Northern Exposure

Rare costs award granted in human rights complaint

by Hannah Roskey

Although courts routinely order one party to pay the other party a portion of its legal fees, administrative tribunals in Canada very rarely have the power or inclination to do so. That includes human rights tribunals across the country, which very rarely order one party to pay the other’s legal costs even where they have the power to do so.

In Kim Ma v. Dr. Iain G. M. Cleator, the British Columbia Human Rights Tribunal took the highly unusual step of ordering the complainant to pay a portion of the respondent employer’s legal fees. Why? In this case, the tribunal found the complainant’s conduct to be so egregious that it was the exception to the rule.

Background

In this case, the doctor hired the employee as a medical office assistant at his clinic, initially on a six-month contract to cover a maternity leave. From January 2008 until her own maternity leave, the employee worked full-time as the sole assistant at the clinic.

The employee’s child was born prematurely and with a medical condition in October 2010. As a result, the employee delayed her return to work several times. When she did return to her position on February 1, 2012, the clinic was very different from how she had left it. It was much busier, with more staff and different office procedures in place.

Following the employee’s return, the doctor observed numerous problems with her work performance. She was resistant to the changes to the clinic and developed a conflict with the new office manager. The employee’s employment was eventually terminated on March 21, 2012. She subsequently filed a human rights complaint against the doctor and his clinic, alleging that she had been discriminated against on the basis of pregnancy, family status, and mental disability.

Decision

After a 10-day hearing, the tribunal concluded that the employee had failed to establish a case for discrimination on the basis of any pregnancy, family status, or mental disability. As such, her complaint was dismissed in its entirety.

The tribunal took significant issue with the credibility of the employee during her testimony. Specifically, the tribunal concluded that the employee had:

  • Lied under oath,
  • Fabricated evidence, and
  • Used the human rights complaint process to make unfounded, disrespectful comments about her former employer and colleagues.

In British Columbia, the tribunal has the power to award costs against a party to a complaint who has engaged in improper conduct during the course of the complaint. The tribunal felt that the employee’s conduct merited a costs award of $5,000—on the higher end of costs awards—in order to penalize the complainant for her behavior.

Takeaway for employers

Although the $5,000 award represents only part of what the employer likely spent defending the complaint, this decision is still a positive one for employers. It demonstrates a willingness to penalize complainants who are attempting to use the human rights complaint process for dishonest or fraudulent purposes.

It also provides some encouragement to employers that tribunals are aware of the challenges faced by respondents to human rights complaints and that steps should be taken to address those challenges.

Unfortunately, not every human rights tribunal in every province in Canada has the ability to make such costs awards. So while we can hope to see more such costs awards in provinces such as British Columbia, Alberta, Saskatchewan, Manitoba, Newfoundland, Nova Scotia, and Prince Edward Island, where tribunals have the power to award costs, we won’t be seeing such awards in provinces like Ontario where tribunals do not have the power to order costs. Although Ontario’s Bill 147, Human Rights Code Amendment Act (Awarding of Costs), 2013, currently before the Ontario Legislature, could change all that in Ontario.