New Brunswick Human Rights Commission Complaint

The New Brunswick Human Rights Act protects individuals who have experienced discrimination or harassment in their workplace. The New Brunswick Human Rights Act also applies to many different services throughout the province and aims to ensure that employees and service users are safe and treated fairly.

Areas covered under the New Brunswick Human Rights Act:

• Employment*
• Housing
• Public services, for example schools, stores, motels, hospitals, police and most government services
• Publicity, and
• Certain associations

Limitations of the New Brunswick Human Rights Act:

• Complaint must be filed either
  • within one year of the alleged violation of the Human Rights Act, or
  • if a continuing violation of the Human Rights Act is alleged (an ongoing pattern of harassment, for example), within one year of the last alleged instance of the violation.
• Under Section 19.2 of the New Brunswick Human Rights Act, the NBHRC may dismiss a complaint at any stage of the proceedings, in whole or in part, if the NBHRC determines that the complaint
  • Is without merit,
  • Is frivolous, vexatious, or made in bad faith,
  • Is beyond the jurisdiction of the NBHRC
  • Has already been dealt with in another proceeding, or
  • Has been abandoned by the complainant.
• The NBHRC may also dismiss a claim if the complainant has declined a fair and reasonable settlement offer.
  • If the respondent makes an offer during mediation and the complainant rejects this offer, the respondent may apply to the NBHRC to have the complaint dismissed. If the Commission decides the offer was a reasonable one, a respondent must keep the offer open for a period of time after the Commission has made their decision. If the offer is not accepted during that period of time, the complaint may be dismissed.

*The Act does not apply to employees of federally regulated areas such as the federal government, banks, insurance, airports, etc. If you work in one of those areas, the Canadian Human Rights Act may apply to your situation.

Section 10(1) of the New Brunswick Human Rights Act defines sexual harassment as a “vexatious comment or conduct of a sexual nature that is known or ought reasonably to be known to be unwelcome”. In this definition, vexatious means “annoying, distressing or agitating” to the person.

While repeated offensive conduct or comments of a sexual nature are categorized as sexual harassment, even a single unwelcome sexual comment or action can be deemed sexual harassment under human rights law.

To establish a valid case of sexual harassment, a complainant must show that:

1. The alleged comments or conduct were sexual in nature.
2. The actions were unwelcome. This can be proved in two ways.
   1. Subjectively: the person committing the harassment knows that their conduct is wrong.
   2. Objectively: conduct “that ought reasonably to be known to be unwelcome”, i.e. a reasonable third-person would see the conduct as wrong.
3. The alleged actions or comments caused harm to the complainant, e.g. loss of dignity and self-respect, some form or loss in the terms or conditions of employment, etc.

To file a human rights complaint about sexual harassment in the workplace, you must fill out the forms on the NBHRC’s Filing a Complaint Page. You can also access these forms by contacting the NBHRC. If you need assistance filling out the form, you can contact the NBHRC by phone 1-888-471-2233 (toll-free) or by E-mail: hrc.cdp@gnb.ca.

Please Note: The NBHRC is a neutral party throughout the complaint process. They can help you fill a complaint form, but they cannot represent you in the process.

When filling the complaint form you must provide information such as:

• Your name as it appears on your birth certificate
• Information of the person(s) you are complaining about, including:
  • Full name, position, contact information
• Place of Employment – as it appears on a pay stub or Record of Employment
• When the harassment began and when it stopped (if it isn’t ongoing)
• A description of the harassment

It may be challenging, but it is best to put as much detail about the harassment as possible in your complaint form. This will help NBHRC’s intake officer process your complaint faster and will assist the legal team assess the merits of your complaint.

For more information on filing a complaint, please see NBHRC’s publication on the Complaint Process.

FAQs

Can I file an application anonymously?

No. Shortly after you file a human rights complaint, the respondent(s) are notified and will have a chance to respond. This cannot be done without revealing the identity of the complainant.

Can I be punished or fired for filing a human rights complaint?

