Date: 20091026
Docket: A-89-08
Citation: 2009 FCA 309
CORAM: LÉTOURNEAU
J.A.
SEXTON
J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
DONNA MOWAT
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1]
The issue
for determination on this appeal has not been previously considered by this
Court. The primary question is whether the Canadian Human Rights Tribunal (the Tribunal)
has the authority to grant legal costs to a successful complainant under the
provisions of the Canadian Human Rights Act, R.S. 1985, c. H-6 (the
Act).
[2]
A judge of
the Federal Court (the application judge) reviewed the Tribunal’s decision on a
standard of review of reasonableness and concluded that the Tribunal’s
determination that it had the authority to award costs was reasonable.
[3]
The
appellant Attorney General of Canada (AG) asserts that the application judge
erred in choosing the applicable standard of review. Further, he erred in
concluding that the Tribunal has the power to award costs. The AG maintains
that no such authority exists, on any standard of review. The intervener, the
Canadian Human Rights Commission (the Commission), says otherwise.
[4]
Resolution
of these issues requires a determination of the appropriate standard of review
to be applied to the Tribunal’s decision and an examination of the application
judge’s analysis. The application judge was required to choose the proper
standard of review and to apply it correctly.
[5]
For the
reasons that follow, I conclude that the applicable standard of review is
correctness. I also find that Parliament did not grant the Tribunal the
authority to award legal costs to a successful complainant. Consequently, I
would allow the appeal.
Background
[6]
The
respondent, Donna Mowat, is a former Master Corporal with the Canadian Forces
(CF). In 1998, she filed a human rights complaint with the Commission alleging
that the CF had discriminated against her on the ground of sex, contrary to the
provisions of the Act. Specifically, she claimed that the CF failed to provide
her with an harassment-free workplace, adversely differentiated against her in
employment and refused to continue her employment. The harassment complaint
included an allegation of sexual harassment.
[7]
The
respondent claimed compensation of more than $430,685 against the CF. Over a
six-week period between November 2003 and February 2004, the Tribunal heard the
matter. The respondent was represented by counsel. Commission counsel did not
appear. The Tribunal rendered its decision in August 2005 (the merits
decision). The respondent was largely unsuccessful. The Tribunal concluded that
only the sexual harassment complaint was substantiated. It awarded $4,000 plus
interest to a maximum of $5,000 for “suffering in respect of feeling or self
respect.”
[8]
The
respondent also sought compensation for various expenses, as well as legal costs
in the amount of $196,313. The Tribunal heard both parties on the issue of the
Tribunal’s jurisdiction to award costs. In a decision dated November 15, 2006
(the costs decision), the Tribunal awarded the respondent $47,000 for legal
costs plus interest from the date of the decision to the date of payment.
[9]
The AG
sought judicial review of the costs decision in the Federal Court. The entries
in the Federal Court file disclose that, although she filed a notice of
appearance, the respondent otherwise did not respond to the application. The
reasons of the Federal Court judge indicate that the respondent’s counsel
advised the court that he had lost contact with his client and he was granted
leave to withdraw from the hearing.
[10]
The
Federal Court judge identified two issues for determination. First, he asked
“[d]oes the CHRT have jurisdiction to order compensation for legal expenses
under s. 53(2)(c) [of the Act]?” Second, “[d]id the CHRT fail to observe
the principles of procedural fairness by failing to give adequate reasons for
its decision?” The application judge answered both questions in the
affirmative. Although not specifically identified as an issue, the application
judge conducted a pragmatic and functional analysis (as it was formerly known)
to determine the applicable standard of review in relation to the Tribunal’s
decision.
[11]
The AG
filed a notice of appeal with respect to the Federal Court’s determinations in
relation to the standard of review and the “jurisdictional” issue. The
Commission applied for, and was granted, leave to intervene. The respondent did
not respond to the AG’s appeal and did not appear at the hearing.
The Tribunal Decision
[12]
The
Tribunal reasoned that, if it had jurisdiction to award legal costs, it must be
found in either paragraphs 53(2)(c) or 53(2)(d) of the Act which
empower it to order compensation “for any expenses incurred by the victim as a
result of the discriminatory practice.”
[13]
The
Tribunal reviewed the divisive jurisprudence from the Federal Court as well as Nkwazi
v. Canada (Correctional Service) (2001), C.H.R.D. No. 29 (Q.L.)
(Nkwazi) with respect to the issue. It concluded that the predominance
of authority from the Federal Court recognizes the Tribunal’s jurisdiction to
award legal costs under subsection 53(2) of the Act. On the basis of those
authorities and Nkwazi, the Tribunal concluded that “absent the power in
the Tribunal to award legal costs where a complaint of a discriminatory
practice is substantiated, such a finding would amount to no more than a
pyrrhic victory for the complainant.” The Tribunal found that such a result
would frustrate the remedial provisions and purposes of the Act.
[14]
The
Tribunal then asked itself “what is a reasonable award of costs in this case?”
Considering the authorities and the parties’ submissions, it awarded $47,000
for legal costs under paragraph 53(2)(c) of the Act. It noted that
interest is not an expense under subsection 53(2). Rather, the Tribunal is
granted discretion to provide it pursuant to subsection 53(4). Interest prior
to the date of the decision was denied, but interest on costs from the date of
the decision to the date of payment was granted.
The Federal Court Decision
[15]
The
application judge conducted what is now known as a standard of review analysis.
He considered the presence or absence of a privative clause or statutory right
of appeal, the expertise of the tribunal, the purpose of the legislation and
the relevant provision, and the nature of the question. He found that two of
the three factors (expertise of the tribunal and purpose of the legislation and
provision) required deference be given to the decision.
[16]
The
application judge regarded the fourth factor (nature of the question) as
determinative in view of Chopra v. Canada (Attorney General), 2007 FCA
268; [2008] 2 F.C.R. 393 (Chopra). He was of the view that this Court
“in effect concluded that the standard of review in reviewing the [Tribunal’s]
interpretation of subsection 53(2)(c) of the [Act] was reasonableness…”.
The Federal Court judge considered that since the particular question of law –
jurisdiction to order compensation for expenses arising from discrimination –
is one very much at the core of the human rights subject matter in which it has
expertise, the Tribunal’s interpretation of the subsection to determine whether
it has jurisdiction to order compensation for legal expenses is entitled to
more deference. Last, he noted that subsection 50(2) of the Act authorizes the
Tribunal to decide questions of law or fact. Thus, Parliament contemplated
situations where the Tribunal may have to decide questions of law in order to
determine matters before it.
[17]
The
Federal Court judge concluded that the standard of review “in a judicial review
of the Tribunal’s decision on its jurisdiction arising from subsection 53(2)(c)
to award compensation for legal expenses is reasonableness simpliciter.”
[18]
Next, the
application judge asked whether the Tribunal’s decision was reasonable and
concluded that it was. In so doing, he summarized the Tribunal’s chronological
review of conflicting jurisprudence in the Federal Court, noted the Federal
Court’s approval of the Nkwazi reasoning in Brooks v. Canada (Attorney
General), 2006 FC 500 (Brooks) and reviewed the human rights policy
approach to statutory interpretation articulated in C.N.R. v. Canada (Human
Rights Commission), [1987] 1 S.C.R. 1114 (CNR).
