34 of the Code, where the complainant will often claim that they were following the advice of an ISR when, for example, they missed the time period for filing a complaint.
5 Inquiries to Head Office Often, individuals write or call head office (the Chief Commissioner s Office, for example) for information that should be handled by the Inquiry and Intake Office. In such cases, calls and letters will be forwarded to the Inquiry and Intake Office for handling. If responses are required to the redirected calls or letters, a copy of the response may, where necessary, be sent to the person who redirected the inquiry (e.g., the Chief Commissioner's or Executive Director's office). Exceptions could be made in those matters that become human rights complaints. This is done for tracking purposes. Policy related inquiries received by Commission staff should be referred to the Policy & Education Branch (PEB). Complaints against the Commission, its staff or members There are some complaints where a person alleges discrimination against the Commission, a Commission employee or a member of the Commission (i.e., the Chief Commissioner or one of the Commissioners). In addition, one of these persons may themselves seek to file a human rights complaint. In these cases, the following rules apply: Where a person contacts the Commission and indicates that he or she wishes to file a human rights complaint under the Code alleging discrimination by a Commission employee or a member of the Commission, he or she should be immediately referred to the Executive Advisor to the Chief Commissioner. This person may also wish in the complaint to name the "Ontario Human Rights Commission" as a party respondent because it is the employer of the person complained against and is arguably vicariously liable for his or her actions. The requirement to refer the person to the Executive Advisor applies equally where the complaint against the Commission, its employees or members, is brought by an outside party or by a Commission employee or member. The Executive Advisor will speak to the person and assist them in contacting the Trustee of Investigations, if necessary. The Trustee of Investigations then performs all of the functions of Commission staff, including intake, mediation, investigation, conciliation, and making recommendations to the Commission regarding the matter. If the complaint is referred the Trustee represents the Commission as the prosecutor of the complaint. Please note that in addition, the caller should be referred to the Commission's website, and advised to click the links under the heading publications where they will find the "Guide to Making Complaints against the Human Rights Commission". Where a person contacts the Commission and indicates that he or she wishes to file a complaint against the Commission because of a belief that the Commission's decision in his or her case is wrong, he or she can be invited to contact the Ombudsman of Ontario, or to retain a lawyer. The Trustee of Investigations does not investigate "decisions" made by the Commission under sections 34, 36 or 37 of the Code. However, if there is some doubt as to the nature and scope of the person's complaint (e.g., the person is not entirely clear as to whether they are complaining about the decision itself or how they were treated) then the matter should be sent to the Executive Advisor, who can obtain more details from the person. Finally, where a person who is currently an employee or member of the Commission wishes to file a human rights complaint against a third party (i.e., not a case against the Commission or a Commission employee or member) this matter should be brought to the
6 attention of the Manager of Inquiry and Intake. A decision may then be made, based on the nature of the complaint, as to whether or not this is an appropriate case to be referred to the Trustee of Investigations. It should be stressed that not all phone calls or contact complaining about the Commission necessarily involves a desire on the part of the person to file a human rights complaint. Very often the individual wishes to complain, in general terms, about how they have been dealt with by Commission staff but they are not alleging that they have experienced discrimination under the Code. In such cases, the Executive Advisor should not be contacted. Rather, the person can be advised of the ability to contact the Ombudsman if the matter cannot be otherwise resolved by Inquiry staff. Once again, however, if there is doubt as to whether the person is alleging discrimination or not, the matter should be referred to the Executive Advisor who can obtain more information. Inquiries from the Ombudsman All inquiries from the Ombudsman s Office are normally referred to the Registrar. The Registrar coordinates inquiries from the Ombudsman. However, the Manager in the office where the complaint originated prepares responses. It is imperative that files are kept up to date and a chronological summary of the casework is generated from the database, in response to the request from Ombudsman Ontario. Federal Jurisdiction and Native Reserves and Land Reserved for the Indians Cases involving discriminatory conduct involving, what the Constitution Act, 1867, refers to as "Indians and lands reserved for the Indians" are often complex. In each instance advice should be sought from the Legal Services Branch. It is not the case that the Commission always lacks jurisdiction if the discriminatory conduct involves First Nations persons or takes place within these geographic areas. It will depend, very much, on a number of surrounding circumstances. For