Dunn v. United Transportation Union, Local 104, 2008 HRTO 405

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darby Dunn

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

United Transportation Union, Local 104

Respondent

COSTS DECISION

Adjudicator: David A. Wright Date: December 17, 2008 Citation: 2008 HRTO 405 Indexed as: Dunn v. United Transportation Union, Local 104

WRITTEN SUBMISSIONS BY

United Transportation Union, Local 104 ) Brian Shell and Respondent ) Melissa Atkins, Counsel

Ontario Human Rights Commission ) Anthony D. Griffin, ) Counsel

INTRODUCTION

1On October 10, 2008, the Tribunal dismissed Darby Dunn’s complaint against the United Transportation Union, Local 104 (the “Union”): Dunn v. Sault Ste. Marie (City), 2008 HRTO 149. The Union now asks the Tribunal to order that the Ontario Human Rights Commission (the “Commission”) pay it costs.

2The Commission argues that the Tribunal has no jurisdiction to award costs, because the provision that gave the Tribunal jurisdiction to do so (s. 41(4) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”)) was repealed in amendments effective June 30, 2008. The Union disagrees, arguing that the repeal of the costs provision does not affect the Tribunal’s power to award costs. It says that its right to seek costs came into existence before the repeal of s. 41(4), and is therefore not affected by the repeal. It also suggests that the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”), gives the Tribunal jurisdiction to award costs in the circumstances.

BACKGROUND

3The complaint against the United Transportation Union, Local 104 was referred to the Tribunal on October 16, 2007 by the Ontario Human Rights Commission under s. 36 of the old Code. It was dealt with together with a related complaint against the City of Sault Ste. Marie. During the Initial Conference Call on November 16, 2008, the parties agreed to a Tribunal mediation, which was held on January 25, 2008. As the matter did not settle, pleadings were exchanged in accordance with the Tribunal’s Rules. The pleadings closed at the end of March, 2008. The Tribunal held a pre-hearing conference call on May 7, 2008, following which it determined that the preliminary issues identified by the respondents would be dealt with in a one-day hearing on September 18, 2008, with written materials filed in advance: see Dunn v. Sault Ste. Marie (City), 2008 HRTO 27. The hearing date was set with the consent of all parties. The Tribunal’s decision dismissing the complaint was released on October 10, 2008.

4Section 41(4) of the old Code gave the Tribunal power to award costs against the Commission as follows:

Where, upon dismissing a complaint, the Tribunal finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the Tribunal may order the Commission to pay to the person complained against such costs as are fixed by the Tribunal.

5Effective June 30, 2008 the Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30, s. 4 repealed Part IV of the old Code, which contained s. 41(4), and substituted new provisions in its place, which do not contain a costs provision. Section 55 of the new Code, contained in Part VI, entitled “Transition Provisions”, reads as follows:

55. (1) This section applies to complaints that are referred to the Tribunal by the Commission under section 36 of the old Part IV before the effective date or during the six-month period referred to in subsection 53 (2).

(2) On and after the effective date, the new Part IV applies to a complaint described in subsection (1) as though it were an application made to the Tribunal under that Part and the Tribunal shall deal with the complaint in accordance with the new Part IV.

6The “effective date” referred to in section 55 is June 30, 2008.

ANALYSIS

7The Tribunal has no inherent jurisdiction to award costs. It can only do so if such jurisdiction is expressly given to it either by the Code or some other legislation: Ontario (Liquor Control Board) v. Ontario (Human Rights Commission), 1988 CanLII 8926 (ON HCJDC), [1988] O.J. No. 167 (Div. Ct.). Accordingly, I must determine whether the SPPA or the old Code gives the Tribunal the power to award costs in the circumstances.

Can the Tribunal Award Costs Under the Statutory Powers Procedure Act?

8The Union suggests that the Tribunal has jurisdiction to award costs under s. 17.1 of the SPPA, which reads as follows:

17.1 (1) Subject to subsection (2), a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.

(2) A tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and

(b) the tribunal has made rules under subsection (4).

(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under subsection (4).

(4) A tribunal may make rules with respect to,

(a) the ordering of costs;

(b) the circumstances in which costs may be ordered; and

(c) the amount of costs or the manner in which the amount of costs is to be determined.

9Pursuant to s. 17.1 (2) of the SPPA, a Tribunal may only award costs if it has made rules regarding each of the matters set out in s. 17.1(4): Ontario (Director (Environmental Protection Act)) v. Becker Milk Co., (2005) 2005 CanLII 38894 (ON SCDC), 78 O.R. (3d) 556 at para. 9.

