Saturday, 11 January 2014

Costs and the Human Rights Tribunal of Ontario

Should the Human Rights Tribunal of Ontario (“HRTO”) have the legal ability to award legal costs? Some people think so, including the Member of Provincial Parliament for Lanark--Frontenac--Lennox and Addington, the Hon. Randy Hillier.

On December 4, 2013, Bill 147 Human Rights Code Amendment Act (Awarding of Costs), 2013 passed first reading in the Ontario legislature. If passed, the amendment would grant the HRTO the discretionary ability to award legal costs of the proceeding.

Why?

The issue of the HRTO’s inability to award legal costs has been thorn in the side of many employers (and of course others) for as long as the HRTO has operated. Unlike the Ontario Superior Court of Justice, the HRTO has no jurisdiction (legal authority) to order a losing party to pay the successful party’s legal fees, or a portion thereof. For those who believe that they have been subjected to a frivolous case, this reality has been frustrating.

Consider, for example, the case of Doe v. A & W Canada, 2013 HRTO 1259, in which an individual filed a complaint with the HRTO alleging:

As a lesbian feminist, the whole notion of labelling a burger patron as a “Mama” or “Papa” or “Teen” based solely on the choice of meal is highly degrading and an attack on my womyn identity.

The applicant was a man. The stated point of the application was to lampoon views with which he disagrees.

The problem with the Doe decision is that the Tribunal had no ability to award costs against the Applicant. As Adjudicator David Wright noted:

Tribunals and courts are a public resource, providing access to justice for individuals and groups in Canadian society who require impartial dispute resolution. Cases like this one delay the resolution of others’ disputes. There is no right or entitlement to abuse the system to make a point, and it is the responsibility of the Tribunal to prevent misuse of its process and to send a clear message that this conduct is not acceptable.

However, there was nothing else the HRTO could do.

Frustrated? You bet some people are. Consider, for a moment, the reality that someone at A&W, perhaps a lawyer, had to receive and review that Application and then respond to it. Failure to respond to an Application can result in a deemed admission of allegations and a finding of liability. Frustrated now?

What Next?

Bill 147 is a private member’s bill introduced by an opposition backbencher. Will it have legs? For political reasons I doubt it.

However, I doubt this issue is over. As I mused in my post Ontario Employment Law’s Top Five Decisions – 2013 Edition there is so much frustration with the HRTO that we might actually see tangible changes to the Tribunal in the near future. Costs would be a reasonable first step.

What do I Think?

For those who are asking, I am in favour of the HRTO having jurisdiction to award costs. I say this from two perspectives.

For applicants, given the amount of award for violations of the Ontario Human Rights Code can be modest (consider that in Torrejon v. 1147335 Ontario, 2010 HRTO 1513 – summarized by this blog in the post Ontario Human Rights Damages to Dismissed Breast Cancer Employee Affirmed an employee fired for disclosing she had been diagnosed with breast cancer was only awarded $20,000), it would be helpful if, in addition to being awarded damages, applicants could also be awarded legal costs so that they could more reasonably afford to retain qualified legal counsel.

For respondents in cases like Doe v. A&W, it would be helpful if they could have their legal expenses covered by those who choose to thumb their nose at the system. Perhaps costs would act as a disincentive to commencing such cases.

What do You Think?

Should the HRTO have the legal ability to award costs? Comments are welcomed below.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantin i.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice. He is a trustee of the County of Carleton Law Association.



4 comments:

  1. I like the idea of awarding costs. As a person with very limited legal knowledge, I have to say this appeals to my sense of fairness. However, some care would need to be taken to ensure that the threat of paying costs does not discourage employees from taking a valid case to court. I'm arguing on the side of employees here because, in most cases, the employer is the one with the money to finance a more powerful court case even if they happen to be on the wrong side of the law.