It is illegal for your employer or the respondent in your complaint to retaliate against you for filing a human rights complaint, but the NBHRC cannot proactively stop an employer or respondent from acting in that way. If your employer dismisses or otherwise penalizes you because you filed a human rights complaint against them, you can file a separate complaint with the NBHRC against the employer’s reprisal.

I forgot to add something to my complaint form. Can I make changes to my form?

Yes, throughout the complaint process, there will be several chances to amend or make changes to your complaint, up to the point when your case goes to the Labor and Employment Board. For more info on this, see the After Your Complaint is Filed Section.

Do I have a right to be updated on my complaint?

Yes, you will be given contact information of the NBHRC officer handling your file. You can contact them for any updates on your file.

Shortly after your complaint is filed, a NBHRC officer will be assigned to your case. The officer is responsible for responding to inquiries about the complaint and deciding whether the complaint should be dismissed, or if it is suitable for pre-complaint intervention, mediation, or investigation.

The officer will contact you by phone or email to review your complaint with you. The officer may ask you to provide more details of the alleged harassment. They will amend your complaint with the new information you have provided. It is important to provide as much information and detail as possible to the officer.

Following the initial intake, the complaint will be shared with the respondent(s) named in the complaint. They will be given a chance to give their side of the events by filing a response.

You will be notified if the respondent files a response, and you will have a chance to file a rebuttal against their response.

Mediation is where both parties make a good faith attempt to reach an agreement and settle the complaint. Mediation is voluntary and both the complainant or the respondent can refuse to participate in it. During the mediation process, an NBHRC employee or mediator will act as a neutral third party to help both parties reach a mutually agreed settlement.

Mediation services are offered free of charge by the NBHRC. You have the right to hire a lawyer to help you throughout the NBHRC complaint process, including for mediation, but legal representation is not necessary or required for the NBHRC complaint process. Any legal fees associated with hiring a lawyer will be your responsibility.

Mediation is confidential and done without prejudice to either party. Without prejudice means that neither party admits to any wrongdoing, even if they reach an agreement.

Mediation agreements (usually called settlements) can include monetary compensation, such as general damages (compensation for injury to dignity, feelings, or self-respect) and/or special damages (compensation for expenditures, financial losses, or deprivation of benefits).

Settlements can also include other kinds of compensation that are non-monetary, for example, a letter of apology to the complainant, human rights training for the organization/individuals involved, and/or a change in the organization’s policies and procedures.

Please Note: neither side is obligated to reach a settlement during the meditation process.

The NBHRC officer assigned to your case will assess whether mediation is appropriate. Sometimes, sexual harassment claims are not appropriate for mediation due to the sensitive nature of the complaint. If you wish to participate in the voluntary mediation process, you may contact the officer for more details.

FAQs:

What does Mediation Look Like?

• Parties to a Human Rights Complaint have two options: mediation or conciliation. The mediation process involves the complainant, the respondent, and a mediator meeting face-to-face to discuss the complaint and work towards a settlement. Conciliation is mediation that is done through a virtual format, i.e. via email or text. During conciliation, each party can discuss the complaint and potential settlements by contacting their NBHRC representative who will relay messages to the other party.

How quickly can mediation happen after I file a complaint?

• As soon as the Commission notifies the respondent that a complaint has been filed, they will have the option to respond to or request a mediation. If both parties agree to mediation, it can begin immediately.

I have agreed to a mediation. Can I choose who will participate in the mediation?

• Mediation is voluntary, so you can make a request if you do not want to meet or face a specific individual during mediation. You may also ask that mediation be done by conciliation, which means all communication will be done by phone or email messages sent to the mediator who will then relay the messages to both parties.

I was offered a settlement and accepted. What happens next?

• Once you have accepted a settlement, the NBHRC will close your file. Settlement agreements vary, but you can expect the respondent to include the following conditions:
  • No Further Action: You may not make a civil claim (a lawsuit) or file a complaint with Worksafe for the same incident, but if the harassment was criminal in nature, you can still file a criminal report against the respondent. You can also make a complaint against the respondent if the discrimination or harassment happens again.
  • Independent Legal Advice: The respondents will often hire a lawyer to meet with the complainant to review the settlement and answer any questions you may have about the agreement.
  • Confidentiality: A condition that you may not publicize your complaint or the details of the settlement.

