In a decision handed down in late October 2011, the Supreme Court of Canada held that the Canadian Human Rights Tribunal did not have the authority to order a former employer to pay the complainant’s legal costs. Typically, legal costs are available to successful parties after trial or a hearing, usually based on tariffs not the actual amount of legal costs the parties incur. The Canadian Human Rights Act (the “Act”) does not explicitly authorize the Canadian Human Rights Tribunal to award legal costs however in this case, the Tribunal had done so, based on a broad interpretation of section 53(2)(c) and (d) of the Act. That section authorized the Tribunal to compensate the victim for any “expenses” incurred as a result of the discrimination complained of.

The court based its decision to disallow the award of costs on a number of reasons, including:

• the term “costs” has consistently been defined in legislation and court decisions as legal costs, separate or distinct from other compensatory damages and expenses;
• where legislatures intended to give other Human Rights Tribunals the right to award costs, they explicitly said so in the statute – i.e. the BC Human Rights Code permits costs to be awarded if there is “improper conduct” during the course of the complaint.

Thus, while the SCC acknowledged the fact that the Act deserved a broad and liberal interpretation to protect and compensate victims of discrimination, such interpretation could not override what appeared to be Parliament’s intention otherwise. This decision will be welcome to all employers of federally regulated businesses because if claims for costs under section 53 of the Act were permitted, it would only benefit complainants (usually employees), not the employers who successfully defend such human rights complaints.