The Complaint Form is the most important document in any human rights complaint.
The Complaint Form describes what the human rights complaint is about, and has a huge influence on what the human rights commission does with the complaint. Many complaints that could have been successful have gotten nowhere because of a poorly-written Complaint Form.
I strongly recommended you retain an experienced human rights lawyer to write your complaint about you. Lawyers are trained to know how to present the facts and arguments in the correct format, make sure nothing important is missing, and present everything in a way that will give your complaint the best chance of success.
If you decide to fill out your Complaint Form yourself, I suggest first reviewing my blog article How to Make a Human Rights Complaint to make sure you understand the four essential requirements of a human rights complaint. These are:
- A Protected Area
- Adverse Treatment or Impact in the Protected Area
- A Protected Ground, and
- The Protected Ground was a Factor in the Adverse Treatment or Impact
All four of these criteria are described in more detail in the article: How to Make a Human Rights Complaint.
If you’ve identified all four of these criteria in your case, and if you’ve decided to try to fill out the Complaint Form yourself, then the main thing you need to do with your Complaint Form makes it crystal clear to the human rights commission exactly why and how your case satisfies these four criteria. There is literally a government employee, probably fairly junior, who is going to sit down to read your Complaint Form. Imagine you are that person sitting down to read your form with these four criteria on a checklist. Then imagine that they are looking for a reason to reject your Complaint Form because your complaint does not check one of these four boxes. You want to make your Complaint Form impossible for them to reject because all four criteria are clearly met.
Complaint Forms differ from province to province but most generally have a section for filling in contact information, a section with checkboxes, and a part to describe the complaint that I call “the essay section”.
1. Clearly Identify the Protected Area: Let’s start with the easiest one. Most human rights commission Complaint Forms have a check box section for you to check off the Protected Area, so all you need to do is check the box and give a little bit of a description in the essay section. It is usually enough to give the detail needed at the start of the essay section with a plain statement like “I work for [Employer X]” (which shows that the Protected Area in this example would be employment.)
2. Clearly Identify the Adverse Treatment or Impact: The next checkbox the person reviewing your Complaint Form needs to be able to check off is the Adverse Treatment or Impact. As I described in How to Make a Human Rights Complaint, this can be words, action or inaction.
The Adverse Treatment or Impact needs to be covered in the essay part of your Complaint Form. First, simply state the words, action, or inaction you are complaining about. Don’t be shy about being extremely blunt and direct here, since it is important to be very clear. A statement like “The Adverse Treatment I am complaining about is [fill in the blank]” is great because the person reviewing your Complaint Form can’t mistake it.
Second, think about what sort of context a person who doesn’t know you or your situation would need to understand the Adverse Treatment/Impact and provide this context as briefly and concisely as you can. The sort of context needed here varies from complaint-to-complaint but could involve approximate times and dates of incidents (or the order in which they happened if the complaint involves multiple incidents), names or descriptions of persons involved, and your relationship to those people (e.g. were they your boss, an HR person, another co-worker, or a person you were trying to rent an apartment or get another service from?)
Sometimes complaints involve too many incidents to describe them all in the Complaint Form. If this is the case, you need to be clear about that. For example, in a sexual harassment case, you could say: “Almost every day, my boss John Doe makes sexual comments to me or around me at work. This has been happening since I started this job six months ago. Here are a few examples…” A statement like this is good because it identifies an adverse act (unwelcome sexual comments), establishes the relationship between you and the other person involved (boss and subordinate), and identifies frequency (almost every day), location (at work), and the time frame of the comments (six months ago to present day).
Examples should be specific and factual (not exaggerated). Not exaggerating is important because, if your complaint someday goes to a human rights Tribunal hearing, you could be cross-examined on the statements in your Complaint Form and, if it is shown the Complaint Form was exaggerated, this could hurt your credibility with the Tribunal decision-maker.