    I'm sorry, as this next idea may stimulate some virtual poo-flinging, but why not also include fines for lawyers who choose to take cases that are clearly nuisance cases such as Doe v. A&W? This would provide a better disincentive, because currently lawyers who take on silly cases and bring them to tribunal still get paid, and in fact have a financial incentive to encourage clients to continue with such cases. Ethical, responsible lawyers probably already discourage clients from going ahead with stupid cases, so it wouldn't hurt them.

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    1. There are a number of factors in play, none of them new to any of the other forums that have the jurisdiction to award costs. The ability and amount are always in the discretion of the decision maker.

      As to your comment about fining lawyers that advance such cases, there are remedies and sanctions that can be brought against lawyers who knowing advance an abuse of process. In the A&W case the Applicant was self-represented, meaning he did not have a lawyer. There are actually a good deal of self-represented parties at the HRTO, perhaps in part because of the inability to get costs.

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  2. To be fair, Sean, the Doe v. A&W application was dismissed without ever having been delivered to the respondent - the HRTO, these days, acts as its own gatekeeper, filtering out (of its own initiative) many of the obviously-frivolous applications.

    That being said, the Tribunal's "Notice of Intent to Dismiss" process is only used in a certain range of cases, still leaving a lot of employers and other respondents who have really done nothing wrong and yet are forced to incur substantial legal fees.

    So yes, there are merits to the concerns you're raising. On the one hand, there's a process which - for good reason - is made easily accessible to self-represented applicants, but the process can result in such significant orders against a respondent that a respondent really has to hire a competent representative, regardless of the merits of the claim.

    At the same time, while the HRLSC goes a long way to providing access to justice for applicants, they can't help everyone. As counter-intuitive as it may seem, for an applicant to hire a (good) lawyer is good for everyone, including the respondent. It smooths out the process, allows the parties to focus on the issues where there's a genuine dispute, and - most importantly - results in applicants who have no case being told by someone in their ring that they have no case (or that a given settlement being offered is worth accepting).

    I'm not sure Bill 147's the way to go, however. Firstly, many of the applications that truly demand a costs sanction are made by people who are probably 'judgment-proof' anyways - a significant costs award isn't worth the paper it's written on if it can't be collected. Potential costs penalties might disincent some of the marginal cases - cases where the evidentiary burden will be difficult to satisfy, for example - but I doubt it would do much to those who 'thumb their nose at the system.' (A modest application fee might be a more effective way of filtering out such people, though for public policy reasons I'm not sure that's a great approach either.) Secondly, costs jurisdiction raises its own problems. There are meritorious and legitimate cases to bring to the HRTO to which very small dollar values attach, which creates issues of proportionality in costs. The $20,000 award in the Torrejon case is towards the high end of general damage awards, and leaves room for a decent compensatory costs award that isn't disproportionate to the amounts in issue (though I believe Torrejon had HRLSC assistance), but when you get modest awards of under $5000, I'd consider it both unlikely and undesirable that a costs award wouldn't be moderated by considerations of proportionality. It would make the proceeding more about the costs award than the actual issues in dispute.

    I think that a costs jurisdiction for the Tribunal would need to be exercised in fairly limited circumstances - perhaps a highly constrained approach to costs as we see in other admin tribunals, available only in the clearest cases of frivolous complaints, or for unreasonable conduct during the proceedings. I might also be persuaded that there's a place for a costs award as a matter of course where the stakes are higher - i.e. where there are arguable damages on a higher scale (over and above 'general damages'), legal issues of significant complexity, or significant non-monetary remedies being sought (such as reinstatement) - but there could be difficulties in establishing such a threshold.

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  3. I was wondering when my A&W case would have its intended effect: a push to either abolish tribunals or provide costs consequences. I am surprised that the HRTO took the complaint as far as they did. Ironically David Wright is now the Chair of the LSUC discipline committee! I am a lawyer in Ontario and I am already in deep doo-doo with the LSUC over a ton of stuff.

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