10The Union argues that Rule 91 of the Tribunal’s Rules of Practice for Commission-referred complaints constitutes a Rule within the meaning of s. 17.1(4):

91. A Respondent who intends to seek costs pursuant to subsection 41(4) of the Code should indicate this intention to the Tribunal prior to the conclusion of the hearing.

Rule 91 does not give the Tribunal jurisdiction to award costs under the SPPA. It was included in the Tribunal’s Rules prior to the repeal of s. 41(4) of the Code, and is intended to ensure that the Tribunal and the other parties were aware of a party’s intention to seek costs under that section. On its face, it applies to costs under the old s. 41(4). It does not meet the requirements set out in ss. 17.1(2)(b) and 4 of the SPPA by addressing the circumstances in which costs may be awarded or the manner in which the amount of costs is to be determined. The Tribunal has no jurisdiction to award costs under the SPPA.

Does the Repealed s. 41 (4) Permit the Tribunal to Award Costs?

11The Union also argues that in the circumstances of this case, the Tribunal has the power to make a costs award under s. 41(4) of the old Code. Relying upon ss. 51(1)(b) and (d) of the Legislation Act, 2006, S.O. 1996, c. 21, Sched. F, the Union submits that its right to seek costs came into effect before the repeal of s. 41(4), and that it is affected by the repeal. Section 51 reads as follows:

51. (1) The repeal of an Act or the revocation of a regulation does not,

(a) affect the previous operation of the repealed or revoked Act or regulation;

(b) affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or regulation;

(c) affect an offence committed against the repealed or revoked Act or regulation, or any penalty, forfeiture or punishment incurred in connection with the offence;

(d) affect an investigation, proceeding or remedy in respect of,

(i) a right, privilege, obligation or liability described in clause (b), or

(ii) a penalty, forfeiture or punishment described in clause (c).

Section 58 of the Legislation Act, which provides, “A reference to an Act or regulation is also a reference to each provision of the Act or regulation”, means that s. 51 applies to the repeal of Part IV of the Code, even though the whole Code was not repealed.

12The issue to be determined is whether the Union had a “right, privilege, obligation or liability that came into existence” under the old Code before it was repealed, within the meaning of ss. 51(1)(b). Guidance on this issue is provided by the Supreme Court of Canada’s decision in R. v. Puskas, 1998 CanLII 784 (SCC), [1998] 1 S.C.R. 1207. In that case the Court addressed the federal Interpretation Act, R.S.C. 1985, c. I-21, s. 43 (c), which provides that the repeal of an enactment does not “affect any right, privilege, obligation, or liability acquired, accrued, accruing or incurred under the enactment so repealed…”

13In Puskas, the Court determined that a right to appeal did not become “acquired, accrued, or accruing” until the lower court rendered its judgment. It held as follows, at para. 14:

In our view, there are numerous reasons for deciding that the ability to appeal as of right to this Court is only “acquired,” “accrued” or “accruing” when the court of appeal renders its judgment. The first is a common-sense understanding of what it means to “acquire” a right or have it “accrue” to you. A right can only be said to have been “acquired” when the right-holder can actually exercise it. The term “accrue” is simply a passive way of stating the same concept (a person “acquires” a right; a right “accrues” to a person). Similarly, something can only be said to be “accruing” if its eventual accrual is certain, and not conditional on future events (Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 1992 CanLII 2751 (SK CA), 95 D.L.R. (4th) 706 (Sask. C.A.), at p. 719). In other words, a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled.

14In my view, the words “come into existence” in s. 51 are equivalent to the words “acquire” and “accrual’ in the legislation interpreted in Puskas. Applying the Court’s reasoning to the similar wording in s. 51(1)(b), I find that the Union had no right or privilege that came into existence prior to the repeal of s. 41(4). Under this section, a right only came into existence “upon the dismissal of the complaint”. The dismissal had not yet occurred when the provision was repealed on June 30, 2008. Accordingly, s. 41(4) does not give the Tribunal the power to award the costs the Union requests. This conclusion is reinforced by and consistent with s. 55(2) of the Code, which provides that the new Part IV applies to Commission-referred complaints as though they were made to the Tribunal under the new Part IV.

15Accordingly, I find that the Tribunal has no jurisdiction to award costs in these circumstances.

ORDER

16The request for costs is dismissed.

Dated at Toronto, this 17^th day of December, 2008.

“Signed by”

__________________________________

David A. Wright

Vice-Chair