Discrimination & Harassment Complaint Process

The informed resolution procedure

1. If someone believes they have been discriminated against or harassed
   1. Any member of the TMU community who believes they have been discriminated against or harassed on the basis of any of the prohibited grounds listed in the Discrimination and Harassment Prevention Policy is encouraged to discuss that matter with Human Rights Services. Human Rights Services does not advocate for any individual or group and does not take sides on an issue. We will listen to the concerns and assess whether they fall within the jurisdiction of TMU’s Discrimination and Harassment Prevention Policy.
   2. Where the concerns are outside of the policy’s jurisdiction or where they would be more appropriately dealt with under another policy or agreement, Human Rights Services will make the appropriate referral.
   3. Where the concerns are within the jurisdiction of TMU’s Discrimination and Harassment Prevention Policy, we will inform the person raising the concerns of various options and methods for dealing with the situation. The person raising the concerns may explore alternative avenues of redress (e.g. the Human Rights Tribunal of Ontario, the police, the courts and/or a collective agreement) even while steps are being taken under TMU’s Discrimination and Harassment Prevention Policy. Unionized employees will be advised of their right to union representation and unions retain the right to file grievances on behalf of their members. It should be noted, however, that one cannot pursue a grievance under a collective agreement while at the same time proceeding under this policy and these procedures.
   4. A grievance may be “set aside” by a union on an interim basis, pending the outcome of Human Rights Services’ intervention. If that intervention is not satisfactory to the grievor, the union may resume the grievance. 
2. Informal resolution procedure
   1. The informal resolution process allows individuals to sort out concerns quickly and amicably, without initiating formal investigation procedures. Human Rights Services staff advises and suggests various options available to the person raising the concerns. The person raising the concerns may decide to communicate to an individual that certain behaviours, remarks, or communications are unwelcome and/or involve treating him/her differently on the basis of one of the prohibited grounds listed in the Discrimination and Harassment Prevention Policy.
   2. An individual may choose to communicate their concerns directly or indirectly, verbally or in writing. Some individuals may prefer to remain anonymous, some may choose to identify themselves and others may prefer to communicate through a third party. This third party may be a Human Rights Services staff member, a supervisor or a peer.
3. Conciliation
   1. If the complainant and respondent are interested in an alternative resolution of the complaint, Human Rights Services may appoint an internal or external conciliator. Conciliation is used as a means to settle human rights concerns at the lowest level possible and without initiating any formal investigation procedures. The conciliator is impartial and facilitates a resolution between both parties by acting as a “go-between.” Neither party will be required to attend any joint meetings during the conciliation process unless they both agree to such.
   2. Where the matter is resolved through conciliation, the conciliator will prepare a written record of the resolution to be signed by both parties. The signed resolution will be kept in Human Rights Services. The complainant and the respondent will each be given a copy of the resolution. It may also be provided to other relevant offices having jurisdiction over the parties on an as needed basis. Where the resolution has been breached, a formal complaint may be initiated.
   3. In the event that either party wants to withdraw from conciliation or if the matter is not resolved through conciliation, the person raising the concerns may choose to file a formal discrimination and harassment complaint.
   4. Although individuals may choose to forgo the informal resolution process and proceed directly to the formal process, Human Rights Services encourages attempts to settle concerns through informal, conciliatory routes.
4. Decision regarding how to proceed with concerns
   1. At any stage of the informal resolution process, the person raising the concerns is the one who chooses amongst the options outlined by staff from Human Rights Services, if they choose to pursue any action at all. An individual may simply choose to speak to Human Rights Services to become informed about his/her options, the Discrimination and Harassment Prevention Policy and Procedure, and human rights matters generally, without initiating any action whatsoever.
   2. At any stage of the complaint resolution process, whether informal or formal, an individual may choose to withdraw their concerns or complaint. An individual should communicate in writing to a Human Rights Services staff member the desire to withdraw a complaint.

