How to decide whether to file a human rights complaint

Most people don’t do this. In fact, very few people do.

Why?

It’s a long and slow process. If you hire a lawyer to help you, it will be expensive, and, if you don’t, you’ll need to do a lot of work yourself.

And the outcome is sometimes not very satisfying.

Some people hope that, at the end of the process, they’ll be told that, yes, they were harassed, and it shouldn’t have happened. But that hardly ever happens. Only about 5% of complaints ever get to a final ruling. The rest are settled in conciliation or thrown out, abandoned or withdrawn.

So why do people decide to file a complaint?

Some people want to go to court and speak the truth in public. Even if their odds of winning are low.

If that’s what you want, the Human Rights Tribunal can be a good choice.

It’s a shorter process than civil court—usually about a year—whereas civil court cases can take several years. You’re allowed to represent yourself, which means you don’t need to pay for a lawyer. And it’s a little less adversarial than civil court.

The Alberta Human Rights Commission and Tribunal and what they do

One law that protects you from discrimination is the Alberta Human Rights Act. Sexual harassment under the act can constitute discrimination based on sex.

If you’ve been sexually harassed, you may be able file a formal complaint with the Alberta Human Rights Commission. The commission will review your complaint and assess whether it should be accepted. Commission staff encourage parties to reach a settlement on their own (in a process called conciliation) or may investigate the issues. If the parties can’t resolve the matter and the commission staff recommend it for a hearing, the case will then go to the Alberta Human Rights Tribunal.

The tribunal is the decision-making arm of the commission. It is less formal than a court, but more formal than many other legal processes. The tribunal hears discrimination cases that cannot be resolved at the commission.

The commission and tribunal both work to resolve complaints. You will be strongly encouraged to try to resolve the complaint through conciliation. If that doesn’t work, the tribunal holds a hearing, listens to both sides, and decides whether you were sexually harassed. If it decides you were, it may order the other party to make amends in some way.

Why consider filing a complaint with the commission

If you decide to file a complaint with the commission, here are a few things you may get out of the process:

• It’s a chance to tell the harasser what they did is not okay.
• You might get back money you lost because of the harassment—maybe you didn’t get a special project or a promotion, or were fired.
• You might get your job back, or get a reference for a new one.
• You could request that your workplace make changes that would affect everyone there, not just you, like improving employee policies and training around sexual harassment.
• It is possible to get some money to recognize the emotional harm you suffered from the harassment.

The Alberta Human Rights Commission website has information about the process and what to expect. Resources on how to make a human rights complaint developed by Native Counselling Services of Alberta are available in English, Cree, and Blackfoot.

Pros and cons of filing a human rights complaint

Will the commission accept my complaint?

• You have one year from when the harassment happened to file your complaint with the commission. If the harassment happened more than once, the deadline is one year from the last incident of harassment. In certain situations, the commission will accept late complaints if you can show there was a good reason for the delay and the late complaint will not cause significant harm to the respondent.
• You can file a complaint with the commission commission if you work in Alberta or if the harassment happened in Alberta, but not if you work at federally regulated workplaces. See Am I a federally regulated worker? (And why it matters). If you’re unionized, you must make your complaint through your union. See Working with your union. You’re covered if you’re non-unionized, temporary or permanent, an independent contractor, or undocumented.
• After you submit your complaint, the commission director might decide that the harassment you faced doesn’t relate to a ground of discrimination under the act. In that case, your complaint will not proceed.
• If you’ve already started a case in civil court, the commission director may wait until after the case is finished to proceed with your complaint. There are a couple of exceptions to this: if you withdraw the civil case, or if your civil case is dealing with a different issue, that is not included in your human rights complaint. For example, if the civil court case is only about unpaid wages or severance.
• Your complaint may be delayed if you are going through a grievance process at Occupational Health and Safety. See Should you apply for workers comp?
• Even if you have another case going on, you still have to apply to the commission within one year of the last incident. You can file your complaint to get it in within the deadline, and then ask the commission to wait to process it until after the other case is resolved.
• If you win your other case, the commission may decide not to hear your complaint. If you lose the case and feel as if the other process didn’t deal with the same human rights issues, you can explain this to the commission. It will decide whether your case has been dealt with.
• You can file a complaint against anybody who is sexually harassing you at work—your employer, a co-worker, a supervisor, a customer, or a contractor. In your complaint, you can also name the company or organization you were or are working for. Even if your employer is not harassing you, they have to protect you from sexual harassment and a harassing environment. See How can I talk with my employer to get them to stop the harassment?

