The Court of Appeal held that a board of inquiry appointed under the Human Rights Act, R.S.N.S. 1989, c. 214 (the “Act”) was not entitled to make an award of legal costs as part of its compensation award

Administrative law – Human rights complaints – Discrimination – Costs – Decisions of administrative tribunals – Human Rights Tribunal – Right to award costs – Judicial review – Jurisdiction of tribunal – Standard of review – Correctness

Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), [2005] N.S.J. No. 156, Nova Scotia Court of Appeal, April 22, 2005, M. MacDonald C.J.N.S., L.L. Oland and M.J. Hamilton JJ.A.

In December 1998, Kirk Johnson, an internationally recognized Nova Scotia boxer, laid a complaint under the Act alleging that he was the victim of discrimination at the hands of the Halifax Regional Police. A board of inquiry was appointed under the Act and a hearing was conducted with respect to the complaint. The Board issued a written decision, finding that Johnson had been the victim of discrimination and awarding him $10,000 in general damages plus interest together with special damages of $4,920. The Board also awarded Mr. Johnson two-thirds of his solicitor-client costs which were eventually taxed at $61,170.39. The Respondent Municipality (“Halifax”) took no issue with the amount of the award but appealed the Board’s decision on the basis that the board of inquiry did not have express or implied jurisdiction to award costs.

The Court found that the appeal involved the Board’s interpretation of s. 34(8) of the Act and whether that provision authorized the Board to include legal costs as part of the compensation order. The Court held that the appropriate standard of review for this determination was correctness, as the Board had no more expertise in this area than the Court.

The Act contains no express authority to award legal costs. The only potential jurisdictional basis for such an award is contained in s. 34(8) which provides that the Board may make an award as “compensation” to “rectify” an injury. The Court held that the Board’s authority to “compensate” in s. 34(8) did not include the capacity to award legal costs. A compensation award is separate and distinct from an award for costs. A compensation award relates to the victim’s injuries, whereas an award for costs relates to the process. The Court rejected precedents cited on behalf of the Board from the Federal Court, noting that the Federal Act authorizes compensation “for any expenses … as a result of the discriminatory practice”. The phrase “any expenses” was considered very broad and arguably could include legal fees. The Nova Scotia Act was specifically limited to compensation for injury and did not provide jurisdiction for an award of costs.

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