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Labour Rights Law practices only in the areas of employment, labour, and human rights law. Over the years, our lawyers have consulted with many clients after the client’s filed their own human rights complaint. Unfortunately, when this happens, we almost always find that the client has made mistakes when filing their claim – mistakes that wind up costing them in the long-run.
The best way to avoid hurting your chances of a good award or settlement is by talking with a lawyer about your case before you file your complaint. Talking briefly with a lawyer up-front can improve your chances at a good settlement or award.
That said, if you absolutely must file on your own, this blog will provide you with some tips and tricks to help ensure you’re not making any critical mistakes.
This blog comes in two parts. The first part sets out some considerations to make before you file your claim. The second part provides you with some tips to remember when you file your claim.
Before filing: Have you been discriminated against?
Before filing, you should think hard about whether you actually have a legitimate human rights claim. For more information about the law behind human rights complaints, you can read our article on this topic by clicking here.
Put simply, being mistreated by an employer doesn’t mean that you have a good human rights complaint. For example, that it’s perfectly legal for an employer to discriminate against its employees or prefer or promote some employees over others for no good reason – so long as this discrimination or preference isn’t based on a protected or prohibited ground that has been identified in the applicable human rights legislation.
In BC, prohibited grounds in the context of employment are:
- indigenous identity
- race
- colour
- ancestry
- place of origin
- political belief
- religion
- marital status
- family status
- physical or mental disability
- sex
- sexual orientation
- gender identity or expression
- age
- a conviction of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person
Before filing: Meet your own accommodation responsibilities
Whether or not you’ve been discriminated against often comes down to whether the employer has “accommodated” you up to the point of undue hardship. In other words, whether the employer has changed certain rules or standards or workplace cultures to make sure you weren’t negatively impacted because you are a member of a group that is protected under the human rights legislation (e.g. disability, religion, etc.)
That said, it’s not just the employer that has obligations in the human rights accommodation process. Employees do, too! For example, if you have a disability, you need to tell the employer about the restrictions and limitations arising from your disability and provide the employer with the appropriate medical information they need to provide you with accommodation.
If you’re not doing what you’re obligated to do under the law when it comes to accommodation, or if you expect to be provided with the perfect accommodation (as opposed to a reasonable one), your complaint could be put in serious jeopardy or dismissed altogether.
*Note: If accommodation has become an issue between you and your employer, and you’re unsure of what you need to do, you should talk with a human rights lawyer. Although you have some obligations in the accommodation process, the employer isn’t the one that sets the rules. They can, and often do, ask for too much information from the employee or make unreasonable demands of them. We write about that issue in a blog here. When it comes to your disability and your case, a lawyer at Labour Rights Law can tell you exactly what the employer is entitled to do or not do in the accommodation process.
Before filing: Are you at the right Commission or Tribunal? Are you filing in time?
If you’re in Canada, you live in a province or territory. However, you can’t bring your human rights complaint to that province or territory’s human rights tribunal if you work in the federal sector. For example, if you work in telecommunications, banking, or inter-provincial transport, most likely, your complaint will need to be filed with the Canadian Human Rights Commission. If you are not an employee in a federally-regulated sector, then chances are that your complaint will need to be filed with your provincial or territorial human rights tribunal or commission.
Time limits may vary from province to province, and can change from time to time, so it’s best to confirm your statutory time limits with the tribunal/commission where you need to file your complaint. At the time this article is published, the BC Human Rights Tribunal has a time limit of one year from the time the alleged discriminatory event takes place. However, if you experienced a series of discriminatory incidents of the same type over a time period, you may be able to add incidents to your complaint that happened more than a year from the date of filing.
Later this week we’ll post the second part of this blog, which will give you some tips to consider when you file your complaint.
DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice. To provide legal advice on your problem, a lawyer must first understand your specific situation.
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