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"), has interpreted its
powers and authority under the Ontario Human Rights Code
(the "Code") as prohibiting it from awarding legal
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
legal costs in the event their Application is not
As school boards will be aware, parents often file Applications
as a method to seek the programming and services that they
wish to have for their children, as opposed to the special
education programming and services that are an appropriate and
reasonable accommodation of their child's disability related
Bill 147 seeks to change this, by ushering in a new era which
may mirror some of the legal cost implications that 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 legal
costs may be paid. In addition, Bill 147 would empower the
HRTO to fix the amount of legal costs or direct that such legal
costs be assessed and, in awarding legal costs, the HRTO would
not be limited to the considerations that govern the awarding of
legal costs in the courts.
Of course, the extent to which the HRTO would be inclined to
award legal costs against self-represented Applicants and/or
Applicants with minimal means would remain to be seen. In the
education sector, many parents are unrepresented and
unsophisticated litigants, which may be a factor in awarding legal
costs, if any.
The prospect of adding legal cost implications to HRTO
litigation would be seen by most school boards as an appropriate
safeguard against the filing of frivolous Applications. Opponents
of Bill 147 will argue that it may prevent legitimate Applications
from being filed.
Bill 147 is a Private Members Bill and has not yet progressed
beyond the First Reading. We will keep you posted as to its
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about your specific circumstances.
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