I was offered a settlement but rejected the offer. What happens next?

• If you refuse a settlement offer, the NBHRC will end the mediation process and proceed with the next steps of the complaint process. This may involve the NBHRC starting an investigation or referring the case to the Labor and Employment Board. If either party wishes to attempt mediation again, they can advise the NBHRC officer assigned to their case who will try to arrange mediation or conciliation with the other party.

Are there any risks to rejecting a settlement offer?

• Yes,If the Commission or the Labor and Employment Board determine that the settlement offer was reasonable, the potential risks of refusing a settlement include:
  • The Labor and Employment Board may order a lower payment than what was reached in the settlement or may order no payment at all
  • The NBHRC may dismiss your claim
  • The Respondent may request the Commission to dismiss the complaint because the complainant refused a reasonable settlement offer.

What is a reasonable settlement offer?

• NBHRC assesses each offer individually based on the merits of the claim to decide if the offer was reasonable. The NBHRC must be satisfied that the settlement is above or near what the Labor and Employment Board may award. The complaint will not be dismissed if the settlement offer does not meet that criterion.

If the NBHRC decides that the settlement offer was reasonable – that is, above or near what the Labour and Employment board may award you – then you will have a period of time to consider accepting the offer. After this period of time, your complaint may be dismissed.

If early mediation is not appropriate given the circumstances, was refused by one of the parties, or does not result in a settlement, the NBHRC may initiate an investigation into the complaint. The NBHRC will interview all parties to the complaints and any witnesses, if applicable. The investigation process is thorough, and a single interview can last 4-8 hours. The interviewer will ask detailed questions about the harassment such as:

• The specific circumstances, actions, comments, or conduct involving the harassment
• Whether the harassment was unwelcome or was there was an element of consent
• How was the victim impacted by the harassment

The NBHRC may also request other evidence for their report, such as:

• Human resources files of all parties involved in the complaint
• Any text or email messages that may be relevant to the complaint.
• Any visual or audio recordings relevant to the complaint

After the Investigation

Once the investigation is complete, the NBHRC officer will prepare a detailed report. In this report, they may decide that the complaint is without merit. In this case the parties will receive a letter and a dismissal report indicating why the file was closed. The complainant will have 30 days to ask the NBHRC to review their recommendation to dismiss the complaint.

If the NBHRC Officer’s report does not recommend dismissing the complaint, the report will summarize their findings. The report will contain an analysis of the information gathered through the investigation and a recommendation from the staff to NBHRC members. All parties will receive a copy of this report and will have a chance to respond to it in writing.

Parties will have another opportunity to participate in mediation. If no settlement is reached and The NBHRC is satisfied that discrimination is has taken place, they will refer the complaint to the Labour and Employment Board, a tribunal which deals with human rights disputes.

The Labour and Employment Board (the Tribunal) will begin proceedings by holding a pre-hearing conference to deal with preliminary issues and to make a last effort at mediation. If the complainant and respondent do not reach a settlement, the court will set a date for a public hearing to hear arguments and consider evidence relating to the harassment.

In proceedings before the Board, NBHRC has carriage of justice, meaning it ensures that the Human Rights Act is upheld, but it does not represent the complainant or the respondent.

The complaint will be dismissed if the Tribunal finds that the respondent did not violate the New Brunswick Human Rights Act. If the Tribunal decides that there was a violation, it may order: that the discrimination stop, that a dismissed employee be reinstated with back pay, or that the victim of harassment be compensated with damages for emotional suffering or monetary loss. The decisions of the Labour and Employment Board are published unless the Tribunal orders otherwise.

Remember that the Labour and Employment Board is separate and independent from the NBHRC. It is the Board,  not the NBHRC, that holds a hearing and issues an order.

While a hearing is similar to a trial process, it is not a criminal proceeding, and the Tribunal is not a Court.