Canada (Attorney General) v. Mowat

Canada (Attorney General) v. Mowat
Court (s) Database
Federal Court of Appeal Decisions
Date
2009-10-26
Neutral citation
2009 FCA 309
File numbers
A-89-08
Notes
Reported Decision
Decision Content
Federal Court of Appeal
CANADA
Cour d'appel fédérale
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
Heard at Toronto, Ontario, on September 16, 2009.
Judgment delivered at Ottawa, Ontario, on October 26, 2009.
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
SEXTON J.A.
Federal Court of Appeal
CANADA
Cour d'appel fédérale
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 b