Brown v. Canada (Royal Canadian Mounted Police)

Brown v. Canada (Royal Canadian Mounted Police)
Collection
Canadian Human Rights Tribunal
Date
2004-09-01
Neutral citation
2004 CHRT 30
File number(s)
T769/1903
Decision-maker(s)
Groake, Paul Dr.
Decision type
Ruling
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
JACQUELINE BROWN
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ROYAL CANADIAN MOUNTED POLICE
Respondent
RULING ON THE QUESTION WHETHER THE TRIBUNAL HAS THE POWER TO AWARD COSTS
MEMBER: Dr. Paul Groarke 2004 CHRT 30 2004/09/01
I. INTRODUCTION
II. DAMAGES
A. Damages do not Include Costs
B. Initial Fees
C. Legal Fees from the Hearing
III. COSTS
A. The Common Law Rule: The Power to Award Costs Requires Statutory Authority
B. Other Sources of the Power to Award Costs
IV. THE POSITIONS OF THE PARTIES
A. The Position of the Respondent
B. The Position of the Complainant
C. The Position of the Commission
V. LEGISLATION
A. The Canadian Human Rights Act
B. Other Human Rights Legislation
VI. JURISPRUDENCE UNDER THE CANADIAN HUMAN RIGHTS ACT
A. Early Cases
(i) Morrell: The Tribunal Rules that it Does Not Have the Power to Award Costs
(ii) Other Cases
B. Thwaites: The Federal Court holds that the Tribunal has the Power to Award Costs
C. Lambie: The Federal Court rules that the Tribunal does not have the Power to Award Costs
D. Intervening Cases: The Tribunal continues to hold that it has the Power to Award Costs
E. Green: The Federal Court rules for the second time that the Tribunal does not have the Power to Award Costs
F. Nkwazi: The Tribunal continues to rule that it has the Power to Award Costs
G. Premakumar and Milano: The Tribunal follows Nkwazi
H. Stevenson: The Federal Court follows Nkwazi
I. The Question posed by Nkwazi
VII. ISSUE
A. The Tribunal does not have a Common Law Power to Award Costs
B. The Tribunal nevertheless has the Power to Protect the Viability of the Remedies under the Act
C. The Complainant Has a Right to an Effective Remedy
VIII. ADDITIONAL ISSUES
A. Can a Lay Representative Appear Before the Tribunal?
B. Are the Fees of a Lay Representative Recoverable?
C. Waiver
IX. RULING
APPENDIX A
I. INTRODUCTION [1] I have already awarded the Complainant a remedy. The only remaining issue is the question of costs. The Respondent has taken the position that the Tribunal has no power to award costs. I think that a proper resolution of this question requires considerable review of the caselaw, both in the courts and before the Tribunal.
[2] The Respondent submits that the Canadian Human Rights Act does not give the Tribunal the power to award costs. The complainant demurs. Her counsel advises me that she has incurred legal costs in the range of $11,000.00 since the matter first arose. Most of these costs arise out of the hearing. Counsel has submitted that the failure of the Tribunal to order the Respondnt to pay her costs will effectively deprive her of the compensation to which she is entitled under the Act.
II. DAMAGES A. Damages do not Include Costs [3] The basic rule in our law is simple. The power to award damages does not include the power to award costs. The Canadian Human Rights Act gives the Tribunal the power to award compensation. I think this is a form of damages and must be distinguished from costs.
[4] The decision of the Cour d'appel de Quebéc in Hrtschan c. Montréal (Ville), REJB 2004-55545, at para. 60, holds that the distinction between damages and costs is a causal one:
60. Dans la logique de la responsabilité civile, laquelle requiert un lien de causalité directe entre la faute et le préjudice, il ne suffit pas de dire qu'il a fallu recourir aux services d'un avocat pour conclure, au terme d'un procès qui tranche le cas, que la totalité de la note des honoraires et débours engagés par la victime donne la mesure du préjudice subi. (emphasis added)
At para. 75, Justice Pelletier cites Professor A. Popovici, in Le Sort des honoraires extrajudiciares, (2002) R. du B. 53, as authority for the proposition that costs are not damages.
The Respondent provided me with an English translation of the passage at para. 60, which is conveniently quoted, without commenting on the precision of the translation.
