Conciliation
At any time during the course of an investigation into a reprisal, the investigator may recommend to the Commissioner that a conciliator be appointed to attempt to bring about a settlement between the parties. Generally, it is the complainant and the employer who participate in the conciliation process, for the purpose of determining appropriate remedies for the complainant. The decision to enter into conciliation is entirely voluntary. It allows participants to have a direct role in settling the matter and to be supported by an expert in conciliation. The Commissioner appoints the conciliator after consulting with the complainant and the employer.
A conciliation session unfolds very much like a mediation session: the participants attempt to settle their dispute with the assistance of a neutral third-party. Any information received by the conciliator remains confidential and may not be disclosed except with the consent of the person who gave the information.
If the participants come to an agreement, the terms of the settlement must be referred to the Commissioner for final approval. If the Commissioner approves the terms of the settlement on remedies for the complainant, the reprisal complaint is dismissed.
The investigator does not participate in the conciliation process to remain impartial in case a settlement cannot be reached and the Commissioner continues the investigation. At the conclusion of the investigation, the Commissioner will decide whether a case should be referred to the Tribunal. The Tribunal is composed of judges of the Federal Court or a superior court of a province.
Please consult the following frequently asked questions for more information on conciliation:
How does conciliation compare to proceeding before the Tribunal?
The table below lists some of the differences between conciliation and proceeding before the Tribunal. Not all complaints are eligible for conciliation or a hearing before the Tribunal.
| Conciliation | Tribunal | |
|---|---|---|
| Length | Complaints may be resolved more quickly than cases that proceed before the Tribunal, because conciliation may take place at any time during the investigation. | A case before the Tribunal may take more time to resolve than a case addressed through conciliation. Cases may only proceed before the Tribunal if they are referred by the Commissioner and the Commissioner may only refer a case after an investigation has been completed. |
| Nature | Conciliation sessions are non-adversarial. | Hearings before the Tribunal resemble a trial, – which is adversarial by nature. |
| Confidentiality | Information received by the conciliator remains confidential and may not be disclosed except with the consent of the person who gave the information. | Confidentiality cannot be expected at the Tribunal’s hearings, since hearings are generally public. |
Is conciliation available on request from the parties?
Conciliation may be offered on an investigator’s recommendation, which takes into account the complainant's and employer's interest in resolving the complaint and the circumstances of the complaint.
A person under investigation in a reprisal complaint may also ask for a conciliation, which would be considered by the Commissioner.
Who pays for the conciliation?
The Commissioner's Office pays for the conciliation.
Who selects the conciliator?
The Commissioner selects the conciliator after consulting with the participants.
Where does conciliation take place?
Conciliation generally takes place in a location most convenient for the participants.
Who determines if the terms of settlement following a conciliation are fair?
The Commissioner must approve the terms of settlement.
How does the Commissioner decide whether to approve the terms of settlement following a conciliation?
In deciding whether to approve the terms of settlement following a conciliation, the Commissioner will consider whether the terms are:
- legally enforceable – i.e. not contrary to law or public policy;
- clear and within the power of the parties to enforce; and
- fair and agreed to freely on an informed basis by all participants.
At any time during the conciliation, the Commissioner may also provide access to funding for legal advice for those who are eligible.