Section 37(4) of the Human Rights Code allows the Tribunal to order a party to pay an amount of money called “costs” if they engage in improper conduct or do not follow the Tribunal’s rules. It says:
(4) The member or panel may award costs
(a) against a party to a complaint who has engaged in improper conduct during the course of the complaint, and
(b) without limiting paragraph (a), against a party who contravenes a rule under section 27.3 (2) or an order under section 27.3 (3)
Wells v. University of British Columbia, 2010 BCHRT 100. The Tribunal can only order costs for improper conduct against a party to the complaint. It cannot order costs against a party’s lawyer if the lawyer is not a party to the complaint (paras. 43-44). It cannot add a lawyer to the complaint unless they allege that the Code was contravened, or is alleged to have contravened the Code (para. 49).
McLean v. B.C. (Min. of Public Safety and Sol. Gen.) (No. 3), 2006 BCHRT 103. Improper conduct is not limited to intentional wrongdoing. Any conduct which has a significant impact on the integrity of the Tribunal's processes, including conduct which has a significant prejudicial impact on another party, may constitute improper conduct within the meaning of s. 37(4) (para. 8).
Wells v. University of British Columbia, 2010 BCHRT 100. It is not a defence that a party has relied on their lawyer’s advice and direction. A party is responsible for the improper conduct of their lawyer who is acting on their behalf (paras. 109-112).
Stopps v. Just Ladies Fitness (Metrotown) Ltd., 2007 BCHRT 125. Costs can only be awarded for improper conduct arising during the course of the complaint before the Tribunal (para. 30). The Tribunal summarized the types of behaviour that has been found improper (at para. 23). That behaviour included:
Stone v. BC (Min of Health Services) and others, 2004 BCHRT 221. Allegations that another party is acting in an improper manner, as for example by misleading the Tribunal, are serious, and force the party against whom such an allegation is made to expend resources in defending itself. Due to their serious nature, they also require the Tribunal's careful consideration. Where such allegations are made in an indiscriminate and unfounded manner, they may amount to improper conduct.
No participants before this Tribunal, or their representatives, should be subjected, as a result of their participation in proceedings before the Tribunal, to scurrilous attacks on their character.
Miller v. Treasure Cove Casino and Supply Ltd., 2009 BCHRT 126. The use of foul or threatening language has no place in any communication to parties, their counsel, or the Tribunal in matters relating to a complaint. Using stereotypical labels to describe participants in the Tribunal processes and using those labels to demean and humiliate them have no place within the Tribunal's processes. Threats have no place within the Tribunal's processes. No participant before the Tribunal should be subjected to attacks. All parties to a complaint, whether represented by lawyers or self-represented, are expected to conduct themselves civilly, respectfully and in compliance with the Tribunal's Rules and directions.
Ma v. Cleator, 2014 BCHRT 180. It is not improper conduct to underestimate the number of days required for a hearing, or for a witness to take a long time to answer questions or seek clarification of questions. Generally, the Tribunal will not set standards for counsel competence in cross-examination or in how they conduct their case. “Counsel range in ability and experience” and their failure to conduct an efficient or effective case is not improper conduct. However, in this case, the complainant’s deliberate false and misleading evidence did amount to improper conduct. When a person fabricates a complaint, it causes serious harm to the Tribunal by interfering with its ability to fulfill its purposes and to respondents who are falsely accused of discrimination.
Kelly v. Insurance Corp. of British Columbia, 2007 BCHRT 382. The primary purpose of a costs award is punitive, not compensatory. It is meant to deter future participants from committing similar acts, and to signal the Tribunal’s condemnation of the conduct. In determining an appropriate amount, the Tribunal will consider the nature and severity of the conduct, and the impact that it had on the integrity of the Tribunal’s process. It may also consider:
Wells v. UBC and others (No. 5), 2011 BCHRT 176. A costs award should not be so high as to have a chilling effect on the filing of complaints. It should also not be beyond a person’s ability to pay.
In some cases, a party's reasonably incurred legal fees may be a relevant, though not determinative, factor to consider when assessing quantum, and would involve a consideration of such things as the nature of the issues in the complaint, the complexity of the proceedings, the nature of the improper conduct and its impact, and the time spent in preparation and hearing. However, it is more common for the Tribunal to assess quantum without reference to costs actually incurred by the party to whom costs are payable.
Ma v. Cleator, 2014 BCHRT 180. The Tribunal reviewed a number of costs awards and observed that “where issues such as threatening conduct, contempt, destruction of evidence of the record, or attempts to derail the hearing are involved, the awards range $5,000 and above. Where the conduct is of a nature of unfounded allegations, untruthfulness and/or ulterior motivation for filing a complaint, then the awards reviewed are in the range of $1,000 to $5,000” (para. 315).
Examples of Tribunal costs awards are: