One-Two Punch: Supreme Court Of Canada Narrows Human Rights Tribunals' Discretionary Powers

In November, the Supreme Court of Canada released two important decisions on procedure in human rights applications, both of which should ultimately assist employers or respondents in defending against human rights complaints.

In Canada (Canadian Human Rights Commission) v. Canada (AG), 2011 SCC 53 (Mowat), the Supreme Court rejected the argument that the Canadian Human Rights Tribunal (CHRT) has the power to award legal costs to successful complainants. In British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (Figliola), the majority of the Supreme Court came out strongly against human rights complainants trying to litigate their claims in multiple forums before ending up at a human rights tribunal.

Mowat: Costs of Human Rights Tribunal Applications

The issue in Mowat was whether the CHRT has the jurisdiction to award applicants their legal costs. The Supreme Court rejected this interpretation of the Canadian Human Rights Act, meaning that federally-regulated employers and other respondents cannot be ordered to indemnify applicants for their legal fees.

The Act gives the CHRT the power to "compensate the victim for...any expenses incurred by the victim as a result of the discriminatory practice". The applicant in this case, Donna Mowat, alleged that her employer, the Canadian Armed Forces, discriminated against her by condoning sexual harassment. The CHRT awarded her $4000 in general damages. It also awarded her $47,000 in legal costs as "expenses" pursuant to section 53.

The Federal Court upheld the CHRT's decision that it had the authority to award costs. The Federal Court of Appeal allowed the appeal on the basis that the CHRT had no such authority. The Supreme Court of Canada unanimously upheld the Federal Court of Appeal's decision.

First, the language of the Act suggests that Parliament did not intend for the CHRT to have the power to award costs. Section 53 uses the term expenses when costs is the term used to describe legal fees.

Second, the history of the Act and the Canadian Human Rights Commission itself suggest that the CHRT does not have this jurisdiction. Earlier versions of the Act that were not enacted allowed for costs. The Commission has repeatedly taken the position that the CHRT does not have the power to award costs (and recommended that the legislation be amended to allow the CHRT to award costs).

The interpretation of expenses adopted by the CHRT and the Federal Court in this case would have created...