60. In the logic of civil responsibility, which requires a direct causal link between the fault and the prejudice, a victim cannot rely on the assertion that he had to resort to the services of a lawyer to then be automatically awarded fees and disbursements at the end of the trial, on the basis that the lawyer's total bill equals the prejudice suffered.
There is a sense in which the legal costs of a trial or a hearing do not flow directly from the injury. They have a second, contractual origin. As a result, they do not form an ordinary head of damages or compensation.
[5] This gives rise to the principle that damages and costs must be recovered separately. It follows that the power to award costs requires a discrete and explicit head of authority. This principle applies, rather resolutely, in both the common law and civil law systems. A tribunal and indeed a court only enjoys the power to award costs in the manner and on the terms set out in the relevant legislation.
B. Initial Fees [6] The test is causal and the question is open to considerable refinement. In spite of the general rule, some legal costs qualify as damages. The decision in Hrtschan, for example, recognizes that a party with a legal complaint is entitled to seek the advice of a lawyer. The fees for such advice are a recoverable head of damages.
[7] This does not change the general rule.
61. Si la nécessité des premières consultations et des premières prestations de service peut, à première vue, conférer à la réclamation pour frais extrajudiciaires une légitimité du genre de celle que je viens d'évoquer, il n'en va pas nécessairement de même pour la suite des événements. De fait, la situation risque de s'embrouiller très rapidement au fil du déroulement du conflit judiciaire.
There is a difference between a party's initial consultation with a lawyer and the representation provided during the course of a hearing or trial.
[8] A person who has been discriminated against will in the normal and entirely predictable course of events seek the advice of a lawyer. This preliminary advice is sufficiently close in the causal chain to constitute a direct and inevitable consequence of the original wrong. It accordingly constitutes a foreseeable part of the damages that the complainant has suffered as a consequence of the discrimination. The actions of the discriminator are the proximate cause of the expenses that a complainant incurs in seeking such advice.
[9] I take it that the original recourse to a lawyer and the advice of a legal representative constitutes an exception to the general rule that costs are not damages. The ultimate issue in each case is causal. The question in logical terms is whether the legal costs claimed by a Complainant are a necessary consequence of the discrimination. Once the original advice has been tendered, received and paid for, a Complainant is in a position to instruct counsel. At this point, the causal chain is broken and any decisions regarding the provision of legal services derive logically from factors that are only indirectly related to the original cause of action.
[10] The exception to the general rule has been recognized in the law of human rights. In Waters v. British Columbia (Ministry of Health Services) 2003 BCHRT 13, the B.C. Tribunal dealt with legal fees that were incurred prior to the filing of a complaint. At para. 212, the Tribunal held that these expenses were recoverable:
In Radloff v. Stox Broadcast Corp., [1999] BCHRTD No. 36, the Tribunal held that legal expenses that arise from the contravention but which cannot be characterized as costs' of the proceeding may be compensable: Radloff at para. 99 (see also Leeder v. O'Cana Enterprises Ltd. (c.o.b. Alisa Japanese Restaurant), [1999] B.C.H.R.T.D. No.1 at para. 29).
The point is that there was a sufficient nexus between the contravention of the Act and the expenditure to characterize it as compensation or damages.
[11] There are other cases where the exception arises. In Curling v. Torimiro [2000] O.H.R.B.I.D. No. 169 (QL), at para. 61, for example, a Board of Inquiry held that it was entitled to award compensation for a Complainant's legal expenses as part of a restitutional award under the Ontario Code.
[12] Where, as in this case, a complainant incurs legal expenses which are directly caused by the conduct of a respondent in violation of the complainant's rights under the Code, a respondent can, in an appropriate case, be ordered to pay compensation in respect of these expenses as part of a make whole remedy.
The decisive words are directly caused. The Board found, at para. 62, that the Complainant was claiming legal expenses that were incurred specifically:
as a result of the retaliatory actions which have been found to infringe her rights under s. 8. It is significant that the retaliatory conduct took the form of legal action and threatened legal action, and necessitated a legal response.
Curling recognizes that there are cases where the causal link between the costs and the discrimination is so close that a party is entitled to legal expenses, on the basis that they flow directly from the discrimination.
