A number of our Firm’s recent blogs have painted a picture of what consequences arise when an employer is found to have violated the Human Rights Code with respect to its employees. Hopefully by now you have a better understanding of how to ensure your company and its employees do not engage in discriminatory conduct in the workplace, but you might not know what to do if you are named in an Application to the Human Rights Tribunal. The following is a brief primer for responding to a Human Rights Application in Ontario.
Timeline for Filing a Response
If an Application is filed against you or your company, the Tribunal will deliver you a copy of the Application and a notice directing you to file a Response within 35 days. The Response is completed on the Tribunal’s Form 2, and can be submitted online or by conventional paper delivery. Your Response is delivered to the Tribunal only, and the Tribunal will forward a copy to the Applicant. Upon receiving the Response, the Applicant will then have 20 days to file a Reply to the Response.
Substance of Response
Completing the Response to an Application is your opportunity to tell the Tribunal your side of the story. You will be prompted to answer such questions as: whether the Applicant told you about their human rights concern; whether you investigated a complaint; whether you have a human rights policy in effect; and how you respond to the particular allegations made against you or your company by the Applicant. If your organization has a relevant policy in place, as it is supposed to, you will be required to submit it along with your Response. Likewise, any documents concerning an internal complaint, investigation, or resolution must be submitted with your Response.
The Response is also your chance to raise any preliminary issues to the Application and ask the Tribunal to dispose of it without proceeding to hearing. Common preliminary objections include: the complaint has already been determined by a different Tribunal or Court, or that the parties have agreed to a settlement and the Applicant has signed a release. Other preliminary issues may require the Tribunal to defer hearing the complaint if its substance is already before a different Tribunal or Court, such as a grievance arbitrator, the Labour Board, or Small Claims Court. If the substance of the complaint has been, or is currently, in front of another Tribunal or Court, you are required to produce the relevant documents to the Tribunal.
Failure to file a Full Response
It is important to file your Response fully and in a timely manner. If the Tribunal is not satisfied that you have completed Form 2 adequately, they may send your Response back to you and give you 20 days to address any missing information and re-file the Response.
If your Response remains insufficient or incomplete, the Tribunal will accept it at face value, and if you have not properly responded to the allegations made against you, the Tribunal may assume that you are admitting to the allegations.
Preparing the Expected Evidence
You will not have to provide all of your relevant documents at the time that you file a Response, but you will have to make a list of what documents exist, why they are relevant, and who has the documents (whether you or your company, the Applicant, or some third party). Typically, the list will contain such documents as your company’s workplace discrimination, and violence and harassment policies, employee handbooks, employee records, and any photographs, notes or correspondences relevant to the allegations.
You will also have to list the names of persons who may serve as witnesses on your behalf. The witness list is for use by the Tribunal only, and is not revealed to the Applicant.
Declaration and Signature
You are responsible to ensure that your Response is as complete and accurate as possible, and you will be required to sign a declaration on the Response Form attesting to that fact.
This primer provides only a simple overview of your Responsibilities and options in filing a Response to an Application under the Human Rights Code in Ontario. There may be opportunities to have the Application dismissed at an early stage if the Application has been filed out of time, another proceeding is pending dealing with the same issues or there is no reasonable prospect of success based on the contents of the Application. In order to ensure that you are properly defending your company and employees against a human rights Application, you would be well-advised to consult a lawyer. The professionals at CCPartners have extensive experience in responding to Applications under the Human Rights Code, and providing advice to our clients on the best ways to resolve such complaints. Click HERE for a list of lawyers who can assist with all manner of human rights issues.