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How do you file a Complaint under section 13 of the CHRA?
Any person having reasonable grounds for believing that there has been a violation of section 13 related to one or more of the eleven grounds of the Act, may file a complaint with the CHRC alleging a violation of section 13 of the CHRA. For information on filing a complaint see the Dispute Resolution Section of the Commission’s website.
What is the statutory basis for filing a complaint?
Section 40.(1) states:
... any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
What happens when a complaint is filed?
For a full explanation of the complaints process see Dispute Resolution Process.
The CHRC has a an obligation to consider every complaint that is filed. However, the filing of a complaint does not indicate that a complaint is founded.
The CHRC is a screening body whose role is to process complaints that are filed, analyze them and determine if they should be dismissed or sent to the Canadian Human Rights Tribunal which is a completely separate body. It is the CHRT, not the CHRC, that determines the merits of a case after considering the relevant evidence at a hearing.
There are three main steps in the process although, depending on the circumstances, not all complaints will go through all the steps.
Step 1: Should the Commission deal with the complaint?
The first step is to determine whether the Commission should 'deal with' the complaint or not.
A decision "not to deal with a case" means that the Commission may decide "not to deal with a case". This means that the Commission has determined that an investigation is not needed because the alleged complaint falls under one of the categories enumerated in the CHRA:
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
c) the complaint is beyond the jurisdiction of the Commission;
d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
If the Commission decides that s. 41(1) does apply, the complaint is closed at that point and the Commission takes no further action except to advise the parties.
Step 2: Investigation
Once a complaint under section 13 has been accepted, an investigator is assigned to look into the complaint. The investigator carries out a thorough and objective investigation of the complaint. This includes inviting submissions from the respondent and complainant. The investigator can also conduct any research that may be necessary and seek out relevant information from appropriate sources.
Finally, the investigator drafts an investigation report outlining the particulars of the complaint and investigative conclusions. This report is reviewed and approved by a Team.
A copy of the investigation report is sent to the complainant and respondent and they are invited to make written submissions. Either party may contest or support the findings. The Commission normally shares these submissions between the parties. Both parties are then asked to comment on the submissions made by the other party.
Step 3: Consideration by the CommissionDecisions on whether to refer a complaint to the Tribunal are made by the Commission. For information on the makeup of the Commission see Who is the Commission?
Prior to the Commission meeting at which a decision will be made, the Commissioners making the decision are provided with a copy of the complaint, the investigation report, and any submission made by the parties.
Based on the information before it, the law and the jurisprudence, the Commission then decides whether to refer the complaint to conciliation, dismiss it, or to refer the complaint to the Canadian Human Rights Tribunal. The Act provides that the Commission will refer a case to the CHRT when in its opinion "...having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, ..." [Section 44(3)(I)].
What constitutes "hatred or contempt"
In the Taylor decision, the Supreme Court set out guidelines for determining whether a message was likely to expose a person or persons to hatred or contempt. It adopted the reasoning of the Canadian Human Rights Tribunal in Nealy v. Johnston (1989) in which the Tribunal applied the definitions in the Oxford English Dictionary (1971):
"hatred" : active dislike, detestation, enmity, ill-will, malevolence.
"contempt": the condition of being condemned or despised; dishonour or disgrace.
In analyzing these terms further, the Tribunal noted the extreme emotions evoked by them:
As there is no definition of "hatred" or "contempt" within the [CHRA], it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual contexts by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With "hatred", the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for "hatred" give any clues to the motivation for the ill will. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one's feelings. This is captured by the dictionary definition relied on in Taylor . . . in the use of the terms "despised", "dishonour" or "disgrace". Although the person can be "hated" (i.e. actively disliked) and treated with "contempt" (i.e. looked down upon), the terms are not fully coextensive, because "hatred" is in some instances the product of envy of superior qualities, which "contempt" by definition cannot be. [Emphasis added in the Supreme Court decision.]
Does the Commission hold hearings?
The Commission does not hold hearings. Hearings are carried out by the Canadian Human Rights Tribunal. The Tribunal is completely separate and independent of the Commission.
Does the commission initiate complaints on its own initiative?
The Commission has the power to initiate complaints alleging contravention of the CHRA. However, it has not done so in recent years.
Can the Commission take action pending a decision by the Tribunal?
In the case of Canadian Human Rights Commission v. Winnicki (November 2005), the Federal Court granted an application by the Commission for an order restraining Mr. Winnicki from continuing to post alleged Internet hate messages pending a final determination of the case by the Canadian Human Rights Tribunal.
If hate on the Internet is international, what is the benefit of section 13?
A decision under section 13 is of great importance in indicating that hate promotion on the Internet is not permissible in Canada. The Canadian Human Rights Tribunal addressed this issue in explaining its cease and desist order against Ernst Zündel. The Tribunal noted:
[298] We are extremely conscious of the limits of the remedial power available in this case. There always exists the possibility that an individual, wholly unrelated to a named respondent, will engage in a similar discriminatory practice. The technology involved in the posting of materials to the Internet, however, magnifies this problem and arguably makes it much easier to avoid the ultimate goal of eliminating the material....
[299] Nonetheless, as a Tribunal we are charged with the responsibility of determining the complaints referred to us, and then making an Order if we find that the Respondent has engaged in a discriminatory practice. We cannot be unduly influenced in this case by what others might do once we issue our Order. The Commission, or individual complainants, can elect to file other complaints, or respond in any other manner that they consider appropriate should they believe that there has been a further contravention of the CHRA.
[300] Any remedy awarded by this, or any Tribunal, will inevitably serve a number of purposes: prevention and elimination of discriminatory practices is only one of the outcomes flowing from an Order issued as a consequence of these proceedings. There is also a significant symbolic value in the public denunciation of actions that are the subject of this complaint. Similarly, there is the potential educative and ultimately larger preventative benefit that can be achieved by open discussion of the principles enunciated in this or any Tribunal decision.
[301] Parliament, on behalf of all Canadians, has determined that the telephonic communication of hate messages is not to be tolerated in our society. In our view, the victims of hate are entitled to obtain the benefit of the full weight of our authority.
[302] We have determined that the Respondent Ernst Zündel has engaged in a discriminatory practice by posting material to his website that is likely to expose Jews to hatred or contempt, and the granting of the remedy requested is warranted and appropriate.