C. Legal Fees from the Hearing [13] The legal expenses that occur later in the process come within the exclusionary rule, however. They should not be construed as damages. This includes the cost of an expert's report and other expenses that arise from the litigation, rather than the original discrimination. The source of these expenses lies in the instructions of the parties and the advice that they receive. This is inherently variable. The appropriateness of the decision whether to call witnesses or raise certain points of law is an incurable matter of judgement. Different persons may make these decisions differently.
[14] Justice Pelletier expresses reservations with the idea that judges should enter into this area. It is not for adjudicators to second-guess the parties, in determining what services were appropriate. There is also the danger of retrying the case. This says nothing of the problem of dealing with matters handled in confidence or under the cloak of privilege. There are public policy considerations that prevent an adjudicator from looking too closely at the personal decisions of the parties or evaluating their conduct of the case.
III. COSTS A. The Common Law Rule: The Power to Award Costs Requires Statutory Authority [15] The common law has always held that an adjudicative body does not enjoy the power to award costs unless it has been expressly given such a power. There is a separate power that permits it to deal with abuses.
[16] This rule does not admit exceptions. The power to award costs is an extraordinary power, which requires explicit statutory authority. In Family and Children's Services of Annapolis County v. Clark, [1983] N.S.J. No. 586, for example, the Nova Scotia Appeal Division held that the Family Court of Nova Scotia had no power to award costs. At para. 5, the court sets out the historical position:
The Family Court is a statutory court of record created by S.N.S. 1967, c. 98. As such it can only have jurisdiction in the substantive matter of costs if such jurisdiction is expressly given it by the Act creating it or some other Act. There is no inherent jurisdiction in statutory courts to award costs. This was made clear by this court then differently structured and constituted in Re Charles Brown (1928), 60 N.S.R. 76; 49 C.C.C. 402. The issue there was whether a County Court judge had the power and jurisdiction to award costs on a successful habeas corpus application. The statutory power to hear the application was given by the County Court Act, R.S.N.S. 1923, c. 215, as amended by S.N.S. 1924, c. 50, s. 3. The Act, however, was silent as to costs. This court held that the County Court judge did not have the power to award costs. The judgment of the court was delivered by Chisholm, J. (later C.J.N.S.), who said (pp. 78, 79 N.S.R.):
... The recovery of costs eo nomine was unknown to the common law; the courts have no inherent power to award costs which can only be granted in any case or proceeding by virtue of express statutory authority. 2 Coke's Inst. 288; Duffill v. McFall (1878), 42 U.C.Q.B. 597; Lehigh Valley Railroad Co. v. McFarland (1882), 44 N.J.L. 674 5 Ency of P. and Prac. 108.
I have quoted such a long passage because it illustrates the unequivocal nature of the common law rule.
[17] There are similar decisions in the area of human rights. In Ontario (Liquor Control Board) v. Ontario (Ontario Human Rights Commission), for example, [1988] O.J. No. 167 (QL), three judges of the Ontario High Court of Justice dealt summarily with the issue:
The applicants/appellants submitted that Baum erred in law and jurisdiction by awarding costs to the respondents Karumanchiri, Ng and Yan. There is no inherent jurisdiction in a court, nor in any other statutory body, to award costs.
Re Brown, [1928] 3 D.L.R. 234, 49 C.C.C. 402, 60 N.S.R. 76 (N.S.S.C.)
Orkin, The Law of Costs, 1968, Canada Law Book Limited, Toronto, p. 1
The Board of Inquiry is created by the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. 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.
Re Lachawski and Federated Mutual Insurance Co. (1980), 29 O.R. (2d) 273, 19 C.P.C. 126, 113 D.L.R. (3d) 209 (Div. Ct.)
Franco v. Kornatz et al. (1982), 29 C.P.C. 38 (Ont. H.C.)
Re Clark and Family and Children's Services of Annapolis County (1983), 37 R.F.L. (2d) 171, 39 C.P.C. 168, 3 D.L.R. (4th) 728 (N.S.C.A.) affirming (1983), 34 C.P.C. 57 (N.S. Co. Ct.) which varied (1983), 57 N.S.R. (2d) 77, 120 A.P.R. 77 (Fam. Ct.)
Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc. et al. (1985), 51 O.R. (2d) 23 (Div. Ct.) [n.p.]
This reflects the development of the law of costs in Ontario, which derives from the common law.
[18] The bench in Ontario Liquor Control Board holds specifically that restitution does not include costs:
The legislature has expressly provided for the recovery of costs in limited circumstances to the person complained against under s. 40(6) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. 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. [n.p.]
There is also the decision of the New Brunswick Court of Appeal in Moncton v. Buggie and N.B. Human Rights Commission [1985] N.B.J. No. 276 (QL), at para. 35, which holds that a Board of Inquiry has no power to award costs.
B. Other Sources of the Power to Award Costs [19] It may be significant that the rule was different in equity. In Oasis Hotel Ltd. v. Zurich Insurance Co. [1981] B.C.J. No. 690 (QL), the B.C. Court of Appeal reviewed the history of the power in the courts of equity. The Supreme Court of British Columbia enjoys the powers of the English High Court of Chancery, apparently as they stood in 1858. The Court of Appeal held that this gave it the power to award costs, in the words of Middleton J. in Re Sturmer and Town of Beaverton (1912) 2 D.L.R. 501, (Ont. Div. Ct.), at para. 11, not from any authority but from conscience and arbitrio boni viri. This latin maxim is explained by Albert Mayrand, Dictionnaire de maxims et locutions latines utilisées en droit (3d, Yvon Blais), as the equivalent of Selon l'arbitrage d'un bon citoyen.
[20] The courts of equity seem to have had a mandate to provide effective remedies. This may help to explain why the remedial powers of a statutory body seem to be significant in determining whether it has the power to award costs. Thus, in Banca Nazionale v. Lee-Shanok, [1988] F.C.J. No. 594 (QL), a unanimous bench of the Federal Court of Appeal reviewed s. 61.5(9) of the Canada Labour Code, R.S.C. 1970, c. L-1, which gave an adjudicator the authority to order an employer who had dismissed an employee to reinstate the employee and do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal. (italics added) The court held that the purpose of the section was to make whole an employee who has been wrongly treated by his employer. The difficulty I have, writes Stone J.A.,
is in viewing an award of compensation, gained at some considerable expense to a complainant in terms of legal costs, as having the effect of making him whole. Legal costs incurred would effectively reduce compensation for lost remuneration, while their allowance would appear to remedy or, at least, to counteract a consequence of the dismissal.
The court accordingly held that the Labour Code gave the adjudicator the power to award costs.
IV. THE POSITIONS OF THE PARTIES A. The Position of the Respondent [21] The Respondent submits that the general rule with respect to federal legislation is clear. It has provided me with a number of authorities on the matter. In Big Island Band v. Big George, [1995] F.C.J. No. 543 (QL), for example, the court considered the same provision that was before the court in Banca Nazionale. The case can be distinguished from the decision in Banca Nazionale, since the adjudicator had found against the claimant but awarded costs. At para. 6, Justice Nadon quotes Sara Blake in Administrative Law in Canada (Butterworths), at page 105. He then writes, at para. 8,
I am in entire agreement with the proposition set forth by the learned author in Administrative Law in Canada that express authority is necessary to empower a board or tribunal to make an award of costs against a party. I should add that, in my view, an adjudicator has no inherent jurisdiction to make such an award.
It is evident, on this view, that a statutory tribunal like the Human Rights Tribunal has no power to award costs unless the statute explicitly gives it such a power.
[22] The Respondent also provided me with a number of excerpts from other federal Acts. Section 251.12(4)(a) of the Canada Labour Code, for example, gives a referee on a matter under appeal the power to award costs in the proceeding. Under section 25.1(1) of the Canada Transportation Act, the Canadian Transportation Agency has all the powers that the Federal Court has to award costs in any proceeding before it. Section 30.16(1) of the Canadian International Trade Tribunal Act states that the Canadian International Trade Tribunal may award costs of, and incidental to, any proceedings before it. Other Acts contain the same explicit language.
[23] There are other arguments on the Respondent's side. Part 11 of the Federal Court Rules deals with costs. The court has assessment officers. The rules deal with matters like security for costs. There is also a Tariff. There is an entire scheme to deal with costs. The Respondent submits that there is nothing of this nature in the Canadian Human Rights Act. The Act is completely silent on the matter.