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Formal complaint and investigation procedure

1. Filing a formal complaint
   1. Where the matter is not resolved through discussion and conciliation at the informal stage, or where that process is bypassed, an individual may file a formal complaint, provided that the allegations being made, on their face, present a case of discrimination or harassment on the basis of a prohibited ground.
   2. The complainant is encouraged to provide a written complaint to Human Rights Services wherever possible in which they explain the incidents giving rise to the allegations of discrimination or harassment. The complainant may also meet with a Human Rights Services staff member to share this information. Human Rights Services staff are available to provide direction with respect to what information is necessary and relevant to include in a complaint and prepare a summary of the allegations.
   3. In some situations it may be necessary for HRS to impose interim measures during the course of an investigation. For example, it may be appropriate to separate an employee and a supervisor where the employee has complained that a supervisor discriminated against them. Staff from Human Rights Services will discuss with the complainant and/or the respondent whether there is a need for such arrangements and how they might be organized. Where separation is deemed appropriate, the staff will contact the necessary individuals to make such arrangements. Where there are safety concerns, separation arrangements will be made prior to the respondent being notified of the complaint.
2. The decision maker
   1. Upon accepting a complaint, Human Rights Services staff are responsible for identifying who will be responsible for deciding the complaint. The decision maker is always a senior administrator at TMU. Where the respondent is a faculty member, the respondent’s dean will normally decide the complaint. Where the respondent is a staff member, the respondent’s senior manager will normally decide the complaint. Where the respondent is a student, the Vice-Provost Students will normally act as the decision maker.
   2. Where the complainant or respondent believes that the decision-maker may be subject to a real or perceived conflict of interest in relation to the matter, the complainant or respondent may request that an alternative decision maker be appointed. Human Rights Services will consider the complainant’s or respondent’s concerns in deciding who the decision maker will be.
   3. Where the complaint involves allegations of systemic discrimination in the polices and/or practices of the university, the decision maker will be a vice-president other than the one who is responsible for overseeing the policies and/or practices in question.
3. Communicating the complaint
   1. Once a formal complaint has been filed, Human Rights Services staff will contact the respondent and inform them that a complaint has been filed. They will forward a notice of investigation to the complainant and respondent which includes the details of the complaint. Both parties will be advised of their right to support during the complaint resolution process. Unionized employees will be advised of their right to union representation.
   2. The Human Rights Services staff will also provide a copy of the notice of investigation to the appointed decision maker, and other relevant offices having jurisdiction over the parties on an as needed basis, as per confidentiality provisions outlined below in this procedure. As well, the staff will provide the complainant, the respondent and the decision maker with a copy of the Discrimination and Harassment Prevention Policy and Procedures and a notice of investigation which identifies and explains the respective roles of Human Rights Services and the decision maker.
   3. Both the complainant and the respondent are encouraged to contact staff from Human Rights Services with any questions regarding the Discrimination and Harassment Prevention Policy and Procedures.
   4. In exceptional situations, staff from Human Rights Services may be required to notify selected others within the university’s line structure that a complaint has been filed and is under investigation, for example, where the complainant and the respondent are to be separated and alternate work or study arrangements are required, or where there are safety concerns.

