The Complaint Process

The Manitoba Human Rights Commission is an independent agency of the Government of Manitoba that administers The Human Rights Code (“The Code”). The Code is the provincial law that addresses discrimination in the province. The Commission is a gate-keeper. It takes complaints of discrimination, investigates them and based on the evidence it gathers, decides whether the complaint should be decided at a public hearing before an independent adjudicator.

Our intake staff provides general information about The Code. Our mediators assist parties to reach a voluntary resolution of the complaint at various stages in the process. Our investigators interview people with information about the complaint and review any other documents or information that may be relevant. An investigator will make a recommendation about whether there is sufficient or insufficient evidence to prove the allegations in the complaint or dismiss it. If there is enough evidence and the complaint is referred to a hearing, the Commission represents the public’s interest in reducing discrimination and presents the complaint to the adjudicator.

This guide explains what to do if you have been discriminated against or if someone has filed a complaint of discrimination against you. Separate guides explain the specifics of our mediation, investigation and adjudication processes.

Our services and publications are available in French and English and accessible formats. We can also arrange for a translator if required.

What is The Human Rights Code?
MHRC - Employment Equity The Code is a provincial law that protects against unreasonable discrimination based on specific grounds or characteristics, by any individual, business, or organization that provides employment, services to the public, or is involved in renting premises. The Code also prohibits and retaliation or reprisal against someone that might file or has filed a complaint.

What is discrimination?
Discrimination is treating someone differently based on a characteristic listed in The Code, where that treatment has a negative effect on that person. Harassment, when based on those specific characteristics, is considered discrimination as is failing to reasonably accommodate the special needs of a person or group. Discrimination offends the dignity of a person. The characteristics protected by The Code are ancestry (including colour and perceived race); nationality or national origin; religion or creed; ethnic background or origin; age; sex (including sex-determined characteristics such as pregnancy); gender identity; sexual orientation; marital or family status; source of income; political belief; physical or mental disability; social disadvantage; and other characteristics subjected to prejudice or group stereotypes, such as criminal record.

Who can make a human rights complaint?
Any person who believes they have been unreasonably discriminated against may file a complaint. The complaint must be filed within one year of the alleged discrimination.

How do I make a complaint?
Speak with our intake staff who can provide you with information about the rights and responsibilities in The Code. They will help determine if the concern is covered by The Code. This information is not legal advice. If the concern is not covered by The Code, you may be referred to other agencies or services.

You will be asked to provide your information in a specific format. If a complaint is being submitted on behalf of another person, written consent of the other person is usually required. The more clear and concise the complaint is, the easier it is for the respondent or person or company against whom you are complaining, to respond to the allegations.

What is Pre-complaint Mediation?
The Commission may offer the parties the opportunity to resolve the concern before a formal complaint is registered. One of our mediators will attempt to resolve the concern quickly and informally. Pre-complaint mediation is voluntary and either party or the mediator may end the mediation at anytime. Mediation does not require the parties to meet in person. If the concern is not resolved, the complainant may pursue a formal complaint.

What happens after a formal complaint is registered?
The Executive Director of the Commission also acts as the Registrar of complaints. Once a complaint is registered, copies are sent to the complainant and respondent. The Commission will attach a letter indicating whether pre-investigation mediation will be offered or whether the complaint will go directly to an investigation. The investigation may include a preliminary assessment based on a legal issue. If mediation is not attempted or is unsuccessful, the respondent will be asked to provide a written response or reply to the complaint.

How do I respond to a complaint?
Although there is no legal requirement to do so, most respondents choose to respond to the allegations against them in writing. A reply can take any format you prefer but should respond to the points raised in the complaint. Information or documents believed to be important for the investigator to review may be attached to the reply. A copy of the reply, but not the attachments, will be shared with the complainant.

What is Pre-Investigation Mediation?
Once a formal complaint has been registered, the parties once again have the opportunity to resolve the complaint before an investigation. One of our mediators will facilitate a dialogue between the parties. Mediation is voluntary and either party or the mediator may end the mediation at anytime. Mediation does not require the parties to meet in person. If the complaint is not resolved, the complaint will be assigned to an investigator to make a recommendation about the merits of the complaint.

What is a Jurisdictional Assessment?
The issues raised in a complaint or the parties named in a complaint may not be covered by The Code. The Commission therefore may have to consider this before it can proceed to consider the merits of the complaint. A jurisdictional assessment report may be prepared and provided to the complainant and the respondent addressing the Commission’s ability to consider the complaint. Each party has the opportunity to respond to the report before the Board of Commissioners makes a final decision on the issue of jurisdiction. If the Board decides that the Commission does not have jurisdiction, the complaint is dismissed. If the Board decides the Commission does have jurisdiction, the complaint will be investigated and proceed through the complaint process.