[19]
On the
basis of the remedial purpose of human rights legislation, the CNR
approach to statutory interpretation of such legislation and the Chopra
decision, the Federal Court judge concluded that the Tribunal’s interpretation
that “subsection 53(2)(c) gives it the jurisdiction to award legal costs
as an expense arising from discriminatory conduct is reasonable.”
[20]
Last, the
application judge found that the Tribunal breached the principles of procedural
fairness by failing to provide adequate reasons to justify its costs award.
That finding is not in issue on this appeal.
The Legislative Context
[21]
Human
rights legislation is fundamental law and quasi-constitutional in nature. The
purpose of the Act, set out in section 2, is to ensure people have an equal
opportunity to make for themselves the life that they are able and wish to have
without being hindered by discriminatory practices.
[22]
In order
to promote the goal of equal opportunity for each individual, the Act seeks to
prevent discriminatory practices. Its purpose is not to punish wrongdoing but
to prevent discrimination: CNR. Specific prohibited grounds of
discrimination and discriminatory practices are set out in the Act.
[23]
The
Commission and the Tribunal are established pursuant to the Act. Among other
things, the Commission is charged with responsibility for human rights research
and public education, the investigation and processing of complaints up to the
point of adjudication, maintaining close liaisons with similar bodies in the
provinces and considering recommendations from public interest groups. On its
appearances before the Tribunal, the Commission represents the public interest
(section 51 of the Act).
[24]
The
Tribunal functions as an adjudicative body. Its responsibilities were described
in Bell Canada v. Canadian Telephone Employees Association, [2003] 1
S.C.R. 884 (Bell Canada), at paragraph 23, as follows:
It conducts
formal hearings into complaints that have been referred to it by the
Commission. It has many of the powers of a court. It is empowered to find
facts, to interpret and apply the law to the facts before it, and to award
appropriate remedies. Moreover, its hearings have much the same structure as a
formal trial before a court. The parties before the Tribunal lead evidence,
call and cross-examine witnesses, and make submissions on how the law should be
applied to the facts. The Tribunal is not involved in crafting policy, nor does
it undertake its own independent investigations of complaints; the
investigative and policy-making functions have deliberately been assigned by
the legislature to a different body, the Commission.
[25]
This case
is concerned with subsection 53(2) of the Act which furnishes the Tribunal with
broad remedial powers where, at the conclusion of the inquiry, the Tribunal
finds that the complaint is substantiated. Specifically in issue is paragraph
53(2)(c). It provides:
|
Canadian Human Rights Act,
R.S.
1985, C. H-6
53(2)
If at the conclusion of the inquiry the member or panel finds that the
complaint is substantiated, the member or panel may, subject to section 54,
make an order against the person found to be engaging or to have engaged in
the discriminatory practice and include in the order any of the following
terms that the member or panel considers appropriate:
…
(c)
that the person 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 discriminatory practice;
|
Loi canadienne sur les droits de la personne (L.R.,
1985, ch. H-6)
53(2)
À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée,
peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la
personne trouvée coupable d’un acte discriminatoire :
[…]
c) d’indemniser la victime de la totalité, ou
de la fraction des pertes de salaire et des dépenses entraînées par l’acte;
|
The Role of an Appellate Court
[26]
The role
of an appellate court ─ in instances where the Court of Appeal is dealing
not with judicial review of an administrative decision, but with appellate
review of a subordinate court ─ is to determine, first, whether the
reviewing judge has chosen the correct standard of review: Dr. Q v. College
of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 (Dr.
Q). Next, the appellate court must determine whether the standard of review
was applied correctly. In performing this analysis, this Court “steps into the
shoes of the subordinate court”: Zenner v. Prince Edward Island College of
Optometrists, [2005] 3 S.C.R. 645 (Zenner); Prairie Acid Rain
Coalition v. Canada (Minister of Fisheries and
Oceans),
[2006] 3 F.C.R. 610 (F.C.A.) (Prairie Acid Rain).
The Standard of Review
[27]
It is
common ground that the proper standard of review for the application judge’s
choice of standard is correctness: Dr. Q (para. 43). In this instance the
debate centers on the Federal Court judge’s choice of the reasonableness
standard of review with respect to the Tribunal’s decision.
[28]
Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190 (Dunsmuir) established a two-step process for
determining the applicable standard of review. The first step requires the
court to “ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to a
particular category of question” (para. 62).
[29]
Historically,
the Supreme Court of Canada, in addressing human rights tribunals, has nearly
unanimously held that where the general question is one of statutory
interpretation, it constitutes a question of law and is to be reviewed on a
standard of correctness. The superior expertise of human rights tribunals
relates to fact-finding and adjudication in a human rights context and does not
extend to general questions of law: Canada (Attorney General) v. Mossop,
[1993] 1 S.C.R. 554 (Mossop); University of British Columbia v. Berg,
[1993] 2 S.C.R. 353 (Berg); Pezim v. British Columbia (Superintendent
of Brokers), [1994] 2 S.C.R. 557 (Pezim); Gould v. Yukon Order of
Pioneers, [1996] 1 S.C.R. 571 (Gould); Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 (Ross).
[30]
Dunsmuir, and more recently Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12 (Khosa)
cautioned that “with or without a privative clause, a measure of deference has
come to be accepted as appropriate where a particular decision had been
allocated to an administrative decision maker rather than to the courts. This
deference extended not only to facts and policy but to a tribunal’s
interpretation of its constitutive statute and related enactments…”(Khosa
(para. 25)). This proposition has been characterized as a presumption that
tribunals’ interpretation of their enabling legislation is normally reviewable
on a standard of reasonableness: Dunsmuir at paragraph 146; Public
Service Alliance of Canada v. Canadian Federal Pilots Association and Attorney
General of Canada, 2009 FCA 223 (PSAC) (para. 36). Given the
teachings of Dunsmuir and Khosa, prudence dictates that a
standard of review analysis is advisable.
The Appellant
[31]
The AG
contends that the standard of review is correctness. The submission is that,
although the application judge cited and applied Brooks on the merits of
the decision, he failed to follow it with regard to the standard of review. In
relation to the factors arising from the standard of review analysis delineated
in Dunsmuir, the AG maintains that the deference for expertise does not
extend to findings of law on which the Tribunal has no expertise. The question
of “whether Parliament has extended the power of the tribunal to order a respondent
to pay the complainant’s legal costs” is one of “pure law or jurisdiction over
which courts have greater expertise.” Further, the appellant argues that Chopra
was concerned with “how the Tribunal could fashion a remedy” rather than the
“jurisdiction to grant legal costs.” The application judge erred in relying on Chopra
as he did.