[24] The Respondent also submits that the Complainant incurred costs because the Commission withdrew from the hearing. This decision was taken relatively late in the process. If anyone should be responsible for those costs, the argument goes, it is the Commission. There is at least a suggestion in Canada (A-G) v. Morgan (1991) 21 C.H.R.R. D/87, at para. 67, that Respondents should not be held responsible for problems that arise out of the conduct of the Commission.
B. The Position of the Complainant [25] Counsel for the Complainant relied on the caselaw that I have discussed below. He essentially took the position that the remedial provisions of the Act would be rendered ineffective without an award of costs.
[26] Counsel for the Complainant also submitted that the Tribunal has the same power as arbitrators, who apparently have the authority to award costs. He relied on the decision of the British Columbia Labour Relations Board in Re Graham [2000] BCLRBD No. 1 (QL), where the Board held at para. 46 that its jurisdiction to award costs and expenses . . . as a form of damages is well-established. At para. 48, it continued as follows: The Board described the intent of an order for reimbursement of reasonable costs as the bringing about [of] a situation whereby the successful complainant obtains a `break-even finale rather than a loss': Tony McNamara and Pierre Comeau, IRC No. 302/88 (Reconsideration of C25/88), p. 12.
C. The Position of the Commission [27] The Canadian Human Rights Commission was advised that the question of costs was before me. It chose not to appear, however, and has not taken a position on the matter. I accordingly do not know the circumstances under which the Commission withdrew from the case.
V. LEGISLATION A. The Canadian Human Rights Act [28] The parties agreed that the fundamental starting point in any inquiry into the question before me is that the Tribunal is a creature of statute. As a result, it enjoys the powers that are granted to it by the Act.
[29] It has generally been accepted that the only provisions in the Act that could provide the Tribunal with the power to award costs are found in section 53(2)(c) and 53(2)(d) of the Act, which gives a Tribunal the authority to make an order:
(c) that the person [engaging in the discriminatory practice] 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;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice ...
Both of these provisions have been used in the jurisprudence. It is evident that the exception regarding the fees paid for initial advice would come under (d).
[30] There are two fundamental arguments against the use of these provisions as the source of the Tribunal's power to award costs. The first is that they refer to expenses incurred by the victim as a result of the discriminatory practice. This identifies the expenses as damages. There must be an uninterrupted causal link between the discrimination and the expenses that are being claimed.
[31] The second argument is that the principles of statutory interpretation do not support such a reading of the Act. There are at least two principles that apply. The first is ejusdem generis, which holds that the meaning of general terms is restricted by the particular terms that precede them. Thus, the reference to expenses in section 53(2)(d) is a reference to expenses like the expenses incurred in obtaining alternative goods, services, facilities or accommodation. The reference in section 53(2)(c) is to the kind of expenses incurred by the victim as a result of the loss of wages.
[32] The second principle is expressio unius est exclusio alterius. In Driedger on the Construction of Statutes (3d; Butterworths), at p. 168, Ruth Sullivan writes that this principle applies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Justice Lemieux relies on this kind of argument in Green, infra, at para. 186, where he writes: if Parliament had intended the Tribunal to award legal costs, it would have said so. The argument is that Parliament has set out a number of specific heads of relief. If it had wanted to give the Tribunal the power to award costs, it would have included this within the list. The rule takes added force in the immediate instance from the extraordinary nature of the power to award costs, which is only available if the enabling legislation expressly grants it.
[33] There may be other problems. I am inclined to think that section 53(2)(c) contemplates the full recovery of the expenses incurred by the Complainant. This is not the general rule with legal costs, which are usually awarded on a more qualified basis. To suggest otherwise would treat fees as disbursements. Indeed I note that the entry for expense in The New Shorter Oxford Dictionary lists the word disbursement as a synonym. I think this is the kind of meaning that attaches to the use of the word in the section.
[34] There are also practical issues. The Canadian Human Rights Tribunal is an expert tribunal, with a thorough knowledge of the legal and factual issues that commonly arise in the context of discrimination. It has no experience in the taxation of accounts, which has been recognized as an independent area of expertise. There is a relatively complex body of rules and principles governing legal accounts.