example, if the discriminatory conduct arose out of membership criteria to be on a band council, then this would fall under federal jurisdiction. Membership rules, such as who is and is not a member of a band, goes to the core of the federal government's regulation power. However, a decision to favour a white contractor over a black contractor to build a building, or to provide transportation services, or to be employed in surveying, may well fall within provincial jurisdiction as none of these activities can be said to impair the inherent "Indianess" of the reserve. In all cases, the LSB should be consulted. Federal Jurisdiction The Commission may, in certain circumstances, lack the jurisdiction to proceed with a complaint against a respondent company, agency or operation, which is engaged in an activity regulated by Parliament under section 91 of the Constitution Act, Section 91 of the Constitution Act, 1867 provides that the federal Parliament has exclusive jurisdiction to make laws in certain areas, including: Unemployment insurance, Postal Service, The Census and Statistics, Militia, Military and Naval Service, and Defence, Beacons, Buoys, Lighthouses, and Sable Island, Navigation and Shipping, Sea Coast and Inland Fisheries, Ferries between a Province and any British or Foreign Country or between Two Provinces, Currency and Coinage, Banking, Incorporation of Banks, and the Issue of Paper Money, Savings Banks, Weights and Measures, Bills of Exchange and Promissory Notes, Interest, Legal Tender, Bankruptcy and Insolvency, Patents of Invention and Discovery, Copyrights, Indians, and Lands reserved for the Indians, Naturalization and Aliens, Marriage and Divorce, The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
7 Matters listed under s.91 of the Constitution fall under federal rather than provincial jurisdiction. In addition, some matters under s. 92 of the Constitution fall under federal jurisdiction, such as interprovincial telecommunication or transportation undertakings, and some rare areas that have been declared by an Act of Parliament to be exclusively federal, such as uranium mining and production. Determining jurisdiction is not as straightforward as it sounds. Determining jurisdiction is a complex business and will depend on the pith and substance of the subject matter that is in issue. For example, an inter-provincial trucking company may have its hiring decisions subject to federal regulation, but an Ontario based office that refuses to sub-let space to a person of colour would, in that aspect of its business, be subject to provincial jurisdiction. When faced with a complex question of whether or not a respondent falls within federal as opposed to provincial jurisdiction Commission staff must immediately consult with the Legal Services Branch, which will offer a legal opinion as to whether or not the matter is within Commission jurisdiction. If, in the opinion of LSB, the matter is within provincial regulation, the Commission will take the complaint. Otherwise, the respondent will be subject to the Canadian Human Rights Act, and the individual should be advised to take the matter to the Canadian Human Rights Commission or, in rare cases, to the Commission in another province. Jurisdiction on Native Reserves depends on the nature of the activity in question. Some aspects of a reserve s operation may be within provincial jurisdiction, even though federal jurisdiction includes the ability to make laws regarding Indians and Lands reserved for the Indians. Again, the legal services branch should be consulted and asked to provide an opinion on this issue. The fact that a company is federally incorporated is not determinative of jurisdiction. Except in the rarest of events, which do not ever appear to arise in the human rights context, a federally incorporated company will be subject to the laws of the province(s) in which it carries on business. It is irrelevant therefore, in determining jurisdiction, whether a company has been incorporated federally or provincially. Similarly, the fact that a company or activity is federally regulated is not always determinative of jurisdiction. It should not be automatically assumed that the matter is within federal jurisdiction. For example, while the operation and running of airports are generally within federal jurisdiction, discriminatory hiring practices by a sub-contractor paving a runway at the airport would be subject to the Ontario Human Rights Code. While banks are generally regulated by the federal Parliament, discriminatory practices in the building of a bank building, or by the company that installs and repairs Automatic Banking Machines, may be subject to the provincial Code. The Legal Services Branch should be consulted on all such cases. Subsidiary Companies Where a respondent is a branch or subsidiary of a parent company located outside of Ontario, the parent company may be subject to the Code as well. There is a fundamental legal distinction between a branch and a subsidiary. A branch is part of the parent company, so the conduct is that of the parent. However, a subsidiary is a separate legal entity, liable for its own conduct. The parent is not liable for the conduct of the subsidiary, even though it may be the majority (or only) shareholder. However, if it can be established that the parent directed the subsidiary to do the discriminatory act, then the parent s act may well be separately identified as a discriminatory act by a corespondent. When faced with the issue of filing a complaint against a parent company, the Inquiry Service Representative or Intake Officer should consult with LSB.
