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Most people don’t do this. In fact, very few people do.
Why?
It can be a 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. The majority of complaints never get to a final ruling. The rest are settled in mediation or thrown out, abandoned, or withdrawn.
So why do people decide to file a complaint?
Some people want to speak the truth in public. Even if their odds of winning are low.
If that’s what you want, the human rights process 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 Canadian Human Rights Commission and Canadian Human Rights Tribunal and what they do
Your first step is to figure out if the Canadian Human Rights Commission is the right place to start, or if you should go to the human rights body where you live. The Canadian Human Rights Commission only deals with cases that happen in federally regulated workplaces. See Am I a federally regulated worker? (And why it matters). All other workplaces are handled by the commission or tribunal in your province or territory.
Some industries and workplaces are covered by federal laws and others by provincial or territorial laws—this is true for human rights, as well as employment standards and labour codes. Some people think that they can choose between the two, or that the provincial commission can be appealed to the federal—that is not how it works.
The Canadian Human Rights Commission is where you can file a formal complaint saying you’ve been sexually harassed. It helps people to mediate cases, or it looks into the case and recommends it to Canadian Human Rights Tribunal for a hearing. If your case goes to the tribunal, the hearing will be less formal than in a court.
The commission deals with discrimination cases. One law that protects you from discrimination is the Canadian Human Rights Act. Sexual harassment under the act is discrimination based on sex.
The commission’s job is to resolve complaints. If your application falls within its jurisdiction, it will accept it. Then it will encourage you to resolve the complaint through mediation. If that doesn’t work, the commission recommends a tribunal hearing, where both sides get to tell their story and the tribunal decides whether you were sexually harassed. If it decides you were, it may order the other party to make amends in some way.
The commission and the tribunal are two different bodies that are independent from each other. You have to start with the commission.
Facts about the Canadian Human Rights Commission
- In 2021, the commission accepted about 850 complaints from people who said they had been discriminated against or harassed at work or while getting services from a federally regulated company or a government body.
- Seventeen percent of complaints to the commission are based on discrimination on the basis of sex, sexual orientation, or gender expression.
- Of all complaints, 36% were settled in mediation, 9% were dismissed, and 16% were referred to the tribunal for a hearing. The remainder were not decided under the Canadian Human Rights Act, either because the case was dealt with through a grievance or the Canada Labour Code, or because the provincial or territorial human rights code applied instead.
- When the commission decides that someone was discriminated against or harassed, it sometimes gives them an award of money as compensation for financial losses they suffered and the hurt and loss of dignity they experienced.
- Source: Canadian Human Rights Commission 2021 annual report
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, such as improving their employee policies and training around sexual harassment.
- It is possible to get some money to recognize the emotional harm you suffered from the harassment.
Pros and cons of going to the commission
Pros
- The commission has some expertise in harassment. All it does is handle complaints of discrimination, including harassment.
- The tribunal has the power to say that, yes, you were harassed, and that what happened to you was wrong.
- The tribunal can order many different remedies. It can award you money. If you were fired or had to quit because of the harassment, it can order your employer to give you your job back. It can order your employer to remove the person who harassed you from your workplace. It can order your employer to make a donation to a charity, or to provide anti-harassment training.
- The commission process may be quicker than many other legal processes. The commission route usually takes about a year from start to finish, whereas other legal processes can take many years.
Cons
- Even though technically you can represent yourself in the commission process, your chances of success will be higher if you have a lawyer. And the other party will probably have a lawyer—about 90% hire a lawyer to represent them.
- While it’s less complex than other legal processes, the commission process is still difficult. There is a lot of paperwork to file, lots of deadlines to keep track of, and a lot of rules to follow.
- Very few people end up being told by the commission that they were harassed and what happened to them was wrong. Commission data say that of all the cases that go through the commission process, only about 16% end up at a tribunal hearing. The majority of complaints are settled through mediation or resolved by other legal processes, like grievances or a labour board.