[35] The immediate case also presents a good example of the problematic nature of an inquiry into costs. If the Tribunal has the power to award costs, I have been advised that the Respondent wishes to dispute the fees charged by the representative for the Complainant. This may take the Tribunal into the without prejudice negotiations between the parties.
B. Other Human Rights Legislation [36] In Discrimination and the Law (Carswell; 2004, Rel.2), at p. 15-124, William Pentney writes that provisions concerning costs vary greatly across the country. Section 37(4) of the British Columbia Human Rights Code, for example, allows a Tribunal to award costs if a party has engaged in improper conduct. This is a high standard: see Cook v. Citizens Research Institute, 2002 BCHRTD 6.
[37] There are analogous provisions in Alberta, Prince Edward Island, Newfoundland (against any party who deserves such a penalty), and Manitoba (for frivolous or vexatious conduct). The Ontario Code allows a Board of Inquiry to award costs against the Ontario Human Rights Commission for a claim that is frivolous or vexatious, or made in bad faith. The legislation in the Yukon and Saskatchewan restrict an award of costs to the party contravening the Act.
[38] There are Acts with language similar to the provisions in the federal Act. Section 28.4(1)(iv) of the Human Rights Act of Prince Edward Island, for example, allows a human rights panel:
(iv) to 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;
The similarities are apparent. Section 28.4(6) of the provincial Act, however, states a panel may make any order as to costs that it considers appropriate. The Respondent submits that this only demonstrates what is missing from the federal Act.
[39] Pentney has the following to say about the Canadian Human Rights Act:
Neither the federal Act nor the legislation of the Northwest Territories, New Brunswick or Nova Scotia specifically confers a power on the respective tribunals to award costs. However, it could be plausibly argued that in [each case] this power could be inferred from the plenary jurisdiction of the tribunals to bring about restitutio in integrum and/or to further the purposes of the enactments. (15-125)
The reality however is that the federal legislation lacks the kind of explicit provision that the common law requires.
[40] The decision in Ontario (Liquor Control Board) v. Ontario (Ontario Human Rights Commission), supra, seems to go the other way.
[41] I was also provided with a copy of the recent decision of a Nova Scotia Board of Inquiry in Johnson v. Halifax Regional Police Service (unrpt.; 28 May 2004), which held that it had the power to award the Complainants the costs of retaining independent counsel. The Board paid particular attention to the federal jurisprudence. I do not find the decision helpful however. Although the Human Rights Act of Nova Scotia is silent on the question of costs, s. 8, its remedial section is much broader than the comparable provisions in the federal Act. Pentney describes this provision as the most general, and probably the broadest, remedial power available in Canada. It is of no real assistance in interpreting the Canadian Human Rights Act.
VI. JURISPRUDENCE UNDER THE CANADIAN HUMAN RIGHTS ACT [42] The question whether the Tribunal has the power to award costs under the Canadian Human Rights Act has a relatively long history in the jurisprudence.
A. Early Cases (i) Morrell: The Tribunal Rules that it Does Not Have the Power to Award Costs [43] The early cases seem to hold in favour of the Respondent. In Morrell v. Canada (Employment & Immigration Commission) (1985), 6 C.H.R.R. D/3021, at para. 24348, the Tribunal held that section 53(2)(d) does not give the Tribunal the power to award costs:
[Paragraph 53(2)(d)] is intended to cover expenses directly related to the discriminatory conduct, and not expenses related to legal proceedings under the Human Rights Act. The latter are more a question of costs, and there is no provision in the Act for recovery of costs. Consequently, I do not believe I have any authority to make an award for expenses related to the hearing.
This passage from Morrell may be the simplest and most straightforward statement of the law in the jurisprudence. It distinguishes between the costs of the litigation and the expenses incurred as a result of the discriminatory practice, such as counselling or medical expenses borne by the Complainant. The former expenses do not flow from the original injury and cannot be compensated under the Act.
(ii) Other Cases [44] Morrell was followed by a number of cases where the Tribunal recommended or urged that the Commission pay the Complainant's costs. In Hinds v. Canada Employment and Immigration Commission, 1988 CHRT 88, for example, a certain Ms. Mactavish appeared for the Complainant. At the end of the case, she argued that the Tribunal had the power to award costs. Although the Tribunal recognized her singular contribution to the case, it refused to order costs and merely urged the Canadian Human Rights Commission to indemnify the Complainant.