[32]
The AG
further asserts that jurisdictional questions must be answered correctly and,
in support, refers to the following excerpt from para. 59 of Dunsmuir :
Jurisdiction
is intended in the narrow sense of whether the tribunal had the authority to
make the inquiry. In other words, true jurisdiction questions arise where
the tribunal must explicitly determine whether its statutory grant of power
gives it the authority to decide a particular matter. The tribunal must
interpret its grant of authority correctly or its action will be found to be ultra
vires or to constitute a wrongful decline of jurisdiction. (Attorney
General’s emphasis).
He argues that this case fits squarely within the Supreme
Court’s comments. In sum, “either Parliament has granted the Tribunal the
jurisdiction to award legal costs, or it has not.”
The Commission
[33]
The
Commission maintains, in view of Dunsmuir and Khosa, the proper
standard of review is “reasonableness with deference”. This is because the
Tribunal has developed particular expertise in the application of the law in a
specific statutory context. Moreover, the Tribunal was interpreting its own
statute, with which it has particular familiarity. The Commission relies on Vilven
v. Air Canada, 2009 FC 367 (Vilven) where the Federal Court, after
conducting a standard of review analysis, determined that the applicable
standard of review ─ with respect to the Tribunal’s decision in relation
to whether a binding rule is required for there to be a “normal age of
retirement” for the purposes of paragraph 15(1)(c) of the Act ─ is
reasonableness.
Analysis
[34]
The
questions before the Tribunal and the Federal Court were whether the Tribunal
had the authority to award costs to the complainant and whether the authority
could be found in paragraph 53(2)(c) of the Act which authorizes the
Tribunal to compensate a complainant for any expenses incurred as a result of
the discriminatory practice.
[35]
It is not
disputed that the Tribunal had the authority to determine these questions. What
is in issue is whether the Tribunal’s decision had to be correct or whether it
sufficed that it be reasonable. In other words, what is the standard of review
applicable to the decision of the Tribunal and did the Federal Court apply the
correct standard to the determination of the issue?
[36]
Determining
the standard of review requires “an analysis of the factors making it possible
to identify the proper standard of review” Dunsmuir (para. 62). The
analysis is contextual (para. 64).
[37]
Before
addressing the factors of the standard of review analysis, it bears repeating
that the applicable standard of review will normally be that of reasonableness:
Dunsmuir; Khosa. The Tribunal is accorded deference because of
its experience and expertise, provided that the process it used is justified,
transparent and intelligible and that its decision “falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”: Dunsmuir (para. 47). However, if the standard of review analysis
yields a standard of review of correctness, no deference is owing.
[38]
Dunsmuir identified three situations
where the correctness standard of review is appropriate. A true question of
jurisdiction “where the tribunal must explicitly determine whether its
statutory grant of power gives it the authority to decide a particular matter”
is the first situation (para. 59). The second is where there is a question of
general law “that is both of central importance to the legal system as a whole
and outside the adjudicator’s specialized area of expertise” (para. 60). The
third situation is where a determination of jurisdiction between two competing
tribunals is required (para. 61).
[39]
I turn now
to the factors of the standard of review analysis. The Act does not contain a
privative clause. There is no statutory right of appeal. The application judge
determined that this factor tends toward a lesser degree of deference. While I
do not disagree, the absence of a privative clause is by no means determinative
and may be regarded as neutral.
[40]
The
legislative context has been discussed earlier in these reasons. The purpose of
the Act is remedial and it seeks to prevent discriminatory practices. It serves
the public interest and also engages a private interest in that it seeks to
remedy specific violations of the Act. The particular provision in issue deals
with the Tribunal’s power to compensate a victim for “wages the victim was
deprived of and for any expenses incurred by the victim as a result of the
discriminatory practice.”
[41]
The
Tribunal functions as an adjudicative body, conducts formal hearings into
complaints that have been referred to it by the Commission and awards
appropriate remedies pursuant to the powers accorded it by subsection 53(2) of
the Act. Subsection 48.1(2) requires that members of the Tribunal have
“experience, expertise and interest in, and sensitivity to, human rights.”
Subsection 50(2) empowers the Tribunal to decide “all questions of law or fact
necessary to determining the matter.” This has been described as “a general
power to consider questions of law, including questions pertaining to the Charter
and the Canadian Bill of Rights”: Bell Canada (para. 47) citing Cooper
v. Canada (Canadian Human Rights
Commission),
[1996] 3 S.C.R. 854; see also Mossop (para. 44) and Ross at p.
849. This factor, on its own, tends to favour deference.
[42]
The nature
of the question is narrow and discrete. Does compensation for “any expenses
incurred by the victim as a result of the discriminatory practice” include
payment of the victim’s legal costs in relation to the hearing before the
Tribunal? The interpretation of the provision is critical because the
Tribunal’s jurisdiction to award legal costs will ultimately turn on it. For
the reasons that follow, I conclude that it is both a question of general law of
central importance to the legal system as a whole and one that is outside the
specialized expertise of the Tribunal.
[43]
There is
no debate that the Tribunal is a specialized one in relation to matters of
human rights. However, the concern is not with either general or specialized
expertise. Rather, it is with the Tribunal’s expertise in relation to the specific
issue before it. I do not believe that the nature of the question at hand
engages the human rights subject matter in which the Tribunal has expertise.
[44]
This is
not a context-specific setting. There is no factual component entailed in the
analysis. Expertise in human rights is not required and does not assist in the
interpretation of the narrow question arising from the provision. The
Tribunal’s authority to award costs of a proceeding to a successful complainant
has nothing to do with the substance of human rights. Rather, the Tribunal must
determine a pure question of law, specifically, one that determines the bounds
of its authority. The Tribunal has no institutional or experiential advantage
over the court and is no better-positioned than the court in this respect.
[45]
The
question has not been answered consistently by the Tribunal and is the subject
of diverse opinions in the Federal Court. It comes before this Court for the
first time. It is difficult, if not impossible, to conclude that the answer
(either yes or no) can be said to fall within a range of possible acceptable
outcomes. There is much to be said for the argument that where there are two
conflicting lines of authority interpreting the same statutory provision, even
if each on its own could be found to be reasonable, it would not be reasonable
for a court to uphold both: Taub v. Investment Dealers Association of Canada,
2009 ONCA 628 (Taub) (para. 65). I endorse and adopt the comments in Abdoulrab
v. Ontario (Labour Relations Board), 2009 ONCA 491 (Abdoulrab)
(para. 48) where Juriansz J.A. stated:
From a common sense
perspective, it is difficult to accept that two truly contradictory
interpretations of the same statutory provision can both be upheld as
reasonable. If two interpretations of the same statutory provision are truly
contradictory, it is difficult to envisage that both would fall within the
range of acceptable outcomes. More importantly, it seems incompatible with the
rule of law that two contradictory interpretations of the same provision of a
public statute, by which citizens order their lives, could both be accepted as
reasonable.
[46]
As Feldman
J.A. commented in Taub, “it accords with the rule of law that a public
statute that applies equally to all affected citizens should have a universally
accepted interpretation” (para. 67).
