A - Procedure for Complaints Involving Employees
1. Confidentiality: Discrimination and harassment are very sensitive issues and all persons involved with a complaint are expected to treat the matter as confidential. Employees may be disciplined if confidentiality is breached. Managers and supervisors are required to keep information as confidential as possible when addressing human rights concerns. The Human Rights Office will preserve confidentiality as much as is possible and will not share information without consultation with a party to a dispute, or as legally required or permitted, subject to the requirements of a fair investigation - consult the Human Rights Office for details and exceptions.
2. Informal Resolution Options: Under the policy, several options to resolve harassment and discrimination concerns are available for employees. An informal approach can foster prompt resolution, without a formal investigation. Quick resolution of a complaint can prevent escalation and further negative consequences and is best achieved if issues are raised as soon as possible. All persons who believe that they have experienced harassment and, or discrimination should keep detailed notes about the issue.
Where the Human Rights Office is contacted, Human Rights Office staff will determine in consultation with a complainant whether the concern(s) can be referred to division management to allow an opportunity to resolve the matter.
- Consultation - Advice & Assistance: Employees may benefit from having expert information and advice before deciding how to proceed with a discrimination or harassment concern. It is the employee’s choice as to who they seek advice from to help resolve a human rights or harassment concern. Employees can consult their supervisor, manager, director or division head; Human Resources staff; Employee Assistance Program staff or Human Rights Office staff. These staff all have a responsibility to take action to resolve and prevent harassment and discrimination – refer to section 3.0 of the Policy, Roles and Responsibilities – and can provide advice, assistance, coaching, and referrals to assist employees in addressing harassment or discrimination themselves. Employees may also consult their union or staff association. Taking this step can prevent escalation of the problem and promote the timely restoration of a discrimination and harassment free workplace. All consultations to the Human Rights Office will remain confidential as much as is possible, or as legally required. Consult the Human Rights Office for details.
- Talking to the person about their conduct: All employees are encouraged to attempt to resolve matters themselves before filing a complaint. If an employee feels s/he has been harassed or discriminated against, s/he should immediately make known to the person that his/her conduct is unwelcome or offensive and against the Human Rights and Anti-Harassment Policy. It is important that this message be clear and unambiguous. When presented with such a concern, all employees, including management staff are expected to make reasonable adjustments to their behaviour to resolve the matter. If addressing the person responsible could lead to an escalation of the harassment or discrimination, to safety risks, or is not appropriate, employees may pursue other resolution options outlined in this policy.
- Interventions by other staff: If an employee is unable to resolve the issue him/herself or the discrimination or harassment continues after asking the person to stop, the employee may request management or the Human Rights Office to intervene or investigate to facilitate resolution. Most complaints are able to be resolved at this stage without a formal investigation.
This option may include:
- a more in-depth examination of the concerns and allegations; consulting, advising, meeting with and, or interviewing parties e.g., management, the respondent, witnesses, Human Resources staff etc
- a review of documentary evidence, e.g., email messages
- communication of findings to the parties in dispute and recommendations to remedy concerns
- an option by parties to participate in mediation or to have a facilitated negotiation to resolve the issues
This is an opportunity for parties to resolve a dispute, ensure the workplace is free from harassment and discrimination and address broader issues that caused or contributed to the dispute.
Depending on the nature of the complaint and the complainant’s desired outcome, respondents may not be informed of a concern against him/her, i.e., where the complaint does not warrant exploration, where the complaint is outside the Policy mandate or where an issue can be resolved through a remedy such as training. However if a formal complaint is filed with the Human Rights Office respondents will be notified in writing as soon as is practicable. See Section 4.
3. Personal (Non-Code) Harassment: Where appropriate, division management are responsible for intervening as a first step and addressing concerns/complaints of
personal (non-Code) harassment. The Human Rights Office will only accept complaints of personal (non-Code) harassment once other resolution options have been exhausted or are not appropriate. Employees should raise their personal harassment concerns to their superior. If the concern/complaint involves the employee’s superior, the employee may raise the concern with that person’s superior. Human Rights Office staff can advise parties where there are concerns about real or perceived conflict, fairness, etc., in exploring concerns. Consult the Human Rights Office for details.
4. Formal Complaints and Investigations: If the above approaches are not effective or appropriate to resolve a situation, or the complaint is of a serious or systemic nature, a formal complaint and investigation may be necessary.
