Labour And Employment Legal Alert — November 2011

The issue of whether successful complainants are entitled to recover legal costs in human rights proceedings has been a matter of dispute in recent years. This has resulted in conflicting decisions from adjudicators interpreting human rights legislation in various jurisdictions. Typically, the question of whether costs can be awarded to a complainant is a matter of statutory interpretation, and the outcome is a result of the specific language contained in the human rights statute under review.

Last week, the Supreme Court of Canada (SCC) confirmed that the Canadian Human Rights Tribunal (CHRT) did not have authority to award legal costs to a complainant, under the provisions of the federal statute.1

THE LOWER LEVEL DECISIONS

The Mowat decision involved a sexual harassment complaint filed by an employee of the Canadian Armed Forces. The CHRT found that the complaint had been substantiated in part, and awarded the complainant $4,000 plus interest for "suffering in respect of feelings or self respect". She was also awarded $47,000 plus interest for legal costs, which represented a portion of the actual legal costs she claimed to have incurred. The CHRT found that it had jurisdiction to make the award for legal costs, pursuant to section 53(2)(c) of the Canadian Human Rights Act (the Act ), which permits the tribunal to compensate victims for "...any and all wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice."

The employer applied for judicial review of the CHRT's decision to the Federal Court. Adopting a deferential standard of review, the Federal Court considered whether the CHRT's decision was reasonable. In the Federal Court's view, section 53(2)(c) of the Act was broad enough to confer upon the CHRT the power to award legal costs. As such, the Federal Court concluded that the CHRT's decision was reasonable.

The Federal Court of Appeal took a significantly different view. First, the Court of Appeal noted that the question of jurisdiction to award legal costs was a matter of general law which has central importance to the legal system as a whole.

It also found that the proper interpretation of section 53(2)(c) of the Act did not require any human rights expertise to decide. As such, the Court of Appeal determined that the CHRT's decision was to be reviewed on the standard of correctness.

Turning to the merits of the case, the Court of Appeal concluded that section...