Leading Cases - Costs for improper conduct

Section 37(4)

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)

Who can the Tribunal order to pay costs?

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).

Improper conduct

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:

  • a party being untruthful with respect to the “central aspects of the complaint”
  • repeatedly failing to abide by the Tribunal’s orders or directions
  • failing to provide document disclosure in a timely manner or failing to otherwise abide by the Tribunal’s timelines
  • being expelled from a hearing and continuing to act in a manner showing contempt of the Tribunal’s proceedings
  • filing a complaint unnecessarily

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.

Amount

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:

  • the ability of the party against whom costs are awarded to pay any award
  • the relative culpability of the party with respect to the behaviour
  • any factors, like a disability, which may have contributed to the behaviour
  • any other consequences to the party which has arisen because of the behaviour

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:

  • Heilman v. First Canada (No. 3), 2011 BCHRT 260. The complainant referred to the respondent’s employees as “thugs and henchmen”; used other derogatory language about the respondents and its employees; and unfairly accused the respondents of lying and colluding. The Tribunal warned the complainant about his behaviour, and it improved, and he eventually withdrew his complaint. The award was $750.
  • Stone v. BC (Min of Health Services) and others, 2004 BCHRT 221.The complainant filed a duplicative complaint that had already been dealt with by the Tribunal; accused the respondent, without any basis, of perjury and improper conduct; contacted the respondent directly instead of communicating with their lawyer; refused to comply with Constitutional Questions Act or the Tribunal’s Rules; and attacked the respondent’s lawyer in a public website. The award was $2,500.
  • Stopps v. Just Ladies Fitness (Metrotown) Ltd., 2007 BCHRT 125: The complainant made serious, unfounded, allegations against the respondents; made veiled threats against the respondents; and was rude to the respondents’ lawyer and his staff. The award was $3,000.
  • Miller v. Treasure Cove Casino and Supply Ltd., 2009 BCHRT 126. The complainant used foul language and threatened the respondents; repeatedly failed to comply with the Tribunal’s Rules and directions; and his communications were full of invective, smears and disrespectful, demeaning and derogatory language. The award was $3,000 ($1,000 to each respondent).
  • Wells v. UBC and others (No. 5), 2011 BCHRT 176. The complainant made material misrepresentations and omissions in her submissions. The award was $5,000.
  • Halliday v. H.P. & A. Sales dba Craft Welders and Kastner (No. 3), 2006 BCHRT 479. The respondent delayed the hearing; left the country; failed to comply with the Rules; dissolved the corporate respondent; and did not provide instructions to their counsel to allow him to represent them at the hearing. The award was $5,000.
  • Ma v. Cleator, 2014 BCHRT 180. The complainant fabricated her complaint and gave deliberately false testimony over a ten-day hearing. The Tribunal took into account that a large award would cause the complainant hardship. The award was $5,000.
  • MacGarvie v. Friedmann (No. 4), 2009 BCHRT 47. The respondent threatened participants in the hearing; made unfounded allegations about "virtually every party involved", including the Tribunal; delayed the conduct of the case by his behaviour; and failed to follow the Tribunal's orders and directions. The award was $7,500.
  • Gichuru v. Purewal, 2017 BCHRT 19. The respondents gave deliberately false evidence about matters central to the complaint, which added two days to the hearing. The Tribunal said “I can think of little behaviour which is more disrespectful of the Tribunal and its processes than giving false evidence with the intention to mislead with respect to underlying facts of the Complaint” (para. 327). The award was $10,000.
  • Theodoridis v. Long & McQuade and Martel, 1999 BCHRT 35. The complainant engaged in serious and repeated intentional dishonesty throughout the investigation and the hearing. The complainant eventually admitted to his lies, which went to the core of the complaint and caused an unusually protracted investigation process and at least five days of hearing. The Tribunal calculated costs to fully compensate the respondents. The award was $31,898.30.