HUMAN RIGHTS ACT:
PROCESSING COMPLAINTS OF DISCRIMINATION
Prepared by Nancy Holmes
Law and Government Division
Revised October 1997
B. Commission's Jurisdiction to Receive a Complaint
C. Form of the Complaint
E. Conciliation and Settlement
G. Judicial Review
H. Offence Provisions
THE CANADIAN HUMAN
PROCESSING COMPLAINTS OF DISCRIMINATION (1)
Canadian Human Rights Act, R.S.C. 1985, c. H-6, was enacted
in 1977 after human rights legislation had already been implemented in
most of the provinces. The federal statute followed its provincial counterparts
in establishing a comprehensive scheme for dealing with instances of discrimination
in federal public and private sectors. The Act applies to all federal
government departments, agencies and Crown corporations, as well as all
federally regulated businesses and industries such as banks, airlines
and railway companies. It prohibits discriminatory practices on the basis
of race, national or ethnic origin, colour, religion, age, sex (including
pregnancy and childbirth), sexual orientation, marital status, family
status, physical and mental disability (including dependence on drugs
or alcohol) and conviction for which a pardon has been granted. The principal
contexts in which the Act provides protection are employment, housing
and the provision of goods, services or facilities that are customarily
available to the public.
10 August 1977, Part II of the Act established the Canadian Human Rights
Commission as the administrative agency responsible for promoting an understanding
of, acceptance of and compliance with the Act. An independent body reporting
to Parliament through the Minister of Justice, the Commission comprises
two full-time Commissioners, a Chief Commissioner, a Deputy Chief Commissioner,
and six part-time Commissioners, all of whom are Governor in Council appointments.
I and III of the Canadian Human Rights Act, dealing with rights
and procedures, came into force on 1 March 1978. The Act is typical of
human rights legislation in that it establishes substantive and enforceable
rights of non-discrimination, but in an indirect manner. The legislation
is not framed in terms of positive declarations of rights, such as "everyone
has the right not to be discriminated against in employment on the basis
of prohibited grounds," nor does it create rights by means of negative
proscriptions such as "no one shall discriminate on the basis of
a proscribed ground." Rather, the statute simply states that certain
conduct amounts to a "discriminatory practice," which can be
the subject of a complaint to the Canadian Human Rights Commission, and,
further, that anyone found to be engaging or to have engaged in a discriminatory
practice can be ordered to provide a remedy.
is the case with most human rights statutes, section 15 of the Canadian
Human Rights Act provides certain exceptions to the general principle
of non-discrimination. These exceptions appear to answer the need for
some mechanism to balance the individual's right to freedom from discriminatory
treatment with other rights considered to be of societal value. The "bona
fide occupational requirement or qualification" is the most common
statutory exception in cases of discrimination in employment. According
to this defence, an employment policy, practice or preference is not considered
discriminatory where it can be established that it is both subjectively
and objectively necessary in the circumstances. Once a prima facie
case of discrimination has been established, the onus is on the respondent
to prove that the limitation was imposed in good faith, that it was reasonably
necessary in the circumstances, and that there was no less discriminatory
alternative. The Act provides a similar defence, the bona fide
justification requirement, with respect to discriminatory practices in
the provision of goods, services, facilities or accommodation.
the federal human rights system, a complaint of discrimination must be
lodged with the Commission by an individual or a group of individuals
who believe that they have suffered from a discriminatory practice prohibited
by sections 5 to 14 of the Act. It is also possible for the Commission
itself to initiate a complaint (on the basis of its own investigation).
system is self-contained in that there is no direct right to litigate
before the courts. The Supreme Court of Canada in the case of Bhaduria
v. Board of Governors of Seneca College,  2 S.C.R. 183 held
that the fact that human rights legislation includes administrative and
adjudicative components indicates that enforcement of its discrimination
prohibitions is intended to be restricted to those measures established
by the statute itself, with no supplementary enforcement responsibility
vested in the courts. This decision effectively eliminated the argument
that the existence of anti-discrimination legislation implied that discrimination,
in and of itself, could constitute a civil action for damages before the
the Canadian Human Rights Act, the administrative role is filled
by the Canadian Human Rights Commission, which "sifts" complaints
to determine whether they fall under the jurisdiction of the Commission
and if so, whether they merit adjudication by way of a formal hearing.