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The investigation

1. What does an investigation look like?
   1. Staff from Human Rights Services may act as internal investigators or manage the appointment of external investigators to conduct investigations into complaints. Investigators work independently throughout the investigation to develop an investigation plan identifying the issues of the case, who will be interviewed, which questions will be posed and which documents will be requested for review. The investigator conducts all of the investigative interviews with the complainant, respondent and witnesses. The investigator may also request and examine any information, documents or objects which are or which may be relevant to the complaint.
   2. Investigations require the cooperation of the complainants, respondents, witnesses and any other person who may become involved in a complaint and who may be asked to provide evidence. The investigator will inform Human Rights Services staff where someone appears to be obstructing an investigation. Human Rights Services will take appropriate action, which may include informing appropriate members of senior administration.
   3. Human Rights Services staff meet with the complainant and the respondent. At the time of this initial contact, staff will review the notice of investigation, including the complaint process and the respective roles of HRS, the investigator and the decision maker.
   4. After having reviewed the complaint and any relevant documentation, the investigator contacts the complainant and the respondent to arrange separate interview times. 
   5. Investigators conduct interviews with the complainant and the respondent separately and may need to meet with each party several times during the course of the investigation. Any documents, names of witnesses, and other facts/issues or submissions which the complainant or respondent believe to be relevant to the complaint should be provided to the investigator at any time during the investigation. After having met with the respondent and having heard their reply to the allegations, the investigator will communicate the respondent’s reply to the complainant.
2. Conciliation as a means to resolution
   1. At any stage of the investigation, a complainant or a respondent may choose to ask HRS to conciliate the matter. If the other party agrees, HRS will appoint an internal or external conciliator who will work with both parties and attempt to determine a resolution which is satisfactory to both parties. A written record of the resolution will be prepared by the conciliator and signed by both parties. The resolution will be kept in the investigation file which is retained in Human Rights Services. The complainant and the respondent will each be given a copy of the resolution. It will also be provided to other relevant offices having jurisdiction over the parties on an as needed basis.
   2. Where it is alleged that either party has breached the terms of a resolution an investigation will be conducted and, if the allegation of breach is substantiated, an appropriate remedy/penalty will be instituted.
   3. Where conciliation efforts do not result in a resolution, the investigator continues to investigate the complaint.
3. The investigation report
   1. At the conclusion of the investigation and after having reviewed and analyzed all the evidence, the investigator prepares a draft investigation report. The draft investigation report is a thorough and detailed report in which the positions of the complainant, the respondent, and any witnesses are presented, and the issues of the case and the evidence are analyzed against the provisions of the Discrimination and Harassment Prevention Policy, the Ontario Human Rights Code, and relevant human rights case law. HRS staff may choose to comment on the severity and nature of the behavior and/or comments that were investigated.
4. Confirming the parties’ evidence
   1. Before providing the investigation report to the decision-maker, HRS will share with the complainant and respondent the excerpts of the report that include information and evidence that they shared with the investigator during the investigation process. The complainant and respondent will each have seven business days to review the excerpt(s) and advise HRS of any errors or omissions. HRS and the investigator will receive and review any errors or omissions identified and make amendments to the investigation report as appropriate. HRS will then forward the final investigation report to the decision-maker. 
5. The decision maker renders the decision and remedy/penalties
   1. The decision maker will review the investigation report. Within ten working days of receiving the investigation report, the decision maker will render a decision and where applicable, will determine an appropriate remedy/penalty. In reaching a decision the decision maker considers the evidence and issues presented in the investigation report and any advice sought from the staff of Human Rights Services.
   2. In rendering the final decision the decision maker will decide, on a balance of probabilities, whether the circumstances support one of four possible findings:
      1. Discrimination or harassment did occur
      2. Discrimination or harassment did not occur
      3. There is insufficient evidence to support a finding of discrimination or harassment
      4. The complaint is trivial, frivolous, vexatious or made in bad faith.
   3. If the decision maker finds that the complaint or aspects of the complaint are substantiated, the decision maker determines an appropriate remedy/penalty by considering the following:
      1. any advice sought from and provided by the Human Rights Services investigator and/or from the staff of Human Rights Services;
      2. the principle of progressive discipline;
      3. TMU’s commitment to education as a means to prevent the repetition of discrimination and harassment;
      4. the nature of the discrimination or harassment; 
      5. the intent and impact of the discrimination or harassment;
      6. the provisions of any applicable collective agreement; and,
      7. any other relevant factors. 
   4. Where the respondent is either a faculty or staff member of TMU, the decision maker is encouraged to also seek the advice of the appropriate Human Resources and/or Faculty Affairs staff.
   5. Examples of remedies and/or penalties are included in the Discrimination and Harassment Prevention Policy. Severe forms of discrimination and harassment will be treated severely.
   6. The decision maker will provide a written decision including reasons for the decision, and where applicable a remedy/penalty, to the complainant, the respondent, and the staff of Human Rights Services. It will also be provided to other relevant offices having jurisdiction over the parties on an as needed basis.