[47]
Further, in
my view, alleged victims of discriminatory practices are entitled to know, in
circumstances where they retain counsel to represent them at the hearing before
the Tribunal, whether, if successful, they may be entitled to legal costs in
relation to the proceeding. Alleged discriminators are similarly entitled to
know, if the claim is substantiated, whether significant cost consequences may
follow. Further, because of the public interest mandate of the Tribunal and the
public interest nature of the legislation, the issue has an influence on
society at large. The question is one that calls for certainty and consistency.
Consequently, I regard the question as both a general question of law of
central importance to the legal system as a whole and one that is outside the
specialized area of the Tribunal’s expertise. In accordance with the teaching
of Dunsmuir, the standard of review is correctness (para. 55).
[48]
This
result is not inconsistent with recent jurisprudence. In Chopra, this
Court concluded that the standard of review applicable to the issue before it
was reasonableness. However, the Court was considering whether it was
appropriate for the Tribunal to apply the principles of foreseeability and mitigation
to reduce the compensation that would otherwise be payable to the victim under
the heading “wages of which he was deprived” as a result of the employer’s
discriminatory practice. The Tribunal’s authority to award compensation for
lost wages arising from the discrimination was not in question. Pelletier J.A.
specifically noted that the standard of review varies with the nature of the
legal question in issue. While the standard may be correctness, it need not be
so (para. 17).
[49]
In Vilven,
the Tribunal was interpreting terminology directly related to the
discriminatory provisions of the Act, an area within its specialized expertise.
A similar situation occurred in Canadian Human Rights Commission et al. v.
National Capital Commission et al., 2009 FCA 273.
[50]
There is
binding authority to the effect that different standards of review can apply to
different legal questions depending on the nature of the question and the
relative expertise of the tribunal in those particular matters: Canada (Deputy
Minister of National Revenue – M.N.R.) v. Mattel Canada Inc., [2001] 2
S.C.R. 100 (Mattel) (para. 27); Council of Canadians with
Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650 (VIA Rail)
(para. 278).
[51]
Having
regard to the purpose of the Tribunal, the nature of the question and the
expertise of the Tribunal, the applicable standard of review is correctness. It
follows that the application judge erred in concluding that the standard of
review is reasonableness.
Interpretation of the Provision
[52]
For
convenience, the pertinent provision is reproduced again.
|
Canadian Human Rights Act,
R.S.
1985, C. H-6
53(2)
If at the conclusion of the inquiry the member or panel finds that the
complaint is substantiated, the member or panel may, subject to section 54,
make an order against the person found to be engaging or to have engaged in
the discriminatory practice and include in the order any of the following
terms that the member or panel considers appropriate:
…
(c) that the
person 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
discriminatory practice;
…
|
Loi canadienne sur les droits de la personne (L.R.,
1985, ch. H-6)
53(2)
À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée,
peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la
personne trouvée coupable d’un acte discriminatoire :
[…]
c)
d’indemniser la victime de la totalité, ou de la fraction des pertes de
salaire et des dépenses entraînées par l’acte;
[…]
|
[53]
The AG and
the Commission agree on a number of basic propositions. First, as a creature of
statute, the Tribunal derives its powers solely from its enabling legislation.
Second, human rights legislation, generally, is to be given a purposive and
liberal interpretation that will advance the purposes and objects of the Act.
Narrow restrictive determinations or strictly grammatical approaches tending to
defeat the legislation’s purpose are to be avoided. Third, to the extent
possible, the interpretation of provisions should be viewed in light of
analogous provisions in various human rights statutes in Canada. Minor differences in
terminology should be minimized.
The Federal Court Decision
[54]
As noted
earlier, the application judge summarized the Tribunal’s chronological review
of conflicting jurisprudence in the Federal Court, noted the Federal Court’s
approval of the Nkwazi reasoning in Brooks and reviewed the human
rights policy approach to statutory interpretation articulated in CNR.
He considered that the human rights policy approach to statutory interpretation
of paragraph 53(2)(c) resulted in an interpretation that an “award of
compensation for expenses, here legal expenses, is an award that arises as a
result of proven discrimination and not an award based on the success of a
party to litigation.”
The Appellant
[55]
The AG
argues that “costs” is a legal term of art with a distinct meaning, separate
from “expenses”. The principles of statutory construction dictate that clear
and unambiguous language is required to enable the Tribunal to award costs. The
principles of “implied exclusion” and “presumption of perfection” are cited in
support of this position. The ejusdem generis principle is relied
upon to “confirm that the word ‘expenses’ does not include costs.”
[56]
The AG
maintains that the power to award costs must not be confused with the power to
compensate. Costs, normally discretionary, do not refer to the wrong but to the
success or failure of the litigation. Moreover, absent the most explicit
language, Parliament cannot be presumed to have established a one-sided regime
whereby respondents can never recover costs, which is the effect of the
decision of the Tribunal and the Federal Court.
The Commission
[57]
The
Commission submits that legal expenses are not excluded from the definition of
“expenses”. Since there is nothing in the Act that rules out legal expenses, a
restrictive reading of the provision is contrary to the intention of
Parliament. At the hearing of the appeal, counsel took the position that
paragraph 53(2)(c) of the Act does confer express authority on the
Tribunal to award costs, subject only to a causal connection between the
discriminatory practice and the loss. In contrast, I note that paragraph 33 of
the Commission’s memorandum of fact and law states, “[t]he CHRA does not
contain an express provision granting the Tribunal the authority to order the
payment of costs.”
[58]
In
response to the AG’s suggestion that common law costs are distinct from
damages, the Commission claims this is irrelevant. Referring to Chopra,
the Commission maintains that these “principles do not fully apply to a
statutory scheme for compensation.” The Commission submits “there can be no
justice if the costs to ask for justice prove greater than the potential award
that can be obtained.”
The Tribunal’s Approach
[59]
Various
approaches to its capacity to award legal costs have been taken by the
Tribunal:
·
Commission
counsel had carriage of the matter in the public interest and the complainants’
interest was adequately represented, therefore, legal fees were redundant and
denied on that basis (Potapczyk, TD8/84);
·
its
authority extended to expenses related to discrimination, not expenses related
to the legal proceedings under the act (Morell, TD5/85);
·
it was
empowered to order costs under paragraph 41(2)(c) [now 53(2)(c)]
in suitable circumstances, however, no award of costs was made against the
respondent, rather, the Commission was urged to pay them (Cashin
TD9/85);
·
costs were
denied on the basis that it did not have jurisdiction to award them (Corlis,
TD6/87);
·
costs were
awarded without reasons (Druken et al., TD7/87);
·
costs were
warranted when the Commission’s actions led to the need for separate counsel –
the respondent was not required to pay them, but the Commission was urged to do
so (Hinds, TD13/88 and Oliver, TD15/89);
·
without
reasons, a complainant was awarded legal costs (Kurvits, TD7/91);
·
costs
could be awarded under section 53 as expenses (Grover, TD12/92);
·
where
complainant’s counsel was found to have played an important role in a complex
case, costs were awarded (Thwaites, TD9/93);
·
when the
positions of the complainant and the Commission were consistent, independent
counsel was redundant and costs were not awarded (Pond, TD9/94);
·
costs could
be expenses (Swan TD5/94);
·
compensation
was awarded, without reasons, for leave and time spent to develop and prepare
the complaint. Legal costs were also awarded (Lambie, TD13/95);
·
time off
to attend the hearing and related lost wages were not connected to
discriminatory practices, but legal costs were awarded as it was reasonable for
the complainant to have retained outside counsel (Koeppel, TD5/97);
·
the
purpose of the remedies in the human rights context being to make the
complainant whole, costs were awarded with respect to legal advice (Green,
TD6/98);
·
where the
complainant’s counsel did an excellent job and played an important role, costs
were awarded (Bernard, TD2/99);
·
on being
satisfied that the respondent’s offer protected the public interest, the
Commission withdrew from the proceeding and costs were awarded on a
solicitor-and-client basis against the respondent as expenses. Paragraph
53(2)(c) was sufficiently broad to encompass legal representation (Nkwazi,
TD1/01);
·
complainant
was not represented by counsel, but costs were awarded for the preparation of
the complaint and the advice of a lawyer in this respect (Stevenson,
TD16/01);
·
noting
that the role of Commission counsel was to represent the public interest, costs
were awarded against the respondent notwithstanding that there was no conflict
between Commission counsel and the complainant’s counsel (Premakur,
T622/01);
·
self-represented
complainant was awarded “out of pocket expenses” of $11,248.26 as the costs “to
obtain advice and assistance in the pursuit of his complaint” (Milano,
2003 CHRT 30);
·
initial
costs of legal advice in bringing a complaint can be characterized as
compensation because of the causal connection with the discrimination, but
expenses incurred in the hearing cannot be so characterized. Nonetheless,
premised on a power to preserve its remedies, the Tribunal concluded that it had
authority to award costs (Brown, 2004 CHRT 30); and
·
referring
to an evolving situation and surmising that, although Parliament, at the time
the legislation was drafted, did not intend to give to the Tribunal the power
to award costs, this did not mean that Parliament intended to deprive it of
such power in the current circumstances (Commission counsel not appearing).
Costs of $105,000 were awarded against the respondent (Brooks, 2005 CHRT
14)
The Federal Court Jurisprudence
[60]
The
dispute in Canada (Attorney General) v.
Thwaites,
[1994] 2 F.C. 38 (T.D.) (Thwaites), concerned the appropriate
quantum of compensation for past and future income as well as an award for the
“reasonable costs of counsel and actuarial services.” The Federal Court
concluded that counsel and actuarial costs are, in ordinary usage of English
language, expenses incurred. The fact that particular significance is
attributed to “costs” in the legal sense does not provide a basis of support
for an argument that “expenses incurred” does not include those costs unless
specifically identified in the legislation. The word “expenses” should be given
its ordinary meaning unless the context requires otherwise. Since nothing in
the context required otherwise, the costs award was upheld.
[61]
In Canada (Attorney General) v. Lambie (1996), 124 F.T.R. 303 (T.D.)
(Lambie), Commission counsel was present. The complainant successfully claimed
additional costs for “leave and time spent to develop and prepare his
complaint.” The court set aside the decision in its entirety. In addressing
costs, it held that “the word ‘expense’ is not broad enough to cover time spent
in preparation except in exceptional circumstances” and that the Act “does not
confer [upon the Tribunal] the jurisdiction to award costs although Parliament
could easily have included such a power.”
[62]
In Canada
(Attorney General) v. Green, [2000] 4 F.C. 629 (T.D.) (Green), the
court upheld a finding of discrimination with respect to a public servant
claiming discrimination on the basis of disability, but overturned the costs
award. The court stated, “if Parliament had intended the Tribunal to award
legal costs, it would have said so…[t]here is no mention [in the Act] of legal
costs, an indication Parliament did not intend the Tribunal have the power to
order payment of legal costs.”
[63]
In Stevenson
v. Canada (Canadian Security
Intelligence Service)
(2003), 229 F.T.R. 297 (T.D.) (Stevenson), the Service challenged the
Tribunal’s award of $2,000 legal costs to the complainant and its order
directing a letter of apology from the Service’s director. The court reviewed
the conflicting jurisprudence and preferred the approach in Thwaites. It
concluded that the Tribunal had jurisdiction to award legal costs in very
exceptional cases. Legal costs incurred in the course of filing a complaint for
discrimination constituted “any expenses incurred by the victim” as described
in section 53 of the Act.
[64]
In Brooks,
the respondent challenged the Tribunal’s award of legal costs in the amount of
$105,000 in favour of Mr. Brooks. The reasoning in Stevenson was
reviewed and adopted. The court in Brooks rejected the submission that Stevenson
addressed only the recoverable costs of consulting counsel with respect to
filing a complaint and not the costs of ongoing legal representation. The court
concluded that the intent in Stevenson was not so restricted.
The Legislative History
[65]
There have
been various amendments to the Act since its inception. The content of what is
now paragraph 53(2)(c) remains as it has always been. However, changes
have been contemplated. Bill C-108 passed first reading on December 10, 1992
(Bill C-108, An Act to amend the Canadian Human Rights Act and other
Acts in consequence thereof, 3rd Sess., 34th Parl.,
1992). Clause 24(3) of Bill C-108 provided as follows:
|
(6) The Tribunal may
order the Commission to pay costs in accordance with the rules made under
section 48.9 to
(a)
complainant, if the complaint is substantiated and
(i) the
Commission did not appear before the Tribunal, or
(ii)
separate representation for the complainant was warranted by the divergent
interests of the complainant and the Commission or by any other circumstances
of the complainant; or
(b)
a respondent, if the complaint is not substantiated and is found to be
trivial, frivolous, vexatious, in bad faith or without purpose or to have
caused the respondent excessive financial hardship.
|
(6) Le tribunal peut
accorder, aux dépens de la Commission, les frais et dépens qu’il détermine
suivant les barèmes fixés dans les règles visées à l’article 48.9 :
(a) au
plaignant qui a gain de cause, soit lorsque la Commission n’a pas comparu
devant lui, soit lorsque le plaignant a un représentant distinct à cause de
la divergence de ses intérêts et de ceux de la Commission, ou des
circonstances de la plainte;
(b) au
défendeur qui a gain de cause, lorsqu’il estime que la plainte est sans
objet, dénuée de tout intérêt, faite de mauvaise foi ou a causé une
contrainte financière excessive à celui-ci.
|
[66]
The
feature of this provision was that costs could be awarded to either party and
would be paid by the Commission. Additionally, clause 48.9 (1) directed the
President of the Human Rights Tribunal Panel, in consultation with the other
members of the Panel and with the approval of the Governor in Council, to make
rules of procedure governing the inquiries into complaints and the practice and
procedure before the Tribunals to ensure that proceedings were conducted
informally, expeditiously and fairly, including rules governing, among other
things, awards of interest and costs (48.9(1)(h)).
[67]
Bill C-108
was never formally enacted and consequently did not become law. Since 1992,
minor amendments have been made to the Act almost annually. Substantial
amendments were enacted in 1998. The Act remains silent with respect to costs.
