Legal Feeds Blog

Friday, 28 October 2011 11:53

Human rights tribunal can’t award costs: SCC

In a case involving a sexual harassment complaint, the Supreme Court of Canada has ruled that the Canadian Human Rights Tribunal does not have the authority to award legal costs.

In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), Donna Mowat worked with the Canadian Forces for 14 years. Over the course of her career, she made several complaints about her superiors. Three years after her employment with the military ended, she filed a complaint with the Canadian Human Rights Commission alleging “sexual harassment, adverse differential treatment, and failure to continue to employ her on account of her sex.” The Canadian Human Rights Tribunal ruled in her favour and awarded her $4,000 in damages and $47,000 in legal costs.

The Attorney General of Canada applied for judicial review at the Federal Court regarding the tribunal’s jurisdiction to award legal costs. Following that decision, the attorney general appealed to the Federal Court of Appeal, which ruled that the tribunal did not have the authority to make a costs award under the Canadian Human Rights Act and quashed the tribunal’s decision.

In its ruling, Supreme Court justices Louis LeBel and Thomas Cromwell wrote: “In our view, the text, context, and purpose of the legislation clearly show that there is no authority in the Tribunal to award legal costs and that there is no other reasonable interpretation of the relevant provisions.

“Faced with a difficult point of statutory interpretation and conflicting judicial authority, the Tribunal adopted a dictionary meaning of ‘expenses’ and articulated what it considered to be a beneficial policy outcome rather than engage in an interpretative process taking account of the text, context and purpose of the provisions in issue.”

The SCC upheld the Federal Court of Appeal’s ruling and dismissed the appeal.

Corporate boards not always complying with retention policies: survey

Corporations need to pay more attention to information governance, a recent survey has found.

The survey shows 70 per cent of respondents are unsure if board members comply with the corporation’s document-retention policies. Photo: Nenad Djedovic

A survey of global corporations' corporate and company secretaries and general counsel, conducted by Thomson Reuters Governance, Risk & Compliance, found that corporate boards aren’t necessarily in compliance with their corporations’ document-retention policies.

“Information governance, which in practice can be very difficult, may not be a major priority for many corporations, but needs to be applied and practised,” said Ely Razin, head of business law and governance at Thomson Reuters.

“When sharing business-critical information with their boards, corporations must be able to manage their information effectively and appropriately, and also know where the information resides. And information governance is critical so that directors and executives can manage and authenticate the information’s validity and chain of custody.”

Eighty-one per cent of those surveyed said board e-mails and communications are included in the corporation’s document-retention policy. But 70 per cent were unsure if board members are in compliance with the corporation’s document-retention policies. More specifically, 70 per cent didn’t know if board members destroyed all paper copies of board-related e-mails, etc.

This poses a security threat to corporations. For example, if a corporation was required to conduct a discovery process, it would need to check all board members’ computers, files, and other data storage, which would likely be time-consuming and expensive.

“As corporations face daily challenges surrounding their information and its security, document retention and discovery at the board level is emerging as an increasing issue,” added Razin.

“Many corporations have not harnessed all the benefits that technology can provide to protect the organization and its board members.”

Get the full 2011 Thomson Reuters Board Governance Survey here.