The BC Human Rights Tribunal has the power to order costs in favour of an employer. It uses this power very infrequently, but it is an important deterrent to frivolous complaints and helps to protect the integrity of the process. We discussed the use of costs in an earlier post.
Without an occasional cost award against complainants, employers face the prospect of having expensive wins while the complainant faces no risk except loss of their time and personal effort. The situation is exacerbated when the complainant has legal representation through legal aid. The situation is unfair to employers who face a frivolous claim they can’t afford to fight in the short term, but can’t afford notto fight for the sake of the long term. It is also one of the factors that influence the perception of some employers that BC’s human rights system does not provide a level playing field.
The benefits of the occasional cost award against a complainant is best illustrated by looking at a jurisdiction where it cannot happen. That is the situation discussed in a recent post by our colleagues in Ontario. In Ontario there is no deterent against frivolous or vexatious complaints as the Tribunal has no jurisdiction to make any award against a malicious complainant. There, employers have to pin their hope on passage of a private member’s bill to grant the Tribunal the power to award costs.