[45] The same kind of practice was followed in Oliver v. Canada (Parks Canada) (1989), 11 C.H.R.R. D/456, where the Tribunal criticized the Commission and stated that it was unfair to hold the Respondent responsible for the costs of the Complainant.
B. Thwaites: The Federal Court holds that the Tribunal has the Power to Award Costs [46] The position of the Tribunal changed in the early nineties. In Thwaites v. Canadian Armed Forces (1993), T.D. 9/93, a panel of the Tribunal ordered the Respondent to pay for the legal fees incurred by the Complainant during the course of the hearing. At the end of the decision, the panel held:
We feel, given the complex nature of this case, that Ms. Reierson served an important and useful function in acting as counsel for Thwaites. We agree with the Tribunal in Grover v. National Research Council (T.D. 12/92) that Section 53(2)(c) of the CHRA, granting the Tribunal power to compensate for any expenses incurred by the victim as a result of the discriminatory practice is of sufficient latitude to encompass the power to award costs. That Tribunal stated at p. 91:
If the purpose of remedies is to fully and adequately compensate a complainant for the discriminatory practices, then surely the consequence of costs is part and parcel of a meaningful remedy for a successful complainant.
Accordingly, in the circumstances of this case, we order the CAF to pay the reasonable legal costs of Thwaites, including the actuarial fees incurred in support of the presentation of his case. If the parties cannot agree as to the amount, the costs should be assessed on the Federal Court scale.
The matter was subsequently reviewed in the Federal Court.
[47] In Canada (AG) v. Thwaites, [1994] 3 F.C. 38 (QL), at para. 56, Justice Gibson endorsed the position taken by the Tribunal at the hearing:
The fact that lawyers and judges attach a particular significance to the term costs or the expression costs of counsel provides no basis of support for the argument that expenses incurred does not include those costs unless they are specifically identified in the legislation. On the basis of the principle that the words of legislation should be given their ordinary meaning unless the context otherwise requires, and finding nothing in the relevant context that here otherwise requires, I conclude that the Tribunal did not err in law in awarding Thwaites reasonable costs of his counsel including the cost of actuarial services.
This was the first of four rulings from the Federal Court on the matter. There is no escaping the fact that it runs counter to the common law, which holds that a statutory body has no power to award costs without an express statutory warrant.
[48] The decision in Thwaites was followed by the Tribunal in Swan v. Canada (Armed Forces), [1994] CHRT 15, where the Tribunal ordered the Respondent to pay to the Complainant the costs of his legal counsel to be taxed as applicable under the Rules of Court for the Province of Manitoba.
C. Lambie: The Federal Court rules that the Tribunal does not have the Power to Award Costs [49] The second decision from the Federal Court is found in Canada (Attorney General) v. Lambie, [1996] F.C.J. No. 1695, where the question was whether the Complainant was entitled to claim expenses for leave and time spent to develop and prepare his complaint. The case was heard by Justice Nadon, who had rendered the decision in Big George, supra. He seems to have been unaware of the decision in Thwaites.
[50] The Decision in Lambie, like the decision in Big George, recites the common law rule. At the end of his decision, Justice Nadon quotes the passage from Morrell v. Canada, supra, at para. 24348, where the Tribunal held that paragraph 53(2)(d) is not intended to cover expenses related to legal proceedings under the Human Rights Act. There is no provision in the Act that gives the Tribunal an express power to award costs. It follows that the Tribunal has no power to do so.
D. Intervening Cases: The Tribunal continues to hold that it has the Power to Award Costs [51] The decision in Lambie would support the original position of the Tribunal in Morrell. In spite of this, the Tribunal continued to hold in the intervening cases that section 53 of the Act gives it the power to award costs. I was a member of the panel in Koeppel v. Department of National Defence (1997), T.D. 5/97, which awarded costs to the Complainant on the basis of Grover and Thwaites. We did not inquire into the substantive issue, however, and were unaware of the decision from the Federal Court in Lambie. In Bernard v. Waycobah Board of Education, [1999] C.H.R.T. 2, a Tribunal also ordered the Respondent to pay the costs of Ms. Bernard's legal counsel on the Federal Court Scale. The case does not discuss the jurisdictional issue.
