Canada (Attorney General) v. Mowat, [2011] N.R. TBEd. OC.029

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 13, 2010
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. OC.029;2011 SCC 53

Can. (A.G.) v. Mowat (SCC) - Canadian Human Rights Tribunal - Jurisdiction to award costs

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Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. OC.029

Canadian Human Rights Commission and Donna Mowat (appellants) v. Attorney General of Canada (respondent) and Canadian Bar Association and Council of Canadians with Disabilities (intervenors)

(33507; 2011 SCC 53; 2011 CSC 53)

Indexed As: Canada (Attorney General) v. Mowat

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell, JJ.

October 28, 2011.

Summary:

The Canadian Human Rights Tribunal found that Mowat's claim of sexual harassment against the Canadian Forces was substantiated. The Tribunal awarded Mowat $4,000 plus interest to compensate for "suffering in respect of feelings or self respect". The Tribunal also awarded Mowat $47,000 in legal costs as "any expenses incurred by the victim as a result of the discriminatory practice" (ss. 53(2)(c) and (d) of the Canadian Human Rights Act (CHRA)). The Attorney General of Canada applied for judicial review of the Tribunal's decision to award Mowat legal costs.

The Federal Court, in a decision reported at (2008), 322 F.T.R. 222, reviewed the Tribunal's decision on a standard of reasonableness and concluded that the Tribunal's determination that it had the authority to award costs was reasonable. However, the court held that the Tribunal had  not adequately explained the quantification of the $47,000 award. The court quashed the decision and remitted it to the Tribunal on that ground. The Attorney General appealed, asserting that the court erred in choosing the applicable standard of review and in concluding that the Tribunal had the power to award costs.

The Federal Court of Appeal, in a decision reported at (2009), 395 N.R. 52, allowed the appeal. The court held that the applicable standard of review was correctness and that the Tribunal's decision to award legal costs was incorrect. The court noted that even if the Tribunal's decision should be reviewed on the reasonableness standard, its decision was unreasonable.

Mowat and the Canadian Human Rights Commission appealed. The appeal raised two issues: 1. What was the appropriate standard of review of the decision of the Tribunal as to the interpretation of its power to award legal costs under ss. 53(2)(c) and (d) of the CHRA; and 2. Did the Tribunal make a reviewable error in deciding that it could award compensation for legal costs.

The Supreme Court of Canada dismissed the appeal. The court held that the Tribunal's decision should be reviewed on the reasonableness standard, and the Tribunal's interpretation that it had authority to award legal costs was unreasonable.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - At issue was the appropriate standard of review to be applied to a decision of the Canadian Human Rights Tribunal respecting the interpretation of its power to award legal costs under ss. 53(2)(c) and (d) of the Canadian Human Rights Act - The Supreme Court of Canada held that the Tribunal's decision was reviewable on the standard of reasonableness - The Tribunal was interpreting a provision in its home statute that necessitated a fact intensive inquiry and afforded the Tribunal a certain margin of discretion - The issue of whether legal costs could be included in the Tribunal's compensation order was neither a question of jurisdiction, nor a question of law of central importance to the legal system as a whole and outside the Tribunal's area of expertise within the meaning of Dunsmuir (SCC) - See paragraphs 15 to 27.

Administrative Law - Topic 9051.1

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Human Rights Tribunal - [See Civil Rights - Topic 7108 ].

Civil Rights - Topic 1161

Discrimination - Remedies - General - [See Civil Rights - Topic 7108 ].

Civil Rights - Topic 7003

Federal, provincial or territorial legislation - General - Interpretation of human rights legislation - The Supreme Court of Canada stated that "the [Canadian Human Rights Act] has been described as quasi-constitutional and deserves a broad, liberal, and purposive interpretation befitting of this special status. However, a liberal and purposive interpretation cannot supplant a textual and contextual analysis simply in order to give effect to a policy decision different from the one made by Parliament" - See paragraph 62.

Civil Rights - Topic 7063

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Remedies - [See Civil Rights - Topic 7108 ].

Civil Rights - Topic 7071

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Compensation to victims - [See Civil Rights - Topic 7108 ].

