Generally, when we report on decisions of human rights tribunals, it is bad news for employers. However, two recent decisions of the Supreme Court of Canada (“SCC”) have limited the power and scope of inquiry for Human Rights Tribunals (“HRT”) and that should benefit employers.

Canadian Human Rights Tribunal Has No Authority To Award Costs

The SCC has confirmed that the Canadian HRT (“CHRT”) does not have the authority to award legal costs. In Mowat v. Canada (AG), 2011 SCC 53, the CHRT had found in favour of a complainant and awarded over $50,000 in damages. Of particular concern was the award of $47,000 for legal costs which represented a small portion of the almost $200,000 in actual legal costs claimed. The SCC concluded on the wording of the statute that the CHRT did not have authority to award legal costs.

The Mowat decision would appear to settle the conflicting authority of the British Columbia HRT (“BCHRT”) and confirm the decision in Kerr that legal fees generally will not be awarded to the successful party. It is now pretty clear that the BCHRT cannot award legal fees unless a party engages in improper conduct during the processing of a complaint (see s. 37(4) of the B.C. Human Rights Code (“Code”)). This is a very important decision for employers in assessing their position with respect to mediating or defending a complaint.

SCC Limits B.C. HRT’s Ability To Review WCB Issues

Recently employers have been concerned that complainants unsuccessful before one adjudicator could then simply pursue the same complaint in another forum. This type of “forum shopping” can result in duplication of efforts and increased costs. The SCC has signalled that such adjudicative duplication is unacceptable.

In British Columbia Workers’ Compensation Board v. Figliola, 2011 SCC 52, the complainants were awarded compensation for chronic pain by the Workers’ Compensation Board (“WCB”) pursuant to its chronic pain policy, which set a fixed award limit. The complainants appealed that initial decision on grounds that the policy was discriminatory on the basis of disability contrary to s. 8 of the Code. The WCB’s Review Division held that the WCB’s policy did not contravene the Code and was not discriminatory.

Instead of applying for judicial review of that decision, the complainants filed new complaints with the BCHRT repeating the s. 8 arguments challenging the WCB’s chronic pain policy. The WCB asked the BCHRT to dismiss the complaints, arguing it had no jurisdiction and that the matters had already been dealt with by the Review Division and should not be heard by the BCHRT. The BCHRT allowed the case to proceed, but that decision was judicially reviewed and appealed up to the SCC.

The majority of the SCC set aside the BCHRT’s decision and dismissed the complaints. The analysis focused on principles of finality, avoidance of multiple proceedings and integrity of the administration of justice and fairness. The complainants were not allowed to bring a second “collateral” attack on the WCB policy. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.


Both of these cases represent refreshing judicial limitations on the powers of human rights tribunals in the context of practical, common sense considerations. Hopefully both will reduce such litigation and the attendant costs of defending a human rights complaint or a WCB matter.

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