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By: Devry Smith And Frank  09-12-2011

Do Human Rights Bodies Have Jurisdiction to Award Legal Costs to the Successful Party?

In legal proceedings that have been commenced in court, the party who is successful at trial is generally entitled to recover a portion of their legal costs from the opposing party.

The Supreme Court of Canada recently considered the question of whether a party who has succeeded at a hearing at the Canadian Human Rights Commission should also be awarded a percentage of their legal expenses, to be paid by the other side. More specifically, the court considered whether the provisions of the Canadian Human Rights Act which authorize the Tribunal to “compensate the victim for any expenses incurred as a result of the discriminatory practice” permit an award of legal costs.

The Supreme Court ultimately decided that the Tribunal had no authority to award legal costs, since “costs” are to be distinguished from “compensation” and “expenses.” The court further commented that the lower court decision, which would have permitted a costs award, made its decision based on what it thought was a beneficial policy outcome, rather than engaging in a proper legal analysis.

This decision will hopefully encourage the government to amend the Canadian Human Rights Act, and other provincial human rights legislation, to permit human rights bodies to award costs. This way, employees with valid human rights complaints will be encouraged to continue bringing them, and employers would be able to recover legal costs from employees who initiate frivolous human rights complaints.

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