Responding to a human rights complaint

As an employer it is always possible that your organization will become involved in a human rights complaint— most likely as the respondent. Being the respondent means that a complaint has been filed against you, probably by an employee, former employee, customer or other member of the general public. You must respond in writing to the Human Rights Tribunal of Ontario (HRTO) within 35 days in order to preserve your legal rights.

Responding to an accusation that you have violated someone’s human rights can be overwhelming for a small/medium size business. The accusation may appear to have developed out of thin air and you may not be sure where to turn first. This online response form provided by the HRTO is designed to simplify the process of responding to a human rights complaint application.

The form is a real great tool because it walks you through the entire response process. The form contains a link to the respondent’s guide, another great tool that provides additional guidance. When completed online you may email the form directly to the HRTO. It is not necessary to send a copy to the Applicant (the person who filed the complaint about you or your company).

Common questions answered directly on the form include:

• What happens if I don’t file a response?
• What if I feel I have a valid defense to the allegations?
• Does an exemption under the Human Rights Code apply to this case?

You can ask the HRTO to dismiss an application for the reasons listed below and the form spells out all this information; all you need to do is check off the correct box. When the following conditions exist you do not need to complete the entire response form, just this section!

• The applicant has already settled the matter with you and signed a waiver agreeing not to file a human rights complaint
• The case is before a civil court on substantially the same issues (an applicant is not allowed to “double-dip”)
• The HRTO has already heard this case on substantially the same issues
• The case is within federal jurisdiction and the HRTO is unable to hear it

You will need to submit documentation to support your claim when indicating in your response that one or more of the above conditions applies. The documentation necessary is described fully on the form and in the respondent’s guide.

Where another proceeding has appropriately dealt with the case you can also ask the HRTO to dismiss it. In this situation however, you will need to complete the response form in its entirety including why you think the case has been already dealt with. This situation often occurs when an employee or former employee starts concurrent legal action perhaps with the Workplace Safety and Insurance Board (WSIB) or files a union grievance that proceeds to arbitration.

Another option is to ask the HRTO to postpone, or defer, the application because the matter is currently being heard by an arbitrator or other decision making body. The form indicates clearly the information you are required to provide when this is the case.

I highly recommend that you take a few minutes and review this form. Interesting and informative sections point you to documents you need to have in order to respond to a human rights complaint including:

• Job descriptions outlining essential duties of a job
• Workplace policies include Human rights related policies
• A process for filing an internal human rights complaint
• Other documentation that supports your response

Responding to a human rights complaint is never simple. This form simplifies the process for you but does not take the place of legal advice. Remember the mantra—Learn don’t litigate—be proactive instead of reactive.

Andrew Lawson
www.learndl.ca