Who’s who

Complainant

When you file a complaint with the commission, you are the complainant. That means you are the person who is filing a complaint that you have been sexually harassed.

Respondent

The respondent can be anyone who is harassing you or has harassed you at work—your boss, a co-worker, a customer, even a contractor. There may be several respondents. You can file a complaint against both the person who harassed you and your employer for not protecting you.

Representative

You and the respondent are both allowed to have a lawyer represent you through the commission process, or you can represent yourself. If you are represented by a lawyer, the commission will generally communicate only with your representative, and it will be their responsibility to keep you informed.

Human rights officer

After you file a complaint, a human rights officer will likely be assigned to your matter. Their job is to help you and the respondent settle your complaint. Most complaints go to conciliation, which is a non-adversarial process like a mediation.

Commission director

If conciliation is not successful, the human rights officer will report to the commission director. A decision team may dismiss your case or report the failure to settle to the Chief of the Commission and Tribunals, who may appoint a human rights tribunal to hear the matter.

TDR commission member

The first phase of the hearing process is tribunal dispute resolution (TDR). Another non-adversarial mediation process called a TDR conference is conducted by a TDR commission member. The member’s role is help you and the respondent to reach a settlement.

Tribunal chair

If TDR fails, the complaint goes to a hearing run by the tribunal chair. They may be joined by two other members. Their job is to listen to you and the respondent, and make a decision about whether your complaint is justified. Very few cases ever get to the hearing stage. If your complaint is found to be justified, they will order the respondent to do various things, like give you money as compensation for what you experienced.

What you’ll have to prove

• It’s you, the complainant, who has to show there are grounds to go forward to a hearing. Once the commission accepts that it can hear your case, you will have to convince the tribunal that there was more than a 50% chance that what happened to you was sexual harassment under the act. This is called the burden of proof on a balance of probabilities. The tribunal will use the “reasonable person” standard to decide whether your harasser should have known that their behaviour was unwelcome. This standard considers what a reasonable person in your position would have thought, and what a reasonable person in your harasser’s position would have thought about the situation.
• You’ll have a chance to tell your story, or testify, submit documents, and bring witnesses to the hearing to prove your case. Sexual harassment often occurs without witnesses. However, the commission will still consider your testimony (you stating what happened and how it affected you) even if there are no documents or witnesses to support what you are saying. You may have to prove your case mainly through talking about your story at the hearing and explaining what happened.
• Usually, there needs to be more than one incident. But sometimes, one incident can be so serious that it falls under the definition of sexual harassment. Remember, just because you didn’t say “no” or “stop” doesn’t mean that what the respondent did wasn’t sexual harassment. Under the act, the harasser either has to know or should have reasonably known that their behaviour was unwelcome. There may be many reasons why you might not have felt comfortable saying anything when the harassment was happening, like a power imbalance between you and your boss, or your fear that you would get punished if you said anything to an important client.

Other important considerations

• When the tribunal writes and publishes a decision, it usually includes the full name of the parties. But it will publish only the initials of a party who is younger than 18. If you do not want to have your full name published, and you can provide a good reason for this, you can ask the tribunal to use only your initials in the published decision. This is known as anonymization. You can ask for an anonymized decision at any point after you apply. However, the commission only grants such requests in “exceptional circumstances.”
• If you need some changes in the process to help you take part at the commission or the tribunal, request those as soon as you can. You can ask for accommodations of medical needs, religious observances, or for language reasons. You may have to supply more information, like medical documents.

Possible outcomes

The Alberta Human Rights Act lists the remedies that the tribunal can order at the end of a sexual harassment case, if you are successful. There are many factors that affect the kind of, and the amount of, any remedies you receive. One might be how vulnerable you were and how much of a power imbalance there was between you and your harasser. There are two categories of remedies.

Monetary compensation

• General damages compensate you for the loss of or harm to dignity, feelings, and self-respect.
• Special damages compensate you for lost wages, or for things you had to pay for yourself because of the harassment, such as therapy. Special damages can include the costs you will continue to have, such as future therapy appointments.

Non-monetary compensation

• Future compliance, or public interest remedies, can be things like changes to your workplace policies. You could, for example, ask for training for the harasser on sexual harassment policies.
• Non-monetary compensation can also include things like your employer giving you a reference letter, or taking steps to get you back to a job, either at the same workplace or another one. It can also include transferring your harasser to a different department.

When you fill out your complaint you can list what remedies you would like in each of these categories, including the total amount of money you think you should receive. Be aware that the tribunal looks at what kinds of steps you took to reduce the losses you faced because of the harassment. This is called mitigation. If you did not take steps to limit your financial losses—for example, by looking for a new job after having been fired—the tribunal may lower the amount of money it will award to you for lost income.

If you want to learn more about the kinds of remedies the tribunal has ordered in cases that may be like yours, you can search for decisions related to sexual harassment and read full case decisions on CanLII, a free database for legal decisions in Canada. See how to search for and read decisions on CanLII here.

At a hearing, the decision-maker can only order remedies allowed under the act. At mediation, a settlement can contain whatever terms and remedies you and the respondent agree on. Usually the conciliator will try to help the parties decide on remedies by explaining what the tribunal can and would likely decide if the case does go to a hearing. Read more about mediation and the hearing process below.

The commission process step-by-step

You may be able to get help from a lawyer for free or at lower cost:

• Independent Legal Advice for Survivors of Sexual Violence, a project of the Elizabeth Fry Society, is based in Edmonton and also serves the communities of Stony Plain, Morinville, St. Albert, Sherwood Park, Fort Saskatchewan, Ponoka, Camrose, Wetaskiwin, Red Deer, and Fort McMurray. You can receive up to four hours of free legal advice and can also attend legal clinics.
• JusticeNet is a not-for-profit service for those whose income is too high to qualify for legal aid but too low to afford regular legal fees. To qualify you must have a net family income under $90,000 and be experiencing financial difficulties. Participating lawyers’ reduced rates vary depending on your family size and income.
• Your workplace union, association, or Employee Assistance Program may be able to help you find legal services or cover part of your legal fees.

Applying

The Complaint Form and a Complaint Guide are available on the commission website.To request copies of forms if you have trouble downloading them, don’t have access to a computer or printer, need accessible forms, or have questions about other languages, email [email protected] or leave a message at 1-780-427-7661, or toll-free 1-310-0000.

Filling out your complaint to the commission might take more time than you expect. You will need to fill in a lot of details, such as: information about your employer; the effect the harassment had on you; the remedies you are asking for; the kind of documents you plan on showing the commission; and much more. Remember that you need to apply within one year of the last time the harassment happened. Staff at the commission can help to explain the form or make sure that you have included everything you need before sending it in.

You can send your complaint form by mail or email. Visit the website for contact information.

After you apply

After you apply, you’ll get a letter from the commission with your case file number. This does not mean that the commission has accepted your complaint. It is just the way it tracks your file. If you are filing your complaint yourself, you must use this number in all future communication with the commission.

Process	What this looks like
The commission accepts your complaint	It will send a copy of your complaint to the respondent and they will then have 30 days to give an answer to it, called a response. However, extensions are commonly granted
After submitting your complaint, you want to withdraw it	If you want to withdraw your complaint before the respondent has acted on it, you can. Your case will simply be closed and nothing more will happen. Contact the commission right away if you want to withdraw
After you submit your complaint, the commission reviews it and wants to defer because another proceeding is happening	If you want to ask the commission to proceed with the complaint, you can explain why
A human rights officer is assigned who decides if the case will go through the conciliation process	Follow the deadlines and steps communicated to you. You will be asked for more details and the commission staff will work with you to understand what happened and see if there is a way to resolve your complaint
If the complaint is not resolved through the conciliation process, the officer refers the complaint to the commission director, who reviews and dismisses it	You can appeal this decision and it will be reviewed
After you submit your complaint, the commission reviews it and finds that there’s information missing	Supply the missing information and send the complaint back to the commission

Mediation

Mediation is the process of trying to settle your case by coming to an agreement with the respondent. The aim is not to determine whether you were sexually harassed according to the act. Mediation is a way of encouraging the parties to settle their dispute without having to go to a hearing where someone else will decide if the law was broken. Remember that, if you agree to a settlement in mediation, your case will not go to a hearing. The tribunal will not write a public decision and your case will wrap up faster. You won’t have to talk at the hearing about what happened to you, or face questions about it. Remember that you are in control during mediation and can decide whether and how you want to settle, although the human rights officer tends to encourage settling.

Human rights cases in Alberta can go through up to two rounds of mediation. Conciliation is the process right at the beginning, when there might be a chance of resolving the issue. A tribunal dispute resolution conference happens right before a matter goes to tribunal. These two mediation attempts are facilitated by commission or tribunal members.

Before a case reaches the tribunal stage, it is dealt with by a human rights officer, who acts as a conciliator. If this step is not successful and the complaint is not dismissed, it moves to the tribunal.

Once a case has been referred to the tribunal, a tribunal member will attempt to mediate the case. This process is called tribunal dispute resolution and the meeting is called a TDR conference.