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs - The Canadian Human Rights Tribunal found that Mowat's claim of sexual harassment against the Canadian Forces was substantiated - The Tribunal awarded Mowat $4,000 plus interest to compensate for "suffering in respect of feelings or self respect" - The Tribunal also awarded Mowat $47,000 in legal costs - The Tribunal held that  the words of ss. 53(2)(c) and (d) of the Canadian Human Rights Act (CHRA), which authorized the Tribunal to "compensate the victim ... for any expenses incurred by the victim as a result of the discriminatory practice", permitted an award of legal costs - The Supreme Court of Canada held that the Tribunal's interpretation that it had authority to award legal costs was unreasonable - A full contextual and purposive analysis of the provisions supported the conclusion that there was no authority in the Tribunal to award legal costs - With respect to the text of the provisions, it was significant that the phrase "that the person compensate the victim ... for any expenses incurred by the victim as a result of the discriminatory practice" appeared twice, in two subsequent paragraphs - The interpretation adopted by the Tribunal made the repetition of the term "expenses" redundant and failed to explain why the term was linked to the particular types of compensation described in each of those paragraphs - That interpretation therefore violated the legislative presumption against tautology - No legislative provision should be interpreted so as to render it mere surplusage - Moreover, the term "costs", in legal parlance, had a well-understood meaning that was distinct from either compensation or expenses - If Parliament intended to confer authority to order costs, it was difficult to understand why it did not use that familiar and widely used legal term of art to implement that purpose - Finally, it was noteworthy that the CHRA very strictly limited the amount of money the Tribunal could award for pain and suffering experienced as a result of the discriminatory practice and did not explicitly provide for reimbursement of expenses in relation to such an award - The Tribunal's interpretation permitted it to make a free-standing award for pain and suffering coupled with an award of legal costs in a potentially unlimited amount - That view was hard to reconcile with either the monetary limit or the omission of any express authority to award expenses in s. 53(3) - With respect to context, the court considered the legislative history, the Canadian Human Rights Commission's own consistent understanding of the Tribunal's power to award costs, and parallel provincial and territorial legislation - Those contextual matters, when considered along with the provisions' text and purpose, demonstrated that the Tribunal's interpretation did not fall within the range of reasonable interpretations of these provisions - See paragraphs 32 to 64.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See Administrative Law - Topic 3202 ].

Statutes - Topic 1449

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - General - [See Civil Rights - Topic 7108 ].

Statutes - Topic 1449

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - General - The Supreme Court of Canada stated that "there is no reason to exclude proposed, but unenacted, provisions to the extent they may shed light on the purpose of the legislation. While great care must be taken in deciding how much, if any, weight to give to these sorts of material, it may provide helpful information about the background and purpose of the legislation, and in some cases, may give direct evidence of legislative intent" - See paragraph 44.

Statutes - Topic 1626

Interpretation - Extrinsic aids - Other statutes - Similar statutes in other jurisdictions - [See Civil Rights - Topic 7108 ].

Statutes - Topic 2271

Interpretation - Presumptions and rules in aid - Against tautology (every word must have a meaning) - [See Civil Rights - Topic 7108 ].

Statutes - Topic 2280

Interpretation - Presumptions and rules in aid - Against surplusage - [See Civil Rights - Topic 7108 ].

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See Civil Rights - Topic 7108 ].

Statutes - Topic 4949

Operation and effect - Enabling Acts - Powers - General - Jurisdiction of boards and tribunals - The Supreme Court of Canada stated that "Despite the limited weight of the factor, this Court has permitted consideration of an administrative body's own interpretation of its enabling legislation ... While of course not conclusive, this sort of opinion about the proper interpretation of the provision may be consulted by the court provided it meets the threshold test of relevance and reliability" - See paragraph 53.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 11].

Canadian National Railway Co. v. Canadian Human Rights Commission - see Action Travail des Femmes v. Canadian National Railway Co. et al.

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 11].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 12].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 15].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 18].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 18].

National Corn Growers' Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81, refd to. [para. 19].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 20].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 20].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 20].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 20].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 24].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 24].

Council of Canadians with Disabilities v. VIA Rail Canada Inc. - see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 25].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 25].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 25].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 29].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 31].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 33].

Canada (Attorney General) v. Thwaites, [1994] 3 F.C. 38 (T.D.), disagreed with [para. 34].

Canada (Attorney General) v. Stevenson et al. (2003), 229 F.T.R. 297; 2003 FCT 341, disagreed with [para. 34].

Canada (Attorney General) v. Brooks et al. (2006), 291 F.T.R. 32; 2006 FC 500, disagreed with [para. 34].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 38].

