28 October 2011

Supreme Court: CHRT Can't Impose Costs. Says Nothing About Constitutionality of Sec. 13

A number of bloggers, as we did ourselves, opined that when the Lemire case makes it to the Supreme Court, the financial penalty part would be dropped but that Sec. 13 of the Human Rights Act would be itself found to be constitutional. While we can't be certain how the Court will finally rule when presented with the Lemire case, this recent decision appears to reinforce this belief:

Human rights tribunal can’t award costs: SCC

Written by Heather Gardiner
Posted Date: October 28, 2011

In a case involving a sexual harassment complaint, the Supreme Court of Canada has ruled that the Canadian Human Rights Tribunal does not have the authority to award legal costs.

In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), Donna Mowat worked with the Canadian Forces for 14 years. Over the course of her career, she made several complaints about her superiors. Three years after her employment with the military ended, she filed a complaint with the Canadian Human Rights Commission alleging “sexual harassment, adverse differential treatment, and failure to continue to employ her on account of her sex.” The Canadian Human Rights Tribunal ruled in her favour and awarded her $4,000 in damages and $47,000 in legal costs.

The Attorney General of Canada applied for judicial review at the Federal Court regarding the tribunal’s jurisdiction to award legal costs. Following that decision, the attorney general appealed to the Federal Court of Appeal, which ruled that the tribunal did not have the authority to make a costs award under the Canadian Human Rights Act and quashed the tribunal’s decision.

In its ruling, Supreme Court justices Louis LeBel and Thomas Cromwell wrote: “In our view, the text, context, and purpose of the legislation clearly show that there is no authority in the Tribunal to award legal costs and that there is no other reasonable interpretation of the relevant provisions.

“Faced with a difficult point of statutory interpretation and conflicting judicial authority, the Tribunal adopted a dictionary meaning of ‘expenses’ and articulated what it considered to be a beneficial policy outcome rather than engage in an interpretative process taking account of the text, context and purpose of the provisions in issue.”

The SCC upheld the Federal Court of Appeal’s ruling and dismissed the appeal.


Anonymous said...

So theoretically, the various wp / neo nazi types who have been fined by the CHRC via Richard Warman's legal actions now have the ability to regain through lawsuits what was taken from them?

Or is what i'm reading different from the potential scenario above?

Nosferatu200 said...

Don't think so. We don't think that past decisions could be applied because at the time those fines were deemed appropriate. It likely only applies to future complaints. Also, it looks like the complainant receive costs from the respondent, but not monies from fines above and beyond the costs.