[68]
The Canadian
Human Rights Commission Special Report to Parliament: Freedom of Expression and
Freedom from Hate in the Internet Age, June 2009 (Minister of Public Works
and Government Services 2009, Cat. No. HR4-5/2009; ISBN 978-0-662-06896-9)
addressed the matter of costs. The following excerpt appears at pages 34 and 35
of the Report:
Awarding of costs
Concerns have been
expressed that there is an undue financial burden on respondents when
complaints are filed against them. Even if a complaint is dismissed,
respondents must bear their own costs. The CHRA does not allow for the
awarding of costs.
At the Commission level,
neither respondents nor complainants are required to have legal counsel to
represent them. The process is simple. The CHRA requires the Commission to
designate investigators to investigate each complaint with which it deals. The
investigation process comprises an exchange of documents, and interview with
witnesses and parties. When the investigation is completed, the parties are
informed of the findings. Parties can make written submissions. The
investigation report and any submissions in the case file are given to Commissioners
for a decision. The decision is based entirely on documentary evidence; no
hearings are held and the Commission can make no finding of liability.
At the Tribunal, many
parties feel a need for legal representation although there is no statutory
requirement for it. As with many administrative tribunals and courts,
unrepresented litigants are provided guidance by the Tribunal to ensure their
cases are properly presented.
The 2000 report of the Canadian
Human Rights Act Review Panel, chaired by retired Supreme Court Justice
Gérard La Forest, considered the issue of the awarding of costs and recommended
that costs be awarded, but only in special situations where there has been
misconduct by a party:
We considered the issue
of whether the Act should specifically empower the Tribunal to award costs. We
do not think that costs of legal proceedings are generally appropriate in human
rights cases under the Act.
However, we do think
that costs should be awarded against a party that has intentionally delayed the
hearing of a case or is guilty of misconduct in the proceedings. (My
emphasis)
The Commission agrees
with this recommendation.
|
RECOMMENDATION 3
It is recommended that
the Canadian Human Rights Act be amended to allow for an award of
costs in exceptional circumstances where the Tribunal finds that a party has
abused the Tribunal process.
|
[69]
The Review Panel and
the Commission endorsed the regulatory, rather than the compensatory, function
of costs.
Human Rights Statutes in Canada
[70]
The
treatment of costs varies significantly in the human rights legislation
throughout the provinces and territories. In British Columbia, it provides for an award of costs
against a party if the party has engaged in improper conduct during the course
of the complaint (Human Rights Code, R.S.B.C. 1996, c. 210, s. 37(4)).
The Manitoba Act requires the parties to pay their own costs unless a complaint
or reply is regarded as frivolous or vexatious or the frivolous or vexatious
conduct of a party has prolonged the adjudication. In such cases, the
responsible party may be required to pay some or all of the costs of the
affected party (Human Rights Code, S.M. 1987-88, c. 45. s. 45).
[71]
The
legislation of the North West Territories and Nunavut contains
provisions similar to those of Manitoba. The North West Territories
Act also provides for an award of costs where there are extraordinary reasons
for making such an order in the particular case (Human Rights Act,
S.N.W.T. 2002, c. 18, s.63). Nunavut has additionally provided for
costs in circumstances where a complaint is based on information the
complainant knew to be false. In such cases, damages for injury to the
respondent’s reputation may be awarded in addition to part or all of the costs
of defending against the complaint (Human Rights Act, S.Nu. 2003, c. 12,
s. 35).
[72]
The
Yukon
legislation mirrors Nunavut’s provision regarding a
complaint based on false information. However, its statute also allows for
costs payable to a successful complainant by the party responsible for the
discrimination. Additionally, where a complaint is found to be frivolous or
vexatious, the Tribunal may order the respondent’s costs to be paid by the
Commission (Human Rights Act, R.S.Y. 2002, c. 116, ss. 24-26).
[73]
The
Saskatchewan, New
Brunswick, Nova
Scotia and
Ontario Acts do not provide for costs. The Nova Scotia Act allows for costs to
the extent they are permitted by the regulations, but no regulations have been
enacted. Similarly, in New
Brunswick, the
Act authorizes the enactment of regulations respecting any matter necessary to
carry out effectively the intent and purpose of the Act. No regulations have
been enacted. (Human Rights Act, R.S.N.S. 1989, c. 214, s. 34(8)
and Human Rights Act, R.S.N.B. 1973, c. H-11, s. 16). The situation in Ontario is of similar effect.
[74]
Conversely,
Alberta, Québec, Prince Edward Island and Newfoundland and Labrador in their
respective Acts have empowered their respective adjudicators to make any order
as to costs considered appropriate (Human Rights Act, R.S.A. 2000, A-22-5,
s. 32(2); Charter of Human Rights and Freedoms, R.S.Q. c. C-12, s. 126; Human
Rights Act, R.S.P.E.I. 1988, c. H-12, s. 28.4(6); Human Rights Code,
R.S.N.L. 1990, c. H-14, s. 28(2)).
Analysis
[75]
The proper
approach to statutory interpretation has been articulated repeatedly by the
Supreme Court of Canada and is so entrenched that reference to specific
authority is not necessary. The goal is to seek the intent of Parliament by
reading the words of the provision in context and according to their
grammatical and ordinary sense, harmoniously with the scheme and the object of
the statute. In accordance with this fundamental principle, the search for
parliamentary intent constitutes an exercise in ascertaining what Parliament
set out to accomplish. In this case, the quest is to determine whether
Parliament intended to endow the Tribunal with the authority to award costs to
a successful complainant. For the reasons that follow, I conclude that
Parliament did not intend to grant, and did not grant, to the Tribunal the power
to award costs.
[76]
The
exercise requires an examination of the words “expenses” (“dépenses” in French)
and “costs” (“dépens”). The Act does not define “expenses” and is silent with
respect to “costs”. The provision in issue is a compensatory one: CNR (para.
39). In paragragh 53(2)(c), the word “expenses” is broad and
non-specific. It takes its colour from the word “compensate”, for only those
expenses incurred as a result of the discriminatory practice qualify for
compensation. The word “costs”, however, is another matter. I agree with the
appellant that the word “costs” is a legal term of art.
[77]
A legal
term of art is a word or expression that, through usage by legal professionals,
has acquired a distinct legal meaning. It has a technical meaning because of
its conventional use by lawyers and judges: Ruth Sullivan, Sullivan on the
Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Canada, 2008) at 57 and 61. That is,
it has a settled legal definition.
[78]
In National
Energy Board Act (Can.) (Re), [1986] 3 F.C. 275 (C.A.), leave to appeal
dismissed, (1986), 23 Admin, L.R. xxi (NEB Reference), the
Federal Court of Appeal referred to the “accurate and useful discussion as to
the normal legal meaning of ‘costs’” of the Ontario Divisional Court in Regional
Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee,
Inc. et al. (1985), 51 O.R. (2d) 23 (Div.Ct.) (Hamilton-Wentworth),
where it was determined that the word “costs” as used in the legal sense is a
word having a well-defined meaning. In Hamilton-Wentworth, the court
stated “[f]rom the earliest times, it has been recognized that the power to
award ‘costs’ must be found in a statute.” Describing the nature of costs, it
said:
The
characteristics of costs, developed over many years are:
(1) They
are an award to be made in favour of a successful or deserving litigant,
payable by the loser.
