A human rights complaint is a complaint brought under the Human Rights Act (Act) by a person who believes that they been unlawfully discriminated against.

A complaint is a statement by a person that they believe that another person or persons has discriminated against them. In this context, discrimination means that someone has treated them unfavourably in one or more areas protected under the Act, and that at least one protected ground (characteristic) was a factor in why they were treated that way.

There may be other grounds or areas for discrimination. For example, someone might discriminate against a person because of their hair colour or because they do or don’t like their taste in movies, but that discrimination is not prohibited under the Yukon Human Rights Act and a complaint cannot successfully be brought in respect of it. The same goes for an individual saying racist things on their personal social media page, or saying sexist things on the street. They may be morally wrong, and in some cases may rise to the level of criminality, but likely do not engage a protected area of the Act and therefor may not give rise to a successful human rights complaint.

Harassment based on any of the protected grounds, in any of the protected areas, is also a form of discrimination.

A complaint will only be accepted for investigation by the Yukon Human Rights Commission if it meets certain criteria. For more information please read the section on elements of a human rights complaint.

If a complaint is accepted for investigation, there are a number of possible outcomes. These include settlement, later dismissal or abandonment of the complaint, or a decision by the Yukon Human Rights Panel of Adjudicators. For more information about the complaint process, take a look at this section.

If you feel that you have experienced discrimination, you may file a complaint with the Yukon Human Rights Commission.

When an individual files a complaint with the Commission, the Director reviews the complaint. This is known as the Commission’s screening phase. A complaint filed with the Commission will only pass the initial screening phase where certain conditions are met. When the Director is screening complaints to determine whether they call for an investigation, they assume that the allegations in the complaint and any supporting documents provided with the complaint are true.

In reviewing the complaint, the Director does what is called a “reasonable grounds” analysis. The Director will accept a complaint only where it meets all three parts of this analysis, which are:

1. The complaint describes events that, if proven, meet the legal test for discrimination;
2. The Commission has jurisdiction to accept the complaint; and
3. The complaint is filed within the required timelines.

Legal Test for Discrimination

The events described in a complaint must allege facts that, if later proven, could establish discrimination under what is called the prima facie test. The prima facie test is the legal standard that a complainant must meet in order to establish discrimination under human rights law. The test has three parts:

1. You have a personal characteristic (What is a Human Rights Complaint) that is protected by the Yukon Human Rights Act
   for example, you have a physical or mental disability;
2. You were treated unfavorably in an area (What is a Human Rights Complaint) protected by the Yukon Human Rights Act
   for example, you lost your job, or were denied a service; and
3. Your personal characteristic was a factor in the unfavorable treatment you experienced.

At this screening stage, a complaint does not have to prove that it does meet all three elements of the prima facie test. Rather, it has to prove that it could meet all three elements. The Director evaluates whether all the elements of the prima facie test could be met if they assume everything alleged in the complaint is true. Evidence is not required at this stage. If all the elements of the test could not reasonably be met based on the information provided, the Director will not accept the complaint.

In order for the Director to accept a complaint, they need detailed information about why the Complainant believes that the unfavourable treatment occurred, either in whole or in part, because of their protected characteristic(s). Speculation or belief that a protected characteristic was a factor in the unfavourable treatment usually does not meet the criteria of the reasonable grounds analysis. There must be something that could indicate that a protected characteristic was a factor in the unfavourable treatment. For example, were any specific comments made about a protected characteristic?

Additional information about the prima facie test can be found here. Although this document is from the Ontario Commission, the legal test for discrimination is the same across all Canadian jurisdictions.

Jurisdiction

The Commission must also have jurisdiction in order to accept a complaint. For example, if a complaint describes events involving a federally-regulated business, a First Nation Government, or the Government of Canada, the Canadian Human Rights Commission will have jurisdiction over the complaint. If the events described took place in another province or territory, that jurisdiction’s Human Rights Commission or Tribunal will likely have jurisdiction.

Timelines

Finally, human rights complaints must be filed within 18 months of the alleged unfavourable treatment in Yukon. The Commission may consider a complaint regarding events that are older than 18 months in very exceptional circumstances. An example may be where the Complainant was in a coma and unable to file the complaint within the 18-month time limit. Another circumstance may be where there is continuing contravention of the Act. To learn more about the criteria for continuing contravention complaints, please contact the Commission to speak to a staff member.

Once the Director has made a decision regarding whether or not a complaint meets the reasonable grounds analysis, the Complainant will receive a written letter explaining the Director’s decision. This letter will explain whether the complaint was accepted, dismissed, or partially accepted. Partial acceptance may occur where a complaint identifies a number of protected areas or grounds, but is only accepted on some of them.

The time it takes for the Director to review a complaint depends on a number of factors, including how many complaints there are to review and the complexity of the complaint.

If you have any questions about the complaint process, please do not hesitate to contact the Commission.

Inquiring at the Yukon Human Rights Commission

Anyone is free to contact the Commission at any time to learn more about human rights law in Yukon. This includes an individual who feels that they have experienced discrimination, an organization seeking to learn more about human rights, or an individual or organization that has had a complaint filed against them. Commission staff are neutral, and will provide assistance to both Complainants and Respondents.

You may contact the Commission by email, telephone, or in person to inquire about your concern. All inquiries are confidential.

After contacting the Commission, you will be offered an opportunity to make an appointment to discuss your situation with a Commission staff member. The staff member will discuss your issue and address any questions you have. This may involve discussing whether certain events engage a protected area and ground (What is a Human Rights Complaint) as required by the Yukon Human Rights Act (Elements of a Complaint).

Commission staff are able to provide legal information, but not legal advice, regarding human rights law in Yukon.

Occasionally, another organization may be better suited to assisting with your issue. Where the Commission does not have jurisdiction over the matter, Commission staff may provide contact information for another agency or organization.

We encourage potential inquirers to visit the following pages, which provide additional relevant information regarding human rights complaints:

• Am I in the Right Place?
• What is Discrimination
• What is Harassment
• Elements of a Complaint

Making a complaint

We strongly encourage you to book an appointment with a Human Rights Officer before filing a complaint to ensure it includes necessary information.

Anyone may file a human rights complaint. If you decide that you would like to file a Complaint, you can complete a human rights complaint Form. This Form can be completed electronically, or in hard copy.

You can access this document:

• On our website;
• By requesting that we mail you a copy; or
• By visiting to the Commission in person to get a copy.

We have also created a Complaint Form Guide to assist individuals when they are completing the complaint Form. You can find an English and French version of this document on our website.

See the Complaints Process page for information explaining what happens once a complaint is filed, or download our Complaints Process Guide.

If you have any questions about the complaint process, please do not hesitate to contact the Commission.

Inquiring at the Yukon Human Rights Commission

Anyone is free to contact the Commission at any time to learn more about human rights law in Yukon. This includes an individual who feels that they have experienced discrimination, an organization seeking to learn more about human rights, or an individual or organization that has had a complaint filed against them. Commission staff are neutral, and will provide assistance to both Complainants and Respondents.

Responding to a Complaint

If a human rights complaint has been filed against you or your organization, this means that someone has alleged that you or your organization discriminated against or harassed them based on a personal characteristic (or “ground”) protected by the Yukon Human Rights Act.

The Director of Human Rights is responsible for the complaints process. The Director does not take sides in a dispute, and provides impartial service to both parties. The Director is required to:

• Notify the respondent of the complaint;
• Provide the respondent with an opportunity to settle the complaint; and
• Provide the respondent with an opportunity to submit a response to the complaint.

What does it mean to settle a complaint?

Settlement is a voluntary and confidential process. It allows parties to a complaint to talk through the situation and try to resolve the complaint. Settlement discussions are flexible processes which may involve discussions by phone, email, in person, or some combination of these. Generally, the Director or Commission Legal Counsel acts as a mediator to help the parties settle the complaint. The Commission ensures that the process is fair to both parties, and assists their efforts to reach an agreement.

Although the opportunity for settlement is offered to the party after the Respondent is notified of the complaint, the parties are free to settle a complaint at any stage in the complaint process.

If a complaint is not settled, what happens next?

If the parties cannot resolve a complaint, the Respondent will be asked to submit a written response to the complaint. This response will be shared with the Complainant, who will have the opportunity to submit a written rebuttal to the response. The Director will then direct a Human Rights Officer to investigate the complaint. The purpose of an investigation is to gather further information regarding each party’s position, and to make a recommendation to the Commission Members regarding the sufficiency of evidence and whether the matter should proceed to a hearing.

When an investigation is complete, the investigator drafts an Investigation Report, which is provided to the parties. The parties are given the opportunity to make submissions based on the Investigation Report, which will be considered by the Commission members.

The Commission members may dismiss the complaint, send it back for an attempt at settlement, or send it to a Board of Adjudication for a hearing.

See the Complaints Process page for information explaining what happens once a complaint is filed.

Part of the Commission’s mandate is to provide a complaints process for members of the public who feel that they have been discriminated against. The complaints process has a number of stages.

Before a Complaint is Filed

Any individual or organization may contact the Yukon Human Rights Commission for information regarding human rights in Yukon. Whether you are an individual who feels that they have been discriminated against, an organization or business seeking to learn more about human rights, or an individual or organization that has had a complaint filed against them, you are free to contact the Commission to discuss your questions with a Commission staff member. Commission staff can provide legal information (but not legal advice) to members of the public about human rights in Yukon.

At the outset, Commission staff can help determine options for dealing with a situation. Occasionally, a situation may fall outside of the Commission’s jurisdiction, in which case Commission staff may refer you to another organization or service that can help you.

After receiving information about human rights, an inquirer may wish to file a complaint. Anyone wishing to file a complaint with the Commission must do so within 18 months of the incident they wish to complain about, or if a continuing contravention is alleged, the complaint must be filed within 18 months of the last alleged instance of the contravention.

After a Complaint is Filed

Before a human rights complaint is accepted by the Commission, it must pass an initial screening phase. The Director of the Commission reviews each complaint to determine whether the Commission will accept the complaint. To do so, the Director will decide if the complaint:

• Falls within the power of the Act. In order for the Commission to accept a complaint, a Complainant must describe events that, if believed, could meet the legal test for discrimination. Briefly, the Complainant must provide details supporting their allegations that:
  • They have a characteristic that is protected by the Yukon Human Rights Act (What is Discrimination);
  • The Complainant was treated unfavourably in an area protected by the Yukon Human Rights Act (What is Discrimination); and
  • The Complainant’s protected characteristic was a factor in the unfavourable treatment they experienced.
• The events in question happened within the last 18 months; and
• The events in question do not fall under the jurisdiction of another commission or tribunal.

See our What is Discrimination? and Elements of a Complaint pages for more information.

Where these conditions are met, the Director will accept the complaint and refer it to investigation. The Director will also explore whether the parties are interested in informally resolving (or “settling”) the complaint.

If the Director is satisfied a complaint requires investigation, the Commission will send a written response to both the Complainant and the Respondent notifying them of the decision.

However, if the complaint does not meet the conditions above, the Director may not accept the complaint and will provide the Complainant with written reasons for that decision. In certain circumstances, the Director may request and consider additional information from the Complainant where it appears relevant information is inadvertently missing from the complaint.

If a Complaint is Accepted

Informal Resolution (Settlement)

If a complaint is accepted, it will be shared with the Respondent. At that time, the Commission will ask whether the Respondent is interested in informal resolution, also known as settlement.

The intent of the Yukon Human Rights Act is remedial, not punitive. The Commission makes every effort to help interested parties settle complaints. The Director can help the Complainant as well as the Respondent, and can recommend ways to settle complaints in keeping with the purposes of the Act. In many situations, both parties can find a satisfactory settlement with the help of the Commission staff. If this happens, then the complaint stops.

About one-quarter to one-third of complaints are informally resolved in this manner. Although the parties are free to include any number of conditions in a settlement agreement, settlements are typically confidential. The goal of settlement is to resolve the complaint, and not to find fault or lay blame.

Responding to a Complaint

If settlement efforts are not successful, the Commission will ask the Respondent to provide a response to the complaint. Respondents generally provide one of two types of responses.

