Status of the Artist Act-Duty of Fair Representation complaint

Under the Status of the Artist Act, an artist can file a complaint with the Board if they feel that they have not been fairly represented by the artists’ association that represents them.

What is the Duty of Fair Representation?

Once an artists’ association is certified to represent artists, the artists’ association must represent the artists fairly in relation to their rights under the scale agreement that applies to them.
This means that the artists’ association cannot treat the artists that it represents in a way that is arbitrary, discriminatory, or in bad faith when advancing their complaints against producers or producers’ associations.

Who can file a Duty of Fair Representation complaint?

Artists represented by an artists’ association can file a complaint against their association if they feel that the association did not represent them fairly when it made a decision with respect to their rights under the scale agreement that is applicable to them.
Scale agreements establish the minimum terms and conditions for the provision of artists’ services. It is a written agreement between a producer or a producers’ association and the artists’ association.
A producer under the Status of the Artist Act is a federal government department or broadcasting organization. For a full list of federal government departments, click here. Examples of federally regulated producers include radio and television broadcasters.
The producer and the producers’ association do not generally participate in duty of fair representation complaints. They will receive notice of the complaint from the Board and can file a response if they want to participate.
In most cases, employers do not participate.

Who is involved?

The artist (you), also called the “complainant.”
The artists’ association, also called the “respondent.”
Together, the complainant and the respondent are the “parties” or “participants” to the complaint.
The Industrial Relations Officer (IRO) – for more information on the role of the IRO, click here.
A person appointed by the Chairperson of the Board who will hear and decide the complaint.

Can I be represented by someone else?

Yes, each party can be represented by the person of their choice.
The Board does not provide lawyers to assist parties.
The Industrial Relations Officer working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
It is important that you attend any case management conferences that the Board organizes. These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing.

When can the complaint be filed?

Complaints must be filed with the Board within six months of the date that the complainant first knew, or should have known, of the actions of the association leading to the complaint.
Complaints may be filed after the end of the six-month period if the complainant asks the Board for, and the Board allows, more time for the complaint to be filed.

How do I file a complaint?

It is strongly recommended that you use the Notice of Complaint form to file your complaint. The form contains the information that the Board needs to make a decision and will help you make sure that the information that you are filing is complete.
If you do not file all the information that the Board needs, it will take the Board longer to process your complaint.
In some cases, not filing all the information that the Board needs can result in your complaint being dismissed without the opportunity to make any further submissions.
All documents, including complaints and all supporting documents, are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board.
You do not need to send the Board a paper copy of documents that have been e-filed with the Board. If you need assistance with the E-Filing Web Portal, you can contact the Board directly using its 1-800 line or online inquiry form. The Board’s contact information can be found here.

What information or documents do I need to send to the Board?

You are responsible for providing the Board with the information and documents that are relevant to your complaint.
It is the complainant’s responsibility to prove that the association’s action or decision was arbitrary, discriminatory, or in bad faith.
- An action or decision may be arbitrary if the association acted without thoroughly investigating the artist’s concern or grievance.
- An action or decision may be discriminatory if the association treated someone differently because of their race, religion, age, sex, or sexual orientation.
- An action or decision may be in bad faith if the association acted with an improper purpose. For example, the association cannot make decisions based on its personal dislike of an artist.

What happens after the complaint has been filed?

The Board will send the person or organization who made the complaint (the complainant) and the person or organization named in the complaint (the respondent) a letter confirming that it has received the complaint.
If either of these parties has hired a representative, such as a lawyer, the letter will be sent to the representative. It is the representative’s obligation to keep the person that they represent up to date.
The letter will:
- include your case file number;
- include a copy of all documents filed by the complainant; and
- tell you when you can file additional information and documents (submissions).
The letter will also include the name and contact information of the Board’s Industrial Relations Officer (IRO) who will assist the Board and the parties with the complaint.
The IRO will answer questions that the parties have and assists the parties to reach a settlement whenever possible.
The letter will also advise the person or organization that the complaint is against (the respondent) of:
- how much time they have to file a response to the complaint; and
- how much time the complainant will have to reply to any new facts and arguments that the respondent raises.
  - Normally, the Board gives the respondent 15 calendar days to file a response and the complainant 10 calendar days to file a reply. Sometimes the Board will shorten the deadlines for responding. Make sure you read the letter that you receive from the Board.
The response should clearly explain the respondent’s version of the facts to the Board. The response should also include any documents that the respondent has which the complainant did not file and which are relevant to the complaint.
If you decide not to file a reply, you should write to the Board and tell it that you will not be filing one.
You do not need to file documents that the other party has already filed.
The parties are responsible for filing their arguments and documents on time.
If you need more time to file your submissions, you need to ask the Board to extend the deadline. The Board will want to know why you are late and need more time and will only give you more time if you have a good reason. The Board can refuse to consider any responses or replies that are filed late where an extension has not been given.

What do I need to do next, and what are the deadlines?

When the Board acknowledges receipt of the complaint, it will ask the parties to make written arguments to the Board.
Typically, the artists’ association is given 15 days to respond to the complaint (this is called a response), and the artist who filed the complaint has 10 days after that to respond to anything the association filed (this is called a reply).
The Board may refuse to consider any responses or replies received after the time limit has expired unless the party has asked for an extension of time and the Board has granted the request.

How do I file my documents, representations, or evidence?

All complaints, applications, responses, replies, and supporting documents are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board.
Each party must send all other parties a copy of any document that they file with the Board. This can be done by email, by mail, by registered mail, by courier, or by hand.
When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties.

Is the information in my file confidential?

Parties who file documents with the Board are participating in a public hearing. This means that the documents that are in the file are available to the public.
If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the information that is protected will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case.

Will there be mediation?

Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
For more information on the mediation process, please click here.

Will there be a hearing?

Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing.
If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a Case Management Conference.
For more information on the Board’s hearing process, please click here.

When will I get the decision?

The Board will notify you in writing of its decision.
The time that it takes the Board to issue a decision can vary depending on the complexity of the case.
All important decisions of the Board are published on the Decisions page.
You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after a complaint is filed.

What can the Board order the artists association to do if the complaint is successful?

If your complaint is successful, the Board can order the artists’ association to pursue, or to help you pursue, any rights or remedies that the association should have pursued on your behalf.

Is the Board’s decision final?

The Board’s decisions are final and can only be reviewed in very specific circumstances.

If you believe that a Board decision is unreasonable, you can apply to the Federal Court of Appeal for judicial review; or
If you believe the Board has made a serious error and should correct its original decision, you can file an application for reconsideration.

In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.  

Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review. 

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