In 1998, a human rights complaint was brought against the Canadian Forces alleging that the complainant had been subject to discrimination on the basis of sex, contrary to the Canadian Human Rights Act (“the Act”). At the conclusion of the proceeding, the Canadian Human Rights Tribunal (“the Tribunal”) concluded that it had the power under the Act to order compensation for legal costs. In coming to this conclusion, the Tribunal determined that the use of the term “expenses” in the Act was broad enough to include legal costs, in addition to other forms of compensation.
The Attorney General of Canada sought to have this portion of the decision judicially reviewed at the Federal Court of Canada (“Federal Court”). The Federal Court found that although the Tribunal was justified in interpreting the statute in such a manner, the Tribunal had failed to adequately explain why it had awarded $47,000 in costs, and had therefore breached its duty of procedural fairness.
This decision was appealed to the Federal Court of Appeal (“Court of Appeal”) which overturned the decision of the Federal Court and concluded that the Act did not grant the Tribunal the ability to award costs.
On further appeal, the Supreme Court of Canada held that there was no doubt that the Tribunal had the power under the Act to award compensation for “any expenses incurred by the victim as a result of the discriminatory practice”. The essential question, however, was whether it was reasonable for the Tribunal to conclude that this power included the ability to make an award of costs.
The Supreme Court considered the text, context and purposes of the legislation and found that when the term “expenses incurred” was read in context with the wording of the Act, it was clear that provisions dealing with the Tribunal’s powers were intended to be read narrowly. Further, the absence of the term “costs” – which is well-understood to be different from “compensation” and “expenses” – corroborated the notion that the Act was not intended to give the Tribunal the power to order costs.
The Supreme Court ultimately determined that it was unreasonable for the Tribunal to conclude that it had the power to award costs. Accordingly, the Tribunal’s remedial powers in this respect have been limited to awarding only those expenses specifically referenced in the language of the Act itself, and do not include the ability to compensate an individual for any legal costs incurred as a result of the alleged breach of the Act.
If you have any questions about the implications of this decision or other questions relating to human rights proceedings or decisions, please do not hesitate to contact a Mathews Dinsdale lawyer.
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