A Guide to the Investigation Process
When are complaints investigated?
Complaints that are not settled by mediation (or otherwise) are referred to investigation. A Commission investigator is assigned to investigate the complaint. The investigator is neutral and is not an advocate for either party. The investigation of a complaint does not mean the Commission has determined that the complaint has merit.
What kind of training does the investigator have?
The investigator assigned to the complaint will be a Commission staff member with specific expertise in investigation combined with knowledge of The Human Rights Code (“The Code”).
What about information that was previously shared with the mediator?
Where mediation has been attempted, the investigator does not have access to the mediation file, which is “without prejudice.” This means that anything a party said or provided to a mediator will not be shared with the investigator. This is to allow parties to speak freely in an attempt to resolve a complaint without worrying that their words will be used against them in an investigation. As a result the investigator must start fresh in terms of gathering information and evidence, which includes interviewing the parties and witnesses.
What information is considered in an investigation?
The investigator will determine what information is relevant to prove the allegations in the complaint and the defence to the complaint. The investigator is guided by the legal tests regarding discrimination or harassment when determining what evidence is relevant.
The investigator will consider the information that is in the registered complaint and in the respondent’s reply (if one was provided). The investigation is generally limited to the allegations in the complaint. Any new or different allegations will likely require a new complaint. The investigator is not necessarily seeking evidence to prove each and every allegation or incident referred to in the complaint.
The investigator will determine what documentary or other evidence they need to review and consider. This may include medical information, personnel and employee files, emails and letters, etc. Usually this evidence is provided by one or both of the parties but sometimes the investigator will obtain evidence on their own. The investigator will review documents and written materials provided to the Commission’s intake department. The complaint and reply are not evidence. Normally evidence provided by one party cannot be disclosed to another party during an investigation.
Although a complainant or respondent may suggest witnesses to the investigator, it is up to the investigator to determine who to contact for an interview. In most cases the investigator will interview both the complainant and the main person accused of the discriminatory or harassing action. This may be a respondent owner, manager or employee. The investigator may also interview other witnesses if the investigator believes that they may have relevant information. Witnesses cannot be forced to participate at the investigation stage. If someone declines to participate in the investigation, this will be noted in the investigator’s report.
Are all complaints investigated?
In most cases the investigator will examine whether the specific allegations set out in the complaint occurred and, if so, how The Code applies to those incidents. However, the investigator will investigate only to the extent necessary to determine whether or not it is likely that The Code was contravened. As such, in some cases the investigation will not examine whether or not a specific allegation occurred and instead may need to focus on a preliminary issue and/or conduct a very minimal investigation before, or instead of, investigating the matter fully. Examples of complaints that may only have a minimal investigation may include but are not limited to:
- Allegations appearing to be under federal instead of provincial jurisdiction;
- Allegations regarding legislation over which other administrative bodies have exclusive jurisdiction (e.g., WCB and MPI);
- Situations where another administrative body, such as an arbitrator, has already dealt with the issue;
- Complaints where even if the allegations in the complaint are true they would not be a contravention of The Code.
Even in situations where there is only a minimal investigation the parties to the complaint will be provided with a report containing a recommendation and will be allowed to provide a written response (submission) to the report for the Board of Commissioners’ consideration.
What happens when the investigation is concluded?
Once the investigator has gathered sufficient evidence and completed the interviews they will write a report of their findings. The report will summarize the interviews conducted as well as summarize, refer to, or quote from relevant documentary evidence.
The report will also set out the relevant issues considered and, while the rules of evidence are not the same as in a court proceeding, the investigator will give more weight (preference) to evidence that is considered more reliable, such as witnesses who saw or heard things first hand, witnesses who are independent (not related to or closely tied to a party), medical information from a treating doctor, and official documents and files. The investigator does not make determinations of credibility, however the investigator will consider what version of events is most plausible based on all of the available evidence and common sense. The investigator may also refer to relevant sections of The Code and relevant case law.
The investigator only makes a recommendation and does not decide whether the complaint will proceed; that is the decision of the Board of Commissioners. The parties are given an opportunity to provide a submission to the Board in response to the report. The Board does not see the actual evidence; only the complaint, reply, investigator’s report and written submissions (if any). The parties do not attend the Board meeting where the report is considered.
The Board does not have to follow the investigator’s recommendation. The Board will either decide to dismiss the matter (that is, end it) or to move the matter to the next stage of the process if it determines that there is sufficient evidence. The parties will be notified of the Board’s decision in writing. The Board is a gatekeeper – if the Board decides that the complaint should proceed, it will generally be referred to mediation and, if the matter does not resolve, it will be referred to an adjudicator. Alternatively, the Board may refer a matter directly to an adjudicator. When the complaint is referred to an adjudicator, unless the matter settles before a hearing takes place, the adjudicator makes the decision about whether there has been a contravention of The Code and determines the remedy. See Guide to Board Directed Mediation and Guide to a Human Rights Hearing for more information.
What is required in order to have a recommendation that my complaint proceed?
The evidence must show on a “balance of probabilities”, i.e. that it is more likely than not, that The Code has been contravened.
In some cases while an investigator may believe that something happened they must make their recommendation based on the evidence they have. In other words, just because an investigator recommends that a complaint be dismissed does not mean that the investigator thinks the complainant is not truthful; sometimes there is just not enough evidence to prove an allegation. Other times there may be sufficient evidence that the incident complained of did occur, but it may turn out that the situation does not amount to a contravention of The Code. The Commission’s role is limited to matters covered by The Code and does not have the ability to remedy other types of concerns that may also be unfair. In such cases, a party may have other legal options.
How long is the investigation process?
The Commission has a duty to ensure that the investigation is conducted in a sufficiently thorough manner, so the process can be lengthy. The average length of time of an investigation is 8-10 months from the time a file is assigned to an investigator. Complex and/or systemic complaints may take longer. In situations where there is a preliminary issue, the investigation of that issue will generally take 2-4 months from the date of assignment to an investigator.
Do I need a lawyer?
No. Parties always have the right to legal representation but it is not required at any stage in the Commission’s proceedings.