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Reasonable Offer Process
What is a reasonable offer?
A “reasonable” settlement offer is one that approximates the remedies an adjudicator would award if the complaint was proven to be true at a hearing. The Human Rights Code permits a Respondent to ask the Board of Commissioners to review a settlement offer that the Complainant has rejected, to assess if it reasonably remedies the complaint. If it is reasonable, the Commission will give the Complainant a final opportunity to accept the offer, but must terminate the complaint process.
When can the Respondent ask the Board to review its offer?
The Respondent can request the Board to review its settlement offer only after the offer has been rejected by the Complainant. This means that there are no further negotiations between the parties and the mediator has closed the mediation. The Respondent will usually ask the Board to do this at a later stage in the complaint process; after the Commission has decided that there is enough evidence of discrimination and before an adjudicator is requested to make a final decision about the complaint.
What information does the Board review?
The Board of Commissioners will review:
- the Respondent’s settlement offer;
- the Complainant’s submission as to why the offer is not reasonable;
- the complaint;
- the reply to the complaint, if one has been provided;
- the investigation assessment report, if one has been completed; and
- any submissions in response to the investigation report.
Does the Board advise what would make the offer reasonable?
Generally, the Board will only make a decision about whether the settlement offer is reasonable or not. The Board will provide some reasons for doing so, such as noting that the amount of compensation for injury to dignity is too low given the evidence of discrimination in the investigation assessment report.
If the Board thinks the offer is reasonable, can the Complainant still accept it?
It is understood by the parties that if the Board decides that the offer is reasonable, the Complainant will have one more reasonable opportunity to accept that offer before the Commission closes its file.
Does the Commission assist the parties in this process?
The mediator will ensure that the Respondent’s offer is clearly set out and will encourage the Respondent to ensure it covers all of the remedial options available in The Human Rights Code. The mediator will confirm that the Complainant has rejected that offer and will offer the Complainant the opportunity to explain in writing why the offer is not reasonable.
Is the reasonable offer process optional?
After the mediation process closes, the Respondent may decide not to use this process and instead let the complaint move to the next stage in the complaint process.