8 Primacy over other Ontario Acts Pursuant to section 47(2) of the Code, where an Ontario statute or regulation infringes the Code, the Code prevails. Except in circumstances where a statute or regulation specifically provides that it is to apply notwithstanding the Code, the Code has primacy over other statutes and legislation. In other words, the Code supersedes all other acts unless there is a clause that states it does not. As an example, the Regulations under the Highway Traffic Act contain a "notwithstanding clause", to allow for certain requirements to apply despite the Code, such as the age requirements for graduated licences and for certain vision and hearing and medical requirements for a driver's license. At the time of writing, other statutes that contain clauses that specifically apply despite the Human Rights Code include: Section 13 of the Ontario Lottery and Gaming Corporation Act, 1999, S.O. 1999, c. 12, Sched. L, prohibiting persons under 19 years of age from entering into, or playing, a game of chance, Section 2.1 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, which provides that a distinction in that act based on age applies despite the Human Rights Code. Highway Traffic Act Regulations, with respect to vision and hearing requirements for higher classes of driver's licences and for the age requirement for graduated licences; It should also be noted that certain statutes are referred to as defences under the Code. For example, subsection 20(2) of the Code provides: The right under section 1 to equal treatment with respect to services, goods and facilities without discrimination because of age is not infringed by the provisions of the Liquor Licence Act and the regulations under it relating to providing for and enforcing a minimum drinking age of nineteen years. Similarly, subsection 20(4) has a similar provision dealing with the prohibition on selling or supplying tobacco to persons who are, or who appear to be, under the age of 19 years or 25 years, as the case may be. The Legal Services Branch should be consulted if there is any question as to the Code prevailing over another Act or regulation. INTAKE This section on Intake operates in conjunction with the Quality Standards for Intake, and should considered together with the Intake Quality Standards. Click here for the Quality Standards for Intake. Definition of Complaint A complaint is a written statement of an allegation or set of allegations that a person has been discriminated against because of a specific ground or grounds under the Code such as sex, age, etc. A complaint should contain a statement that the complainant believes that his or her rights under the Code have been infringed. The alleged discrimination must also be in one of the social areas covered by the Code such as accommodation, employment, contracts, services, accommodation, etc. The complainant should be encouraged to demonstrate the link between the ground and the social area. For example, in reciting their story they should make it clear that they believe that they were denied an apartment because of their race.
9 A complaint is a legal document that is designed to provide notice to the respondent of the allegations against him, her or it. It also serves to set out and will determine the focus of the Commission's investigation, and the issues upon which the Commission will make a determination of whether or not there is sufficient evidence to warrant referral of the case to the Tribunal. The complaint does not, however, need to have the same degree of specificity and particularity and detail as a Statement of Claim or an Indictment in Criminal Law. It is sufficient if the complaint sets out a general notice to the respondents of the allegations (Cousens v. Nurses' Assn (Canada) (1981), 2 C.H.R.R. D/365). The complaint must be in a form approved by the Commission. The current form is available from the Commission s offices and is not available online. When a Complaint is considered Filed A complaint is considered "filed" only after the complainant has signed and dated it, and it has been received by the Commission. However, after a complaint has been filed it may be amended (see Amending the Complaint). Who Can File a Complaint? Any person who believes that his or her rights under the Code have been infringed may file a complaint. The Commission may also file a complaint itself. See subsections 32(1) and 32(2) of the Code. A complaint cannot be filed by one person on behalf of another (unless the aggrieved person is lacking legal capacity see Litigation Guardian below or through a Commission initiated complaint). Rather, a person must believe that his or her own rights under the Code have been infringed in order to file a complaint. Litigation Guardian If an aggrieved person lacks legal capacity and is thus unable to file a complaint, the complaint may be filed by a litigation guardian, who consents to act on behalf of the complainant. Where a person is incapable (for example, due to a mental incapacity) the complaint may be filed by a person who has, under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, a continuing power of attorney, a court-appointed guardian of property or a statutory guardian of property. Such a person may also attend all meetings that the complainant might be expected to attend. The Legal Services Branch may be consulted in such cases. In these cases the complaint shall read: Jane Doe by her Litigation Guardian Ms. Mary Doe (Mary Doe, the guardian, is the person who would sign the complaint on Jane Doe's behalf). As section 3 of the Code provides that the rights of a person 16 years of age or over can be infringed, the Commission currently permits such persons to file a complaint on their own behalf. Persons under 16 years of age require a litigation guardian. In such cases, the complaint shall read: John Roe by his Litigation Guardian Ms. Sally Roe (Sally Roe, the guardian, is the person who would sign the complaint on John Roe's behalf).
