One-Two Punch: Supreme Court of Canada Narrows Human Rights Tribunals' Discretionary Powers

In November, the Supreme Court of Canada released two important decisions on procedure in human rights applications, both of which should ultimately assist employers or respondents in defending against human rights complaints.

In Canada (Canadian Human Rights Commission) v. Canada (AG), 2011 SCC 53 (Mowat), the Supreme Court rejected the argument that the Canadian Human Rights Tribunal (CHRT) has the power to award legal costs to successful complainants. In British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (Figliola), the majority of the Supreme Court came out strongly against human rights complainants trying to litigate their claims in multiple forums before ending up at a human rights tribunal.

Mowat: Costs of Human Rights Tribunal Applications

The issue in Mowat was whether the CHRT has the jurisdiction to award applicants their legal costs. The Supreme Court rejected this interpretation of the Canadian Human Rights Act, meaning that federally-regulated employers and other respondents cannot be ordered to indemnify applicants for their legal fees.

The Act gives the CHRT the power to “compensate the victim for…any expenses incurred by the victim as a result of the discriminatory practice”. The applicant in this case, Donna Mowat, alleged that her employer, the Canadian Armed Forces, discriminated against her by condoning sexual harassment. The CHRT awarded her $4000 in general damages. It also awarded her $47,000 in legal costs as “expenses” pursuant to section 53.

The Federal Court upheld the CHRT's decision that it had the authority to award costs. The Federal Court of Appeal allowed the appeal on the basis that the CHRT had no such authority. The Supreme Court of Canada unanimously upheld the Federal Court of Appeal's decision.

First, the language of the Act suggests that Parliament did not intend for the CHRT to have the power to award costs. Section 53 uses the term expenses when costs is the term used to describe legal fees.

Second, the history of the Act and the Canadian Human Rights Commission itself suggest that the CHRT does not have this jurisdiction. Earlier versions of the Act that were not enacted allowed for costs. The Commission has repeatedly taken the position that the CHRT does not have the power to award costs (and recommended that the legislation be amended to allow the CHRT to award costs).

The interpretation of expenses adopted by the CHRT and the Federal Court in this case would have created a one-way costs regime at the CHRT. Applicants would have been entitled to indemnification for their legal costs, but not employers or other respondents. By interpreting the legislation narrowly, the Supreme Court has maintained an even playing field for federally-regulated respondents, which might dissuade some applicants from making tenuous claims or increase early settlements.

Figliola: Preventing Forum Shopping

In Figliola, the complainants' allegations of discrimination were dismissed by the B.C. Workers' Compensation Board. The complainants raised the same allegations in a fresh complaint to the B.C. Human Rights Tribunal. A majority of the Supreme Court of Canada rejected this attempt at “forum shopping” and dismissed the Tribunal proceeding. For employers and other respondents facing a human rights complaint even though discrimination issues were raised in another proceeding (such as a labour arbitration or in workers' compensation application), the majority's decision should make it easier to dismiss the human rights tribunal complaint. But the strong dissent and a recent decision from Ontario may mean that this issue is re-visited.

Similar to provincial human rights statutes in Alberta and Ontario, B.C.'s Human Rights Code grants the B.C. Human Rights Tribunal the power to dismiss complaints that have “been appropriately dealt with in another proceeding” (section 27(1)(f)). In Figliola, the complainants all suffered from chronic pain. B.C.'s Workers' Compensation Board granted them a fixed compensation award pursuant to the Board's Chronic Pain Policy. The complainants appealed the decision, arguing that fixed compensation awards under the Policy were discriminatory pursuant to B.C.'s Human Rights Code. The Review Officer found that he had the jurisdiction to apply the Code, and found that the Policy was not discriminatory. The complainants could have judicially reviewed the Review Officer's decision. Instead, they applied to the B.C. Human Rights Tribunal for an order that the Chronic Pain Policy breached the Human Rights Code.

The Workers' Compensation Board moved for an order dismissing the complainants' applications as having been appropriately dealt with. The Tribunal dismissed the Board's application. On judicial review, the Tribunal's decision was set aside. The Court of Appeal, however, restored the Tribunal's decision.

The majority of the Supreme Court of Canada allowed the appeal and dismissed the complainants' application. In deciding whether a complaint has been “appropriately dealt with”, the Supreme Court directed the Tribunal to consider:

• Whether there was concurrent jurisdiction to decide the issues,
• Whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal, and
• Whether there was an opportunity for the complainants to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.

Tribunals are entitled to assume that, subject to appeal or judicial review, their decision is final and will be treated as such by other administrative bodies. In this case, the Supreme Court found that the complainants were trying to “forum shop” or “relitigate” in a different forum “in search of a more favourable result.” The Tribunal was complicit in this collateral appeal by failing to dismiss the complaints and its decision was patently unreasonable.

The dissenting judges agreed in the final result but would have remitted the complaints back to the Tribunal for reconsideration. Further, the dissent found the majority analysis too narrow: in their view, the Tribunal should consider other factors, such as the circumstances of the particular case, the mandate of both the Tribunal and the other administrative body and whether a dismissal order would work an injustice.

Interestingly, the Ontario Divisional Court dealt with the same issue only a week before the Supreme Court's decision. In College of Nurses v. Trozzi, 2011 ONSC 4614, the Divisional Court held that the Ontario Human Rights Tribunal should have dismissed the applicant's complaint because the Health Professions Appeal and Review Board (HPARB) had already decided whether the applicant was discriminated against. The Divisional Court's reasons focus on HPARB's mandate, which is one of the factors that the dissent in Figliola identified. Though the majority's reasoning in Figliola is ultimately binding on courts across Canada, the Divisional Court's inadvertent adoption of the dissent's view may signal that this issue is not finally resolved.

These decisions suggest that multiple forum litigation will not be tolerated, meaning that employers and other respondents facing human rights complaints in multiple forums such as labour arbitrations, workers' compensation boards or other tribunals, will be likely able to move for dismissal of complaints to a human rights tribunal. But, given the strong dissent and the similar approach taken by the Divisional Court, there may be more litigation on this issue, at least in Ontario.