Human Rights: Remedies: Legal Costs

 In New Brunswick, s. 20(4.1), which mandates the Commission to have carriage of the proceeding, is made subject to s. 20(4), which entitles parties to advance their case “by counsel”. The remedial jurisdiction of s. 20(6.2)(e) entitles the successful complainant to be compensated for any expenditure consequent upon the violation. These statutory provisions imply, in my view, this Board’s jurisdiction to award costs to a successful complainant. As the Board said in Grover v. NRC [C.H.R.T.], supra, at § 174, “If the purpose of the remedies is to fully and adequately compensate a complainant for discriminatory practices, then surely the consequence of costs is part and parcel of the meaningful remedy for a successful complainant”. In the event that the Board’s decision to dismiss this complaint is overturned, then subject to an order of the court, this Board retains jurisdiction to determine the appropriate quantum of the complainant’s costs.

[186]    The respondent requested it be awarded costs if successful. The respondent succeeded, but this Board derives its costs jurisdiction from the governing statute and the interpretation of s. 20(6.2)(e) containing the word “expenditures” consequent upon a violation of the Act. It is therefore without jurisdiction to award costs to a successful respondent.

The matter proceeded to the Court of Appeal on the initiative of the Human Rights Commission. The appeal failed for reasons which are not relevant to this issue. The appellate court, did note, however, that the intervening decision of the Supreme Court of Canada would end the debate on the question of costs:

However, the costs issue was decided without the Board having the benefit of the Supreme Court’s recent decision in Canada (Canadian Human Rights Commission).

In that case, the Court ruled the federal human rights tribunal did not possess the jurisdiction to award costs to a successful complainant. The interpretative arguments advanced in that case in support of the right to award costs to this party only are similar to the ones considered by the Board in the present case. This is why the Supreme Court’s decision casts a long shadow over the Board’s ruling.

However, the legal expenses that Mr. Mema seeks to be compensated for relate to legal fees incurred in relation to a hearing process before the Council under the Community Charter related to the Misconduct Report. On a balance of probabilities, I am satisfied that Mr. Mema would not have incurred those expenses were it not for the Misconduct Report. I have found that the Misconduct Report was discriminatory, and I have found that the City based its suspension decision on the Misconduct Report. As a result, I am satisfied on the materials before me that it is appropriate to award reimbursement for those legal fees.

P.E.I.

The Human Rights Act of P.E.I. gives the Tribunal the right to consider an award of costs. Such an award was made in the 2007 decision of Matheson in the sum of $102,310 plus an undisclosed sum of disbursements.

Alberta

The Act does allow the Tribunal the right to award costs, but such awards have been rare. The reasons for this are intended not to dissuade potential complainants from seeking a remedy. ¹² It remains a fair summary that such awards are exceptional and require unusually abusive and/or dishonest behaviour to be considered.

The 2025 decision in Shodunke is one such case. The facts may be stated briefly. The judicial history is not so simple.

The complainant had been terminated within his probationary period. He asserted a human rights violation and commenced the complaint.  The employee had asserted that he was adversely treated due to his religious beliefs and his colour. The issue of his religious beliefs was that an ancestral king in Nigeria had died and his responsibilities as a chieftain required his adherence to certain religious rites which prevented him from attending work on the date of his termination. He alleged he had explained his circumstance to his employer, which acted to terminate him in any event. The employer denied any such statement was made and asserted the termination was based on performance issues.

A second complaint followed from an event which took place two months after his termination. The complainant was at a public mall using a telephone kiosk, asking about phone offers and to pay a bill. He alleged a security employed by the respondent asked him to leave the kiosk. This conduct was asserted to be an act of retaliation. The first complaint had not been filed at the time of this incident. The complainant had asserted that he had threatened, at that time, to report the employer to the “appropriate authorities”, which he later argued was referring to the human rights commission.

The company provided a contrary summary of this event, in which it maintained that the complainant’s conduct had caused the sales representative to feel unsafe and had made unwanted.

These complaints were investigated by a human rights officer, who recommended their dismissal, which was accepted by the Director. The employee sought a judicial review to the Chief of the Commission, one which was also dismissed. The employee sought again judicial review before the King’s Bench. This decision was in favour of the employee for the termination decision. This was based on the argument that the Commissioner could not make credibility findings. The chambers judge found that it was an error to conclude that the employer’s evidence was clearly more credible simply because it was supported by two persons as opposed to one, relating to what was said by whom on the date of termination.

The decision dismissing the second complaint was upheld. True to form, this decision was appealed to the Court of Appeal which upheld the chambers decision dismissing the JR application and the second complaint. The decision on the first complaint was not appealed.

The employer was successful in having the complaint dismissed, after which it brought a request for costs alleging that the complaint was frivolous, vexatious, that the complainant had acted improperly throughout the hearing and further that he had unfairly recorded the contents of the hearing. The details of the conduct of the complainant show that the conduct was clearly outrageous, and reflected dishonest and abusive conduct. Full details are set out in para 13 to 48. The decision records this exceptional conduct on the part of the employee.

This application was successful. The employer was allowed $25,000 in costs. The words were as follows:

            An award of costs against a complainant is only appropriate in circumstances where the complainant has engaged in conduct that was dishonest or significantly prejudicial to a party or the integrity of the process.[4]

[10]      For significant costs to be awarded at the conclusion of a proceeding, a party needs to have engaged in conduct that essentially amounts to an abuse of process, including:

1. dishonest conduct in the proceedings;
2. conduct that is significantly prejudicial to another party; or
3. conduct that is significantly prejudicial to the integrity of the process.[5]

This passage may be fairly read as applying to both sides of the dispute in theory.

