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,
- is not privy to information disclosed in the mediation (mediation files are not provided to the investigator), and
- 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 witness interviews, 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 by videoconference, but they can take place in other ways, for example by telephone if barriers to technology exist. The interview is typically recorded, and the investigator will take notes. A witness can bring a support person with them to the interview. However, the support person should not be someone who is also a witness to the complaint. It is important that the witness answer the questions without assistance from anyone else. The support person must not interfere with the conduct of the investigation. Witnesses may be contacted more than once if clarification is necessary.
Once the investigator has completed interviews and gathered relevant documentation, the investigator prepares a disclosure report. A disclosure report includes:
- a summary of the complaint form,
- a summary of the response to the complaint,
- a list of the facts which are not in contention,
- a list of the facts that are disputed,
- a summary of the witness evidence,
- a list of the relevant documents, 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 hearing at the Court of King’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 an opportunity 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 complaint should be dismissed or continued, the final decision lies with the Chief Commissioner.
With the advice of the legal department, the Chief Commissioner can:
- refer the complaint to Court for a hearing,
- dismiss the complaint,
- return the file to the investigator for further investigation.
If the complaint is referred to Court, one last avenue of mediation will be tried before sending the case to the Court of King’s Bench. Directed Mediation, where both parties try to achieve a settlement without going to court, is a final attempt at resolution.
The Chief Commissioner will correspond directly with the complainant and respondent if the decision is made to refer the complaint to hearing or dismiss the complaint. Each case is considered carefully, and it may take several months before a written decision is rendered.