Supreme Court

Administrative Law

No authority in tribunal to award legal costs

Complainant filed human rights complaint alleging the Canadian Forces discriminated against her on ground of sex, contrary to provisions of Canadian Human Rights Act. Canadian Human Rights Tribunal concluded sexual harassment complaint substantiated and awarded complainant $4,000 for suffering in respect of feeling or self-respect. Complainant applied for legal costs. Tribunal decided it had authority to award legal costs pursuant to s. 53(2) of Act, and awarded complainant $47,000 for legal costs. Attorney General of Canada’s application for judicial review of tribunal’s costs decision unsuccessful. Federal Court of Appeal allowed Attorney General’s appeal, concluding tribunal had no authority to make costs award. Appeal to Supreme Court of Canada dismissed. Tribunal’s decision to award legal costs reviewable on standard of reasonableness. Precise interpretative question before tribunal was whether words of s. 53(2)(c) and (d), which authorize tribunal to “compensate the victim . . . for any expenses incurred by the victim as a result of the discriminatory practice”, permit award of legal costs. Tribunal’s decision they did not reasonable. While words “any expenses incurred by the victim”, taken on their own, wide enough to include legal costs, when words read in statutory context, clear they cannot reasonably be interpreted as creating stand-alone category of compensation capable of supporting any type of disbursement causally connected to discrimination. Phrase appears twice and each reference to expenses preceded by specific, but different, wording. Expenses referred to in each paragraph take character from sort of compensation contemplated by surrounding words of each paragraph. Text, context and purpose of legislation clearly show that no authority in tribunal to award legal costs and no other reasonable interpretation of relevant provisions.

Canada (Attorney General) v. Mowat

(Oct. 28, 2011, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ., File No. 33507) Decision at 312 D.L.R. (4th) 294, 182 A.C.W.S. (3d) 419 was affirmed. 207 A.C.W.S. (3d) 185 (43 pp.).

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

Law Times reports that there is no explicit rule that lawyers in Ontario must be competent in the use of technology. Do you think there should be explicit rules spelling out the expectations of lawyers’ in terms of tech use in their practice?