Law Times

Law Times • November 15, 2010 FOCUS PAGE 11 SCC to consider tribunal's right to award legal costs BY ROBERT TODD Law Times next month that will determine whether the Canadian Human Rights Tribunal can award le- gal costs to a successful com- plainant. The decision could have significant access-to-justice implications, as it could well determine whether federally regulated employees lacking rock-solid cases will pursue le- gal recourse at the tribunal. Canada (Attorney General) E v. Mowat involves a 1998 com- plaint by former Canadian Forces master corporal Donna Mowat to the Canadian Hu- man Rights Commission. She alleged in the complaint that she was discriminated against based on sex, according to the October 2009 decision of Federal Court of Appeal Jus- tice Carolyn Layden-Steven- son. Mowat argued the Forces "failed to provide her with an harassment-free workplace, adversely differentiated against her in employment and refused to continue her employment," wrote Layden-Stevenson. The complaint included allega- tions of sexual harassment and sought compensation of more than $430,000. In August 2005, the tribu- nal issued a ruling that found only the sexual harassment complaint valid and awarded Mowat $4,000 for "suffering in respect of feeling or self respect." mployers will be closely watching a Supreme Court of Canada appeal Mowat then sought pay- ment for expenses, including legal costs, of about $196,000. In a November 2006 ruling, the tribunal awarded her $47,000 for legal costs. The attorney general sought Damian Rigolo, a partner at Osler Hoskin & Harcourt LLP's Calgary office, says the case presents two key issues for the employment law bar. The first relates to the administra- tive law question of how much the government has argued, if complainants are to receive costs if they win the day, so, too, should defendants if they come out on top. Human rights legislation in several provinces, includ- Human rights cases are routinely complex, involving important quasi-constitutional issues of principle, and to require a complainant to present that type of case without counsel is a huge burden that renders access to this equality regime extremely difficult. judicial review of the costs de- cision in the Federal Court, which determined the tribunal may order compensation for legal costs based on s. 53(2)(c) of the act. That section indi- cates the tribunal can force a person found to have engaged in discriminatory practices to "compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the dis- criminatory practice." Pointing to the wording of that section, Layden-Stevenson subsequently determined Par- liament didn't intend for the legislation to grant the tribu- nal power to award legal costs. "The ultimate decision and the policy choices inherent in making it are for Parliament, not the tribunal or the court," wrote Layden-Stevenson. But the judge went on to suggest that Parliament might need to revisit the issue. She specifically noted that when the legislation was introduced, complainants at the tribunal were more often represented by commission counsel than privately retained lawyers. deference a court should give to human rights commissions and tribunals. The traditional view has been that the quasi- constitutional status of these bodies affords them a signifi- cant amount of deference, but in this case the Federal Court of Appeal seems to have reined in the tribunal, Rigolo notes. "That's important because if that's the case, then a lot of as- pects of human rights law will be up for grabs a lot more than we thought in the past." The case could also have a significant impact on the willingness of human rights litigants to risk advancing a complaint that may not only fail but also presents steep and unrecoverable legal costs. "A lot of potential com- plainants may say, 'Look, it's not worth it to go through this proceeding if I have to pay, con- servatively speaking, $20,000 to $30,000 to seek redress for something I think happened,'" Rigolo says. From management's per- spective, meanwhile, the top court will need to strike a balance if it determines the tribunal can award costs. As CONFUSED ABOUT THE STATE OF EXTRAORDINARY DAMAGES AFTER KEAYS V. HONDA? YOU ARE NOT ALONE. NEW PUBLICATION EXTRAORDINARY DAMAGES IN CANADIAN EMPLOYMENT LAW Natalie C. MacDonald Employment lawyer, writer, and commentator Natalie C. MacDonald is here to help with Extraordinary Damages in Canadian Employment Law – the definitive resource offering the first comprehensive analysis of this constantly evolving area of employment law. 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That means the top court's ruling could affect more than the federal legislation, which Ogilvy Renault LLP partner David Bannon notes is word- ed similarly to Ontario's. "Employers want to watch this case closely, because if Ms. Mowat is successful . . . you can expect a larger influx of human rights claims," says Bannon. Mowat's lawyer, Andrew Ra- ven of Ottawa's Raven Camer- on Ballantyne & Yazbeck LLP, notes the intricacies of human rights legislation make it nec- essary for litigants to retain a lawyer if they hope to advance their case successfully. "Human rights cases are rou- tinely complex, involving im- portant quasi-constitutional is- sues of principle, and to require a complainant to present that type of case without counsel is a huge burden that renders access to this equality regime extreme- ly difficult," he says. 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• Cover
• For The Defence
• End Of An Era
• Focus On Labour and Employment Law