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.
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?
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.--
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 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.