- You may not be able to bring your case to other legal proceedings. However, you can file a complaint while you decide which process to use.
- Even if the commission awards you money or other things, that doesn’t mean you will necessarily get them. It can be hard to force your employer or the harasser to give you everything the commission or the tribunal orders, or what you agreed to in mediation.
- Like in any legal process, your opponents will try to undermine your credibility and make you look bad. You could end up feeling disbelieved and unsupported.
- Some psychologists believe it’s a bad idea for people who have experienced sexual harassment to get involved in any legal process. They say legal processes can slow down your ability to heal emotionally from what happened to you, because they keep you focused on the past. These experts believe that it can be healthier for the person who experienced harassment to put the past behind them and focus on their present and their future.
Will the commission accept my complaint?
- You have one year from when the harassment happened to file your application 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 applications if you can show the delay was in good faith and the late application will not cause significant harm to the respondent.
- You can apply to the commission if the harassment happened at a federally regulated workplace. See Am I a federally regulated worker? (And why it matters).
- After you submit your application, the commission might decide that the harassment you faced doesn’t relate to a ground of discrimination under the act. In that case, your application will not proceed.
- If you’ve already started a case in civil court, the commission will likely not process your application. 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 application. For example, if the civil court case is only about unpaid wages.
- Your application may be stopped or delayed if you are going through a process at the Federal Workers’ Compensation Service. 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.
- If you win your other case, the commission may decide not to deal with your application. 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 an application against anybody who is sexually harassing you at work—your employer, a co-worker, a supervisor, a customer, or contractor. In your application, 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 to report sexual harassment to your employer.
It is common for the commission to dismiss applications. Your application could be dismissed because it was filed too late, because it’s outside the commission’s jurisdiction, because it is already being handled in another forum, or because the commission believes you have no reasonable chance of succeeding. It’s important to be careful when you’re filing your application, so it doesn’t end up just getting dismissed.
Who’s who
Complainant
When you apply to 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. You can file an application against both the person who harassed you and your employer for not protecting you. This can be a confusing decision to make, especially if you feel that your case is less about your workplace’s failure to protect you and more about the harasser.
Representative
You and the respondent are both allowed to have someone represent you through the commission process. That person can be a lawyer or anyone else you choose. They are called the representatives. If you are represented by a lawyer, the commission will generally communicate only with them, and it will be their responsibility to keep you informed.
Human rights officer
A human rights officer will contact you at different stages of the process, asking for documentation and informing you about steps in the process. If you do not settle your case in mediation, a human rights officer will make an assessment of the case to determine if it is within the jurisdiction of the act and might recommend it for a hearing.
Mediator
If you agree to mediation, the commission will assign you a mediator. The mediator’s job is to explain the mediation process to you and the respondent, listen to your stories, and try to help you reach an agreement. They are expected to behave neutrally: They’re not supposed to pick a side, and they aren’t supposed to favour either you or the respondent. They may explain to you why your case is weak or strong, but they won’t make a decision about whether your complaint is justified. Their goal is to try to reach a solution that both parties can agree to, so your case doesn’t have to go to a hearing.
Commissioner
As you go through the process, you might come in contact with a commissioner, who is sometimes called an adjudicator, mediator, or decision-maker. There isn’t just one commissioner—there are lots of them. Their job is to be the decision-maker at hearings (if you get that far).
What you’ll have to prove
- It’s you, the complainant, who has to show there is enough evidence to go forward to a hearing. Once the commission accepts that it can hear your case, you will have to convince it 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 commission will use the reasonable person standard to decide whether your harasser should have known that their behaviour was unwelcome. This standard looks at and balances 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. But the commission knows that, in sexual harassment cases, incidents often happen in secret. So, it’s very possible that you might be the only witness. Also, when you’re being sexually harassed, keeping documents is not necessarily the first thing on your mind. You’ll possibly 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 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 knows 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.
