Canada: Labour And Employment Legal Alert — November 2011

Last Updated: November 10 2011
Article by Jennifer M. Fantini and Alka Kundi

Most Read Contributor in Canada, September 2016

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 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 53(2)(c) of the Act could not be interpreted as granting the CHRT the power to award legal costs. In reaching this conclusion, the Court of Appeal made a distinction between "expenses" and "costs", noting that the latter has specific meaning as a legal term of art. Further, the Court of Appeal went on to note that in jurisdictions where human rights tribunals have authority to award legal costs, their enabling statutes refer specifically to such powers. In the absence of such specific wording in the federal Act, the Court of Appeal found that the CHRT did not have jurisdiction to award legal costs. Had Parliament intended to confer such power upon the CHRT, it could have done so explicitly.


The SCC determined that the Federal Court of Appeal had applied an incorrect standard of review, but nevertheless agreed that the Court of Appeal had come to the correct decision in finding that the CHRT did not have authority to award costs.

The SCC concluded that the appropriate standard of review was reasonableness. In that regard, the highest court reasoned that whether the CHRT had authority to award costs was a question of law located within the core function and expertise of the Tribunal and which related to the interpretation and application of its enabling statute. It was neither a question of jurisdiction, nor was it a question of law of central importance to the legal system as a whole, falling outside the Tribunal's area of expertise. As a result, more deference was accorded to the CHRT's decision.

Regardless, the SCC concluded that the CHRT's interpretation of the federal Act was unreasonable, when considering the language of the provisions, and their context and purpose. When read in their statutory context, section 53(2)(c) of the Act could not reasonably be interpreted as creating a stand alone category of compensation (i.e. legal costs) particularly, when the term "expenses" was repeated in the following section in relation to a different type of compensation. In addition, the SCC reasoned that had Parliament intended to confer authority to award costs on the Tribunal, it would have used the familiar and widely used legal term of art, "costs", to confer such authority.

The Supreme Court of Canada concluded that the Tribunal had adopted a "dictionary meaning" of expenses rather than engaging in "an interpretive process taking account of the text, context and purpose of the provisions in issue."2

The SCC's decision in Mowat has clarified that in order for human rights legislation to confer tribunals with the authority to award costs to successful complainants, the enabling statutes will likely be required to make reference to legal "costs" as a specific type of remedy. While deciding only the narrow issue of whether the CHRT has jurisdiction to award legal costs, the Mowat decision is also likely to be binding in other jurisdictions which contain compensatory provisions similar to the federal Act. A conclusive finding that legal costs cannot be recovered in human rights proceedings will no doubt have a significant impact upon whether complainants will seek legal counsel, and the manner in which such complaints are litigated.


1 Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, affirming Canada (Attorney General) v. Mowat, 2009 FCA 309.

2 Supra, at para. 64.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.