10 In rare cases, there may be a conflict over guardianship. One parent may claim to wish to commence a complaint, and the other parent may indicate that they do not wish to do so (such as where the parents are separated or divorced). In all such cases, the Legal Services Branch should be consulted. If a person dies before filing a complaint, a complaint may be initiated by the Commission or filed by the person's estate. Similarly, if a complainant dies after a complaint has been filed, but before it has been resolved, the complaint can be continued by the person's estate. The Intake Officer should get written confirmation/verification when someone is named as an executor to an estate, and if confirmed, written direction from the executor of the estate as to whether to proceed or not with the complaint. Time Limitation A complaint should normally be filed within six months of the last alleged incident of discrimination. If the facts upon which a complaint is based occurred more than six months before the complaint is filed (signed and received by the Commission), the Commission has the discretion to decide under section 34(1)(d) to not deal with it. Consequently, where the facts giving rise to the complaint occurred more than six months before the complaint is signed and received by the Commission, inquiries should be made by the Inquiry Service Representative and/or Intake Officer to determine why the delay was incurred and the impact of the delay on the respondent, in order to determine: whether the complainant acted in good faith with respect to the delay; and, whether the delay has resulted in substantial prejudice to any person. Good Faith As an example, good faith may be established if a complainant has suffered from a medical condition or disability that may have prevented her or him from filing a complaint in a timely manner (which the complainant may be required to have confirmed). The case law recognizes that an "honest, but mistaken" belief is sufficient to constitute "good faith". Accordingly, where a complainant can prove and establish that they were advised by their lawyer or Commission staff that they must first pursue a grievance or other proceeding before they would be allowed to file a human rights complaint, the delay will likely be in good faith. The situation would be different where the person giving the advice (ex. a relative or a friend) cannot reasonably be expected to have knowledge of the Code. Situations in which the wrong legal advice is provided by other persons, such as MPP staff, union officials, paralegals and others should be assessed on a case by cases basis. Such cases will normally require more than the complainant s assertion that they received bad advice. Some documentation of this alleged advice, in the form of a note in CMIS, or documentation from their counsel will usually be required. However, where the person has exercised no due diligence in attempting to determine the period of time to file a complaint, or has delayed in sending in their complaint form, this may constitute a lack of good faith. Substantial Prejudice Substantial prejudice may be established if the respondent's witnesses have died, or documents have been destroyed due to the passage of time.
