BC v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”); Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 (“Senyk”); Canada v. Mowat, 2008 FC 118, rev’d in 2009 FCA 309 (“Mowat”)

There is no doubt that there has been an explosion of human rights litigation following the Supreme Court of Canada’s 1999 Meiorin decision. It has come to the point that the SCC will be considering the authority to award legal fees to complainants. In Meiorin, the SCC fundamentally altered the way in which human rights complaints were adjudicated by reformulating the duty to accommodate (“DTA”). The employer had to demonstrate that the standard imposed was reasonably necessary and that it was impossible to accommodate without imposing undue hardship on the employer. Despite the direction of the SCC that a “common sense” and practical approach must be taken, many Human Rights Tribunals following the Meiorin decision seem to have ignored or minimized that direction.

Our BC Human Rights Tribunal regularly makes substantial monetary awards in favour of complainants even where there has only been a finding that the employer did not follow procedural aspects of the DTA. But perhaps the most troubling expansion of remedies is the Tribunal’s award of legal fees to complainants.

In Senyk the Tribunal issued a cease and desist order, awarded $35,000 for injury to dignity, hurt feelings and self respect, and $10,000 for expenses. It also ordered the employer to pay all of Senyk’s reasonable legal fees and expenses. While the amount of those fees was not noted in the award such fees could be very costly especially in a case involving expert medical evidence and unique issues of law.

The Tribunal in Senyk followed the Canadian Human Rights Tribunal decision in Mowat, which had held it had the authority to award legal fees. However, the Federal Court of Appeal overturned the Mowat decision, finding the Tribunal had no authority to make an award of legal fees under the Canadian Human Rights Act. As a consequence the law in BC is unclear on this issue.

In April 2010 the Supreme Court of Canada granted leave to appeal the Federal Court of Appeal decision in Mowat. Accordingly, the recovery of legal costs will now be decided by Canada’s highest court.

Employers may act in good faith and without intent to breach the substantive provisions of the Code but still be found liable for not following the procedural aspects of the DTA. If the SCC overturns the Mowat decision and finds that Human Rights Tribunals do have the authority to award legal fees to successful complainants, then employers, especially small and medium-sized employers that provide the bulk of jobs in BC, will be subject to potentially crippling cost awards in addition to other damages which may in many cases far exceed the costs of wrongful dismissal and other court actions. We will keep you posted.

NOTE: See Mike’s ‘2012 – Winter’ update on the SCC decision in Mowat in SUPREME COURT OF CANADA LIMITS HUMAN RIGHTS TRIBUNALS’ POWERS