The adjudicative function under the Act is carried out by a tribunal made
up of members of a Human Rights Tribunal Panel, which is independent of
the Commission and whose members are appointed by the Governor in Council.
Human rights tribunals conduct formal hearings into complaints of discrimination
and they have broad statutory powers to fashion remedies to address the
unique social problems underlying such complaints.
B. Commission's Jurisdiction
to Receive a Complaint
a complaint of discrimination is filed, the Commission has a statutory
duty to deal with it unless the Act provides otherwise. Sections 40 and
41 of the legislation set forth a number of restrictions on the ability
of the Commission to deal with a complaint. For example, section 40(5)
stipulates that the act or omission constituting the basis for the complaint
must generally have taken place in Canada and the victim of the action
must be lawfully present in Canada. Where the practice took place outside
Canada, the victim must be either a Canadian citizen or a permanent resident.
Section 40(7) also allows the Commission to refuse a complaint relating
to the terms and conditions of a superannuation or pension fund or plan
if the relief sought would deprive the contributor or member of the fund
or plan of any rights that had been acquired under it prior to the coming
into force of the Canadian Human Rights Act.
to sections 41(a) and (b), the Commission may refuse to deal with complaints
where the complainant should first exhaust other grievance or review procedures
or where procedures under other legislation could deal with the issue
more appropriately. Section 42(2), however, states that before dismissing
a complainant on the basis of section 41(a), the Commission shall satisfy
itself that the failure to exhaust another grievance or review procedure
was attributable to the complainant and not to someone else.
section 41(c) of the Act, the Commission can dismiss a complaint beyond
the jurisdiction of the Commission; for example, where a complaint alleges
a discriminatory practice to which the Act does not apply or a prohibited
ground of discrimination not set out in the legislation. The provision
would also apply to matters that are expressly not covered by the legislation,
such as action taken by the Government of the Yukon and any provision
made under or pursuant to the federal Indian Act (s. 67).
As well, where the complaint is considered to be trivial, frivolous, vexatious
or made in bad faith, the Commission is justified under section 41(d)
of the Act in refusing to accept it. A trivial, frivolous or vexatious
complaint is one which in the opinion of the Commission is totally lacking
in merit (in other words, the case is clearly unsupported on the facts
or is one for which the law provides no remedy).
section 41(e) of the Act allows the Commission to dismiss a complaint
if the acts or omissions complained of occurred more than one year before
the complaint was filed. The Act does, however, accord the Commission
discretion to bring late complaints into time for the purpose of consideration.
it is often difficult to make a determination of the existence of these
types of cases when the complaint is received, section 44(3)(b)(ii) allows
the Commission to revisit these grounds for dismissal after an investigation
into the allegation (see Part D of this paper). In any event, section
42 requires that in all cases where the Commission decides not to deal
with a complaint, it give written notice to the complainant, together
with a statement of the reasons for the decision. It is currently the
practice of the Commission to provide reasons in all cases of complaint
C. Form of the Complaint
40(1) of the Act merely refers to the filing of a complaint "in a
form that is acceptable to the Commission." Case law has directed
that, at minimum, a valid complaint should contain the identification
of the complainant, the identification of the victim of the alleged discrimination,
the time of the claimed violation of the Act, the location of the violation,
the nature of the discriminatory practice, the section of the Act upon
which the allegation is based and an affirmation by the complainant that
he or she has reasonable grounds to believe that the conduct constitutes
a discriminatory practice pursuant to the Canadian Human Rights Act
(see Canadian Human Rights Commission v. Bell Canada (1981),
2 C.H.R.R. D/265).
requirement that only the "aggrieved person" can file a complaint
with the Commission no longer exists, but case law has stipulated that
the victim of the discriminatory practice must at least be identifiable.
Section 40(2) of the Canadian Human Rights Act allows the Commission
to refuse to deal with a complaint filed by someone other than the alleged
victim, without the victim's consent. This may be one of the reasons why
class actions have never been very successful under human rights legislation.
40(1) of the Act stipulates that a complaint may be filed with the Commission
by any person or group of persons who has reasonable grounds for believing
that a discriminatory practice within the meaning of the Act has taken
place. As noted earlier, under section 40(3) the Commission itself can
initiate a complaint under the Act if it has reasonable grounds to do
so. The standard of reasonable grounds is not a high one, as decided in
the case of Latif v. C.H.R.C. et al.,  1 F.C. 687,
(C.A.). The complainant must have an honest belief, based on reasonable
grounds, that he or she has suffered or is suffering from a discriminatory
practice. Neither the Commission nor the courts, at least initially, need
to assess the sufficiency of a complainant's belief or the grounds upon
which it is based. The duty of the Commission at the intake stage is simply
to confirm that such grounds exist.
be valid, then, a complaint must offer sufficient information to allow
the respondent to know and understand the complaint and to be able to
offer a defence. Given that there is no provision in the human rights
context for the process of discovery (the exchange of documents and information
prior to trial in civil court cases), it is particularly important that
the complaint set out the material facts of the case. It is possible for
the complaint to be amended at any time prior to a hearing by the human
rights tribunal, provided that the changes would not prejudice the interests
of the respondent in meeting the case against him or her.
the actual hearing stage, tribunals rarely consider themselves bound by
the technical formalities of the original complaint. They too will permit
amendments to the complaint that ensure fairness to the parties. They
will even allow a motion for particulars if the circumstances require
that more detailed information be provided to the complainant or the respondent.
Therefore, as long as both parties to the complaint receive adequate notice
and are treated fairly, even serious defects in the complaint form will
not prevent a case from being considered by the Commission or being heard
by a tribunal.
processing a complaint of discrimination, the Commission's first step
is usually the appointment of an investigator. The investigator gathers
evidence, compiles information and interviews witnesses, a process that
may take weeks, months or even years. A case backlog has resulted over
time from lengthy complaint investigations; in order to address this,
the Commission has established a set of time limits within which complainants
and respondents can respond to each others allegations. Where all
the necessary and relevant information has been obtained in this manner,
the case may be fast-tracked to the Commission for consideration without
the necessity of a formal investigation stage. As a result of this policy,
case management is basically kept within a nine-month timeframe.
Act gives human rights investigators broad powers to carry out their mandate.
For example, section 43 permits an investigator to enter premises, carry
out reasonably necessary inquiries and require books or other documents
relevant to the investigation to be produced for inspection. The procedures
for obtaining a search warrant from the Federal Court of Canada, should
this be necessary, appear in sections 43(2.1) and 43(2.2). The legislation
sets out penalties for anyone who obstructs the investigation of a complaint
(see Part H of this paper).
investigator submits a report to the Commission setting out the nature
of the complaint, outlining the evidence collected, reviewing any relevant
defence, and making a recommendation for further action. The recommendation
may be to dismiss the complaint, to appoint a conciliator or to request
the appointment of a tribunal to hold a formal hearing into the matter.
The parties are shown the report and given a reasonable period of time
to make written representations to the Commission on their own behalf.
After considering these representations and the investigator's report,
the Commission comes to a decision specified in sections 44(2), 44(3)
or 47 of the Act.
section 44(2) of the Act, if the Commission thinks that the complainant
ought to exhaust other grievance or review procedures or procedures under
another Act, it can refer the complainant to the appropriate agency. In
the alternative, under section 44(3)(a), if the Commission is satisfied
that, having regard to all the circumstances of the complaint, an inquiry
into the complaint is warranted, it can request the President of the Canadian
Human Rights Tribunal Panel to appoint a tribunal to inquire into the
however, the Commission is of the view that an inquiry is not warranted,
or if the complaint should be dismissed for one of the reasons set out
in section 41 (i.e., lack of jurisdiction; the complaint is trivial, frivolous
or vexatious or made in bad faith; or the complaint is out of time), it
will dismiss the complaint pursuant to section 43(3)(b).