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The appeal procedure

1. Appealing a finding or a remedy/penalty
   1. Findings and remedies/penalties in human rights cases can be appealed on matters of substance and/or process to the vice-president or other senior administrator in a level above the original decision maker. Alternatively, unions may grieve on behalf of their members with respect to findings and remedies/penalties in human rights cases in accordance with any applicable collective agreement. 
   2. A complainant or respondent wishing to appeal a finding or a remedy/penalty in a formal complaint submits to Human Rights Services a written request for appeal and an explanation of the basis for the request, within ten business days of the final decision.
   3. Human Rights Services provides written notice to the other party that an appeal has been requested, within three business days of having received the written request for appeal. They will also be invited to make a written submission for consideration in the review of the appeal. 
   4. Human Rights Services forwards a copy of the written request for appeal and the written submissions of the other party (if any) to the appeal decision maker. Human Rights Services forwards to the appeal decision maker a copy of the investigation report, the original findings and remedies/sanctions determined by the decision maker and any other relevant documents or information.  
2. The appeal decision maker decides whether to grant an appeal
   1. The appeal decision maker decides whether to grant an appeal. This decision will be communicated in writing to the parties within five business days of having received notice of the request for appeal.
   2. In deciding whether to grant the appeal, the appeal decision maker reviews the investigation report and decision, and may speak with the Human Rights Services staff, the decision maker and the parties. When deciding whether there is sufficient justification to grant an appeal, the appeal decision maker considers the following:
      1. Whether there was a technical flaw in the application of the Discrimination and Harassment Prevention Policy or its Procedures during the complaint investigation and/or decision-making process.
      2. Whether the finding is consistent with the evidence.
      3. Whether the remedy/penalty is consistent with the finding and/or evidence.
      4. Whether the appeal is trivial, frivolous, vexatious or made in bad faith.
3. Where the appeal decision maker does not grant the appeal
   1. Where the appeal decision maker does not grant the appeal they will provide the parties with written reasons for the decision. A copy of that decision and reason is also forwarded to Human Rights Services and to the decision maker who was involved in the initial decision.
   2. The decision of the appeal decision maker not to grant an appeal is final with respect to the options available within TMU’s Discrimination and Harassment Prevention Policy and Procedures. An employee who is not satisfied with the appeal decision maker’s decision not to grant an appeal may pursue external avenues of redress.
4. Where the appeal decision maker grants the appeal
   1. Where the appeal decision maker grants the appeal they will review the investigation report , the decision maker’s written decision, including findings and remedy/penalty, if any, and any other relevant documents and information. They may also interview the complainant and the respondent, and may choose to interview the decision maker and the Human Rights Services staff.
   2. The appeal decision maker will communicate the findings of the review in writing to both the complainant and the respondent within 15 business days of the commencement of the review. A copy of the findings will be provided to Human Rights Services and the decision maker and other relevant offices having jurisdiction over the parties on an as needed basis. . A decision of the appeal decision maker is final with respect to the options available within TMU. Where contractually permitted, an employee who is not satisfied with the appeal decision maker’s decision may commence a grievance. Where applicable, any complainant or respondent not satisfied with the decision may pursue external avenues of redress.
5. Vice-president’s power to intervene in discrimination and harassment prevention matters
   1. Notwithstanding the informal resolution process and the formal complaint procedures, a vice-president may intervene in any human right issue, whether or not a complaint has been filed, where circumstances warrant an immediate response such as where there are safety concerns; where the university response or action is required in order to prevent a potential future liability for the university; and, where they judge it to be in the best interests of the complainant, the respondent, and/or the university at large.
   2. The vice-president’s decision to intervene will be based on the advice of Human Rights Services, and where applicable will take into consideration any safety and security concerns.
   3. Any decision regarding a discrimination or harassment matter arising from a vice-president’s intervention under this policy will be subject to the appeal procedures contained within this policy/procedure or the grievance procedure of any applicable collective agreement.
6. Where concerns and/or reports are received but no person wishes to make a formal complaint
   1. Where concerns and/or reports of discrimination and harassment are received but no one wishes to file a formal complaint, Human Rights Services will assess the matter and they will decide how to proceed. Human Rights Services may appoint an investigator to investigate the matter, or may decide that an education program for the respondent is appropriate, or that the respondent should be advised of such allegations. Where Human Rights Services decides to investigate the matter, the investigation will proceed using these procedures.
7. Where there is evidence of systemic discrimination at the university and no individual wishes to make a complaint
   1. Where there are allegations of systemic discrimination in the policies and/or practices of the university and no individual wishes to make a complaint, Human Rights Services in consultation with the Vice President, Equity and Community Inclusion may recommend intervention to deal with the matter. Where it is decided that the matter requires further research or investigation, Human Rights Services will appoint an investigator to conduct an investigation using these procedures.
   2. In rendering a decision in a case involving allegations of systemic discrimination, the decision maker may wish to consult with Human Rights Services or the Vice President, Equity and Community Inclusion.