Another way a lot of Complaint Forms fall short is by failing to make it obvious to someone who was not there (like the government employee reviewing your Complaint Form) why something was “adverse”. Sometimes it is obvious that something was adverse (e.g. you were fired or demoted, denied a service you asked for, or were called a discriminatory name), but in a lot of other cases it is not obvious and needs are explained. For example, if the adverse treatment was a transfer to different job duties, it might not be obvious to someone unfamiliar with your company why the transfer was adverse, since employers transfer people all the time for all kinds of legitimate reasons. Make sure to explain things like this to make it crystal clear why, in your case, it was adverse.
Extra explanation of why something is “adverse” can also be necessary when the case involves a pattern of things that are each relatively minor on their own, but which add up to a pattern that is passive-aggressive or exclusionary (example, a visible minority co-worker is repeatedly excluded from things by white co-workers). In these cases, it can be important to give many examples to show that there is a pattern. For example, in a case where the Adverse Treatment is a pattern of exclusion, one or two incidents of not being given a chance to sign a get well card being passed around the workplace, or not being told about a potluck, could be explained away as innocent oversights. In cases like this, many examples and a lot of other contexts may be needed to show that there is a pattern of Adverse Treatment. You don’t necessarily have to give every example in your Complaint Form, but you should at least give a few and say that you can provide more examples later.
3. Clearly Identify the Protected Ground: This can be a tricky part of the complaint form with some protected grounds, especially disability and family status.
Let’s start with the simple ones. For Protected Grounds like race and gender, things that are obvious to others, it is generally enough to cover this off in the essay section of your Complaint Form with a simple statement like “I am Aboriginal”, “I am female” or “I am black.” Religion may or not be obvious as well, depending on whether or not you wear distinctive religious clothing or identifiers.
It is more complicated with Protected Grounds that might not be obvious to the naked eye, like disability or family status. A disability could be obvious (like if you are in a wheelchair), but most disabilities are not visible especially mental illnesses. In these cases, it is important to identify how the Respondent (the company/person you are complaining against) knew or ought to have known about the Protected Ground. The reason this is important is that, if the Protected Ground was not obvious and you cannot show that they knew or ought to have known about it, you may not be able to establish that they discriminated, so human rights commissions often look for this Complaint Forms.
For example, if the Protected Ground is family status, you might establish the Respondent’s knowledge in the essay section with a statement like: “I spoke with my boss on several occasions about the fact that I am the caregiver for my mother/father, and that they have dementia”.
In terms of identifying a disability, you do not necessarily have to give extremely personal details like a diagnosis to show that the Respondent had knowledge of the disability. For example, it can be enough for the Complaint Form to say “I informed my boss that I was being treated by a doctor for a medical condition and needed time off work to attend several appointments.”
Although you do not necessarily have to give all the details of a disability in your Complaint Form, be aware that, if your complaint is accepted, you will almost certainly have to provide medical proof and details of your disability later in the complaint process. It is good to have any documents you need for this, like doctor’s notes, filed away in a safe place so you don’t have to scramble to find them later. Not having medical records to prove a medical diagnosis may be fatal to your complaint later, even though your Complaint Form can make it in the door without them. (In rare cases, it may be possible to prove a disability without medical records, but these are exceptional cases and I do not recommend trying this without the assistance of an experienced human rights lawyer.)
Getting back to the Complaint Form, it is usually enough at the Complaint Form stage to give general information in the essay section like “I have a mental illness that I have been receiving treatment for from my doctor, and I informed my employer that I have been receiving treatment for a medical condition”. Mentioning that you have been treated by a doctor tells the person reviewing your Complaint Form that the condition is serious enough to need medical attention without having to give the exact illness if you do not feel comfortable doing so at this point.
One last way to establish the Protected Ground is called the Duty to Inquire. This applies to situations where you did not actually tell the Respondent about your non-obvious protected ground, but a reasonable person in the Respondent’s shoes would have made further inquiries about it. A classic example of the Duty to Inquire example is an employee having performance issues at work and their co-workers notice that they have alcohol on their breath. Human rights law generally requires an employer in this situation to inquire if the employee needs assistance with a possible alcohol problem as part of dealing with the performance issues.
