On August 15, 2014, the BC Human Rights Tribunal (the
"Tribunal") released its decision in Ma v. Dr. Iain
G.M. Cleator and another, 2014 BCHRT 180
("Cleator"), where it ordered the complainant to
pay a portion of the respondent's costs. In doing so, the
Tribunal sent a strong message about its expectations for honesty
and integrity in its process.
The complainant, Kim Ma, was a medical office assistant to the
respondent, Dr. Iain Cleator. After a couple of years of
employment, Ms. Ma took an extended maternity leave. When she
returned to the workplace, she found some significant changes: the
clinic was much busier, it had more staff, and new office
procedures had been put in place. Ms. Ma was resistant to these
changes and immediately had conflict with the new office manager.
Her employment was subsequently terminated by Dr. Cleator about a
month after she returned from her leave.
Ms. Ma brought a complaint to the Tribunal alleging that Dr.
Cleator discriminated against her on the basis of family status,
sex (pregnancy) and mental disability.
After a lengthy ten-day hearing, the Tribunal dismissed Ms.
Ma's complaint in its entirety, since it found that Ms. Ma had
deliberately fabricated the allegations against Dr. Cleator.
Further, the Tribunal concluded that she had lied under oath at the
hearing and had forged or altered documents that she presented as
evidence. The Tribunal found Ms. Ma's behaviour to be so
egregious that it did something uncommon: it ordered her to pay
$5,000 towards Dr. Cleator's legal fees.
Under normal circumstances, neither party is awarded legal fees
(commonly referred to as costs) in the Tribunal process. The
Tribunal views these awards as only being appropriate when a
party's conduct is so bad that it has a significant impact on
the integrity of the Tribunal's process and, as such, is
deserving of penalties. The awards are not designed or intended to
actually make the other party whole for the legal fees spent.
Rather, the objective is to send a message to the complainant, and
the public in general, about the Tribunal's expectations for
integrity and conduct.
In Cleator, the Tribunal thoroughly reviewed past cost
awards involving similar conduct and found that they typically
ranged between $1,000 and $5,000. Ms. Ma's conduct was found to
be so appalling that it deserved the top end of the spectrum. Ms.
Ma's fabricated complaint resulted in an immense waste of the
Tribunal's resources and had a significant prejudicial impact
on the respondent, Dr. Cleator.
Of course, an award of $5,000 likely only represented a fraction
of the actual legal fees Dr. Cleator spent defending himself in
this lengthy hearing. However, this Decision should provide some
comfort to employers who may find themselves in a similar situation
since it shows that the Tribunal is willing to strike back when
parties are dishonest and use its process for false purposes.
The full decision can be accessed on the Tribunal's website
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