E. Conciliation and
47 of the Act allows the Commission to appoint a conciliator to attempt
to bring about a settlement of the issue. Although the statute provides
that this could be done at almost any stage, in practice the Commission
usually does not make the appointment until it has received the investigation
report. Conciliation is generally resorted to before a complaint is sent
to a tribunal. Where conciliation fails, the Commission retains the power
to dismiss the complaint; however, it is more likely to send the matter
on to a tribunal.
section 48 of the Act, any settlement reached by the parties to a complaint
must be approved by the Commission. Any agreement that is not approved
will not be legally binding on the Commission, which may continue to deal
with the complaint.
functions of complaint investigation and conciliation or settlement are
carried out separately by different individuals in order to ensure the
effectiveness of the Commission's work and protect the interests of the
parties. A representative of the Commission first investigates the complaint
to assess whether the allegations can be sustained. To attempt to effect
a settlement at this stage could be seen as an indication that the Commission
had already determined that the complaint was justified, and thus create
a certain amount of hostility on the part of the respondent. Given the
very nature of the investigation process, it is also unlikely that a respondent
would be comfortable discussing terms of settlement with a Commission
investigator. Moreover, an investigator is considered a competent and
compellable witness before a human rights tribunal, but neither the conciliator
nor any information obtained by the conciliator in the course of his or
her work is admissible at the hearing stage.
well, at the time of filing, the complaint is only an allegation. In view
of the potential for harm to the reputation of the respondent, an investigation
should first ascertain that the allegation is sustainable before any attempt
at settlement is undertaken. At the same time, the complainant has a right
to know as early as possible whether the complaint has been deemed unfounded
or without supporting evidence, or has been partially or completely validated.
final stage of the complaints process is a full inquiry by a human rights
tribunal. Section 48.1 of the Act creates a panel known as the Human Rights
Tribunal Panel. Consisting of a President and such other members as may
be appointed by the Governor in Council, the Panel is independent of the
Commission. It is the sole responsibility of the President to appoint
members to a tribunal requested by the Commission after it has determined
that an inquiry into a complaint of discrimination is warranted. Tribunals
may comprise one or three persons depending on the importance and complexity
of the case. It has, however, been the general practice of late to appoint
three member panels.
for the Commission presents the complaint to the tribunal. Pursuant to
section 51, the Commission has a duty to adopt the position it deems to
be in the public interest. Commission counsel generally represents the
position of the complainant, who is, however, free to have his or her
own independent counsel.
a certain extent, tribunal hearings are conducted like those in a court
of law in that tribunals have the statutory power to subpoena witnesses,
administer oaths and require subpoenaed witnesses to give evidence. As
well, under section 52 of the Act, tribunal hearings are generally to
be held in public. While the investigation of a complaint is confidential,
once the Commission decides to approve a settlement or send a case to
tribunal, the names and essential facts of the case become public unless
there are special reasons for keeping them private.
the other hand, human rights tribunals are accorded a certain amount of
flexibility in other areas. For example, they are not restricted to the
courts' formal rules of evidence. This more relaxed approach is considered
appropriate since discrimination is generally practised in a subtle manner;
it is rarely proven by means of direct evidence but more often by such
indirect methods of proof as circumstantial and hearsay evidence. In the
same vein, it is appropriate that the burden of proof on the complainant
be the ordinary civil standard of proving discrimination on the balance
a tribunal finds that the complaint has not been substantiated, it must
dismiss the matter. Where it finds that the complaint has been substantiated,
the tribunal may make an order against the person found to have engaged
or to be engaging in the discriminatory practice. Under section 57 of
the Act, any tribunal order may be enforced as a court order if a copy
of the decision is filed with the Federal Court of Canada.
tribunal can make orders compensating the victim of discrimination for
any lost wages, for the cost of obtaining alternative services or accommodations
or for any other losses occasioned by the discrimination. As well, section
53(3) of the Act allows the tribunal to make a special award not exceeding
$5,000 for injury to the complainant's feelings or self-respect. Tribunals
can also direct that the respondent adopt a special program, such as a
training program or an employment equity plan, to prevent discriminatory
practices in the future.