5. Investigations: Investigations, both informal and formal, conducted by staff of the Human Rights Office will include a comprehensive and impartial review of all relevant information, including the respondent’s position/response, witness information, etc. The investigator has the authority to speak with anyone, examine and copy any documents, records, files and enter any work locations which are relevant to the complaint.
- all formal complaints will be referred to the Human Rights Office for mediation and/or investigation
- Human Rights Office staff will assess whether a formal complaint is the only appropriate way to address the concern
- anonymous complaints will not be accepted
- formal complaints must be in writing and signed by the complainant. Staff of the Human Rights Office can assist in drafting the formal complaint
- where possible the following details should be included in the complaint:
- what happened – a description of the events or situation
- the ground
- when it happened – dates and times of the events of incidents
- where it happened
- who saw it happen – the names of witnesses, if any
- the responsible division head and Deputy City Manager or City Manager as applicable will be notified of a formal complaint as soon as it is initiated by the Human Rights Office
- respondents to a complaint will be notified as soon as practicable during the investigation process
- the Human Rights Office will determine in consultation with others as necessary and on a case-by-case basis, whether the complainant or respondent should be placed on a paid leave, relocated within the division, or provided with an alternate reporting relationship during an investigation
- Human Rights Office staff will conduct a thorough, fair investigation, including interviewing the complainant(s), respondent(s) and witnesses, gathering and reviewing documentary evidence and exploring whether broader issues contributed to the complaint
- at the conclusion of an investigation, the investigator will prepare a written report that includes the allegations, respondent’s position, witness and documentary evidence, factual findings, conclusions and discussion about policy violation(s)
- the report will be shared with the Deputy City Manager or City Manager as applicable, division head, the complainant(s) and respondent(s)
- these parties will be given an opportunity to submit comments before a final decision is made to resolve the complaint
- the Human Rights Office may make recommendations to correct any existing problems and/or to prevent similar problems from occurring in the future
- final decisions regarding the disposition of a complaint will be made by the responsible Deputy City Manager or City Manager as applicable and division head and communicated in writing to the parties
6. Refusal to Intervene or Investigate: The Human Rights Office has discretion to refuse to intervene or investigate or may discontinue an intervention or investigation where: an adequate remedy already exists; the complaint is frivolous, vexatious or not made in good faith; another complaint avenue has been pursued (such as a grievance); or having regard to all the circumstances further investigation of the matter is unnecessary.
7. External Consultant: The Executive Director of Human Resources has the discretion to retain a qualified external consultant to conduct the mediation or investigation where there is a potential conflict between the Human Rights Office staff and the parties involved in the complaint or where there are systemic or ongoing human rights issues that have not been appropriately remedied by internal interventions.
8. Other Avenues of Complaint: Employees have a legal right to pursue a human rights and harassment concern under a variety of complaint avenues: a complaint under this Policy, a grievance under a collective agreement (subject to the terms of the collective agreement), a complaint with the Human Rights Tribunal of Ontario*, an application to the Ontario Labour Relations Board, or a criminal complaint with the Toronto Police Service if appropriate. If another complaint avenue about the same events has been pursued, the Human Rights Office cannot intervene.* Complaints related to non-Code personal harassment will not be accepted by the Human Rights Tribunal of Ontario.
9. Complainant Source: Complaints about a contravention of the policy will be accepted from any source that provides reasonable grounds to initiate an investigation (i.e., involved person or group, witnesses, other third parties). These individuals are not considered Complainants for the purpose of the Policy and Procedures. The Human Rights Office may also initiate a formal complaint if it has information which suggests the existence of an outstanding specific or systemic problem in the workplace.
10. Reprisals: The Human Rights and Anti-Harassment Policy strictly prohibits any retaliation, either direct or indirect, against an individual for: exercising their rights under the policy, initiating a complaint in good faith, investigating a complaint, being a decision maker in a complaint, participating as a witness in an investigation, being a respondent to a complaint, having been associated with, or representing a complainant, witness or respondent. Employees found to have engaged in reprisals may be subject to discipline. Appropriate discipline for a policy violation is not considered a reprisal.
11. Time Limits: The time limit for the filing of complaints under the policy is one year from the time of the alleged discrimination or harassment. Exceptions may be granted by the Human Rights Office in extenuating circumstances.
