Canada: Controlling Costs In Defending Human Rights Complaints

Last Updated: January 3 2012
Article by Stringer LLP

Employers who are faced with a frivolous or vexatious human rights complaint by a former employee often feel that there is no deterrent for employees in filing such complaints. The employee does not have to retain legal counsel and thus avoids paying legal fees. Additionally, human rights tribunals are typically reluctant, or simply do not have the authority, to issue an award of legal costs against an employee even when there is no merit to the complaint.

Conversely, employees who require assistance in pursuing a human rights complaint and incur legal costs in doing so, may not be able to recover those costs. Such costs may exceed the actual damages awarded.

In light of these realities, the ability for a human rights tribunal to award costs is an issue that impacts the overal effectiveness of human rights legislation. It can deter frivolous complaints and provide for the recovery of legal fees in legitimate complaints.

Recently, the issue of whether the federal human rights tribunal, (that is, the Canadian Human Rights Tribunal) has the authority to award legal costs was addressed by the Supreme Court of Canada. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, the Supreme Court held that this human rights tribunal does not have the authority to award legal costs (at least, based upon the legislation at the relevant time). However, it noted that other provincial human rights tribunals may have such authority, as it depends upon the wording of the applicable human rights statute and the interpretation of same.

The complaint in the recent Supreme Court of Canada case arose from Donna Mowat ("Mowat"), an employee who was formerly employed in the Canadian Armed Forces for fourteen years. During the course of her employment with the military, Mowat had filed numerous complaints and grievances. Many of these were taken to the highest level in Canadian Forces grievance resolution process, and none was substantiated. The Canadian Forces also conducted an internal investigation into comments made by one of Mowat's co-workers which she alleged were sexually harassing. The investigation found that the comments did in fact constitute harassment, and based on the recommendations from several reports on the incidents, the employee responsible was in fact disciplined.

However, approximately three years after Mowat had left the Canadian Forces, she filed a human rights complaint alleging discrimination on the basis of sex contrary to the Canadian Human Rights Act. The hearing before the Tribunal took six weeks and the Presiding Tribunal member was highly critical of how Mowat conducted the proceedings. He described it as a "scatter-shot complaint with the allegations all over the place."

However, in the end, the Tribunal concluded that Mowat's complaint was substantiated in part and awarded her $4,000 plus interest which took the complaint to the maximum statutory limit at the time (i.e. $5,000). The award was to compensate her for "suffering in respect of feelings or self-respect."

Mowat also applied for $196,000 in legal costs. The Tribunal determined that it did have authority to award expenses, although it only awarded Mowat $47,000 as many of the allegations advanced in her complaint had not been substantiated.

On appeal, the Federal Court upheld the Tribunal's decision that it had authority to award costs. The Federal Court of Appeal overturned this decision on appeal and Mowat's case was subsequently appealed to the Supreme Court of Canada for a final determination of this issue.

Supreme Court of Canada's Analysis

The Supreme Court of Canada held that, to be upheld, the decision of the Tribunal had to be "reasonable." In other words, its decision should be given some deference, but its findings had to be reasonably justified. . In applying this test, the Court held that the Tribunal's decision was not reasonable based upon the wording of the Canadian Human Rights Act and applying proper principles of statutory interpretation.

The key section that the case turned on was the interpretation of section 53(2) which provided that the Tribunal may order a person who has engaged in a discriminatory practice contrary to the Canadian Human Rights Act, to compensate a victim for, amongst other things, "any expenses incurred by the victim as a result of the discriminatory practice".

In finding that the Tribunal's decision was unreasonable, the Court noted that the Tribunal had basically adopted a "dictionary definition" of the word "expenses" in finding that "legal costs"

should be included in the more general reference to "expenses" in section 53(2). The Court noted that the issue of an administrative tribunal's authority to award legal costs is a very specific one. Parliament and the Legislatures have historically provided very clear language in other statutes to indicate if a tribunal will be empowered to award legal costs. The Court canvassed other human rights legislation and noted the absence or inclusion of such language depending on the intention in each case. The Court held that absent such specific language, it was not reasonable to find that a tribunal had such authority. In the end, the Court dismissed the appeal.

Implications for Employers

There are several practical implications for employers that can be gleaned from this case:

  1. Unlike a court, an administrative tribunal such as a human rights tribunal, may or may not have the authority to award legal costs. Determining this issue at the outset of any complaint (with the assistance of your legal counsel) and then factoring this into strategic decisions in defending the claim is an important practical issue.
  2. In cases where a tribunal can award legal costs, it is important to understand the basis for such awards and then to utilize this understanding as part of an employer's overall strategy in defending and resolving complaints. In effect, make costs an issue where it can be utilized to help defend or resolve a complaint.
  3. Where a tribunal cannot award legal costs but the employee is represented by counsel, settlement offers which include payments to legal costs can help to get the deal.
  4. While some tribunals cannot award legal costs, there may be other procedural mechanisms that can be utilized to deal with frivolous complaints in a cost effective manner. For example, a recent amendment to the Ontario Human Rights Code provides a summary motion for dismissal which can be used to have frivolous or vexatious claims dismissed without the need for a full hearing.

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 Mondaq.com.

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

Authors
Events from this Firm
17 Oct 2018, Seminar, Toronto, Canada

This complimentary webinar will be held on Wednesday, October 17, 2018 and will run from 12 pm to 1 pm ET (including an interactive Q&A). Unique log-in instructions will be delivered separately in advance of the program.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions