I was a member of the tribunal for many years, and wrote one of the decisions the Supreme Court “disapproves” of in the case, so I am in a good position to set out the parameters of the case. Before dealing with the story behind the case, however, I should say that the tribunal is an adjudicative body, empowered to hear complaints of discrimination referred to it by the Canadian Human Rights Commission under the Human Rights Act. In recent years, the tribunal has also entered into the business of mediation and provides a final stop in the effort to settle cases before they move into a courtroom setting.
It is the Human Rights Commission that accordingly decides what cases the tribunal will hear. Indeed, the tribunal was originally an arm of the commission, and was only established as an independent body after litigants complained the commission was essentially prosecuting and hearing the complaint. The larger story behind the Mowat case is that the Human Rights Commission decided, a long while ago now, to slowly remove itself from the cases that proceed to hearing. I have difficulty with this, since the Human Rights Act clearly assumes the commission will appear.
Having said that, many of the cases that have come before the tribunal are extremely contentious and it is unrealistic to think that a complainant in the midst of heavy litigation can survive a hearing without a lawyer. As a consequence, many complainants have hired their own lawyers to take them through the hearing. That is the fundamental set of circumstances that gave rise to a string of cases in which various tribunal members awarded successful complainants their legal costs for the hearing.
This was not done easily, since the Human Rights Act only allows for the payment of “expenses” and the case law says “expenses” do not include legal costs. I cannot go into details here. In the end, however, the general consensus was clearly that an award of less than $20,000, the current maximum under the act, makes little sense without an award of legal costs. This is because the costs of the litigation would easily exhaust any monetary award the tribunal can make.
There were various rulings from the Federal Court on the issue, and in spite of a decision from the Federal Court of Appeal, the law remained unclear until last week. The Supreme Court has now settled the matter, once and for all, on the basis that s. 53(2)(d) of the Human Rights Act must be literally construed. Since Parliament did not give the tribunal an explicit power to award costs, it was limited to an award for other expenses. I do not know how counsel presented the case before the Supreme Court, but I have a feeling that counsel for the commission did not own up to the reality behind it.
The court ignores the fact that the mandate of the commission changed over the years, as it stepped back from its role in hearings. I can only speak for myself when I say that I was always struck by the fact that the commission often seemed to regard its duties before the tribunal as a burden. There was a whiff of professional jealousy in this, since the tribunal started its life as a child of the commission, and then became its master, at least in the disposition of complaints.
I realize the commission may have a different view of the matter. The reasons why the commission decided to withdraw from active litigation at the tribunal seem secondary, however, to the simple fact that complainants need representation. The hearing in the Mowat case took six weeks, generated 4,000 pages of transcript, and considered more than 200 exhibits. The suggestion that complainants can handle their own cases is well-nigh foolish, and a waste of public resources, since hearings that proceed without counsel are clumsy and protracted.
The obvious question is simple enough. If complainants need legal representation, and the commission is not prepared to provide it, what can they do, except hire private counsel? Although the commission retains its obligation to refer appropriate complaints to the tribunal, the decision from the Supreme Court has deprived them of the ability to pay for counsel. You would think that a court which regularly schools us on s. 7 of the Charter might pause to consider whether this meets the demands of fundamental justice, or due process, as the Americans style it?
Really my concern has very little to do with the mechanics of the ruling from the Supreme Court, though the idea that a quasi-constitutional act, which guarantees fundamental rights, should be interpreted as a piece of ordinary legislation seems inherently dubious. I am more concerned about the effect of the court’s ruling on the future of litigation before the tribunal. I have no doubt that the difference between the position adopted by the members of the tribunal and the appellate courts comes from the fact that the members of the tribunal have to face the complainant.
It is a mistake to abstract the issue away, as the Supreme Court has, in the technicalities of statutory construction. We know that Donna Mowat’s legal fees were well in excess of the $47,000 the tribunal awarded, since that was only part of her claim for costs. So the reality is that she spent more than $47,000 in pursuit of an award that eventually came to $4,000. As the tribunal member in the case held, this award is a “pyrrhic” victory without an award of costs.
I would go further, however, and say that it punishes a successful complainant and trivializes the guarantee of equality in the Human Rights Act. I suppose there is a remote possibility that legal aid can step in and remedy the situation. The only real solution seems to lie with the Canadian Human Rights Commission, which is the only party in a position to take up the challenge of representing complainants in hearings before the tribunal. The larger question is whether this is the beginning of a new era, in which the character of a changing court finally begins to assert itself?
Paul Groarke is a member of the Criminology Department at St. Thomas University in Fredericton, N.B. and has practised in the criminal courts and human rights. He was a member of the Canadian Human Rights Tribunal for approximately 10 years, and can be reached at email@example.com.