The law is emphatically clear that for an administrative tribunal to award costs, the statute must employer it to do so. 1 2
Quebec’s Charter allows for a costs award in favour of the Commission. Newfoundland’s statute allows for “costs as appropriate".
B.C.’s act 3 provides for a costs award where there has been “improper conduct”. Costs were awarded in a 2003 case in the sum of $5,000. 4
A similar order was made in a 2008 case 5 of $3,000 for again "improper conduct" in the course of the hearing, due to what was considered to be outrageous allegations in the evidence of the witnesses and direct confrontation with the complainant at the hearing:
I take a different view of the situation in regard to Mr. Ford, Navigator, and Con-Forte in regard to improper conduct during the course of a hearing. In their pleadings, Navigator and Con-Forte put forward an assertion that was not true, that Ms. Harrison regularly came to work in short skirts and would bend over so that Mr. Ford and Mr. Goodman would notice. During the course of the hearing, Mr. Ford, Navigator, and Con-Forte attempted to portray her as a person who caused her own problems, in that she sexualized the workplace, by dressing and acting provocatively, and conducting herself inappropriately when dealing with the workers on the site. Co-workers with Ms. Harrison, who had no direct knowledge of the central issues to be determined, gave evidence which appeared to be aimed solely at calling her general reputation into question. At one point during the hearing, Mr. Ford had to be cautioned not to confront Ms. Harrison outside the hearing room in regard to her having made a complaint. The unproven allegations of Mr. Ford, Navigator, and Con-Forte against Ms. Harrison have likely had the effect of damaging her reputation, both in her community and in the field of construction safety.
This provision was considered recently in Francis v B.C. Ministry of Justice. The costs order was denied. The Tribunal stated that the right to award costs was a "punitive power that is meant to safeguard the integrity of the Tribunal's process", one intended to deter conduct which had a "significant prejudicial impact on another party".
In a recent decision, the same tribunal allowed the sum of roughly $10,000 for legal costs incurred by the complainant to defend himself before the City council in response to a Misconduct Report prior to termination, a report which itself was found to be discriminatory. The Tribunal noted: 6:
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.
The B.C. Code also allows the Tribunal to order reimbursements of expenses and disbursements. 7 This section was used to allow payments to expert witnesses for their reports and attendances. This was also considered appropriate to compensate for "service, postage, photocopies, faxes, office supplies, and document production" expenses. The sum allowed was subject to the prevailing 20% discount determined fair for the damage award. This may be questioned as costs, in the sense of recoverable legals, are typically not discounted.
The same authority allowed the award of the expense of $111 for medical reports in Mema, note above.
Yukon allows a costs order to be made as a general remedy provision if the complaint is upheld.
It also permits a costs award against the applicant where the complaint is found to be frivolous, as does the N.W.T. and Manitoba.
Manitoba's statute specifically states as follows in s. 45(2)
45(2) Where the adjudicator regards a complaint or reply as frivolous or vexatious, or is satisfied that the investigation or adjudication has been frivolously or vexatiously prolonged by the conduct of any party, the adjudicator may order the party responsible for the complaint or reply or for the conduct to pay some or all of the costs of any other party affected thereby.
This provision was used to allow for a costs award where the respondent had failed to comply with a production order. The sum of $1,000 was determined as appropriate. 8
Saskatchewan denies either party costs in any case taken to the Queen’s Bench at either level unless the review application is determined to be frivolous. However, the regulations passed under the statute allow the hearing adjudicator discretion to do so.
Costs
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21(1) |
A tribunal may order any party to an inquiry to pay costs to any other party in an amount the tribunal considers appropriate, except that the tribunal may not order the commission to pay costs to the Complainant. |
Such an order was made in 2009 case against the corporation and personal respondent due to offensive conduct at the hearing in the total sum of $1,000, this being $500 to the personal complainant and the Comission. 9
The Nunavut statute allows for a cost order to deter improper conduct. Nunavut allows such an order to be made against a party which attempts to impede the investigatory process, which is also independent of the success of the party on the main issue.
Nunavut’s statute also provides authority for such an award where the claim has been “knowingly false”, or if the investigation has been unduly hampered by the conduct of either party. This presumably does not require a liability finding on the substantive complaint.
An issue arose in the Nova Scotia Human Rights Tribunal in which the respondent had failed to comply with the tribunal's order that the sum of $4,000 by the due date set in the order. A further proceeding was then brought by the Commission to enforce this order. On this occasion, the tribunal ordered such incremental costs be paid, relying upon the "broad remedial section of the Act, 34(8). 10
The New Brunswick statute similarly does not empower the authority to award costs. This issue was challenged in a 1994 decision, albeit unsuccessfully. A review followed which also failed. 11 The case did note that the jurisdiction to award costs was denied to a successful respondent, as was the case in this instance. Had the applicant proved his case, the tribunal determined that the statute did empower to award 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.