Administrative Law – Remedial Jurisdiction
– Canadian Human Rights Act – Legal
Costs – Standard of Review – Statutory
The Supreme Court of Canada unanimously held that the Canadian
Human Rights Tribunal ("the Tribunal")
does not have the authority to award legal costs.
The applicant, Donna Mowatt, was compulsorily released from her
position as a traffic technician for the Canadian Forces. Following
her release, Ms. Mowatt filed a complaint with the Canadian Human
Rights Commission ("the Commission"),
alleging sexual harassment, adverse differential treatment, and
failure to continue to employ her on the basis of her sex. In
addition to awarding $4,000 plus interest for suffering, the
Tribunal considered conflicting Federal Court jurisprudence and
concluded that it had the authority to award legal costs pursuant
to s. 53(2) of the Canada Human Rights Act
("the Act"), which allows the
Tribunal to compensate "for any expenses incurred by the
victim as a result of the discriminatory practice". The
Tribunal awarded Ms. Mowatt $47,000 in legal costs.
After an extended standard of review analysis, the Supreme Court
concluded that the question of whether legal costs may be included
in a compensation order by the Tribunal was to be reviewed on a
"reasonableness" standard, since it was neither a
question of jurisdiction, nor a question of law of central
importance to the legal system, nor outside the Tribunal's
The Court held, however, that the Tribunal's conclusion that
it had the power to award legal costs was not reasonable
considering the text, context, and purpose of the provision. With
respect to the text of the Act, the Court observed that
the phrase "expenses incurred by the victim" appears in
two separate remedial provisions—one citing lost wages
and expenses incurred (s. 53(2)(c)), and one citing additional
costs of obtaining goods and services and expenses incurred (s.
53(2)(d)). The Court concluded that the repetition of the phrase
"expenses incurred" in these different contexts and the
legislative presumption against tautology weighed against a finding
that the phrase "expenses incurred" was intended to
create a free-standing jurisdiction to award legal costs. In
analyzing the text of the Act, the Court also noted that
the term "costs" is a legal term of art, and that the
legislature's choice not to use this term suggests an intention
not to make such remedies available. Finally, the Court noted that
the subsection providing for damages for suffering and wilful or
reckless discrimination is capped at a modest amount ($5000 at the
time), and contains no parallel phrasing for "expenses
In assessing the context of s. 53(2) of the Act, the
Court observed that a predecessor bill to the Act includes
express authority to award "costs", which was deleted
from the bill which became the Act. Further, once the
Act was in force, a proposed amendment that would have
ordered the Commission to pay "costs" in certain
circumstances was never enacted. The Court also held that the
legislative history of the scheme suggested a deliberate choice to
forego a scheme of legal cost awards in favour of a strong
Commission which would advocate for complainants and the public
interest, thereby reducing the need for independent legal
representation. Finally, the Court also found some support in the
Commission's many statements that the Act did not
confer jurisdiction to award costs, and in the fact that provincial
and territorial human rights legislation deploy the word
"costs" when they intend to confer such jurisdiction.
The Court confirmed that in principle human rights legislation
should be given a broad and purposive interpretation, but
emphasized that this could not replace an interpretation based in
the text and context of the Act.
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