The Canadian Human Rights Tribunal (Canadian Human Rights Commission) (CHRC) found that Mowat’s claim of sexual harassment against the Canadian Forces was substantiated. The Tribunal awarded Mowat $4,000 plus interest to compensate for “suffering in respect of feelings or self respect”. The Tribunal also awarded Mowat $47,000 in legal costs as “any expenses incurred by the victim as a result of the discriminatory practice” (ss. 53(2)(c) and (d) of the Canadian Human Rights Act (CHRA)). The Attorney General of Canada applied for judicial review of the Tribunal’s decision to award Mowat legal costs.
The appeal raised two issues:
(1) What was the appropriate standard of review of the decision of the Tribunal as to the interpretation of its power to award legal costs under ss. 53(2)(c) and (d) of the CHRA.
(2) Did the Tribunal make a reviewable error in deciding that it could award compensation for legal costs.
(Can the CHRC award legal costs as part of rendering their decision at the end of a hearing?)
The CHRC/CHRT cannot award costs as part of a decision that they have rendered.
The Federal Court, in a decision reported at (2008), 322 F.T.R. 222, reviewed the Tribunal’s decision on a standard of reasonableness and concluded that the Tribunal’s determination that it had the authority to award costs was reasonable. However, the court held that the Tribunal had not adequately explained the quantification of the $47,000 award.
The court quashed the decision and remitted it to the Tribunal on that ground. The Attorney General appealed, asserting that the court erred in choosing the applicable standard of review and in concluding that the Tribunal had the power to award costs.
The Federal Court of Appeal, in a decision reported at (2009), 395 N.R. 52, allowed the appeal. The court held that the applicable standard of review was correctness and that the Tribunal’s decision to award legal costs was incorrect. The court noted that even if the Tribunal’s decision should be reviewed on the reasonableness standard, its decision was unreasonable.
Mowat and the Canadian Human Rights Commission appealed.
The Supreme Court of Canada dismissed the appeal.
The court held that the Tribunal’s decision should be reviewed on the reasonableness standard, and the Tribunal’s interpretation that it had authority to award legal costs was unreasonable.