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Complainants have control over many aspects of the complaints process when they file a complaint with the New Brunswick Human Rights Commission (NBHRC). Applicants can represent themselves or hire legal counsel to represent them. They can also withdraw their complaint at any time and accept or refuse settlement offers made by the respondent*.
*Some limitations may apply, please see Step 1 for more details.
There is no cost to submit a complaint. The NBHRC offers its mediation services free of cost, and in cases where it conducts investigations, there is also no cost associated.
Complaints with the NBHRC vary in length depending on the circumstances and how parties engage in options like mediation. Some complaints may be resolved in a matter of weeks or months, and others may take years to reach a final resolution.
After a complaint is filed, the NBHRC will notify the person you made the complaint against – called the Respondent. They will investigate the issue by contacting all parties involved. Following an investigation, the NBHRC may propose mediation where the parties come together with the goal of reaching a settlement. If parties to the complaint are unable to reach a settlement, the NBHRC may refer the case to the Labor and Employment Board to make a ruling on it.
Please note: any settlement reached with the respondent through the NBHRC is meant help fix the situation, not penalize the respondent. If your complaint is later referred to the Labor and Employment Board, there may be a more formal penalty if the Tribunal orders General or Special damages. General damages are payments ordered by a legal decision-maker to compensate a complainant for loss of dignity and self respect. Special damages are payments covering specific monetary losses suffered by a complainant due to the discrimination, for example loss of pay and benefits. It is important to note that the option to go to a Tribunal is not in the control of the complainant, as the NBHRC determines based on legal considerations if a complaint is appropriate to be referred to the Labor and Employment Board, which has powers to award damages at its discretion.
if your employer disciplines you or treats you negatively after filing a complaint about sexual harassment at work, this is called retaliation. There are options to address it. See this handout for more information:
The person filing a human rights complaint to the New Brunswick Human Rights Commission.
The person(s) named in a human rights complaint to the New Brunswick Human Rights Commission. Respondents in a human rights complaint may include an employee or employer, a landlord, or a service provider. There is no limit to how many respondents a complainant can name in their complaint.
A meeting between the complainant and respondent with a neutral third party appointed by the New Brunswick Human Rights Commission. During this process, parties make a good faith attempt to reach an agreement and find solutions that work for both sides. Mediation is voluntary, meaning both the complainant and respondent can refuse to participate if they don’t feel comfortable.
Same as mediation, except that mediation is done face-to-face but conciliation happens remotely, via phone or email. A mediator conveys messages from each party via phone or email.
An independent Board of Inquiry (sometimes called a “Tribunal” or simply “Board”), which adjudicates human rights complaints. If the Human Rights Commission finds your complaint warrants an inquiry and you were unable to reach a settlement with the respondent, your case will be referred to the Labour and Employment Board for a hearing. A hearing before the Board is like a trial, but less formal.
An agreement reached between the complainant and respondent during mediation that resolves a human rights complaint, and may result in payments or other compensation for the complainant. All settlements reached through voluntary mediation are without prejudice, which means that neither party admits to a wrongdoing, even if an agreement is reached.
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:
Limitations of the New Brunswick Human Rights Act:
*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:
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:
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.
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.
What does Mediation Look Like?
How quickly can mediation happen after I file a complaint?
I have agreed to a mediation. Can I choose who will participate in the mediation?
I was offered a settlement and accepted. What happens next?
I was offered a settlement but rejected the offer. What happens next?
Are there any risks to rejecting a settlement offer?
What is a reasonable settlement offer?
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 NBHRC may also request other evidence for their report, such as:
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.
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If you require legal advice or are concerned about a workplace sexual harassment situation, please call a lawyer.