- Sometimes, whether a certain behaviour was known or should have reasonably been known to be unwelcome is clearer than others. For example, employers should know that making sexual comments about someone’s body is unwelcome. Other times, it might be less obvious. For example, a co-worker asking you to go on a date (where they do not threaten you or promise you something in return) is likely not going to be considered sexual harassment. But if your boss asks you out, you might feel you’ll be punished if you refuse.
Other important considerations
- A tribunal hearing is usually a public process. In most cases, personal information about the cases and their parties may be available to the public and searchable on public internet databases. Occasionally, the commission allows parties to request a publication ban, which is an order that the commission makes to stop the respondent or someone else from publishing your name or certain details about your case. Talk to the commission early about any privacy concerns.
- When the commission 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 commission 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. The decision is going to be made on a case-by-case basis.
- If you need some changes in the process to help you take part at the commission, ask in advance or as soon as you can. You can ask the human rights officers for accommodations that make it possible for you to fully participate. The commission commonly provides accommodations based on disability and religion. You may have to supply more information, like medical documents. The complaint form—the first form you fill out—asks if you need any accommodations.
Possible outcomes
The Canadian Human Rights Act lists the remedies the tribunal can order to try to respond to the sexual harassment at the end of the case, if you are successful. There are many factors that affect the kind of, and the amount of, 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.
- Up to $20,000 for the pain and suffering you experienced
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 application you can list what remedies you are looking for 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.
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 mediation, you and the respondent could agree on any of the remedies above—and possibly more. 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 mediator will try to help the parties decide on remedies by explaining what the tribunal would likely decide if the case does go to a hearing. Read more about the mediation and hearing processes below.
The commission process step-by-step
The commission process is complicated and we’re not going to lay out every stage here. You can find detailed information about the whole procedure on the commission’s website.
Here we offer the highlights to help you decide whether making a complaint is the right choice for you.
While theoretically it is possible to proceed with a complaint representing yourself, this is very challenging, time consuming, and potentially harmful to your mental health. Your chances of success are much greater with legal help.
You may be able to get help for free. Here are some places that offer free or lower-cost legal services:
- The commission staff provide free help and support to people throughout the process. The level of help the commission staff will be able to give you is decided on a case-by-case basis.
- Your province or territory has sexual harassment educational and support services resources. Sometimes these programs offer support to people making a legal claim. Other times they can refer you to local lawyers who have experience with the process.
- Legal aid clinics or legal aid lawyers may be able to help with complaints to the Canadian Human Rights Commission, including complaints relating to workplace sexual harassment resources. Legal aid is only available to low-income individuals.
- Pro bono lawyers can help you determine what your legal issues are and help you in drafting letters and basic legal documents. Search for the pro bono law organization in your province or territory resources.
- 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.
Applying
The complaint form is available on the commission website. There is an online form that starts with five questions to help you decide if the Canadian Human Rights Act applies, or if you should file within your province or territory. You can then input answers into the application form online or download the form and fill it out and mail it. You can also ask the commission to mail you a copy of the form if you have trouble downloading it or don’t have access to a printer. The forms are available in English and French. If you need accessible forms or have questions about other languages, contact the commission directly at 1-888-214-1090. You need to apply within one year of the last time the harassment happened.
After your apply
If you apply using the online form, you will get a confirmation email within 24 hours. The commission will then contact you within 20 days to confirm if it can accept your complaint. It will explain the next steps.