What does an investigation involve?
An investigation is a systematic attempt to gather and assess information. The investigator is not an advocate for either party and is focused on gathering the facts relevant to the complaint. The investigator interviews people with information about the complaint and reviews any other documents or information that may be relevant. At the end of the investigation the investigator prepares a report summarizing the evidence (interviews as well as documents) that he/she believes is relevant and applies that evidence to the legal framework used to determine if discrimination under The Code has occurred.

The investigator makes a recommendation to the Board of Commissioners about whether or not there is sufficient evidence to support the contravention of The Code alleged in the complaint. The complainant and respondent have the opportunity to respond to the report by making a submission to the Board that contains new or other evidence or clarifies the evidence summarized in the report.

Once the report and any responses to the report are reviewed, the Board will decide if the complaint should be referred to a public adjudication hearing.

What is the role of the Board of Commissioners?
The Board of Commissioners is made up of ten individuals appointed by the Government. Members of the Board are not employees of the Commission. The Board has a screening role and is responsible for making the final decision about whether a complaint should be dismissed or sent to a public adjudication hearing.

The Board may decide there is not sufficient evidence to support the alleged discrimination. The Board may also decide that the actions complained of are not within the jurisdiction of the Commission to consider; or that the actions complained of do not contravene The Code; or that the complaint is frivolous or vexatious which often means there is no reasonable basis for the complaint. In each of these cases, the Board will dismiss the complaint and it does not go any further.

The Board may also decide that there is sufficient evidence to support a contravention of The Code and if it is in the public’s interest, will request an adjudicator to be appointed to hear all of the evidence and decide if the complainant was discriminated against. The Board will usually offer the parties another opportunity to resolve the complaint through mediation, before it requests that the adjudicator be appointed.

Board meetings are not open to the public. The Board reviews the complaint, the reply, the investigation report and any submissions received in response to the report. The Board does not have to accept the investigator’s recommendation. All parties are notified, in writing, of the Board’s decision.

Any party who disagrees with the Board’s decision may go to court to seek a judicial review of the Board’s decision. A party may also ask the Board to reconsider their decision but only if they have new information that was not available when the original decision was made. A party who wishes to complain about the Commission’s processes may contact the Manitoba Ombudsman.

What is Board Directed Mediation?
If the complaint is not dismissed and is referred to a public adjudication hearing, the Commission will usually offer the parties another opportunity to try and resolve the complaint before it requests that the adjudicator be appointed. One of our mediators will attempt to resolve the complaint by facilitating a dialogue between the parties about how the issues can be resolved. Mediation is voluntary and either party or the mediator may end the mediation at any time. Mediation does not require the parties to meet in person.

The mediator will identify issues based on the investigation and will discuss potential remedies that an adjudicator might award. These remedies normally include financial compensation for lost wages and injury to the complainant’s dignity or self respect due to the discrimination, as well as education for the respondent. The mediator may refer to previous adjudication decisions and settlements to set the expectations of the parties. If the complaint is not resolved, the complaint will be referred to an independent adjudicator who will conduct a public hearing to decide the complaint.

If the parties are not able to voluntarily resolve the complaint, and the respondent has made a settlement offer that it believes to be reasonable but the complainant has rejected it, the respondent can ask the Board of Commissioners to decide if its offer is reasonable. If the Board decides the offer approximates what an adjudicator would award if the complaint went to a hearing and was proven to be true, the offer is reasonable. The Board will then terminate the complaint proceedings and there will be no public hearing. Before terminating the proceedings, the complainant will be given the option to accept the settlement offer.

What happens if a complaint is referred to a public hearing?
If the complaint has been referred to a public adjudication hearing, the Commission works closely with the complainant to prepare its case to prove the allegations of discrimination. The Commission’s lawyer does not represent the complainant but represents the public’s interest in ensuring that the public understands the rights and obligations in The Code. The complainant or respondent may hire a lawyer to represent their own interests or may choose to represent themselves at the hearing.

The names of the parties are published when the date of the adjudication is set. Anyone can attend a public hearing.

The Commission does not control or govern the adjudication process. The adjudicators are appointed by the Government and do not work for the Commission. The adjudicator receives a copy of the complaint and reply but does not receive a copy of the investigator’s report so all relevant evidence must be presented to the adjudicator at the hearing. Even though the Board of Commissioners found there was sufficient evidence to support the alleged contravention of The Code, the adjudicator may decide the discrimination has not been proven.

At the end of the hearing, the adjudicator will decide if the respondent has contravened The Code by unreasonably discriminating against the complainant. If the respondent has, the adjudicator will order the respondent to remedy the situation. If the respondent has not contravened The Code, the adjudicator will dismiss the complaint. That decision must be in writing and should be issued within 60 days of the conclusion of the hearing.

Any party who disagrees with the adjudicator`s decision, may go to court to seek a judicial review of the adjudicator’s decision. The court has limited authority to review the adjudicator’s decision and looks only for an error in law or an unreasonable finding of fact.