This article applies everywhere in Canada. Although human rights laws and procedures differ somewhat from province-to-province, the core concepts discussed in this article apply everywhere. (Human Law can represent clients on human rights matters anywhere in Canada, except Quebec or the territories.)
If you have found this blog article, you are probably thinking about making a human rights complaint against someone, and you may be wondering if you have a case or not.
You have come to the right place. Many human rights Complaint Forms are rejected by human rights commissions because they do not meet the criteria to get in the door, so it is critical to know what the acceptance criteria are. In some tragic cases, people who could have had strong complaints get nowhere with them because they did not fill out the Complaint Form correctly. Other times, people mistakenly bring complaints to human rights commissions that actually belong in other legal forums, like an employment standards complaint or a civil claim in court.
Here is a checklist of things you will need to get your complaint through the door of your province’s human rights commission. To avoid your Complaint Form landing in the reject pile, you need to check all four of these boxes:
1. A Protected Area
Protected Areas are areas of life or business that human rights law applies to. For example, employment is a Protected Area in every province and territory in Canada.
Human rights complaints can only be made for discrimination in a Protected Area. This means that if a random person on the street discriminates against you (e.g. calls a person of colour a racist name), that is not something you can make a human rights complaint against them for, since “random person on the street” is not a Protected Area.
(Racist or other discriminatory conduct that does not fall in a Protected Area could potentially have legal consequences other than a human rights complaint though. It is a good idea to consult with a lawyer to go over the possible legal remedies and strategies with you. A human rights complaint may not be the only option, or the best option.)
So what are the Protected Areas in human rights law? There are some slight differences from province-to-province within Canada, but here are the five main ones:
Think about your situation and whether you can identify a Protected Area that it falls under. If you aren’t sure, it’s best to consult with an experienced human right lawyer.
2. Adverse Treatment or Impact in the Protected Area
Once we know what Protected Area your potential complaint falls under, the next checkbox we need to be able to check off is Adverse Treatment or Impact in that Protected Area.
The terms “Adverse Treatment” and “Adverse Impact” are used interchangeably by human rights Tribunals and lawyers, but it is helpful when first learning these concepts to think about them separately:
Adverse Treatment is so broad that it can be almost anything; it can be words (e.g. a racist or sexist statement), actions (e.g. firing or demoting you, or an assault), or even inaction (e.g. not providing you something you reasonably would have expected to get, like a service, an employment benefit, or a landlord refusing to rent a vacant apartment to you).
Adverse Impact is another way of describing inaction that has a negative effect, such as the inaction of not making a building accessible to people in wheelchairs. It can also refer to situation where a neutral rule is applied to you just the same as everyone else, but because of a Protected Ground that otherwise neutral rule has a particularly negative impact on you (e.g. in a famous case many years ago, the neutral rule that everyone has to take their hat off in the Royal Canadian Legion was held by a Court to have an adverse impact on members of religious communities who, for religious reasons, could not remove their religious headwear. The Adverse Impact was that members of these religious communities were not allowed to enter the Legion.)
If you can identify the Adverse Treatment or Impact and the Protected Area it falls under in your case, then you are ready to move on to the next checkbox.
3. A Protected Ground
Not all Adverse Treatment or every Adverse Impacts in a Protected Area is discrimination. It is only discrimination if a Protected Ground is a factor in the Adverse Treatment or Impact.
For example, if someone bullies you at work (adverse treatment in employment), it is only discrimination if a Protected Ground is a factor (e.g. if they bullied you because of your race or sexual orientation.) Without a Protected Ground being a factor, it is “ordinary bullying”, but not discrimination.
Human rights complaints are only for cases of discrimination, so it is necessary to identify if a Protected Ground in involved. (If you are experiencing bullying at work, there are other legal options for you besides a human rights complaint. I recommend consulting an experienced human resources lawyer to discuss your options and help figure out the best strategy to deal with the situation.)
Like Protected Areas, Protected Grounds vary slightly from province-to-province in Canada. Here are the most common ones:
4. The Protected Ground was a Factor in the Adverse Treatment or Impact
The final checkbox on the checklist is to ask yourself if the Protected Ground you have identified was a “factor” in the Adverse Treatment or Impact. This is sometimes called the “connection” or the “nexus” between the Adverse Treatment/Impact and the Protected Ground.
Sometimes the connection is obvious (e.g. discriminatory words/statements), but more often than not the connection needs to be inferred from the surrounding circumstances. For example, when a woman tells her boss she is pregnant and shortly afterwards is fired, or when a person of colour experiences subtle but repeated adverse treatment compared to their white co-workers.
When the connection needs to be inferred from the surrounding circumstances, it is important to gather as many concrete examples as possible to explain the connection. This is because it is not enough for a complaint to say “I experienced [Insert Adverse Treatment/Impact] and I am [Insert Protected Ground].” A statement like this identifies the Adverse Treatment/Impact and the Protected Ground, but not how the Protected Ground was a factor. It is necessary to explain the how part as well. This is one of the areas where many human rights Complaint Forms fall short, and the assistance of an experienced human rights lawyer can be very helpful.
One last important thing to keep in mind is that the Protected Ground does not need to be the only factor, or even the most important factor, in the Adverse Treatment/Impact. It just has to be a factor. For example, there have been some cases in the past few years where an employer was thinking about firing a female employee for legitimate business reasons, like bad job performance, and then finding out she was pregnant was the “last straw”. In these cases, the pregnancies were not the main reasons the women were fired, but pregnancy was still “a factor” in the Adverse Treatment so the employers were found to have discriminated.
So there you go. If you are thinking about making a human rights complaint, ask yourself if you can name:
If you can name these four things, you may very well have a human rights complaint on your hands. The process for making a human rights complaint is different from province-to-province, but it usually starts with getting a Complaint Form from the local human rights commission (or Tribunal if you are in Ontario or British Columbia).
How you fill out the Complaint Form can be the most important step in your complaint, and can make or break your complaint in the end. If you’re considering taking that step, I encourage you to contact me to discuss your case. Or, if you are thinking about submitting a Complaint Form yourself, I strongly recommend you consult my other blog article How to Fill Out a Human Rights Complaint Form – 4 Key Things.