| Process | What this looks like |
|---|---|
| The commission accepts your application | It will send the application to the respondent and they will then have 30 days to give an answer to it, or response. You’ll also get a chance to give an answer to their response, or reply to it |
| If you are willing to mediate | On the complaint form you will have answered a question about whether you are willing to mediate the case. If both parties said yes to this question, a human rights officer will contact you to explain the steps |
| Case assessment | If you are not willing to mediate, or if mediation is not successful, a human rights officer will make an assessment of the case, asking you and the respondent questions or reviewing documents. You will get a copy of the assessment within six months |
| Commission decision | Commissioners will review the report and the parties’ responses to it. They will make a decision that might include a determination that you were harassed or a referral to the Canadian Human Rights Tribunal for a formal hearing |
| After you submit your application, you want to withdraw it | If you want to withdraw your application before the respondent has acted on it, you can. Your case will simply be closed and nothing more will happen. If the respondent has already filed a response and the case is moving ahead, it’s not that simple. The further you get in the process, the more complex withdrawing becomes. Contact the commission right away |
Mediation
Mediation is the process of trying to settle your case by coming to an agreement with the respondent, who must also agree to participate. This process is not to determine whether you were sexually harassed according to the act. It 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. This process is optional, but highly encouraged by the commission. Remember that if you come to an agreement in mediation, this will mean that your case will not go to a hearing. The commission will not write a public decision and it will end your case faster. You won’t have to talk at the hearing about what happened to you, or face questions about it.
The commission will assign a mediator to your case. 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 them confidential from the other side. If you and the respondent reach an agreement during mediation, you will both sign a settlement agreement. The settlement agreement will have all the things you and the respondent agreed to.
After the mediation
After the mediation, your employer or harasser may not follow through with the agreement right away. You can contact the commission if the settlement is not being followed. The commission can help to enforce changes in workplace policy or training. You might have to send a demand letter or go to court to enforce any monetary settlement.
The hearing
You’ve made an application to the commission, have chosen not to participate in mediation, or your mediation failed, and the commission has made its assessment, recommending your case for a tribunal hearing.
The Canadian Human Rights Tribunal is a separate, independent organization. The tribunal registrar will let you know about the steps, the date, time, and location of your hearing. The tribunal process is complex. You can read about the procedures in this guide.
The tribunal can hold hearings in person, in writing, by telephone, and by other electronic means if it thinks it is appropriate.
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 need to do |
|---|---|
| Prepare for pre-hearing case management Follow the steps and provide the documents that the tribunal requests | Review the respondent’s materials |
| File a witness list with respondent and tribunal Deadline: The tribunal will tell you a deadline. These deadlines are critical—pay attention to the forms and dates | If a witness does not want to attend, get a signed subpoena 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 date, time, and location of the hearing and arrange when and how you will meet them | |
| Create a list of your documents that you have to give to the other side and send to respondent List documents that you want to claim privilege over and send the list to the respondent Deadline: The tribunal will tell you a deadline. These deadlines are critical—pay attention to the forms and dates | Request an order to ask for additional documents from the respondent |
| Respond to the respondent’s request to provide your privileged documents Deadline: The tribunal will tell you a deadline. These deadlines are critical—pay attention to the forms and dates |
Attending the hearing
If your hearing is in person, it may happen at the tribunal offices, or in another location, like a meeting room at a hotel. The decision-makers—tribunal members—are sometimes referred to as adjudicators.
If you haven’t taken part in mediation already, the tribunal will likely offer you and the respondent one last chance to try to mediate. If you have already gone through an unsuccessful mediation or you don’t want to do this, the hearing will begin. Both sides will make opening statements and closing statements about the case. The commission will also be a party to the case and might have a lawyer presenting arguments.
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 tribunal members will review all of the evidence that you and the respondent have presented both before and during the hearing. They will likely reserve their decision, considering it for a while and writing the reasons. This can take several months.
The decision
The tribunal will send its decision to you by mail. You can also get it by email or fax. If you have a lawyer, your lawyer will get a copy. The decision will also be posted on CanLII.
The tribunal’s decision will explain how they looked at the facts in the case and how they applied the law from the Canada Human Rights Act and other cases that were decided by the tribunal. They 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. See How to find and work with a lawyer. |
| Apply for reconsideration | For more information on how to request a reconsideration, contact a lawyer. This is a very complex process |
| 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. A lawyer can help you decide if your case meets the test for judicial review |
