Bill 147, Human Rights Code Amendment Act (Awarding of Costs), 2013 ("Bill 147") has passed First Reading in the Ontario Legislature and, if enacted, could significantly alter the legal landscape as it relates to the litigation of human rights issues.
To date, despite having limited arguable authority to do so under the Statutory Powers Procedure Act, the Human Rights Tribunal of Ontario (the "HRTO"), does not have authority under the Ontario Human Rights Code (the "Code") to award costs. As such, Applicants are able to file and pursue Applications at the HRTO without having to consider the possibility of having to pay any portion of the Respondent's costs in the event their Application is not successful.
Bill 147 seeks to change this, by ushering in a new era which may mirror some of the cost implications which factor significantly into our civil litigation system.
If enacted into law, Bill 147 would amend the Code to specifically empower the HRTO to order to whom and by whom costs may be paid. In addition, Bill 147 would empower the HRTO to fix the amount of costs or direct that such costs be assessed and, in awarding costs, the HRTO would not be limited to the considerations that govern the awarding of costs in the courts.
Of course, the extent to which the HRTO would be inclined to award costs against self-represented Applicants and/or Applicants with minimal means would remain to be seen.
The prospect of adding cost implications to HRTO litigation would be seen by most employers as an appropriate safeguard against the filing of frivolous Applications. Opponents of Bill 147 will cite its potentially chilling effect.
Bill 147 is a Private Members Bill and has not yet progressed beyond First Reading. We will keep you posted as to its development.
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