11 Where the Commission is satisfied that the delay was incurred in good faith and has not resulted in substantial prejudice to any person, the Commission does not have discretion under clause 34 (1)(d) and must deal with the complaint. Late complaints may, however, be subject to problems in obtaining evidence, and could result in a decision not to refer the subject matter of the complaint to the Human Rights Tribunal of Ontario under section 36 of the Code. Where the Commission is not satisfied that the delay was incurred in good faith, and that no substantial prejudice will result, the Commission may decide nonetheless to deal with the complaint. The Commission is not obliged to not deal with the complaint. Intake Interview Where a matter appears to be within the Commission's mandate, the Intake Officer assigned should review the Complaint Form and, if necessary, conduct an interview with the complainant to clarify any incomplete information. The Intake Officer will use the Commission s GUIDELINES FOR DRAFTING COMPLAINTS UNDER THE ONTARIO HUMAN RIGHTS CODE. Should a person require assistance or accommodation in completing the Intake Questionnaire the Intake Officer will provide assistance. Click here to link to FACT SHEET for Services Offered to Persons with Disabilities and Persons who cannot Effectively Communicate in English or French. The intake interview may take place in person or by telephone. This interview should review, examine and copy any relevant documents and records in the complainant's possession. The Intake Officer should consider any accommodation needs of the complainant and provide the necessary accommodation to facilitate the intake process. Identifying Section 34 Issues The Inquiry Service Representative and/or Intake Officer should immediately identify issues falling within the purview of Section 34. The Intake Officer will proceed to fully identify the issues and conduct inquiries as necessary to determine whether or not a Section 34 application may be appropriate. When Section 34 provisions could apply, the complainant should be advised of these provisions and the potential outcome of pursuing the matter given Section 34 provisions. The Inquiry Service Representative and/or Intake Officer shall, however advise the complainant that only the Commission can exercise discretion in the matter and make a determination. Section 34 does not require that a request be made by the Respondent. Commission staff may bring a complaint to the attention of the Commission where it is obvious on the face of the complaint that section 34 applies. In such instances, Intake staff should consult with their manager to determine if this is an appropriate case where the matter may be brought before the Commission. Information To Be Provided By The Complainant The complainant may be expected to provide relevant supporting documentation at the point of intake and the Intake Officer may request this information. Listed are a few examples of documents or information that may be required and requested in housing and employment cases: Housing Complaint Newspaper advertising the unit
12 Name, address and phone number of landlord or representative Actual street address, location, name of building Number of rental units Witness statement if someone else called Receipts (if there are any) Application form Lease Cancelled cheque for deposit Amount of rent the complainant is presently paying or had to pay elsewhere Other tenant s names (if the know other people living in the building) Notes of date, time, what was said, and name of person(s) if a telephone inquiry was made about the rental unit Name address and telephone number of successful tenant Employment Complaint Position of job Copy of resume Date of application Personnel file Record of employment Income tax information Notes, diary, kept by complainant Witness statements Collective Agreement Names of supervisor, manager, human resources representative, etc. Name of successful applicant, and his or her age, sex, colour, etc. depending on the ground under which the complainant is filing Other relevant evidence Identification of owners, directors and managers may be required The complainant may state on the Complaint Form what remedy she or he is seeking to resolve the complaint. This way, the respondent will be advised of the complainant s position regarding resolution of the complaint at the time the complaint is served. Even though the complainant states on the complaint form the remedy being sought, the appropriate remedy in any case will depend on a number of factors including, but not limited to, what the parties negotiate as a satisfactory remedy and the facts of the case. If the case is referred to the Tribunal, the actual remedies sought by the Commission (which is a separate party at the Tribunal) may be different. The complainant's representative (if any) can participate in any intake interview. However, the Intake Officer has the discretion to exclude a complainant s representatives if they are assessed to be adverse in interest to the complainant. For example, if the representative appears to be threatening the complainant or substantially interfering with the complainant's attempt to provide information. A representative may also be excluded in other exceptional circumstances. As well, the representative may themselves be a witness in the investigation and her or his presence at the intake interview may substantially interfere with the integrity of the interview. Accommodation Needs It is Commission practice to provide accommodation for complainants with special needs, such as interpreters for persons who are Deaf, or meeting rooms that are accessible to persons who use wheelchairs for mobility. The Intake Officer will make every attempt to obtain these services through community organization and other publicly funded service providers to reduce costs to the Commission. However, there may be situations where
13 the Commission may have to pay for these services. In these instances, staff should seek prior approval from the Manager to authorize these expenditures. In serving persons whose first language is neither English nor French, individuals may make initial contact with the Commission through a friend or family member. In this situation, Commission staff should try to facilitate the person s inquiry. When a person requires linguistic services, Commission staff should first refer the person to the Commission s list, Community Organizations Providing Interpretation Services. Should the referral not result in finding suitable assistance, the Intake Officer should seek approval from the Manager to hire an interpreter for the complainant. An interpreter can be located through the Ministry of the Attorney General s Registry of Court Interpreters. As a third option, the Inquiry Services Representative or Intake Officer could invite the complainant to bring a friend or family member to translate. This option should only be pursued when the other two options above have been exhausted. The Commission will provide services in both the French and English languages. Information to be Obtained The complainant will be invited to relate his or her allegations of discrimination in chronological order. The Intake Officer may review the allegations with the complainant, request additional details where necessary, such as the existence of records and the identity of possible witnesses. If the complainant has pertinent and relevant documents or records, these should be examined and copied by the Intake Officer. The focus of the interview should be in the areas directly related to the alleged acts of discrimination and jurisdiction of the Code. The Intake Officer should explain what is and what is not relevant to the complaint. The complainant should be asked for names, addresses and telephone numbers of potential witnesses. It is incumbent upon the complainant to provide this information. As well, the Intake Officer should question the complainant about the facts and the potential defence that may be raised by the respondent. The Intake Officer should record all of this information for the Commission s case management system. The Complainant s Resolution Position The Intake Officer should inquire into the nature and extent of the complainant's losses arising out of the alleged act of discrimination, and should ask the complainant to submit evidence of these losses, where possible. For example, if the complainant was refused an apartment, and subsequently secured alternative accommodation at a higher rent, the complainant should be asked to provide the Intake Officer with a copy of the lease or rental payment receipt for the alternative accommodation. The complainant should be asked to record details of all future losses in a diary, and to maintain evidence (records, receipts) to establish losses occurred. The complainant should be advised of his or her duty to take action, where possible, to mitigate or alleviate the losses that have been suffered as a result of the alleged discrimination. The complainant should be instructed to record all efforts to mitigate his or her losses and to provide this evidence of mitigation to the Commission. While complainants and respondents are not empowered to investigate the complaint, they can be a valuable source of information. Accordingly, complainants and respondents should be encouraged to invest time and effort in assisting with the investigation. For example, the complainant should supply witnesses who can support
14 her/his version of events, as well as any evidence to support his or her complaint, such as copies of union agreements, personnel records, job or housing advertisements or other relevant documents. If an individual who witnessed the alleged incident accompanies the complainant, the Intake Officer should interview the individual separately from the complainant and take a signed statement from her or him. The use of diary by the complainant will simplify the task of establishing the nature and extent of the complainant's losses, the actions taken to mitigate the losses, and the emotional impact of the respondent's conduct on the complainant. Medical Evidence If the complainant sought medical, psychiatric, psychological or other professional treatment in response to the emotional or physical impact of the respondent's conduct, the complainant should be told to immediately obtain for their Commission file medical documentation from their health care professionals, including diagnosis or reports and to provide these as soon as possible. As well, the complainant should be told to keep a record of all such current and future visits to health professionals. In addition, the Intake Staff should have the complainant sign the Commission's new medical release and the new WSIB file release. If medical information in the future is required, a written release will need to be obtained from the complainant. If the complainant wishes to authorize the release of personal information, a statement of release should be completed, preferably at the commencement of the investigation. The complainant may be required to sign a release of information for such organizations as the Workplace Safety and Insurance Board, or Human Resources Development Canada (which administers the Employment Insurance Act), etc. As one of the final steps in the interview, the Intake Officer should summarize his or her understanding of the situation and ensure that the notes are accurate. The complainant should then be advised that a Human Rights Investigation Officer may wish to re-interview the complainant at some point, should the matter proceed to investigation. For example, if the respondent asserts a defence to the allegations, then the Investigation Officer will present the defence to the complainant and the complainant's response to it will be obtained. It is important that the complainant leave the interview with a clear understanding of the complaint process, what will happen after Intake and the procedures that will be used to handle the complaint at each stage of the complaint process (Intake to a possible hearing before the Human Rights Tribunal of Ontario). To this end, the complainant should leave understanding the complaint process and that the roles of various human rights staff. Further, the complainant should be made aware that Commission staff are neutral in the process, do not represent the complainant or the respondent in the matter and do not take sides in handling the complaint. The complainant should also be advised in detail of the statutory procedures in the Code regarding the resolution of a complaint and the steps involved in the mediation, investigation and conciliation processes. The complainant should further be advised that the case may be not dealt with under section 34 of the Code or may proceed to the
