Supreme Court of Canada Confirms Canadian Human Rights Tribunal
Cannot Award Costs
Donna Mowat filed a human rights complaint with the Canadian Human Rights Commission (CHRC) alleging that she had been discriminated against by the Canadian Forces on the ground of sex, contrary to the Canadian Human Rights Act (CHRA).
The Canadian Human Rights Tribunal found the complaint substantiated in part, and awarded damages in the amount of $4,000 as compensation for “suffering in respect of feelings or self respect”.
Mowat then applied to the Tribunal for legal costs. The Tribunal determined that it had the authority to grant such an award, and Mowat was awarded costs in the amount of $47,000.
On appeal, the Federal Court upheld the Tribunal’s decision with respect to its authority to award costs. However, another appeal to the Federal Court of Appeal resulted in the decision that the Tribunal had no such authority.
Finally, the Supreme Court of Canada has heard and dismissed the appeal, agreeing with the reasons of the Federal Court of Appeal.
The question before the Court was whether sections 53(2)(c) and (d) of the CHRA, which state that the Tribunal has authority to “compensate the victim…for any expenses incurred by the victim as a result of the discriminatory practice” can be interpreted in such a way as to permit an award of legal costs.
The Court found that the proper standard of review to be applied to the decision of the Tribunal was reasonableness, since the question was a question of law within the expertise of the Tribunal, and related to the interpretation and application of the Tribunal’s enabling statute.
The Court recognized that human rights legislation expresses fundamental values and goals, and that, accordingly, it must be interpreted liberally and purposefully. However, the Court explained that the words of the legislation must be read in context and in their grammatical and ordinary sense. The Court found that the words “any expenses incurred by the victim”, on their own were wide enough to include legal costs. However, reading these words in their statutory context leads to the opposite result.
The Court held that the term “costs” is a well-recognized legal term of art, and is distinct from “compensation” or “expenses”. Had Parliament intended to provide the Tribunal the authority to award costs, the Court explained, it is difficult to understand why it did not use the well-known, and widely used, legal term of art.
A review of the legislative history of the CHRA, the Commission’s understanding of costs, and comparable provincial legislation all led to the same conclusion – the Tribunal does not have the authority to award costs.
In addition to these findings, the Court noted that, where the Tribunal’s interpretation is applied, an award for pain and suffering along with an award for legal costs could be for an unlimited amount. The Court had difficulty reconciling this approach, given that there are monetary limits for awards of pain and suffering, and no express authority is stated in section 53(3).
On the whole, the Court found that no reasonable interpretation of the statutory provisions could support the Tribunal’s interpretation that it could award legal costs to successful complainants.
As a result, the Supreme Court’s decision has clarified that statutes likely need to make specific reference to “costs” as a type of remedy in order to confer upon a tribunal the authority to grant such an award.