HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
M.O. by his next friend J.O.
Applicant
-and-
Ottawa Catholic District School Board
Respondent
DECISION ON COSTS
Adjudicator: Sherry Liang
Indexed as: M.O. v. Ottawa Catholic District School Board
WRITTEN SUBMISSIONS BY
M.O., Applicant ) J.O. and Juliet L. Knapton, Counsel
Ottawa Catholic District ) R. Paul Marshall, Counsel
School Board, Respondent )
1This is an Application filed on August 19, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By decision dated August 26, 2010, I allowed the Application and awarded monetary compensation to the applicant, as well as future compliance remedies. At the parties’ request, I allowed them an opportunity to provide written submissions on the applicant’s request for full indemnification for his legal costs.
2The applicant seeks an order for costs fixed in the amount of $68,187.25, on a full indemnity scale, in accordance with a Bill of Costs appended to his submissions.
DECISION AND ANALYSIS
3Section 45.2 provides the Tribunal with the authority to order remedies upon a finding that a right under the Code has been infringed:
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act. 2006, c. 30, s. 5.
4The Tribunal is a body created by statute, and may only award costs if the jurisdiction to do so is expressly given to it by either the Code or another act. As discussed by the Ontario Divisional Court in Ontario (Liquor Control Board) v. Ontario (Ontario Human Rights Commission), 1988 CanLII 8926 (ON HCJDC), [1988] O.J. No. 167, a case arising under the previous version of the Code (and relating to a Board of Inquiry):
The Board of Inquiry is created by the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. As a statutory body it can only have jurisdiction to award costs if such jurisdiction is expressly given to it either by the Code or some other act.
The legislature has expressly provided for the recovery of costs in limited circumstances “to the person complained against” under s. 40(6) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. The power of the Board of Inquiry under s. 40(1) to "make restitution including monetary compensation" is not an express provision for the award of costs to complainants under the Code. The rule of liberal interpretation to carry out the objects of the Code to, as far as possible, remedy the effects of and prevent discrimination do not apply to procedural matters or the question of costs.
Under the principle of statutory interpretation, expressio unius exclusio alterius, by expressly providing boards of inquiry with authority to award costs only in s. 40(6) of the Code, the legislature has excluded jurisdiction to award costs otherwise under the Code.
5The wording of the new section 45.2 uses similar language to that discussed above, authorizing the Tribunal to order “monetary compensation…for loss arising out of the infringement” and “restitution…for loss arising out of the infringement.”
6The current Code no longer has an equivalent section to section 40(6) of the old Code but I do not accept the applicant’s argument that the removal of the power under section 40(6) means that section 45.2 may now be interpreted to give the Tribunal the power to award legal costs to an applicant.
7In fact, in a number of cases under the current Code, the Tribunal has held that it does not have the jurisdiction to award legal costs to a successful applicant. For example, see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; Tulul v. King Travel Can, 2011 HRTO 438; Lopetegui v. 680247 Ontario, 2009 HRTO 1248; Farris v. Staubach Ontario Inc., 2011 HRTO 979, Clennon v. Toronto East General Hospital, 2010 HRTO 506.
8The Tribunal has also held in Dunn v. United Transportation Union, Local 104, 2008 HRTO 405, that in the absence of a Tribunal rule 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 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, which states, in section 17.1:
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.
9The respondent referred me to the decision of the Federal Court of Appeal in Canada (Attorney General) v. Mowat, [2009] F.C.J. No. 1359, 2009 FCA 309. That decision has been appealed to the Supreme Court of Canada, which has reserved its ruling on the appeal.
10In allowing an appeal from a decision of the Federal Court, the Federal Court of Appeal held that the Canadian Human Rights Tribunal did not have the power to award costs. The Court of Appeal held that section 53(2)(c) of the Canadian Human Rights Act, R.S.C. 1985, C. H-6, which authorizes the Tribunal to compensate a complainant for “any expenses incurred by the victim as a result of the discriminatory practice”, could not be interpreted to include a power to award legal costs.
11Although the decision in Mowat relates to federal human rights legislation, it is consistent with the decision in Ontario (Liquor Control Board), and indeed the Federal Court of Appeal in Mowat expressly refers to the Ontario decision. The applicant relies on the lower court decision in Mowat, but given that it was overturned on appeal and the Court of Appeal decision is more consistent with the decisions in Ontario, I do not find the lower court’s decision helpful.
12The applicant also submits I should follow as precedent the decision in Curling v. Torimiro, [2000] O.H.R.B.I.D. No. 16. I have reviewed it and I do not find that decision applicable here. It is clear from the reasons in Curling that the decision to award “costs of retaining counsel” was based on the particular facts before the Board of Inquiry, which it describes as involving “legal expenses incurred as a direct result of the retaliatory legal action taken by the respondent.” The circumstances there were very different from those before me. To the extent that those reasons may stand for any broader principles on the Tribunal’s jurisdiction to award costs, I do not think they should be read in a manner inconsistent with the cases I have referred to above.
13I therefore find that judicial authority, as well as the Tribunal’s cases on this issue, leads to the conclusion that I do not have the jurisdiction to make the award of legal costs in favour of the applicant.
14The request for an award of legal costs is therefore denied.
Dated at Toronto this 16th day of June, 2011.
“Signed by”
Sherry Liang
Vice-chair