15 Human Rights Tribunal of Ontario (depending on the evidence obtained during the investigation) if a settlement cannot be reached. The Complaint Process Purpose The complaint sets out a clear and accurate record of the allegations made by the complainant. The complaint is also the first document placed before the respondent, and represents the case that the respondent must meet. Further, it is the first case related document examined by the Human Rights Tribunal of Ontario. Self-Drafted Complaints The Commission, pursuant to subsection 32(1) of the Code, determines the form in which a complaint may be filed. A complaint should be drafted in a concise and succinct manner setting out only sufficient and relevant particulars to inform the respondent of the allegations against it. The complaint should be written in the first person and in plain language, while representing the complainant's version of events. Where the complainant is represented by a Litigation Guardian, the complaint is written in the first person, from the complainant s perspective, not that of the Litigation Guardian. Complaints should be clear and short. While the Commission cannot refuse to accept a complaint because of its length, the Commission encourages that a complaint not be more than two (2) pages in length. The Commission has a duty to act fairly. This duty of fairness requires that the Commission be satisfied that the allegations against a respondent are properly set out, and properly serve as a notice to the respondent of the case against it. Similarly, the information and the allegations contained in a complaint should define the scope of the investigation. The Commission has a responsibility to ascertain the nature and extent of an appropriate investigation, and to plan and conduct the investigation based on the issue(s) contained in the complaint. It is not normal for a complaint to include Charter arguments or international covenants in the body of the complaint. The complaint should be sufficiently detailed to inform the respondent of the nature of the alleged discrimination and it must contain concise allegations so the respondent can readily identify the incident(s) complained of. Only the relevant details are required to be in a complaint so that the respondent or person against whom the complaint is lodged knows what the complaint is about and is able to answer to the allegations in the complaint. A complaint does not require the same level of detail as a criminal indictment, or a statement of claim in a civil court. If the complaint is referred to the Human Rights Tribunal of Ontario, Commission counsel will then be required to draft a formal pleading under the Tribunal's Rules. The complaint should not indicate the means by which the Commission may attempt to investigate the alleged violation of the Code.
16 The identity of witnesses to alleged acts of discrimination are not normally included in the complaint. These persons may be investigated later. There is always a concern that if named in the complaint, and the witness is still employed in the workplace, he or she may be subject to pressure or possible reprisal by the respondent. When verbal harassment or derogatory remarks constitute part of a complaint, the exact words should be given if possible. However, if the complainant cannot repeat the remarks verbatim, then the complaint should clearly set out the general nature of the comments. In either case, the complaint should indicate what the complainant understood certain words to mean. In drafting a section 11 (constructive discrimination) complaint, if a requirement, qualification or factor is alleged to be discriminatory, then it should be identified and how its impact is discriminatory should be set out. Citing Grounds Where a complaint cites the ground of disability (including perceived disability), the specific disability should be included in the complaint. Similarly, where race, sex, place of origin, ancestry or any ground is cited, the identity of the group to which the person belongs (i.e. female, Asian etc.) should be included. Where two or more persons are making the same or similar allegations, in most cases, a separate complaint must, nonetheless, be filed for each complainant. Two or More Corporate Respondents Where the complaint is against two separate corporate respondents such as a parent company and a subsidiary, it is now permissible to include both corporate respondents on the same complaint form. However, there will continue to be instances in which it would be preferable to have the complainant file two separate complaints. The following is a guide Cases where the complainant can include more than one corporate respondent: Where the complainant is against a parent company and a subsidiary or other related company such as a merged company, predecessor company, or corporate partner. These cases are ones in which it may not be clear at the outset whom is the true employer, or whom the boss who did the discriminatory act was employed by, but the nature of the allegations (e.g., fired for a discriminatory reason) are really substantially similar as against all corporate respondents. Cases where the complaint should not include more than one corporate respondent: Where the nature of the allegation is markedly different. For example, cases against a company for firing for a discriminatory reason and a companion complaint against a union for not taking the grievance, such as a case where the two corporate respondents are a company and a union. This is because the nature of the two complaints will likely be significantly different and different remedies sought. Against the company for the discriminatory firing, and against the union for the separate act of not taking the grievance forward. The above are general guidelines for drafting complaints, which may be adjusted when required. Staff should accommodate the special circumstances/needs of complainants and facilitate their right to representation, while balancing such accommodation against the overall Commission responsibilities and objectives.