12. Mediation: Where appropriate, the Human Rights Office may offer to mediate the complaint at any point during an investigation. Participation in mediation is voluntary. All mediation discussions will be held on a confidential, "without prejudice" basis. Any settlement would have to be satisfactory to both parties and be consistent with this Policy. Parties will be required to sign a confidential Minutes of Settlement.
13. Support: Parties to a complaint have the right to be accompanied by a support person of their choice, including their union representative, during meetings regarding a complaint under the Policy. However, as this complaints procedure is a mechanism for alternative dispute resolution, a mediation or investigation may be terminated if either party to the complaint retains legal counsel during the mediation or investigation.
14. Complaint Records: Records of a complaint will only be placed on an employee’s personal file when disciplinary action is taken. This record of discipline is subject to the provisions of any applicable collective agreement. All records pertaining to enquiries and complaints under this Policy will be kept in confidential secure storage – separate from personnel files. All records are subject to the provisions of the Municipal Freedom of Information and Protection of Privacy Act and the Record Retention By-law.
15. Disciplinary Action: Any employee who engages in discrimination or harassment, reprisals, or breaches confidentiality may be subject to appropriate disciplinary action up to and including termination of employment. Staff who are in a supervisory position and fail to take action when advised of discrimination or harassment may also be subject to disciplinary action. Disciplinary action may also be taken if a complaint is found to have been made fraudulently and with malicious intent. Consequences for policy violations may include but are not limited to: an apology, counselling, education and training, a verbal or written reprimand, suspension with or without pay, a transfer or termination of employment. In determining appropriate consequences, factors including, but not limited to the nature of the violation, the severity, whether the individual has previously violated the Policy and, or whether there is relevant discipline on file, will be taken into account.
16. Completion of Investigation/Mediation: Proceedings under the policy will be completed within six months of initiation of a formal complaint. Exceptions may be made in extenuating circumstances.
17. Complaints Involving Staff in the Human Resources Division: The Human Rights Office has the authority where necessary to raise issues directly to the City Manager where Human Resources Division staff are directly or indirectly implicated in a complaint of discrimination or harassment.
18. Complaints Involving Staff of the Human Rights Office: Complaints of discrimination or harassment made by or regarding the direct personal behaviour of staff of the Human Rights Office may be handled by a qualified external consultant at the discretion of the Executive Director of Human Resources. Parties to a complaint under this provision of the policy have the right to a representative of their choice, including legal counsel and subject to the conditions set out in section B8(a), each party may be reimbursed for some legal costs. Final decisions in such matters will be made by the City Manager and the Executive Director of Human Resources.
19. Complaints with the Human Rights Tribunal of Ontario: Complaints filed with the Human Rights Tribunal of Ontario will be referred to the City Solicitor and the Human Rights Office for joint review, mediation or investigation. Contact Legal Services Division immediately upon receiving any correspondence from the Human Rights Tribunal of Ontario.
B - Procedure for Complaints Involving Senior Management
A complaint made to the Human Rights Office by or about the "direct personal behaviour" of Deputy City Managers, Executive Directors, General Managers, the Executive Director, Human Resources, and statutory officials must be in writing, signed by the complainant.
1. Complaint Assessment: The Human Rights Office will assess the merits of the complaint in consultation with the City Manager, to determine whether to retain an external consultant. Where it is determined that the complaint has merit, the Human Rights Office in consultation with others as necessary, will retain an qualified external consultant and determine the scope of and manage the contract of the consultant.
2. Notification of Complaint: The Human Rights Office will notify the City Manager of the complaint. The external consultant shall notify the persons named in the complaint of the specific allegations against them as soon as possible thereafter.
3. Authority and Duties of the External Consultant: The scope of the external consultant’s authority to investigate and/or attempt to settle the complaint, to speak with anyone, examine any documents and enter any work location relevant to the complaint for the purposes of investigation or settlement will be set out in the terms of the contract.
4. Interim Reports and Discontinuance of Complaint: The external consultant may make interim reports to the City Manager as required, to address instances of interference, obstruction, retaliation, or breaches of confidentiality encountered by the external consultant while dealing with a complaint under the policy.
Upon receipt of the complaint, or at any point during the investigation/mediation, the external consultant may submit a report to the City Manager making a recommendation to stop dealing with a complaint where: the complaint is outside the scope of this section, or the policy; an adequate remedy already exists; the complaint is frivolous, vexatious or not made in good faith; or, having regard to all the circumstances, further investigation of the matter is unnecessary.
