Guide to the Reasonable Offer Process
What is the Reasonable offer Process?
If Board Directed Mediation has not resulted in a voluntary settlement the respondent may provide their offer to the Board for its consideration as to whether or not their offer is reasonable.
Also, in some cases a respondent may choose to request either during pre-investigation mediation or during the investigation (but only once) that the Board consider the reasonableness of their offer.
How does the Respondent request the Board to consider their offer?
The respondent should put their offer in writing, provide it to the mediator and advise the offer is to be shared with the Board for their consideration if the complainant rejects it. At this point back and forth negotiations are concluded. The mediator can draft settlement documentation such as a Memorandum of Agreement (MOA) and Release based on the offer, and provide it to the respondent to ensure that it clearly captures all aspects of the respondent’s settlement offer.
How detailed does the offer have to be?
The offer shall be a maximum of 5 single sided pages on standard paper (8.5” x 11”) up to a maximum of 500 words per page and (typed or legibly written) and details how the respondent offers to remedy the discrimination alleged in the complaint. The offer may include detailed reasoning or calculations in support of those remedies, and other information or evidence to support the reasonableness of their offer. This five page limit includes “evidence” to support their position such as receipts or paystubs. In some cases, the offer may include a provision to provide a letter of apology or reference, or to change or develop policy that would prevent discrimination from occurring again; such documents will not be subject to the five page maximum requirement. Electronic submissions in Word for accessibility reasons are encouraged.
Does the Complainant have a role in the Reasonable Offer process?
The mediator will provide the complainant with a copy of the respondent’s offer and the draft settlement documentation before it goes to the Board, and if the complainant chooses not to accept the offer they will have an opportunity to submit a response to the Board explaining why they feel the offer is not reasonable. The response shall be a maximum of 5 single sided pages on standard paper (8.5” x 11”) up to a maximum of 500 words per page and (typed or legibly written) and may include evidence or other information to support their position. Electronic submissions in word for accessibility reasons are encouraged. If the respondent requests to see the complainant’s submission it will be provided to them after the matter has gone before the Board.
Will the Board consider other information in assessing the offer?
In assessing the respondent’s settlement offer, the Board will ordinarily have before it the following:
- The Complaint
- The Reply to the complaint (only in Board Directed Mediation)
- The Investigation Assessment Report and submissions received in response to it (only in Board Directed Mediation)
- The Respondent’s offer
- The draft MOA and Release (if applicable)
- The Complainant’s submission in response to the offer
What makes an offer Reasonable?
A respondent’s offer can only be found to be reasonable if the Board finds it approximates what an adjudicator would likely award the complainant if the complaint were to proceed to an adjudication hearing and the allegations in the complaint were proven to be true.
The Board will consider the orders of remedy that an adjudicator can make where a complaint is successful at a hearing as per section 43(2) of The Code. This may include financial compensation for financial losses, money for injury to dignity, feelings or self-respect, or changes to the respondent’s behaviour, policy or practices. An adjudicator will also consider a complainant’s efforts to limit losses and harm.
See Guide to Remedies or the Board’s policy on Reasonable Offers for more information.
How does the Board communicate its decision?
The Board will advise the parties in writing as to whether or not it determined the respondent’s offer to be reasonable.
What happens next will depend on whether or not the offer was made during Board Directed Mediation or otherwise in the complaint process. See the Guide to Board-directed Mediation or the Guide to Pre-Investigation Mediation for further information about the next steps in the process.