First, a Respondent may deny that the discrimination occurred. In such cases, the Respondent will usually provide an explanation or evidence that shows that the Complainant did not receive unfavourable treatment based on the definition of discrimination in the Yukon Human Rights Act. More information about the definition can be found on the page titled What is Discrimination?

Second, a Respondent may provide a “reasonable explanation” for what, at first glance, appears to be discrimination. The Act says that it is not discrimination to treat someone unfavourably if there is a “reasonable cause” for doing so. Examples of reasonable cause include:

• reasonable requirements or qualifications for employment (such as age requirements for jobs serving alcohol);
• a criminal record check relevant to employment (as with jobs dealing with children);
• sex, where the privacy of the person receiving services or accommodation is a factor (such as a female personal care attendant providing care for a woman with a disability); or,
• that accommodating or continuing to accommodate the Complainant would constitute undue hardship.

Commission staff can help Respondents put together a response to a complaint. The Commission is neutral at this stage, and offers assistance and information to both parties. A Respondent has 45 calendar days to respond to a complaint from the time it is received.

Although Respondents may choose to retain a lawyer, it is not necessary to have a lawyer at this stage. Respondents also may have human resources departments or Boards of Directors they may wish to consult when drafting a response.

Investigation

If parties are unwilling or unable to informally resolve a complaint, the Commission will investigate it. Once a Respondent has an opportunity to provide a response, the Complainant has the opportunity to respond to the Respondent’s response. This is called a rebuttal, and is optional. At this stage, a Human Rights Officer will be assigned to investigate the complaint.

Parties can help the Commission investigate by providing:

• up to date contact information, and by cooperating in the investigation process;
• the names and contact information of potential witnesses, or those who have information about what happened;
• records or letters or other documents of the events relating to the complaint; and
• any other information that a party believes may be helpful in clearly explaining their position.

Investigators are neutral parties responsible for gathering relevant evidence, interviewing witnesses, and providing an analysis at the end of their investigation. This is called an investigation report. Upon completion, the report is provided to both the Complainant and the Respondent. Each party will have an opportunity to provide submissions in response to the report.

Next, the Commission staff sends the report and submissions to the Commission members. The Commission members will consider the investigation report and submissions, and will decide whether or not there is a reasonable basis for the matter to proceed to a hearing.

At any time in the process, the Complainant may ask the Commission to withdraw a complaint. If the Complainant does this, the Commission will notify the Respondent, and the matter will be closed.

Decision

Commission members meet monthly to review investigation reports and submissions provided by parties. At these meetings, they decide whether there is a reasonable basis in the evidence for the matter to proceed to the next stage, which is a hearing at the Panel of Adjudicators.

If the Commission Members decide there is no reasonable basis in the evidence for the matter to proceed, they will dismiss the complaint and provide the parties with written reasons for their decision. If the Commission members dismiss the complaint, and the Complainant disagrees with their decision, the Complainant may be able to apply to a judge to review that decision in the Supreme Court of Yukon. This is called “judicial review”.

If the Commission members determine that there is a reasonable basis in the evidence for the matter to proceed, they will refer the complaint to the Yukon Human Rights Panel of Adjudicators. If it appears that settlement may still be possible, the Commission Members may provide a set time period to attempt to settle the complaint. If the parties do not mutually agree to settlement, the matter will proceed to a hearing. If a Respondent disagrees with the decision to refer the complaint to a hearing, they may be able to apply to a judge to review that decision to the Supreme Court of the Yukon.

If the Commission Members refer the complaint for settlement, the Commission may help both parties by:

• recommending terms of settlement;
• acting as a mediator; and
• drafting the necessary written documents (settlement agreement and release of liability).

The settlement process is a voluntary one. No one can impose a settlement to a complaint. The Commission and both parties must agree to any settlement. You can find out more about what is involved from Commission staff who can explain the process and answer your questions.

Board of Adjudication Hearing

The Panel of Adjudicators is the body that conducts hearings of human rights complaints. It is independent, and separate from the Yukon Human Rights Commission. If the Commission members ask the Panel of Adjudicators to decide the complaint, the complaint will be heard by a Board of Adjudication comprised of members of the Panel of Adjudicators.