The City Manager may approve or reject the recommendation after considering submissions from the parties to the complaint.
5. Other Avenues of Redress: Nothing in this section should be interpreted as denying or limiting access to other avenues of redress available under the law (e.g., criminal complaint, grievance, civil suit, or a complaint with the Human Rights Tribunal of Ontario). The City Manager however, may decide to postpone, suspend or cancel any investigation into a complaint under the policy if it is believed that the investigation would duplicate or prejudice such a proceeding.
6. External Consultant's Final Report: The City Manager shall be presented a final report outlining the findings, conclusions, recommended corrective action, or terms of settlement, within 90 days of the making of the complaint. The City Manager may grant an extension of time upon the request of the external consultant.
The complainant and respondent will be given 30 days to review and comment on the final report. Comments are to be sent to the City Manager.
7. Final Decision: Final decisions about complaints involving senior management will be made by the City Manager in consultation with others, e.g., the appropriate Deputy City Managers, Legal Services Division staff, etc., as necessary. The City Manager will review the final report and any comments received before making any decision on the matter. The City Manager, in consultation with the Legal Services Division may approve, change or reject any proposed terms of settlement or recommended corrective action.
8. Legal Representation and Costs:
9. Confidentiality: All persons involved with a complaint are expected to treat the matter as confidential. Breaches of confidentiality will be addressed by the City Manager.
- Parties to a complaint under this section of the policy have the right to a representative of their choice, including legal counsel. Subject to the conditions set out below, each party to a complaint under this section will be reimbursed up to $6,500.00 for legal costs.
- The legal costs for respondents under this section will be reimbursed up to $6,500.00 in all cases where the external consultant concludes that there has been no violation of the policy. Where there is a settlement (including a mediated agreement), reimbursement, subject to the limit outlined above may be provided at the discretion of the City Manager.
- The legal costs for complainants under this section will be reimbursed up to $6,500.00, in all cases except where a complaint has been found to be trivial, frivolous, vexatious, or not made in good faith.
C - Complaints Procedure for Residents and Recipients of Municipal Services
1. Jurisdiction: Under this section, complaints may be made to the appropriate City division or the Human Rights Office.
Residents and service recipients may complain under the policy about discrimination and harassment in the administration and delivery of City services, access to and use of City facilities, occupancy of City-owned accommodations or discrimination in legal contracts. The Human Rights Office has no jurisdiction over acts or procedures (i.e., policy decisions) of Toronto City Council or its Committees. In addition, residents and service recipients may be required to exhaust any other avenues of appeal which are reasonably available prior to making a complaint under the policy. As this complaints procedure is a mechanism for alternative dispute resolution, a mediation or investigation may be terminated if either party to the complaint retains legal counsel during the mediation or investigation.
2. Divisions: Where appropriate the complaint will be referred to the manager of the appropriate service delivery unit to allow that unit an opportunity to resolve the matter.
3. Early Resolution: If the resident or service recipient is unable to resolve their problem directly with the division, the Human Rights Office, may try to mediate a solution.
4. Formal Complaint and Investigation: If early resolution does not resolve the situation, the Human Rights Office will assess the merits of the complaint and determine whether a formal investigation is appropriate to resolve the complaint. If a formal investigation is necessary, the Human Rights Office will prepare a complaint form based on the resident’s information. Once the complaint form is signed by the complainant the Division Head and Deputy City Manager or City Manager as appropriate will be notified and required to respond.
5. Settlement: The Human Rights Office will keep both parties advised of the progress of the investigation. With the consent of both parties, the Human Rights Office may attempt to mediate a settlement of a complaint at any point during an investigation. If a settlement is reached, the matter is closed and no investigation report is written.
6. Investigation Report: The investigation report formally tells both parties what relevant information the investigation discovered, on which the Human Rights Office will base recommendations.
7. Commenting on the Investigation Report: The investigation report is disclosed to the resident or service recipient and the involved division. Both parties will be given 15 working days to individually review the investigation report and submit written comments if they believe the report missed or misstated any information which would have a bearing on the outcome.
8. Recommendations: The Human Rights Office may make recommendations to correct any existing problems and/or to prevent similar problems from occurring in the future.
9. Final Decision: The Division Head and City Manager or Deputy City Manager as appropriate, or designate, will review the investigation report and any recommendations and provide the parties with a final written decision within 30 days.