Policy for Complaints on Behalf of Another Person
This policy sets out the principles that guide the process when someone makes a complaint on behalf of another person. The Tribunal takes guidance from relevant United Nations conventions, declarations, and principles.
The person who makes a complaint on behalf of another person is called the Representative Complainant.
This policy also sets out the obligations of the Representative Complainant.
A person may make a complaint on behalf of another person where:
- the represented person consents;
- the represented person is child or youth (under 19 years of age); or
- the represented person has capacity issues and cannot bring the complaint independently or with appropriate supports in place.
Every person has a right to participate in the complaint process under the Human Rights Code, regardless of age, physical or mental disability, or any other reason a person may face a barrier to participation.
A person may make their own complaint. They may need support and assistance to do so. They may also choose to have someone else make the complaint on their behalf.
In other cases, someone may make a complaint on behalf of another person, without that person’s consent. For example, a legal guardian may bring a complaint on behalf of a child or youth. In cases involving adults, the Tribunal presumes that the adult can make the complaint on their own or can choose to have someone else make the complaint for them. Therefore, the person making the complaint on behalf of an adult must convince the Tribunal that it should allow them to make the complaint without the adult’s consent.
A represented person has the right to participate. The Tribunal will make all reasonable efforts to support every person’s participation in the complaint process.
When someone makes a complaint on behalf of a child or youth under the Human Rights Code, the Tribunal uses a child-centred approach. At every stage of the process, the primary consideration is the best interests of the child, including in supporting a child’s fullest participation in the complaint process, and by giving effect to the requirements to:
- respect a child as an individual with their own interests, preferences, and abilities;
- respect a child’s competence and developing ability to form and express their own views and make decisions;
- ensure the child has the opportunity to be heard and consulted, either directly or through a representative, in all matters of process and substance affecting the child in light of such factors as their age, maturity, culture, language, or any individual need;
- ensure the timeliness of the process from the child’s perspective; and
- give due weight to a child’s views in accordance with their age and maturity.
When someone makes a complaint on behalf of an adult under the Human Rights Code, the Tribunal uses an approach based on the following principles:
- There is a strong presumption that an adult has the legal capacity to make a complaint in their own name, and that legal capacity includes the ability to exercise that right independently or with adequate support and assistance.
- The Tribunal will support a person bringing a complaint in their own name with appropriate accommodations and supports for their decision-making.
- Where there is a representative complaint, the Tribunal must ensure the represented person’s fullest participation in the complaint process, by:
- recognizing that capacity may change over time and context and the Representative Complainant is bound to withdraw if the represented person becomes capable of pursing the complaint in their name with appropriate supports and accommodations and does not consent to the Representative Complainant continuing;
- respecting a person’s ability to understand information and to form and express their preferences and will, recognizing that these may change over time;
- respecting the rights, will and preferences of the represented person;
- providing an opportunity to hear and consider the preferences and will of a person without mental capacity, directly or indirectly.
A Representative Complainant must:
- act consistently with the guiding principles of this policy;
- act in good faith;
- focus on the represented person’s rights to protection against discrimination under the Human Rights Code;
- give the represented person information appropriate to their individual circumstances about the role of the Representative Complainant, the Tribunal processes and timelines, and possible outcomes of the Tribunal process;
- give the represented person an opportunity to express their views to the Tribunal about the complaint and to participate in the complaint, at each stage of the Tribunal process, in a manner that is appropriate for them;
- give the represented person regular follow-up, appropriate to their circumstances, about the steps taken on their behalf, where the complaint is at in the process, and what to expect next in the process;
- be accessible to the represented person throughout the processes;
- fulfil the functions of a Representative Complainant, including:
- learn about the complaint process;
- advocate for the provision of procedural and age-appropriate accommodations to enable the represented person to have an effective role as a direct or indirect participant in all Tribunal proceedings;
- decide whether to retain a lawyer or legal advocate and provide instructions to that person; and
- assist in gathering evidence to support the proceeding and putting forward the best possible case to the Tribunal.