Mediators are neutral parties who will not take a side before, during, or after the process. You or your lawyer can provide information or show documents to a mediator and request they keep it confidential from the other side. In a mediation, they work with both sides to try to find a resolution that works for everyone.

Before the mediation

Process	You might need to do
Receive the details of the mediation scheduling	Make a request for accommodation If the mediation is in person, request shuttle mediation, which involves the parties being in separate rooms so you don’t have to sit with the respondent Plan for emotional support, before, during, and after the mediation

If you and the respondent reach an agreement, you will sign a document, often called a settlement agreement. The settlement agreement will have all the things you and the respondent agreed to. It also often includes a confidentiality clause saying that both you and the respondent will not talk about the case or the settlement.

After the mediation

Process	You might need to do
Sign the settlement agreement	If you reached agreement, sign the agreement
Enforce the agreement	Contact the commission if the respondent is not complying with the non-monetary parts of the settlement Send a demand letter File with a court to have the monetary part of the order enforced. Your agreement is a legal document, or contract, and the respondent must follow what it says. This is a complicated process and you should get help from a lawyer to do this

The hearing

You’ve made a complaint to the commission, participated in the conciliation or investigation process, and the commission has referred your case for a hearing. You will receive a notice telling you the schedule for the hearing process, starting with the TDR mediation.

The tribunal can hold hearings in person or virtually.

If your case does not settle at TDR mediation, there will be a pre-hearing conference call with all the parties to discuss the hearing and try to simplify what comes next. The tribunal registrar will run the call. They will explain how the hearing will go and address any of the remaining issues before the hearing.

The tribunal chair will run the hearing. The process leading up to the hearing has many steps, each with its own deadline. The tribunal process is described on the commission website.

Now it’s time to prepare, if you don’t have a lawyer to represent you. Mostly, you will want to get your evidence and arguments ready.

Preparing for the hearing

Things to do	You might want to do
File hearing submissions with the tribunal and serve them on the other parties. Your hearing submissions should include a witness list (including the names of each witness to appear at the hearing), a brief statement summarizing each witness’s expected evidence, and any documents you intend to rely on at the hearing.   Deadline: 30 days before the hearing	If a witness doesn’t want to attend, get a signed notice to appear from the tribunal and send it to the witness
Review all the respondent’s witness statements and documents. Identify gaps and inconsistencies. Prepare cross-examination questions
Tell all your witnesses the details about the hearing and arrange when and how you will meet them if the hearing’s in person Deadline: At least 21 days before the hearing
Create a list of your documents that you have to give to the other side and send to the respondent   List documents that you want to claim privilege over and send the list to the respondent   Deadline: 21 days after the pre-conference hearing	Request an order asking for additional documents from the respondent
Send documents you are going to rely on during your hearing to the respondent and the tribunal. This includes witness statements from all witnesses you intend to call during the hearing
Respond to the respondent’s request to provide your privileged documents
Prepare for the pre-hearing conference call by pointing out issues that might need to be addressed before the hearing	Request any accommodations you need in advance, in writing

Attending the hearing

If your hearing is in person, it may happen at the tribunal offices in Calgary or Edmonton, or in another location, like a meeting room at a hotel.

Each party will make opening statements at the beginning of the hearing and closing statements about the case at the very end. The commission director will go first. The tribunal will receive documents and hear from witnesses about what they know about your sexual harassment allegations.

When the hearing is coming to an end, the chair will review all of the evidence that you, the commission, and the respondent have presented both before and during the hearing. The tribunal will issue its decision within 120 days.

The decision

The tribunal will send its decision to you by mail or email. If you have a lawyer, they will get a copy. It will also be posted on CanLII, a free database for legal decisions in Canada. See how to search for and read decisions on CanLII here.

The decision will explain how the tribunal looked at the facts in the case and applied the Alberta Human Rights Act and other cases decided by the tribunal to your situation. It will state whether your complaint was successful and whether you were sexually harassed according to the law. If your complaint was successful, the decision will outline the remedies you will be receiving.

If you are happy with the decision and the remedies, you will need to make sure that the respondent follows the orders in the decision. If the respondent doesn’t do what they’re ordered to do, you can take steps to enforce the decision.

Process	You might need to do
Enforce the decision	Send a demand letter Apply to the commission to enforce the non-monetary award File with a court to have the monetary part of the order enforced. The agreement is a legal contract, and the respondent must follow what it says. This is a complicated process and you should get help from a lawyer to do this
Apply for reconsideration	If there is new evidence, you can ask the tribunal to reconsider
Judicial review	If you think the tribunal didn’t follow the law when making the decision, you can ask a court to review the decision

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