Doing a deep dive into the Duty to Inquire is beyond the scope of this article, but if you think this might apply in your situation then I strongly recommend getting the assistance of an experienced human rights lawyer rather than try to handle your complaint yourself.
4. Explain how the Protected Ground was a factor in the Adverse Treatment or Impact: As I explained in the article How to Make a Human Rights Complaint, sometimes the connection between the Adverse Treatment/Impact is obvious (e.g. discriminatory words/statements), but more often than not the connection needs to be inferred from the surrounding circumstances. In these cases, explaining how the Protected Ground was a factor in the Adverse Treatment or Impact is the most important part of the essay section of the complaint form.
In a minority of cases, the connection between the Adverse Treatment/Impact and the Protected Ground is obvious. Think racist name-calling, or cases, where there is a denial of service or job loss and the explanation given, makes the connection to the Protected Ground clear for you (e.g. “you can’t bring your guide dog in here” or “you can’t live as much as you used to with that back injury, so we’re going to have to lay you off.”) But in most cases, this needs to be explained in the Complaint Form.
A lot of decisions by human rights Tribunals make the point that “discrimination is rarely practiced in the open”, which means that to show there was discrimination you have to explain the context. This is where a lot of Complaint Forms fall short. If you are writing your complaint yourself, I suggest this: sit down with a pen and paper, think about why the Protected Ground in your case was a factor in the Adverse Treatment/Impact, and write down all the reasons and examples you can think of (brainstorming). These examples can be almost anything: comments, subtle negative ways you’ve noticed someone treats certain types of people differently, or odd timing of certain events (e.g. “everything seemed fine until he found out they found out my sexual orientation, then he started treating me differently” or “a few days after my manager found out I was pregnant, my hours were cut.”)
Often, one or two examples may not be enough, so more examples like this make for a stronger case. At the same time, many human rights commissions have a page or word limits on Complaint Forms, and they don’t expect you to give every single example you have. It is generally good enough to give three or four examples on a Complaint Form and, if you thought of others in your brainstorming, you can save them to provide later in the complaint process (but, if you don’t use all your examples in the Complaint Form, make sure to at least mention in the form that you can provide more examples upon request).
In harassment cases, it can also be important to mention in your Complaint Form that the comments or actions were unwelcome, and why. When the human rights Tribunals discuss harassment, they often talk about a “spectrum” with less severe forms of harassment like jokes at the less serious end of the spectrum, and physical assault at the most serious end of the spectrum. For harassment cases at the less serious end of the spectrum, it can be important to explain in the Complaint Form exactly why the comments were unwelcome and not innocent or harmless.
So now you have the basic information that needs to be provided in a human rights Complaint Form:
- Clearly Identify the Protected Area,
- Clearly Identify the Adverse Treatment or Impact,
- Clearly Identify the Protected Ground, and
- Explain how the Protected Ground was a factor in the Adverse Treatment or Impact.
These are the four elements that every human rights Complaint Form requires. That being said, even if you cover these off perfectly, sometimes other more technical legal issues come up. Some examples are:
- Is the complaint being made in time? (Human rights legislation has time limits on when you can make complaints, called “limitation periods”, and these can be quite technical.)
- Has the complaint been made against the correct Respondent? (This can get complicated when the Respondent is a company with a complex corporate structure, or when a workplace involves many interrelated companies, like a construction site with a general contractor and many subcontractors working together.)
- Should the complaint be made to the Canadian Human Rights Commission or the local provincial/territorial equivalent? (Most of the time it is the local one, but human rights complaints sometimes do fail because they should have been made to the Canadian commission and were made to the provincial one, and vice-versa).
A major benefit of consulting an experienced human rights lawyer is that the lawyer can spot these sorts of pitfalls before you fall into them. I welcome you to get in touch with me for a consultation if you are considering making a complaint. I am also planning more blog articles that go into the pitfalls listed above and more, so be sure to subscribe.