Hearings are normally open to the public. Final decisions are published on the Yukon Human Rights Panel of Adjudicators’ website and the Commission’s website. During a hearing, the Board can order witnesses to attend and provide oral testimony, and to produce relevant evidence such as documents. After considering the evidence presented at the hearing, the Board may decide to dismiss the complaint. The Board provides written reasons for its decision.

If the Board finds that there was discrimination, it may order a Respondent to:

• stop the discrimination;
• pay the Complainant money for any financial loss caused by the discrimination;
• pay the Complainant money for injury to his/her dignity, feelings, or self-respect;
• pay the Complainant what is called “exemplary damages” if the discrimination was “malicious” (meant to cause the Complainant hurt or distress);
• pay the Complainant’s costs, for example lawyer fees to represent the Complainant.

If any party (the Complainant, the Respondent, or the Commission) disagrees with a Board of Adjudication decision, they can appeal the decision to the Supreme Court of Yukon. The notice of appeal must be filed with the Court within 30 days of the Board’s written decision.

In an appeal, the Court can only consider questions of law the Board of Adjudication made, but not questions of facts. The Court can agree with or set aside a decision of the Board. It can also order another hearing.

Unique Circumstances

The process described above is the process that the vast majority of complaints follow. However, the Commission may ask a Board of Adjudication to decide the complaint in certain circumstances without an investigation, such as:

• where a speedy resolution is needed because of urgent circumstances;
• where there is agreement on the facts but not on how the law applies to the facts; or
• where there are no witnesses to the alleged discrimination other than the Complainant and Respondent, and they do not agree on what happened.

The Commission may also decide not to investigate or not to continue investigating a complaint in certain cases. Some examples include where:

• the Complainant declines a settlement offer from the Respondent that the Commission thinks is fair and reasonable;
• the Complainant has or could first use another process, such as internal grievance or review procedures, that is available to the Complainant;
• the Complainant abandons his or her complaint; or
• the Complainant fails to cooperate with the investigation.

For more information, refer to s. 20 of the Act.

What are Sections 20(1)(h) and (i)?

The Yukon Human Rights Act states that the Commission shall investigate a complaint unless:

20(1)(h): the complainant has not exhausted grievance or review procedures which are otherwise reasonably available or procedures provided for under another Act; or

20(1)(i) the substance of the complaint has already been dealt with in another proceeding.

[A Complainant is an individual who files a human rights complaint. The party responding to the complaint is called the Respondent.]

What do Sections 20(1)(h) and (i) mean?

Section 20(1)(h)

The Yukon Human Rights Commission’s complaint process is considered a process of last resort. This means that if another procedure, such as a union grievance, can address the issues described in an individual’s human rights complaint, then they are required to go through that procedure where it is reasonably available to them. An individual is still able to file a complaint with the Commission, even if there are other procedures available to them. However, the Director may suspend the complaint while the other grievance or review procedure is ongoing, because section 20(1)(h) requires individuals to exhaust those procedures before the Commission’s process can continue.

Alternatively, if a grievance or review procedure that could have dealt with the substance of a human rights complaint was reasonably available to an individual, but they chose not to engage those procedures, the Director may stop the complaint. The language of this section requires an individual to exhaust other procedures before the Commission’s process can continue, even where someone prefers the Commission’s process over another procedure.

Section 20(1)(i)

If an individual has gone through another procedure and the substance of the human rights complaint has already been dealt with, then the Director may decide to stop the complaint. The reason a complaint may be stopped is because individuals cannot recover a remedy more than once for the same issue; this is often referred to “double-dipping.” Therefore, if a legal issue has already been decided, it cannot be decided again in a different forum.

Why can the Director suspend or stop a complaint?

The Yukon not only has a Human Rights Act, but also Human Rights Regulations. The Yukon Human Rights Regulations detail how the Yukon Human Rights Commission must apply and enforce the Yukon Human Rights Act.

Subsection 5(1) of the Yukon Human Rights Regulations states:

5(1): The Director may decide to suspend or stop an investigation if the Director believes on reasonable grounds that the Commission is no longer required to investigate a complaint under subsection 20(1) of the Act.