(2) Of
necessity, the award must await the conclusion of the proceeding, as success or
entitlement cannot be determined before that time.
(3) They
are payable by way of indemnity for allowable expenses and services incurred
relevant to the case or proceeding.
(4) They are not payable for the purpose of assuring
participation in the proceedings.
[79]
The
concept of costs in the context of administrative tribunals carries the same
general connotation as legal costs: Bell Canada v. Consumers’ Association of
Canada, [1986] 1 S.C.R. 190; see also Re. Bell Canada and Telecom. Decision CRTC
79-5, [1982]
2 F.C. 681 (C.A.), leave to appeal dismissed, [1982] S.C.C.A. No. 299.
[80]
In the
specific context of human rights legislation, the matter of costs was discussed
in Ontario (Liquor Control Board) v. Ontario (Ontario Human Rights Commission) (1988), 25 O.A.C. 161, 27
O.A.C. 246 (addendum) (Div.
Ct.). The court
concluded as follows:
There is no inherent
jurisdiction in a court, nor in any other statutory body, to award costs…The
Board of Inquiry is created by the Ontario Human Rights Code [citation
omitted]. As a statutory body it can only have jurisdiction to award costs if
such jurisdiction is expressly given to it either by the Code or some other
act…The power of the Board of Inquiry under s. 40(1) to make “restitution
including monetary compensation” is not an express provision for the award of
costs to complainants under the Code. The rule of liberal interpretation to
carry out the objects of the Code to, as far as possible, remedy the effects of
and prevent discrimination do not apply to procedural matters or the question
of costs.
[81]
Similarly,
in Moncton v. Buggie and N.B. Human Rights Commission (1985), 21 D.L.R.
(4th) 266; 65 N.B.R. (2d) 210 (C.A.) (Buggie), leave to
appeal dismissed, [1986] S.C.C.A. No. 21, the New Brunswick Court of Appeal
concluded that although paragraph 21(1)(c) of the New Brunswick Act
provided the Commission the power to “issue whatever order it deems necessary
to carry into effect the recommendation of the Board”, such power did not carry
with it the power to award costs against a party.
[82]
In Halifax
(Regional Municipality) v. Nova Scotia (Human Rights Commission), 2005 NSCA
70; 253 D.L.R. (4th) 506; 232 N.S.R. (2d) 16 (Halifax),
MacDonald C.J. examined the provision in the Nova Scotia legislation empowering
a board of inquiry to order any party who has contravened the Act to “do any act
or thing that constitutes full compliance with the Act and to rectify any
injury caused to any person or class of person or to make compensation
therefore”. In comprehensive and thoughtful reasons, the Chief Justice reviewed
the history of costs and the relevant jurisprudence. He arrived at the
following conclusions:
·
a
compensation award is separate and distinct from an award for costs. The former
relates to the victim’s injury, the latter relates to the process;
·
legal fees
flowing from, but unrelated to prosecuting the claim can be compensable, but
legal fees incidental to prosecuting the claim are not compensable;
·
it is one
thing to give the legislation a broad and liberal interpretation so as to
ensure its objects are met. It is quite another to cloak the Board with
jurisdiction that the legislature did not give to it;
·
the Board
had no power to award the complainant legal costs.
[83]
The
Federal Court jurisprudence was distinguished on the basis that the federal
legislation authorizing compensation “for any expenses…as a result of the
discriminatory practice” may arguably include legal fees (my emphasis).
[84]
An
examination of the human rights statutes of the provinces and territories where
specific provision is made for costs is telling, particularly in view of the
Supreme Court’s admonition with respect to the importance of developing an
interpretation that is consistent with other Canadian human rights statutes.
The legislation permits the Tribunal or the Board, as the case may be, upon
determination that a complaint is justified, to compensate as follows:
·
in British Columbia, “compensate the person
discriminated against for all, or a part the member or panel determines, of any
wages or salary lost, or expenses incurred, by the contravention”, para. 37(2)(d)(ii);
·
in
Manitoba, “compensate any party adversely affected by the contravention for any
financial losses sustained, expenses incurred or benefits lost by reason of the
contravention, or for such portion of those losses, expenses or benefits as the
adjudicator considers just and appropriate”, para. 43(2)(b);
·
in the
North West Territories, “compensate any party dealt with contrary to this Act
for all or any part of any wages or income lost or expenses incurred by reason
of the contravention of this Act”, para. 62(3)(iv);
·
in
Nunavut, “compensate any party dealt with contrary to this Act or the
regulations for all or any part of any wages or income lost, expenses incurred
or other losses by reason of the contravention of this Act or the regulations”,
para. 34(3)(iv);
·
in the Yukon, “pay damages for any financial loss
suffered as a result of the discrimination”, para. 24(1)(c);
·
in
Alberta, “compensate the person dealt with contrary to this Act for all or any
part of any wages or income lost or expenses incurred by reason of the
contravention of this Act”, para. 32(1)(b)(iv);
·
in Quebec, “compensation for the moral
or material prejudice resulting therefrom”, section 49;
·
in Prince
Edward Island, “compensate the complainant or other person dealt with contrary
to this Act for all or any part of wages or income lost or expenses incurred by
reason of the contravention of this Act”, para. 28.4(1)(b)(iv); and
·
in
Newfoundland and Labrador, “provide compensation to the person discriminated
against, including compensation for all or a part of wages or income lost or
expenses incurred because of the discriminatory action”, para. 28(1)(b)(iv).
[85]
The
wording of the above-referenced provisions is strikingly similar. To the extent
that differences exist, they are minor and insignificant. The point to be made
is that the provisions are not fundamentally different than paragraph 53(2)(c)
of the Act; to the contrary, they are fundamentally the same. Yet, in addition,
costs are expressly addressed in the legislation of each of the above-noted
jurisdictions.
[86]
Further,
there is no material difference in the wording of the compensatory provisions
of those jurisdictions where the authority to award costs is not expressly
granted. If anything, some of the provisions may be broader than the one under
consideration. The legislation provides that the Tribunal or Board may make an
order:
·
in
Ontario, “directing the party who infringed the right to pay monetary
compensation to the party whose right was infringed for loss arising out of the
infringement, including compensation for injury to dignity, feelings and
self-respect”, para. 45.2(1)(1);
·
in Saskatchewan, “requiring that person to
compensate any person injured by that contravention for any or all of the wages
and other benefits of which the injured person was deprived and any expenses
incurred by the injured person as a result of the contravention”, para. 31.3(c);
·
in Nova Scotia, “to do any act or thing that
constitutes full compliance with the Act and to rectify any injury caused to
any person or class of persons or to make compensation therefore”, para. 34(8);
and
·
in New Brunswick, “to compensate any party
adversely affected by the violation for any consequent expenditure, financial
loss or deprivation of benefit, in such amount as the Board considers just and
appropriate.”
