Canadian Human Rights Commission v Canada (AG): SCC Decision Shapes Dim Reality For Human Rights Complainants

In Canada (Canadian Human Rights Commission) v Canada (Attorney General), [2011] 3 SCR 471 [Canada v Canada], Ms. Mowat filed a sexual harrassment complaint against her former employer, the Canadian Forces. The Canadian Human Rights Tribunal (“Tribunal”) found that her complaint was partially substantiated and awarded her $4,000 for “suffering in respect of feelings or self respect.” When Ms. Mowat further applied for compensation for her legal fees, the Tribunal determined that it was authorized to order costs and awarded Ms. Mowat $47,000. The Supreme Court of Canada (“SCC”) ruled that the Tribunal did not have authority to award the costs.

One has to wonder whether the judges at the SCC and their clerks really understand the history of litigation in the Tribunal. I say this after reading the Court’s decision in this matter, where it held that the Tribunal does not have the power to award costs under s. 53(2)(d) of the Canadian Human Rights Act, RSC, CHRA].

The ruling by the court is based on the wording of s. 53(2)(d). It states:

If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:…(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice….

The caselaw on the construction of statutes makes it clear that this is not enough, in ordinary circumstances, to give the Tribunal the power to award costs. The power to award legal costs is a special power, which must be explicitly conferred by the words of the legislation.

I happened to write one of the decisions that the SCC ultimately overturned in the case, and was disappointed to discover that the SCC thought that this was sufficient to deal with the matter. There is a reason, after all, why legal costs became a central issue at the Tribunal. The issue is not the provision of costs. The issue is the provision of counsel.

Canadian Human Rights Commission’s receding role leaves complainants without counsel

The real problem for the Tribunal was that the Canadian Human Rights Commission (“Commission”) disengaged itself from the Tribunal process a long while ago. This was problematic. The Tribunal holds hearings. And the idea that a member of the public can navigate a hearing successfully without the assistance of a lawyer, often in the face of heavy litigation from the other side, is rather fanciful. The move by the Commission accordingly left complainants with no choice but to hire independent counsel.

I do not know whether to be amused by the fact that the SCC examines the legislative history of the CHRA in some detail, only to let the fundamental point slip through its fingers. In paragraph 51 of its judgement, the Court holds that Parliament ultimately “chose an active role for the Commission, which could include litigating on behalf of complainants.” This was a conscious choice and an alternative to “cloaking the Tribunal with a broad costs jurisdiction.”

This is the sound of footsteps quietly stepping around the real issue in the case. I do not know how forthright counsel for the Commission was before the court, but the use of the word “could” in such a statement is fundamentally misleading. The idea that the Commission could appear at hearings, if it chose to do so, is really a political invention to justify later developments.

The assumption in the CHRA is that the Commission will appear at hearings. Anyone who bothers to examine the earlier caselaw will discover that there were procedural issues at the beginning with respect to the role, and even the propriety, of a complainant retaining independent counsel. Neither the Commission nor the Tribunal was sure how to deal with the situation. Everyone had assumed that the Commission would have carriage of the case once it was referred to the Tribunal.

The story of the long and rather debilitating process by which the Commission retreated from its active involvement in hearings before the Tribunal deserves its own discussion. I am sure that the Commission has its own version of history. The practical assumption in the original CHRA was nevertheless that counsel for the Commission would appear at hearings. The proof of this, of course, lies in the fact there is no provision for the payment of legal costs in the CHRA. That is it was assumed that the Commission would handle the hearing. There were no costs.

This is probably enough to demonstrate that the SCC somehow missed the point of the litigation in Canada v Canada. That point is that the conduct of the Commission, along with the Court’s refusal to allow the Tribunal to award costs, is a double blow, which leaves complainants without legal representation. It seems to me that this raises a procedural issue under s. 7 of theBe that as it may, I am willing to acknowledge that this combination of circumstances, unfortunate as it is, might be fatal in the case of ordinary legislation.

