Canada high court rules rights tribunal cannot award legal costs

[JURIST] The Supreme Court of Canada Friday declared that the Canadian Human Rights Tribunal (CHRT) [official websites] does not have the power to award compensation for legal costs. The high court's 7-0 decision [judgment text] states that the language used in the relevant federal statute does not allow for the awarding of legal costs [Vancouver Sun report] in the same manner prescribed by most provincial and territorial statutes. The ruling by the Supreme Court concluded the case of Donna Mowat, a former Canadian Forces traffic technician who was awarded $4,000 by the CHRT for sexual discrimination by her superiors. She was also awarded $47,000 for her legal costs, which the Federal Court upheld, but sent back for review since Mowat initially had sought $196,000 following the six-week hearing. The federal appeals court, however, found the tribunal had no jurisdiction to award any legal costs, and the Supreme Court agreed:

The precise interpretive question before the Tribunal was whether the words ... which authorize the Tribunal to "compensate the victim for ... any expenses incurred by the victim as a result of the discriminatory practice" permit an award of legal costs. No reasonable interpretation of the relevant statutory provisions can support the view that the Tribunal may award legal costs to successful complainants. 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 engaging in an interpretative process taking account of the text, context and purpose of the provisions in issue. A liberal and purposive interpretation [is required to evaluate human rights legislation, but such an interpretation] cannot supplant a textual and contextual analysis simply in order to give effect to a policy decision different from the one made by Parliament.
The decision has raised questions regarding its effect on victims of alleged rights abuses who may avoid mounting cases for fear of cost, particularly when the maximum payout for pain and suffering is capped at $20,000. Conversely, some argue human rights commissions by their very nature are designed to deal with cases more expeditiously than the courts and without the need for expensive legal representation. However many, including Mowat's pro boon attorney, have stated such cases are very complex and necessarily produce large legal fees, and now it will be up to Parliament to amend the federal act to protect successful claimants who are subsequently saddled with huge attorneys' fees.

The Supreme Court has made several important decisions in recent months. In July the court issued rulings [JURIST report] in two major tobacco products cases, relieving the Canadian government of liability for tobacco-related health problems and allowing the provinces to sue the tobacco industry for damages for tobacco-related health care costs. The court ruled [text; materials] unanimously in R. v. Imperial Tobacco Canada Ltd. that the federal government is not liable for any tobacco-related death or illness. In the same opinion the court ruled [materials] in Attorney General of Canada v. Her Majesty the Queen in Right of British Columbia that individual provinces are able to sue tobacco companies for damages to offset the cost of treating tobacco-related illnesses. In June the court declared that it would hear an appeal of convicted terrorist Mohammed Momin Khawaja [CBC backgrounder; JURIST news archive], granting an application for leave to appeal [judgment, PDF] filed by Khawaja challenging the life sentence imposed by the Ontario Court of Appeals [official website]. In March the court agreed to review a lower court order [JURIST report] requiring a Muslim woman to remove her niqab [BBC backgrounder] while testifying after the Court of Appeal for Ontario [official website] in October ruled [JURIST report] that a witness does not have to remove her veil unless the failure to do so will prevent the accused from receiving a fair trial, and should be determined on a case-by-case basis.

 

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