Québec v. Carrières Ste-Thérèse ltée, [1985] 1 S.C.R. 831; 59 N.R. 391, refd to. [para. 38].

Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771 - see R. v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771.

R. v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425; 341 N.R. 357; 275 Sask.R. 1; 365 W.A.C. 1; 2005 SCC 70, refd to. [para. 43].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86, refd to. [para. 43].

Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706; 340 N.R. 102; 2005 SCC 57, refd to. [para. 43].

Doré v. Verdun (Ville), [1997] 2 S.C.R. 862; 215 N.R. 81, refd to. [para. 44].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 44].

Will-Kare Paving & Contracting Ltd. v. Minister of National Revenue, [2000] 1 S.C.R. 915; 225 N.R. 208; 2000 SCC 36, refd to. [para. 53].

Harel v. Quebec, [1978] 1 S.C.R. 851; 18 N.R. 91, refd to. [para. 53].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 53].

Canada (Attorney General) v. Public Service Alliance of Canada - see Canada (Procureur général) v. Alliance de la Fonction publique du Canada.

Canada (Procureur général) v. Alliance de la Fonction publique du Canada, [1991] 1 S.C.R. 614; 123 N.R. 161, refd to. [para. 58].

Winnipeg (City) v. Morguard Properties Ltd. et al., [1983] 2 S.C.R. 493; 50 N.R. 264; 25 Man.R.(2d) 302, refd to. [para. 58].

Bell Canada v. Bell Aliant Regional Communications - see Consumers Association of Canada et al. v. Canadian Radio-Television and Telecommunications Commission et al.

Consumers Association of Canada et al. v. Canadian Radio-Television and Telecommunications Commission et al., [2009] 2 S.C.R. 764; 392 N.R. 323; 2009 SCC 40, refd to. [para. 62].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 53(2)(c), sect. 53(2)(d) [para. 9].

Human Rights Act (Can.) - see Canadian Human Rights Act.

Authors and Works Noticed:

Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (2000), pp. 71, 72, 74 to 78 [para. 63].

Canadian Human Rights Commission, Annual Report 1985 (1986), p. 12 [para. 54].

Canadian Human Rights Commission, Special Report to Parliament: Freedom of Expression and Freedom from Hate in the Internet Age (2009), p. 34 [para. 55].

Côté, Pierre-André, Beaulac, Stéphane, and Devinat, Mathieu, Interprétation des lois (4th Ed. 2009), pp. 496, 501 to 508 [para. 43]; 507 [para. 44]; 633 to 638 [para. 53].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 33].

Flood, Colleen M., and Sossin, Lorne, Administrative Law in Context (2008), p. 216 [para. 19].

Garant, Patrice, Garant, Philippe, and Garant, Jérôme, Droit administratif (6th Ed. 2010), p. 553 [para. 19].

Hawkins, Robert E., Whither Judicial Review? (2010), 88 Can. Bar Rev. 603, generally [para. 30].

Macklin, Audrey, Standard of Review: The Pragmatic and Functional Test, in Flood, Colleen M., and Sossin, Lorne, Administrative Law in Context (2008), p. 216 [para. 19].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 57 [para. 40]; 201 [para. 38]; 419, 420 [para. 57]; 497 to 500 [para. 33]; 575 [para. 53]; 587 to 593 [para. 43]; 609 [para. 44].

Counsel:

Philippe Dufresne and Daniel Poulin, for the appellant, the Canadian Human Rights Commission;

Andrew Raven, Andrew Astritis and Bijon Roy, for the appellant, Donna Mowat;

Peter Southey and Sean Gaudet, for the respondent;

Reidar M. Mogerman, for the intervenor, the Canadian Bar Association;

David Baker and Paul Champ, for the intervenor, the Council of Canadians with Disabilities.

Solicitors of Record:

Canadian Human Rights Commission, Ottawa, Ontario, for the appellant, the Canadian Human Rights Commission;

Raven, Cameron, Ballantyne & Yazbeck, Ottawa, Ontario, for the appellant, Donna Mowat;

Attorney General of Canada, Toronto, Ontario, for the respondent;

Camp Fiorante Matthews, Vancouver, B.C., for the intervenor, the Canadian Bar Association;

Champ & Associates, Ottawa, Ontario, for the intervenor, the Council of Canadians with Disabilities.

This appeal was heard on December 13, 2010, before McLachlin, C.J.C., LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by LeBel and Cromwell, JJ., in both official languages on October 28, 2011.