An award of costs in favour on each of three complainants in a successful sexual harassment complaint was made in May of 2004 by the Tribunal in Oliva, Pascoe & Strong v Gursoy. The facts showed that:

The respondent engaged in constantly egregious behaviour including:

1. Extensive use of profanity and disrespectful language directed at the complainants;

2. Aggressive and disrespectful body language such as smirking, rolling his eyes, exaggeratedly laughing at the complainants’ testimony, pacing, stomping, waving his arms, and raising his voice;

3. Personal attacks on the character of counsel for the Director;

4. Repeatedly leaving and returning to the hearing without the Tribunal’s permission;

5. Regularly cutting off or speaking over counsel for the Director or the Tribunal Chair; and

6.   Making baseless allegations of bias and racism on the part of the Tribunal Chair which required additional Tribunal time and resources to address.

The same decision summarized other cases in which costs were considered:

In Facey, costs were awarded against a complainant who engaged in “constantly egregious behaviour”[9] including putting forward misleading evidence, making baseless allegations and attacks on the personal character of the respondent’s witnesses, and submitting inappropriate adjournment and disclosure requests mid-hearing.[10]

[20]      In Fisher, costs were awarded against a respondent who included intimate photographs of the complainant in its hearing materials even though the photographs were neither relevant nor material to the issues in dispute. The Tribunal found that the respondent’s decision to include the intimate photographs despite any obvious need to do so was significantly prejudicial to the complainant and deserving of sanction via a costs award.[11]

[21]      In Visser, “thrown away” costs were awarded against a complainant who “refused to participate in her own complaint in any meaningful way” and then failed to attend the hearing.[12]

[22]      In contrast, in Malko-Monterrosa, no costs were awarded where the Tribunal found that, while some of the complainant’s allegations were inappropriate to the forum, they did not cause significant delay or otherwise negatively impact the process.[13]

[23]      Similarly, in Ceresne, the Tribunal declined to award costs in respect of an interim application that “appeared to be unnecessary and caused undue delay, time and cost for both parties.”[14] The Tribunal determined that the application was not a result of dishonest conduct, nor was it significantly prejudicial such that an award of costs would be warranted.[15]

[24]      In Kahin, the Tribunal declined to award costs where the complainant was found to be not credible in his allegations against the respondent. The Tribunal noted that an adverse finding against a party, even with respect to credibility, would not, in and of itself, be sufficient to support an award of costs.[16] While the complainant may not have been credible, the Tribunal was not prepared to find, in that case, that the complainant had been “dishonest” nor that he had engaged in sufficiently improper conduct to justify a costs award.[17]

[25]      Finally, I note that Courts are typically reluctant to award costs to self-represented litigants unless “doing so would serve at least one of the policy reasons for which costs awards are made, apart from indemnification” namely, “encouraging settlement, preventing frivolous, vexatious or harassing litigation, and encouraging economy and efficiency during litigation.”[18]

A decision in January of 2026 also awarded costs. The case was unusual. The principal of the company had a personal relationship with a contractor to the business. (“Nielsen”) She ended the relationship due to the infidelity of the contractor. (“Sparks”) Sparks then brought a human rights complaint against the company. It was dismissed by the Director as having no reasonable chance of success. ¹³

Nielsen then brought a human rights complaint against Sparks, alleging that the initial Sparks complaint violated S. 10(2) of the Act which prevents a person from filing a complaint with malicious intent and is frivolous or vexatious. It was noted that the burden on the applicant in this instance is one higher than the civil onus in a similar context.

The evidence included proof that Sparks had forged a document to allege an employment relationship. The Tribunal noted:

The evidence before me demonstrates that Sparks’ motives in filing the Sparks Complaint were entirely targeted towards harming Nielsen, rather than addressing any wrong committed by her.  The complete lack of evidence put forward by  Sparks in respect to the Sparks Complaint, combined with the rejected Employment Standards and CRA complaints, the evidence of  Sparks’ seeking to make a false complaint as a method of punishment, and  Sparks’ electing not to respond to the Complaint or make submissions to the Tribunal, demonstrates that the Sparks Complaint was filed for an improper purpose.  All of the evidence before me demonstrates that the Sparks Complaint was frivolous and vexatious and Sparks intended to harm the complainant through it.

[23]      The motives underlying the Sparks Complaint are emphasized through the creation and submission of a forged document purporting to be a job offer from AFS.  The complainant’s evidence is that neither she nor AFS made a job offer to Sparks, contrary to the record he put forward. Rather, the complainant confirms that Sparks had access to a job offer that was made to an AFS employee and her uncontroverted evidence is that Sparks changed that record to falsely claim the status of an employee.  That the document is a forgery is confirmed by Sparks’ failure to provide any legitimate pay records, bank records showing employment earnings, or any other documents with the hallmarks of an employment relationship.  I find that the evidence submitted by Sparks purporting to be an employment offer was created by Sparks with intention of deceiving this Tribunal and harming the complainant.

The complaint succeeded. Nielsen was awarded the sum of $12,500 for emotional suffering and $5,000 for costs.

The general theme in the above cases has emerged that costs are not routinely ordered and that exceptional conduct must be shown to warrant such an award.

Such a conclusion is not consistent with the decision in Walsh v Mobil Oil. The complainant was awarded costs at the Tribunal level as a matter of course. There were no assertions of unfair conduct.