[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
If you have been treated differently by your employer because of your sex, disability, race, sexual orientation, or one of the other protected grounds of discrimination, you may want to consider filing a human rights complaint. One of the first questions you may have, in addition to whether you have been discriminated against at work, is where you should go to file your human rights complaint. There are multiple forums to bring a human rights complaint, each with its advantages and disadvantages.
Human Rights Tribunal
The first, and most obvious, forum for a human rights complaint is the human rights tribunal. For employees in Ontario, this is the Human Rights Tribunal of Ontario, which applies the Human Rights Code. Under the Code, any person who believes his or her rights under the Code have been infringed may bring a complaint (called an Application) to the Tribunal.
The one exception, in terms of who can apply, is employees under federal jurisdiction. Certain types of employers (e.g. airlines, banks, and Canada Post) are federally regulated. If you work for a federally-regulated employer, you must file your human rights complaint with the federal Canadian Human Rights Commission.
- You have access to all remedies provided under the Human Rights Code, including the possibility of reinstatement, damages, and systemic orders.
- The Human Rights Tribunal of Ontario is a specialized tribunal with human rights expertise.
- You do not have to be a lawyer to appear at the Tribunal, and it is possible to navigate its processes with limited or no legal representation.
- You cannot seek remedies beyond those in the Human Rights Code.
- You cannot obtain compensation for legal fees.
It is also possible, in some circumstances, to bring a human rights complaint in civil court. This option is provided under section 46.1 of the Human Rights Code, which gives the courts the power to award monetary compensation and restitution remedies under the Human Rights Code.
This option, however, is not available to everyone: you cannot bring an action in court if the only basis for the claim is an infringement of the Human Rights Code. This means that there must be some additional wrongful act in the court claim (for example, a claim of wrongful dismissal).
- The biggest advantage of this avenue is that it permits you to advance a claim of discrimination, as well as other claims, in a single proceeding. So, if the human rights issue is one of multiple claims against the employer, it may be more efficient to bring a single court action.
- You can obtain compensation for legal fees.
- The process is more complicated and lengthy than the Tribunal’s process.
- The court lacks the same level of expertise in human rights principles as the Tribunal.
- You cannot obtain all remedies available under the Human Rights Code.
Labour arbitrations are an increasingly common forum for the adjudication of human rights complaints. However, this forum is only available to unionized employees. If you are a unionized employee, you should contact your union about your human rights issue, to determine if they will represent you in the grievance arbitration process. If the union chooses not to proceed with a grievance, it may still be possible for you to pursue your human rights complaint in one of the other forums.
The issue of the most appropriate forum to file your human rights complaint is not always straightforward. There may be a dispute about whether your complaint falls under federal or provincial jurisdiction; and, there may be important strategic considerations as to whether you should proceed in court or through the Tribunal. A human rights lawyer can assist you in weighing the pros and cons of the available options and ensuring your rights are protected by following the correct process.
We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering filing a human rights complaint.