A common complaint we hear from employers who are engaged in proceedings before the Human Rights Tribunal of Ontario (Tribunal) is that regardless of the merits of the complaint, or the end result, the employer is burdened with the legal costs of successfully defending a complaint. Currently, the Tribunal does not have the explicit power under the Human Rights Code to order costs against the unsuccessful party, and the Supreme Court of Canada has stated that a human rights tribunal cannot order costs without an express grant from Parliament.
The introduction of a recent private members bill seeks to address that exact issue. Bill 147, An Act to amend the Human Rights Code with respect to the awarding of costs of proceedings, would grant the Tribunal the discretionary power to order legal costs against the unsuccessful party. Whether the Tribunal would utilize this discretion against complainants, whether unrepresented or not, is difficult to predict, but it at least creates that potential, particularly given the frivolous and vexatious nature of some complaints.
Given that Bill 147 was introduced by the opposition Progressive Conservative party and has not yet been the subject of debate in the Ontario Legislature, it still has a long way to go before being passed into law.
Regardless, it raises a very important issue for employers and we will provide an update if this bill gains any traction.
By Matthew Demeo
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
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To the earlier comment that the Tribunal should be mandated to always order legal costs to the losing party, I would only note that even in Superior Court the ability to award costs is discretionary.
Plus, if there was a requirement to order costs, you’d likely see nominal awards (perhaps a dime?) in some cases.
What might be nice is some discretionary ability on behalf of adjudicators. Given the power they already hold, what is costs?
The Bill should mandate the Tribunal “must” order legal costs to the loosing party.