Equality and Justice
For People With Disabilities

Thinking of hiring a lawyer to help with filing a human rights complaint? Keep legal costs in mind.

Published on April 21, 2020

Thinking of hiring a lawyer to help with filing a human rights complaint? Keep legal costs in mind.

Jennifer Linde, University of Ottawa Law Student, March 2020

The research for this article was inspired by an assignment for my first year Legal Foundations course.

While hiring a lawyer is not required for the Canadian Human Rights Commission’s complaint process, one may find a lawyer’s assistance helpful given the complicated nature of some of the legal procedures involved. However, unlike the civil justice system which routinely awards legal costs to the successful litigant, the Canadian Human Rights Tribunal (CHRT) does not have the authority to confer costs to the successful complainant. This means that even if your complaint is substantiated, you will still be responsible for the entirety of your legal fees. 

While the Canadian Human Rights Act (HRA) (RSC 1985 c H-6, s 2.) offers guidelines as to what amounts can be awarded by the CHRT, the mention of costs was omitted. The Supreme Court of Canada (SCC) ruled in Canada (Canadian Human Rights Commission) v Canada (Attorney General) that this was intentional and that the CHRT does not have the power to award legal costs (2011 SCC 53 at para 64.). As of today, this remains to be the state of the law.

Given the quasi constitutional nature of the HRA, some have argued that the SCC should have given a broader and more liberal meaning to the law that would have allowed the CHRT to award costs (Audra Ranalli and Bruce Ryder, “Undercompensating for Discrimination: An Empirical Study of General Damages Awards Issued by the Human Rights Tribunal of Ontario, 2000-15” (2017) 13 JL & Equality 91 at 122.). In fact, according to some academics, such a decision would have had the effect of improving access to justice by allowing individuals to retain the services of a lawyer without fearing the financial burden of legal costs (Kerri A Froc, « Costs Breakdown: What Mowat Means for Accessing Justice in Human Rights Regimes » (2014) 18:1 CLELJ 253 at 255.). 

Interestingly, certain provinces have given their human rights tribunals the power to confer costs. Although Ontario is not on this list, Alberta provides an interesting example as Section 33(2) of the Alberta Human Rights Act states that “A human rights tribunal may make any order as to costs that it considers appropriate” (RSA 2000 c A-25.5, s 32(2).). Their human rights tribunal can decide to award costs to either the complainant or the respondent, which raises an important concern. If tribunals are willing to award costs to a respondent, it is possible that victims of discrimination, already vulnerable, may avoid filing a complaint for fear of having to pay the legal fees of the respondent (Ontario Ministry of the Attorney General, Report of the Ontario Human Rights Review 2012, by Andrew Pinto, Toronto, Queen’s Printer for Ontario, 2012 at 182.). As one judge has recognized, this may become a significant obstacle from an access to justice perspective (Jobb v Parkland School Division No 70, 2017 AHRC 6 at para 7.).

Although different reforms have been considered at the federal level, no formal modifications to the HRA have been adopted. Costs remain to be the responsibility of the complainant, no matter the result of their hearing. This is extremely important to keep in mind as you make decisions regarding your discrimination complaint. 

In the meantime, I invite you to consider what a policy decision to begin awarding costs at the CHRC would mean for access to justice. If the goal of the HRA is to bring about social change and discourage discrimination, that question should remain at the forefront of all future policy changes. 

Helpful resources for understanding disability rights: https://www.chrc-ccdp.gc.ca/eng/content/persons-disabilities

How to file a complaint with the Canadian Human Rights Tribunal : https://www.chrc-ccdp.gc.ca/eng/content/how-file-compliant

How to file a complaint with the Human Rights Tribunal of Ontario : http://www.sjto.gov.on.ca/hrto/application-and-hearing-process/