G. Judicial Review
is important to understand that decisions of both the Commission and human
rights tribunals are reviewable. The Supreme Court of Canada in Syndicat
des Employés de Production du Québec et de l'Acadie v. C.H.R.C.,
 2 S.C.R. 879, held that decisions of the Canadian Human Rights
Commission are reviewable by the Federal Court of Canada, Trial Division,
under section 18 of the Federal Court Act. Previously, Commission
decisions had been reviewable as quasi-judicial decisions by the Federal
Court of Appeal pursuant to section 28 of the Federal Court Act.
the Syndicat des Employés case, the Court noted that, unlike a
judicial or quasi-judicial body, the Commission's options for dealing
with a complaint are essentially prescribed by statute. Unless a complaint
of discrimination is first disposed of for reasons set out in the Act,
the Commission is bound to investigate the matter. Then, on the basis
of the results of the investigation, the Commission may either dismiss
a complaint it concludes is not substantiated, or adopt the investigator's
report and request the appointment of a tribunal. According to the Court,
this process is not intended to be a determination where the evidence
is weighed as in a judicial proceeding. Rather the process moves from
the investigatory stage to the judicial or quasi-judicial stage if the
tests set out in the legislation are met.
there is no obligation for the Commission to hold a judicial or quasi-judicial
hearing into the merits of a complaint, the Supreme Court held that the
Commission still has a duty to act fairly. Thus, the Commission discloses
the investigation report to both the complainant and the respondent and
gives them an opportunity to make written representations before it makes
its decision. In this way, the Commission maintains a balance between
the interests of the complainant and the respondent with its own interest
in effectively and efficiently managing a broad administrative system.
section 55 of the Act, a decision of a human rights tribunal composed
of fewer than three persons may be appealed to a review tribunal of three
persons. The review tribunal is constituted and has the same powers as
the tribunal but has the discretion to admit additional evidence or testimony
in the interests of justice. The Federal Court, Trial Division, can review
the decisions of both tribunals and review tribunals under section 18
of the Federal Court Act.
H. Offence Provisions
sections 59 and 60 of the Canadian Human Rights Act, it is an offence
for anyone to threaten, intimidate or discriminate against an individual
because that person has made a complaint of discrimination or given evidence
or assisted in any way in respect of a complaint or other proceeding under
the Act. Section 60 specifically provides that anyone who fails to comply
with the terms of an approved settlement under the Act, who obstructs
a tribunal in carrying out its duties, or contravenes certain statutory
prohibitions, such as section 59, is guilty of an offence and subject
to a fine. In the case of an employer, employer association or employee
organization, this fine is not to exceed $50,000; in any other case, the
fine is not to exceed $5,000.
prosecution for an offence under the Act is by way of summary proceedings,
which may be initiated either by the complainant or by the Commission.
Once the matter is turned over to the Royal Canadian Mounted Police for
investigation, however, it is for the Attorney General of Canada to determine
whether or not the case should be prosecuted, and if so, to carry it through
the criminal court system. Section 60(4) provides that no prosecution
can be instituted without the consent of the Attorney General of Canada.
Canadian human rights system is aimed not at determining fault or punishing
conduct, but at changing attitudes. It recognizes that this goal requires
a specialized system of redress whereby discrimination can be discouraged
through education and persuasion and by ensuring that those who have discriminated
bear the costs of compensating the victims of their actions. The system
is premised on the realization that the process of confrontation and accusation,
which tends to permeate the court system, only serves to reinforce discriminatory
attitudes and on the belief that employers and public service providers
must feel free to move away from traditional notions of guilt to ones
of social responsibility.
Canadian Human Rights Act attempts to identify and eliminate discrimination
at the federal level by means of this remedial and compensatory approach.
It also endeavours to maintain the balance between administering a complex
complaint administrative process and protecting the interests of both
the complainant and the respondent.
(1) Much of the material
for this paper was drawn from Justice W.S. Tarnopolsky and William F.
Pentney, Discrimination and the Law, DeBoo Publishers, Don Mills,