[87]
To accord
different treatment to the federal legislation ─ bearing in mind that the
courts of Ontario, New Brunswick and Nova Scotia have determined, absent
express authorization, no power to award costs exists ─ flies in the face
of the express interpretive direction of the Supreme Court and yields an
anomalous, if not absurd, result.
[88]
There are
other indicia that militate against a conclusion that Parliament intended the
word “expenses” to include “costs”. Bill C-108 demonstrates that Parliament
specifically turned its mind to the matter of costs. Notably, the proposed Bill
would have provided for the payment of costs by the Commission in specified
circumstances and would have empowered the Tribunal to make rules governing,
among other things, costs.
[89]
The AG
overstates the significance of the fact that Bill C-108 was not enacted in
asserting that this constitutes conclusive proof that Parliament did not
intend, and does not intend, to vest the Tribunal with the power to award
costs. I would not go so far. There is nothing in the record that explains why
the bill died and it is not the function of the court to engage in speculation.
The reason may be more benign than that suggested. However, in my view, it does
indicate that the existing provisions are not intended to authorize the
awarding of costs. Parliament has considered a grant of authority but, thus
far, has not given it.
[90]
Indeed, it
appears that as recently as June of 2009 the Commission was of the same view
since it recommended an amendment to the Act that would enable the Tribunal to
award costs in specified and much more limited circumstances than those awarded
by the Tribunal: paragraph 68 of these reasons.
[91]
I have not
overlooked the issue of implied jurisdiction although I have some difficulty
with the notion that a power to award costs could exist because of implied
authority when it appears to be settled law that nothing less than express
authority will suffice. However, if the power in issue is susceptible to a
grant by way of implication, the prerequisite to found it is not present.
[92]
The
concept of implied jurisdiction is summarized in ATCO Gas and Pipelines Ltd.
v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R. 140 (ATCO)
at paragraph 51 as follows:
...[T]he powers conferred by an enabling
statute are construed to include not only those expressly granted but also, by
implication, all powers which are practically necessary for the accomplishment
of the object intended to be secured by the statutory regime created by the
legislature [citation omitted]. Canadian courts have in the past applied the
doctrine to ensure that administrative bodies have the necessary jurisdiction
to accomplish their statutory mandate.
[93]
There is
no evidence of practical necessity for the exercise of the power to award costs
to enable the Tribunal to attain the objects expressly prescribed by
Parliament. In Halifax, MacDonald C.J. concluded
that “this authority [to award costs] is not necessary to achieve the stated
legislative objectives.” In coming to that conclusion, he referred to the
comments of the Supreme Court in Canada (Human Rights Commission) v.
Canadian Liberty Net, [1998] 1 S.C.R. 626 (Canadian Liberty Net) (para.
16) to the effect that a power can only be implied where “that power is
actually necessary for the administration of the terms of the legislation;
coherence, logicality, or desirability are not sufficient.”
[94]
I also
agree with the observation of Heald J. in NEB Reference that there is an
additional reason for not invoking the doctrine of necessary implication. At
paragraph 14, he opined that the Parliament of Canada and the provincial
legislatures have demonstrated their ability in various pieces of legislation
to explicitly confer on tribunals a general power to award costs. “From this I
think it possible to infer that in the absence of an express statutory
provision conferring the power to award costs, such power should not be
implied.” Notably, express provision is made for witness fees (s. 50(6)) and
the awarding of interest (s. 53(4)).
[95]
I return to
where I began. The quest is to determine whether Parliament intended to endow
the Tribunal with the authority to award costs to a successful complainant. For
the reasons given, I conclude that Parliament did not intend to grant, and did
not grant, to the Tribunal the power to award costs. To conclude that the
Tribunal may award legal costs under the guise of “expenses incurred by the
victim as a result of the discriminatory practice” would be to introduce
indirectly into the Act a power which Parliament did not intend it to have.
[96]
Finally,
if I am wrong in my choice of the applicable standard of review and the
appropriate standard is reasonableness, I would conclude, for the foregoing
reasons, that an interpretation of paragraph 53(2)(c) of the Act that the
Tribunal has authority to award costs is unreasonable.
[97]
At the end
of the day, the “mandate of the court is to determine and apply the intention
of Parliament without crossing the line between judicial interpretation and
legislative drafting”: ATCO (para. 51).
[98]
There is
no doubt that human rights legislation occupies a privileged position in the
Canadian legal landscape. The Commission’s submission, at paragraph 16 of its
memorandum of fact and law, that to accept the AG’s interpretation “would
result in most complainants who are represented by counsel to be denied access
to justice by rendering accessing justice unaffordable” is compelling. That
same rationale has led the Tribunal to conclude that a purposive approach to
the interpretation of human rights legislation and compelling policy
considerations relating to access to the human rights adjudicative process
favours the inclusion of legal costs under the head of “expenses incurred…as a
result of the discriminatory practice.”
[99]
The
problem with this approach is twofold. First, the purposive and liberal
interpretation approach must be grounded in the statute. It does not provide
the Tribunal, or the court, a licence to ignore the words of the Act or to
rewrite it: Gould (para. 50); Berg (para. 27). Moreover, because
the authority to award costs is not a necessary incident to any of the
Tribunal’s functions or powers, it is inappropriate to engage in an extensive
analysis of what is desirable to carry out the aims of the Act: Canadian
Liberty Net (para. 18). Second, policy cannot be used to ground authority
that is not otherwise provided for in the legislation: Bell Canada v. Bell
Aliant Regional Communications, 2009 SCC 40 (paras. 49, 50).
[100]
The issue
of costs in human rights adjudication is a policy matter. The question is which
entity is best placed to make the policy choices. It is evident from an
examination of the provisions of the legislation in the provinces and
territories where costs provisions have been enacted that there is no “one size
fits all.”
[101]
These are
issues that require the consideration of Parliament, for example, the
desirability of empowering the Tribunal to award costs and, if desirable, the
manner and the limits in which it should be accomplished. The role of
Commission counsel may be a factor for contemplation as its role in the
adjudicative process has changed significantly over the years. For many years,
Commission counsel appeared at most Tribunal hearings, but that practice
appears to have changed. The former procedure may have impacted Parliament’s
decision regarding the propriety of costs awards in human rights proceedings. Counsel
advised that in 2003 the Commission revisited its interpretation of its role
under section 51 of the Act. Finally, if authority to award costs is to be granted
to the Tribunal, the nature of the costs regime must be determined. There are a
number of potential permutations.
[102]
The
ultimate decision and the policy choices inherent in making it are for
Parliament, not the Tribunal or the court.
Conclusion
[103]
I would
allow the appeal and set aside the judgment of the Federal Court. Making the
judgment that should have been made, I would declare that the Canadian Human
Rights Tribunal has no authority to make an award of costs under the provisions
of the Canadian Human Rights Act. In the circumstances, I would not
award costs of this proceeding.
“Carolyn
Layden-Stevenson”
“I
agree.
Gilles Létourneau J.A.”
“I
agree.
J. Edgar
Sexton J.A.”
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