E. Green: The Federal Court rules for the second time that the Tribunal does not have the Power to Award Costs [52] The jurisdictional issue resurfaced in Canada (Attorney General) v. Green, [2000] 4 F.C. 629 (QL), where the Tribunal awarded the Complainant the legal costs that she had incurred while the matter was before the Commission. The Complainant had apparently retained the services of counsel for the purposes of arguing that the complaint should be referred to the Tribunal.
[53] Like Justice Nadon in Lambie, Justice Lemieux gave the idea that the Tribunal has the power to award costs very short shrift. At para. 185-186, he holds:
[185] The Attorney General cites Canada (Attorney General) v. Lambie (1996), 124 F.T.R. 303 (F.C.T.D.), where my colleague Nadon J. said at page 315 that the Act does not confer jurisdiction to award costs although Parliament could easily have included such a power.
[186] I agree with my colleague that if Parliament had intended the Tribunal to award legal costs, it would have said so. Reference is had to paragraph 53(2)(d) which refers to compensation to the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation. There is no mention of legal costs, an indication Parliament did not intend the Tribunal have the power to order the payment of legal costs.
This follows the principle of expressio unius. It also follows the common law rule. The court held that the Tribunal has no power to award costs unless the Act expressly provides it. The fees in the case nonetheless appear to come under the exception relating to the initial cost of consulting a lawyer.
F. Nkwazi: The Tribunal continues to rule that it has the Power to Award Costs [54] The decisions in Lambie and Green did not resolve the matter. The issue was revisited by Ms. Mactavish, now the Chairperson of the Tribunal, in Nkwazi v. Canada (Correctional Service), [2001] CHRT 29. The case is notable in the present instance because the facts were similar to the facts before me. The fundamental problem was that the Commission had withdrawn.
[55] The substance of the Respondent's submissions was that the Commission should pay the Complainant's costs. At para. 20, Ms. Mactavish writes:
According to counsel for CSC, Ms. Nkwazi's legal expenses were incurred entirely as a result of the decision of the Canadian Human Rights Commission to withdraw from this proceeding. The Commission's decision to withdraw constitutes a novus actus interveniens and breaks the chain of causation between the discrimination suffered by Ms. Nkwazi and her decision to retain independent counsel.
This line of reasoning comes from the common law. It goes more properly to damages, however, rather than costs.
[56] Ms. Mactavish at least implicitly suggests that Green may have been decided on a misreading of Lambie, which dealt with the jurisdiction of the Tribunal to compensate a Complainant for the time spent to develop and prepare [the] complaint. At para. 12, she accordingly follows the lead of Justice Gibson in Thwaites.
I do not accept CSC's contention that the term 'expenses' should be given a restricted meaning, based upon the ejusdem generis principle of statutory interpretation. I agree with Mr. Justice Gibson that the ordinary meaning of 'expenses incurred' includes legal expenses, and that there is nothing in the context in which the term is used in paragraph 53 (2) (c) that requires a different interpretation.
It will be apparent that I find myself in a different position. If the rule at common law applies, I think there is little doubt that Morrell, Lambie and Green were correctly decided. The principles of ejusdem generis and expressio unius apply.
[57] The Tribunal in Nkwazi also relies on the principle of restitutio in integrum however. At para. 17, Ms. Mactavish states:
... the interpretation of the word 'expenses' espoused by Gibson J. in Thwaites is one consistent with the principle governing remedial orders under the Canadian Human Rights Act. Where a complaint is substantiated, the task of the Tribunal is to attempt, insofar as may be possible, to make whole the victim of the discriminatory practice, subject to principles of foreseeability, remoteness and mitigation. A victim of a discriminatory practice could hardly be said to have been made whole if she were unable to seek reimbursement for the legal expenses associated with the pursuit of her complaint.
This is in keeping with the reasoning of the Federal Court of Appeal in Banca Nazionale, supra.
[58] The Tribunal in Nkwazi also felt that the decision not to award costs in those cases where the Commission does not appear would essentially deprive Complainants of the right t