Supreme Court to Decide Whether CHRT can Award Legal Costs

In Canada (Canadian Human Rights Commission) v. Attorney General of Canada, the Supreme Court of Canada granted the Commission leave to appeal from the decision of the Federal Court of Appeal, in which that court found that the Canadian Human Rights Tribunal (CHRT) did not have the jurisdiction to award legal costs.

The complainant, Donna Mowat, was a Master Corporal in the Canadian Armed Forces (CAF) who alleged that she had been the subject of gender discrimination at the hands of CAF, contrary to the Canadian Human Rights Act (CHRA). The Canadian Human Rights Commission did not take carriage of the matter, and Ms. Mowat hired her own legal representation for the hearing before the CHRT.

After six weeks’ of hearing, the CHRT found that Ms. Mowat’s complaint was substantiated. The Tribunal awarded her $4,000 for suffering and loss of self-respect, and $47,000 in legal costs.

The CAF applied to the Federal Court for judicial review of the costs award, arguing that the Tribunal did not have jurisdiction to award legal costs and that, even if it did have such authority, it exceeded this jurisdiction and failed to give adequate reasons for its decision.

Section 53(2)(a) of the CHRA states that, when an employer violates the Act, the CHRT can order the employer to compensate the victim “for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice.” The Federal Court found that the CHRT’s interpretation of this provision as giving it jurisdiction to award legal costs as an expense arising from discriminatory conduct was reasonable. However, the Court also found that the CHRT had failed in its duty to give reasons for its costs award, and accordingly quashed the decision on costs.

The Attorney General appealed this decision to the Federal Court of Appeal, which allowed the appeal. The Court of Appeal noted the definitional differences between “costs” and “expenses”, and further noted that, in other Canadian jurisdictions, where the legislature intended a human rights tribunal to have the authority to award costs, this authority was expressly addressed in a separate provision. Thus, the Court of Appeal concluded that Parliament did not intend to grant, and did not grant, jurisdiction to the CHRT to award legal costs.

The Commission has appealed this decision and will argue that the Court of Appeal applied a narrow and legalistic interpretation of the CHRA that frustrates the purposes of the Act, and could jeopardize access to justice. We will keep you updated on the outcome of the appeal.