Without purposive interpretation, CHRA provisions would be stale 

It is wearisome law, however, that the CHRA is quasi-constitutional, and the idea that it should be interpreted as an ordinary piece of legislation is fundamentally misguided. Section 2 of the CHRA states that the “purpose” of the CHRA is to “give effect” to the principle that individuals should be able to pursue their lives, free of discrimination. The purpose of the CHRA is to provide individuals who have suffered discrimination in the federal sphere with a meaningful remedy. It is not within the purview of a subordinate provision like s. 53(2) to defeat the guarantees in the CHRA.

There is a professional and ethical side to the issue of costs in the Tribunal. It is reality that matters at the end of the day, however, and the reality is that the power of the Tribunal to grant a monetary award in a case where there is no loss of wages is limited to 20,000 dollars. This is nowhere near enough to cover the costs of litigation in a difficult case. As a result, many awards will be meaningless and even punitive without an award of costs.

So put yourself in the position of a member of the Tribunal who can only award a complainant twenty thousand dollars, knowing that the litigation may have cost a hundred thousand dollars. How is a member of the Tribunal supposed to “give effect” to the principle that those who have been discriminated against are entitled to a meaningful remedy, when the remedy has been swallowed whole by the costs of the litigation? The legal rights guaranteed by the CHRA are worse than meaningless without the provision of counsel and fair remuneration for the complainant’s reasonable legal fees.

It is easy to lay the blame on the Commission, which removed itself from the hearing process. The law makes it clear that the Tribunal has no power over the Commission, however, and the Tribunal cannot instruct the Commission to appear. The issue on costs is accordingly whether the Tribunal, placed in such a quandary by the Commission, can re-interpret s. 53(2)(d) in order to save the clear intentions of the CHRA. This can be described in a variety of ways, but really consists of reading in a costs provision.

I can understand why the courts are reluctant to give Tribunals the power to essentially amend their empowering legislation, but that only puts the issue before the courts, and the SCC itself. The Court suggests that the Tribunal member was motivated by “policy” concerns that have no place in statutory construction. But of course it is the other way around. It is the SCC that has ignored the constitutional realities of the situation and the clear purpose of the CHRA. The decision elevates the literal construction of the CHRA over its quasi-constitutional purpose.

Timid Court avoided realistic alternatives

Nor is it true that the Court had no room in which to manoeuvre. There is plenty of room for an argument that the quasi-constitutional nature of the CHRA, which guarantees fundamental rights, brings an equitable component into the statute. This is significant because the courts of equity took it upon themselves to order costs in precisely this kind of situation. Their reasoning was that the failure to do so would destroy the very remedy that the law was there to provide.

There is also the fact that the CHRA cannot be interpreted in isolation. It is firmly rooted in s. 15 of the Charter and raises issues of particular magnitude in a society based on the equality of the person. It is the timidity of the Court’s decision that is remarkable. Why, to use the words of John Sankey, did the court fall back on “a narrow and technical construction” of the CHRA? What happened to the purpose of the CHRA in the Court’s interpretation?

There are other alternatives. The Court could have said that the Commission has a general obligation, at least, to represent complainants at a hearing. That would make sense, and explain why complainants have no right to costs. And then there is the fact that our international obligations come into play in the context of human rights. The failure of the CHRA to provide a meaningful remedy in cases of discrimination clearly derogates from Canada’s international commitments.

Honestly, it is irritating to think that the law does not have the resources to do justice in the case. The aridity of the CHRA, after this decision, is deeply disconcerting. Of course the federal government has the power to amend the CHRA and give the Tribunal the power to award costs. There were attempts to convince preceding governments to do so. I need hardly say that the likelihood of this in the current political climate probably approaches nil.

For myself, I can only say that these kinds of decisions have pushed me, rather unhappily, into the arms of Catherine McKinnon. That is because McKinnon, like a number of feminists, sets out a “substantive” theory of equality in her work. Her point is naturally that the sterile parsing of words is not enough. It is reality that matters. And I daresay that reality in the context of Canada v Canada is distressing. The door to a hearing, at least for many people who complain of discrimination, has now been closed. Why do I have a feeling that this was the real motive behind the litigation, and exactly what the federal government wanted?

Dr. Paul Groarke is a guest contributor to TheCourt.ca. He is an Assistant Professor in the Faculty of Criminology and Criminal Justice at St. Thomas University and a former member of the Canadian Human Rights Tribunal.