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General procedures

1. Time frame for completion of formal investigation and appeal process
   1. TMU will always aim to complete formal investigations as expeditiously and as thoroughly as possible. The Human Rights Services staff will normally conclude a human rights investigation within 60 business days from the commencement of the investigation.
   2. Where an appeal of a decision or remedy/penalty is accepted, the appeal will normally take 15 business days. These and other time frames discussed throughout the complaints procedures may be extended by TMU at its discretion, upon the recommendation of the Human Rights Services staff. The complainant, respondent and senior administrator will be notified of any time extensions and the reasons for such extension.
2. Standard of proof
   1. In order for a complaint to be accepted by Human Rights Services, a complainant must establish a prima facie case of discrimination. A prima facie case of discrimination is established where on the fact of the allegations and in the absence of a defense or a justification from the respondent one could reasonably conclude that discrimination occurred. The onus is on the complainant to provide evidence that the respondent discriminated against or harassed them.
   2. In assessing evidence collected during an investigation, the civil standard of proof is used. This involves evaluating the evidence and the allegations on a “balance of probabilities” and where the preponderance of evidence supports the allegations, even though it may not prove beyond a reasonable doubt that there was discrimination or harassment, the complaint may be upheld.
3. Right to representation
   1. At any interview or meeting, complainants and respondents may choose to have a support person present.  Support persons may include a friend, family member, employee union representative, legal representative, colleague, Indigenous Elder, etc. Unionized employees will be advised of their right to union representation. Interpreters, including sign language interpreters, will be provided upon request.
   2. The investigator may decide to exclude from any investigative interview any support person who may be directly involved in or have direct knowledge of the matters under investigation, as they may need to be called on as witnesses.
4. Confidentiality
   1. The university recognizes the importance of confidentiality for all parties involved in a complaint of harassment or discrimination. The university will make every reasonable effort to balance confidentiality with its legal responsibility to provide a work and study environment free from harassment and discrimination.
   2. The general practice of Human Rights Services is to keep all information confidential except as outlined in the above procedures, for example where specified individuals in the university must be notified of any formal complaint, where the Human Rights Services staff needs to make arrangements to separate the complainant and respondent during the course of an investigation, where the staff needs to interview witnesses, et cetera. Complainants, respondents and witnesses to an incident or a complaint are advised that information pertaining to the investigation must be held in strict confidence.
   3. Notwithstanding the above, there are additional circumstances which may require the Human Rights Services staff to discuss a particular situation with a more senior authority within and authorities outside of the university. These exceptional circumstances might include, for example:
      1. An assessment of imminent danger (e.g. someone is reported to be homicidal or suicidal or has received a death threat, etc.)
      2. Where there are reasonable grounds to believe the university could be held liable under the Ontario Human Rights Code or some other legislation for failing to take appropriate action (e.g. failure to exercise due diligence in protecting the safety of someone it believed was at risk)
      3. Where it is necessary to engage with relevant university offices having jurisdiction over the parties in order to support and fulfill management’s duty to maintain an environment free of discrimination and harassment.
      4. Where otherwise required by law (e.g. suspected child abuse, by subpoena, etc.)
   4. These above circumstances represent exceptions, not the rule, and are necessary to ensure the university is meeting its legal obligations.
5. If a complaint is found to be vexatious or made in bad faith
   1. Where there is evidence that a complaint is vexatious or is made in bad faith, the Human Rights Services staff will cease investigating the allegations of the complaint and will investigate whether the complaint is vexatious or is made in bad faith. Where a respondent claims a complaint is vexatious or made in bad faith but presents no evidence to support the claim, the Human Rights Services staff will proceed with the investigation of the original complaint. Where there is evidence to support a respondent’s claim that a complaint is vexatious or made in bad faith, the investigator will investigate such and will prepare an investigation report on that point for submission to the decision maker who will decide that matter and issue a remedy/penalty. The same procedures which apply in an investigation of discrimination and harassment apply to an investigation into whether a complaint is vexatious or made in bad faith.
   2. Any person who is found to have filed a vexatious complaint or to have made one in bad faith shall be subject to disciplinary action, up to and including any of the remedies and penalties imposed where there has been a finding of discrimination and harassment, as discussed in the Discrimination and Harassment Prevention Policy.
   3. Explanations of what constitutes complaints that are trivial, frivolous, vexatious and/or made in bad faith are found in the policy.

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