Since January 1, 2022, amendments to The Human Rights Code have given the Executive Director of the Manitoba Human Rights Commission (MHRC) the power to dismiss a complaint without investigating it if, in their opinion:
- it is frivolous or vexatious;
- the acts or omissions described in it do not contravene this Code;
- it is not within the jurisdiction provided by this Code;
- its subject matter is being or has been dealt with appropriately according to a procedure provided for under another Act; or
- additional proceedings in respect of it would not benefit the person against whom this Code is alleged to have been contravened.
For employers on the receiving end of a human rights complaint, this is a significant (and positive) change.
Previously, a complaint could only be dismissed after an investigation had been completed. The practical problem was that the time between a complaint being filed and the start of the investigation process was quite long. In recent experience, I have been warned that the wait for an investigator to be assigned could be up to 24 months.
The early dismissal process creates an opportunity to advocate far earlier in the complaint process. An early dismissal means you will not expend resources participating in the investigation process, nor will you run the risk of memories fading after a lengthy wait for the investigation to begin.
Early dismissal will not make sense for every complaint though. The process is designed to address those complaints that are obviously not appropriate for investigation. For example, where the complaint contains no facts that establish any breach of the Code, or where the complaint could have been pursued through the grievance/arbitration process in a unionized work setting.
On other hand, complaints alleging facts that, if proven, would be a breach of the Code are likely destined for investigation so the investigator can gather evidence and sort through what actually happened.
Hopefully, the introduction of this early dismissal process will allow employers to be able to deal with human rights complaints more quickly than before – either by early dismissal or through a faster investigation process that is no longer clogged up with complaints that are clearly non-starters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.