Until Friday, it was unclear whether a successful party could obtain costs at the end of a Human Rights Board of Inquiry in New Brunswick. A decision of the New Brunswick Labour and Employment Board in 2009 (McConnell) found that the New Brunswick Human Rights Act had jurisdiction to award legal costs to a successful complainant, but not a successful respondent.  The Board has now reconsidered that decision in Downey (yet unreported) in light of the obiter of the New Brunswick Court of Appeal (who dismissed an appeal in the case) and the Supreme Court of Canada decision in Mowat.

McConnell (Human Rights Board of Inquiry)

In McConnell, the complainant alleged that his employer had discriminated against him by failing to accommodate his mental illness.  The Human Rights Tribunal found the employer had taken reasonable steps to accommodate the complainant, and that none of the allegations had been substantiated.

The Tribunal also concluded that there was no jurisdiction to award costs to the successful respondent.  Oddly, in his provisional award (in the event that the decision is overturned on judicial review), the Tribunal concluded it had jurisdiction to award legal costs to a successful complainant.  The Tribunal analysed paragraph 20(6.2)(e) of the Human Rights Act of New Brunswick which grants jurisdiction to the Tribunal to compensate a successful Complainant for any “consequent expenditure” arising from the violation of the Act.  The Tribunal also reviewed subsection 20(4), which entitles parties to be represented by counsel.  From these sections, the Tribunal concluded the intent of the Act was to grant authority to award legal costs to a successful complainant.  However, the Board stated that since the legislation was silent on cost awards to successful respondents, it did not have jurisdiction to award costs to a successful respondent.

Mowat (SCC)

Mowat was a member of the Canadian Forces who filed a complaint about her treatment as a woman. Ultimately she was awarded $4,000 for sexual harassment to compensate for “suffering in respect of feelings or self respect.” The Tribunal proceeded to consider her claim for legal costs. It awarded her $47,000 for costs, a decision that was upheld by the Federal Court but overturned by the Federal Court of Appeal. The SCC upheld the Court of Appeal’s decision on the issue of costs.

The SCC found that the Act provides that the Tribunal can “compensate the victim for … any expenses incurred by the victim as a result of the discriminatory practice.” The SCC found that “expenses” do not include legal costs. The SCC held that if Parliament had intended for costs to be awarded, it would have included the familiar and widely accepted legal term “costs” in the Act. This position was supported by the fact that there had been numerous unsuccessful attempts to amend the Act to include the ability to award costs and that costs are specifically referenced in provincial and territorial human rights legislation.

McConnell (NB Court of Appeal)

McConnell ultimately received the following from the NB Court of Appeal which recognized the inconsistency in this approach and stated:

… the Board concluded that should the complainant be successful in any of his claims, the Board possessed the jurisdiction to award costs to the successful complainant. However, the costs issue was decided without the Board having the benefit of the Supreme Court’s recent decision in Canada (Canadian Human Rights Commission). In that case, the Court ruled the federal human rights tribunal did not possess the jurisdiction to award costs to a successful complainant. The interpretative arguments advanced in that case in support of the right to award costs to this party only are similar to the ones considered by the Board in the present case. This is why the Supreme Court’s decision casts a long shadow over the Board’s ruling.

Downey:

On Friday, February 14, 2014, the Board had another opportunity to consider the costs issue in Downey. In that case, Downey alleged that his employer discriminated against him because of a physical disability, namely, a workplace injury. The claim was dismissed by the New Brunswick Labour and Employment Board acting as a Human Rights Board of Inquiry referenced the McConnell and Mowatt decisions and stated: … on appeal to the NB Court of Appeal, Robertson J.A. poetically observed that the Supreme Court of Canada decision in Mowat casts a long shadow over the Board’s ruling… with that background in mind, the Board has determined that it will not award costs to a successful party”.

What this means:

This is the first time the Board has dealt with the Court of Appeal’s decision in McConnell and, significantly, the Board has decided to follow the approach of the Supreme Court of Canada and will not award legal costs to the successful party in a Human Right complaint.

As we normally win, we consider this bad news. However, this is markedly better than the Board’s previous decision interpreting the legislation as allowing costs for Complainants and not for Respondents.