This subsection of the Yukon Human Rights Regulations gives the Director power to suspend or stop a complaint.

How can Sections 20(1)(h) and (i) affect your complaint?

Suspend

Suspending a complaint is considered a temporary measure that “pauses” the complaint. The Commission will wait for the other process dealing with the substance of the complaint to finish. The Commission will ask the parties to provide regular updates on the status of the alternative process. Once the other process has been exhausted, the Commission can decide whether the complaint should proceed or whether it should be dismissed, either in whole or in part.

Stop

Your human rights complaint will not proceed through the rest of the complaint process. This will have the effect to terminating the human rights complaint.

Why do Sections 20(1)(h) and (i) exist?

The purpose of subsections 20(1)(h) and (i) of the Act is to prevent complainants from being engaged in two separate processes regarding the same issue, and to avoid having a complaint be decided two different times by two different processes. It is also designed to prevent parties from picking and choosing the process that they think may benefit them the most, which is known as “forum shopping.” The interests of fairness and justice are better served if parties do not engage in multiple proceedings that could lead to contradictory findings. Lastly, it is designed to prevent a Complainant from recovering more than one remedy for the same issue.

Alternative Procedures

The Commission is of the view that not every complaint procedure, whether created by statute or not, qualifies as a “procedure” for the purposes of paragraph 20(1)(h) of the Act. Alternative procedures are only empowered to consider human rights issues where that process can consider questions of law.

The mere existence of another procedure that may deal with some aspects of the complaint is not enough to justify the Commission suspending or stopping the complaint. Human rights law indicates that the other process must have jurisdiction to deal with human rights issues. It would otherwise be unfair and unreasonable to suspend or stop a complaint just because there is another procedure available when that procedure cannot deal with the same issues raised in the human rights complaint.

The fact that an alternate process exists does not necessarily mean that the Commission will decide to suspend or stop the investigation of a human rights complaint. Each case must be assessed on its own facts to decide whether the alternative proceeding has already dealt with, or could have dealt with, the human rights issues raised.

If you have any questions about alternative processes, please contact us.

Where does this fit into the complaints process?

* Human rights complaints must be filed within 18 months of the alleged unfavourable treatment in Yukon. Even if you are going through another procedure, such as a union grievance procedure, you can still file a human rights complaint with the Commission in order to ensure your complaint falls within the mandatory 18-month filing window required by the Act.

After a complaint has passed the initial screening phase and has been accepted for investigation, the Commission will determine whether section 20(1)(h) or (i) applies.

The Commission will ask the Complainant and Respondent to provide any information and documents they have regarding what parts of the complaint have already been formally raised through another process or could have been raised through an alternate process.

Please note that if the alternative process in question was not available to an individual, the Commission will request supporting documentation. For example, if an individual’s union did not file a grievance on their behalf, the Commission may ask them to provide documentation from the union stating that they were unable to assist them.

After the Commission has the chance to review the information from the Complainant and Respondent, a Commission staff member will prepare a Case Analysis reviewing all the relevant information about which parts of the Complaint were dealt with or could have been appropriately dealt with through the alternative procedure. The parties will have an opportunity to write a response to the Case Analysis.

The Director will consider the Commission’s Case Analysis and the parties’ responses when deciding whether or not the Complaint should be suspended or stopped pursuant to paragraph 20(1)(h) or (i) of the Act and subsection 5(1) of the Regulations. The Director will provide the parties with written reasons for their decision. The Complainant and Respondent have the opportunity to appeal the Director’s decision.

If the Director decides to continue with the Complaint, the Commission follows the process described here.

A suspension is a temporary measure which has the effect of “pausing” the complaint until the conclusion of the alternate process. At the conclusion of the alternative process, the Commission will determine whether the substance of the Complaint has been appropriately dealt with. At that time, the Commission can decide whether the Complaint should proceed or whether it should be dismissed, either in whole or in part.

To learn more about the human rights complaint process, please visit our complaint process webpage. If you would like to speak with someone about a specific situation, please contact the Commission to book an appointment.