When the Saskatchewan Human Rights Commission determines that reasonable grounds to file a complaint exist, an intake officer drafts a formal complaint. The parties to the “formalized complaint” are referred to mediation in an attempt to find a resolution that both parties can accept. However, if mediation does not resolve the complaint, the matter is referred to investigation.
The Commission’s Director of Resolution assigns the file to a staff investigator. The investigator usually initiates contact with the complainant and the respondent to discuss and answer any questions there might be about the process. The investigator is not privy to information disclosed in the mediation and mediation files are not provided to the investigator. The investigator is a neutral party interested in uncovering the facts of what happened.
The investigator’s first job is to put together an investigation plan. After becoming familiar with the information in the file, the investigator isolates the key elements that need to be proven and the key defenses that could be raised in answer to the complaint. The investigator will look at the main facts that need to be considered.
As part of the investigation preparation and planning, the investigator identifies documents that might be needed to substantiate the facts in question. The investigator has the power to request documents from both parties and from other sources (third-party insurance companies, WCB, etc.)
The investigator will also compile a list of witnesses to speak to during the investigation, set dates for the collection of statements, and set an overall time frame for the completion of the investigation.
Ideally, an investigation will take no more than six months, but this timeline may be extended depending on the availability of witnesses or the complexity of the complaint.
With the investigation plan in place, the investigator prepares questions for each interview that will be conducted. Interviews are usually done face-to-face, but phone interviews can be arranged if necessary. The person being interviewed can bring a support person with them, but it is important that the interviewee answer the questions without assistance from anyone else.
The investigator will capture what is being said with a laptop, with handwritten notes, or a recording device. The investigator then prepares the interviewee’s statement. Once validated and signed by the interviewee, the statement is returned to the investigator for filing.
The investigator reviews the other documentation and consults with witnesses until there is sufficient information to complete a disclosure report. Witnesses may be contacted more than once if clarification is necessary.
With the necessary information and details, the investigator prepares a disclosure report. A disclosure report provides a summary of the investigation’s findings. It includes a summary of the complaint form, the response to the complaint, a list of the facts which are not in contention, and a list of those that are. The investigator will also include any documentary evidence necessary to establish the facts of the complaint, and a description of any particular issues with the investigation (e.g., if witnesses were uncooperative.)
Witnesses are usually anonymized in the disclosure report by assigning them a letter (Witness A) and/or identifying them by their title (if applicable). For example, a disclosure report might state that Witness A is the CEO of Acme Electronics Inc. Those involved in an investigation should know that, although there is an effort to make witnesses anonymous in the disclosure report, they may still be identifiable to people who are familiar with the situation or the company. Furthermore, if the complaint goes to adjudication at the Court of Queen’s Bench, witnesses may be called upon to testify in court and their identities will become public.
When the disclosure report is finished, it is sent to both the complainant and the respondent. They each have a two week window in which to respond to the document.
At this time, either the complainant or respondent can ask for clarification or provide additional information they feel might strengthen or clarify their position. The investigator strives for administrative fairness, neutrality in the presentation of the facts, and the investigator maintains an impartial position throughout.
Sometimes a complaint is resolved during the investigation process. If a complainant and a respondent wish to come to an agreement, the investigator can facilitate the process. An investigator may also explore options for settlement, while still protecting the timelines and the integrity of the investigation should negotiations break down.
If the complaint is not resolved during investigation, the investigator presents the disclosure report to the Commission’s Case Management team. Although the investigator will make a recommendation as to whether the complain should be dismissed or continued, the final decision lies with the Chief Commissioner.
With the advice of the legal department, the Chief Commissioner can recommend one of three options:
- either the complaint will move toward adjudication,
- the complaint will be dismissed,
- or it will be returned to the investigator for further investigation.
The Chief Commissioner will correspond directly with the complainant and respondent if the decision is made to pursue adjudication or dismiss the complaint.
If the complaint is directed toward adjudication, one last avenue of mediation will be tried before sending the case to the Court of Queen’s Bench. Directed mediation, where both parties try to achieve a settlement without going to court, is a final attempt at resolution.