Alert: Significant Changes to NS Human Rights Complaint-Handling Procedure Effective January 1, 2012

Effective January 1, 2012, NS’s Human Rights Commission will receive, investigate and handle complaints under NS’s Human Rights Act under a new set of procedures. Coined the “I-3” procedure (short for “Inquire, Intake and Investigate”), the procedures are aimed at reducing the time between a complainant’s inquiry about a potential complaint and its resolution, and at including affected non-parties. The new procedures will significantly alter the process for responding to complaints under NS’s Human Rights Act. Given the majority of complaints (82% in the last year) of Human Rights Act complaints in NS are related to employment, employers will be particularly affected by the changes and should be well aware of the key changes, as follows:

• No “informal early mediation”: Currently, when a prospective complainant contacts the Human Rights Commission, the intake officer typically contacts the prospective respondent to determine if it has interest in pursuing early “informal” mediation to resolve the matter before a formal complaint is filed. In contrast, under the I-3 procedure this step is eliminated; if the matter appears to be within the Commission’s jurisdiction, the intake officer must complete a formal complaint immediately and it must be reviewed by a Commission Analyst and assigned to a Commission Officer within 5 days of the complainant’s initial call.

• Mandatory “Resolution Conference”: Currently, a complaint wends its way through the system subject to few, if any, mandatory deadlines. Typically, either party is free at any time to seek the other party’s agreement to undergo one (or, sometimes, more than one) mediation in an effort to resolve the complaint; however, mediation is entirely voluntary, and anything a party says in the mediation is “without prejudice” and cannot be used against that party in the formal complaint process. In contrast, under the I-3 procedure, the complaint will move through a series of steps set to deadlines; most notably, within 150 of the complainant’s initial call there will be a “Resolution Conference” before the Commission Officer which is both mandatory and, subject to any agreement otherwise, “on the record” and “with prejudice”. The Commission Officer is empowered to make findings of fact and, if the complaint is not resolved at the Resolution Conference, must prepare a “Final Report” and send it to all parties within 10 days after the Resolution Conference. What remains unclear is whether the Officer will undertake a full investigation and make findings of fact outside of the Resolution Conference before preparing the Final Report, as is currently the process.

• “Restorative Justice”: Currently, the only people entitled to be involved in the resolution of the complaint are the parties (and legal counsel, if either has retained it), although practically speaking one or both parties often rely on support from a family member or friend. The process generally takes the adversarial approach of lawsuits. In contrast, the I-3 procedure is a move toward a “restorative justice” approach, intended to move toward a less adversarial and more open, round table approach. Most significantly, this approach advocates the inclusion of people who, though not direct parties to the complaint, have been affected by it, such as family members and, important to employers, other employees. Although who can participate in the complaint process as an interested non-party will be left to the discretion of the Commission Officer, it remains unclear how such discretion will be exercised to limit how widely parties can cast the net on whom they bring to a Resolution Conference or otherwise include in complaint process.

Click here to read more about the pending changes to the NS Human Rights Commission process on its website.

The full impact of the I-3 procedure and the resulting changes to the NS Human Rights Commission’s process on respondents – including employers – will not be clear until after the procedure takes effect on January 1, 2012, and complaints wind their way through. Employers must be aware, however, that complaints the Commission receives in 2011 are currently being scheduled for “Resolution Conferences” in 2012. McInnes Cooper will monitor the impact of the I-3 procedure. Watch for our updates as the procedure is implemented.