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Most people don’t do this. In fact, very few people do.
It’s a long and slow process.
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 seldom happens. Only about 40% of human rights complaints are accepted by the commission.
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, a complaint with the Commission des droits de la personne et des droits de la jeunesse can be a good choice.
It’s a shorter process than civil court—usually about a year and a half—whereas civil court cases can take several years. And it’s a little less adversarial than civil court.
The Commission des droits de la personne et des droits de la jeunesse and what it does
The Commission des droits de la personne et des droits de la jeunesse (CDPDJ) is an administrative body that deals with cases of discrimination under the Charter of Human Rights and Freedoms. Discriminatory harassment, which includes sexual harassment, is prohibited under the charter.
The commission’s job is to resolve complaints. If your complaint falls within its jurisdiction, it will accept it for investigation. Then it will encourage you to try to settle the complaint through mediation. If that isn’t successful, a further investigation may follow. After this, if the commission finds your complaint is supported by the evidence, it can recommend remedies. If the respondent doesn’t comply, your complaint could be referred to a court or to the Human Rights Tribunal. A commission lawyer may represent you before the tribunal free of charge. If the tribunal decides you were harassed, it may order the other party to make amends in some way.
Facts about the commission
- Fewer than 40% of human rights applications to the commission result in files being opened.
- In 2020-21, the commission considered 24 human rights cases from people who said they had been discriminated against on the basis of sex, sexual orientation or gender expression in a work context. These cases made up 8% of all the new labour cases.
- Of the 30% of cases that went to mediation in 2020-21, three-quarters were successfully resolved.
- A fifth of cases at the commission are abandoned or settled outside the commission process.
- The average amount of time for a human rights case to be dealt with by the commission is 17 months.
- The Human Rights Tribunal ruled on one complaint of sexual harassment in 2020; the tribunal awarded $5,000 for moral damages in this case.
- Sources: CDPDJ 2020-2021 annual report, Human Rights Tribunal 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.
- It is possible to get some money to recognize the harm you suffered from the harassment.
Pros and cons of going to the commission
- The commission focuses exclusively on youth rights and on handling complaints of exploitation, discrimination, and harassment, including sexual harassment.
- The commission can order your employer or the harasser to compensate you for financial losses you experienced because of the harassment or to pay you damages for harm you faced. It can order your employer to reinstate you in your job or for the harasser to take anti-harassment training.
- Unlike a complaint to the Commission des normes de l’équité de la santé et de la sécurité du travail (CNESST), which is only against your employer, a complaint to the CDPDJ can be against the harasser also.
- If the commission refers your complaint to the Human Rights Tribunal, a commission lawyer may represent you for free.
- Fewer than half of complaints to the commission are accepted for investigation.
- The commission process is much slower than the CNESST process. On average it takes 17 months, whereas a complaint before the CNESST takes less than two months to be decided.
- Very few people end up being told by the tribunal that they were harassed and what happened to them was wrong. Of all the cases that go through the commission process, only about 2% end up with the tribunal having a hearing. The overwhelming majority of complaints are either decided by the commission complaints committee, settled through mediation, abandoned or withdrawn.
- Tribunal awards are small. There is technically no limit to the amount of money the tribunal could award to you, but in the one case in 2020-21 that involved sexual harassment, the award was $5,000.
- 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 application?
- You should file your complaint as soon as possible. The commission may refuse your case if the harassment took place more than two years ago.
- You can file a complaint with the commission if you work in Quebec or if the harassment happened in Quebec, but not if you work at federally regulated workplaces, like banks, airlines, telephone companies, and TV and radio stations. If you’re unionized, you must make your complaint through your union. See Working with your union. You’re covered if you are non-unionized, temporary or permanent, a volunteer, an intern, an independent contractor, a tourist, or undocumented.
- After you submit your complaint, the commission might decide that the harassment you faced doesn’t relate to a ground of discrimination under the charter. In that case, your complaint will not proceed. In 2020-21, there were 2,570 human rights complaint applications but only 839 investigations were launched.
- If you’ve already started a case in civil court or at the Tribunal administratif du travail, the commission may not accept your case or will wait until it 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.
- Even if you have another case going on, 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 to report sexual harassment to your employer.
It is common for the commission to dismiss complaints. Your complaint could be dismissed because it was filed too late, because it’s outside of the tribunal’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 filling out your complaint, so it doesn’t end up just getting dismissed.
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.
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.
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.
Assessment department member
After you file a complaint with the commission, a member of the assessment department will contact you to clarify the details of your complaint and make sure you have provided all the needed details. They will also contact your employer or the respondent to let them know the complaint has been filed and to see whether you and the respondent are open to trying to settle the matter through mediation.
If mediation doesn’t take place or fails, in the second phase of the investigation an investigator contacts you, the respondent, and witnesses to gather everyone’s version of the facts and any other information and documents that are relevant. They must determine whether the harassment can be proven and if you experienced financial or moral consequences as a result. They prepare a report for the complaints committee.
The committee is made up of three members of the CDPDJ. They decide whether the evidence gathered in the investigation is sufficient to support your complaint. If they support your complaint, they may order remedies like a financial award or reinstatement in your job. If the respondent does not comply, the committee may recommend that your complaint be directed to a court or heard by the Human Rights Tribunal. The tribunal outcome is not common, but if your complaint is found to have enough evidence to support it, a commission lawyer might represent you at the tribunal for free.
At a hearing there are three tribunal members. You are known as the “plaintiff” and the respondent is the “defendant.” The tribunal’s job is to listen to you and the defendant 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, the tribunal will order the defendant to do various things, like give you money as compensation for what you experienced.
If you are successful before the tribunal 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 the harasser. There are two categories of remedies.
- Moral damages compensate you for the loss of or harm to dignity, feelings, and self-respect.
- General 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.
- Punitive damages punish the harasser for their actions.
- Future compliance, or public interest remedies, can be things like changes to your workplace 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 the harasser to a different department.
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.
Having legal advice during the commission process could be helpful. Here are some places that offer free or lower-cost legal services:
- You may be eligible for legal aid (Commission des services juridiques) if your income is low. In 2022, a single person’s gross income had to be under $26,000 for them to be able to use this service.
- The Quebec Help and Information Center on Sexual Harassment in the Workplace (GAIHST) supports people who have been subjected to sexual and/or psychological harassment at work. It can provide advice and, in certain circumstances, support and assistance with legal claims.
- 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 family net income under $90,000 and be experiencing financial difficulties. Participating lawyers’ reduced rates vary depending on your family size and income.
For advice on hiring a lawyer, see How to find and work with a lawyer.
The complaint process
You can find detailed information about the Commission des droits de la personne et des droits de la jeunesse process and how to file a complaint on the commission’s website.
For your complaint to be heard by the Human Rights Tribunal, the commission’s complaints committee must find that there is sufficient evidence to support it. A commission lawyer may represent you before the tribunal for free. The relevant forms and guides are available on the tribunal’s website.