Awarding the Cost of Legal Fees in HRTO Cases

February 2014 | Dirk L. Van de Kamer

Bill 147, Human Rights Code Amendment Act (Awarding of Costs), 2013 (“Bill 147”) has passed First Reading in the Ontario Legislature and, if enacted, could significantly alter the legal landscape as it relates to the litigation of human rights issues.

To date, despite having limited arguable authority to do so under the Statutory Powers Procedure Act, the Human Rights Tribunal of Ontario (the “HRTO”), has interpreted its powers and authority under the Ontario Human Rights Code (the “Code”) as prohibiting it from awarding legal costs.  As such, Applicants are able to file and pursue Applications at the HRTO without having to consider the possibility of having to pay any portion of the Respondent’s legal costs in the event their Application is not successful.

As school boards will be aware, parents often file Applications as a method to seek the programming and services that they wish to have for their children, as opposed to the special education programming and services that are an appropriate and reasonable accommodation of their child’s disability related needs.

Bill 147 seeks to change this, by ushering in a new era which may mirror some of the legal cost implications that factor significantly into our civil litigation system.

If enacted into law, Bill 147 would amend the Code to specifically empower the HRTO to order to whom and by whom legal costs may be paid.  In addition, Bill 147 would empower the HRTO to fix the amount of legal costs or direct that such legal costs be assessed and, in awarding legal costs, the HRTO would not be limited to the considerations that govern the awarding of legal costs in the courts.

Of course, the extent to which the HRTO would be inclined to award legal costs against self-represented Applicants and/or Applicants with minimal means would remain to be seen.  In the education sector, many parents are unrepresented and unsophisticated litigants, which may be a factor in awarding legal costs, if any.

The prospect of adding legal cost implications to HRTO litigation would be seen by most school boards as an appropriate safeguard against the filing of frivolous Applications. Opponents of Bill 147 will argue that it may prevent legitimate Applications from being filed.

Bill 147 is a Private Members Bill and has not yet progressed beyond the First Reading. We will keep you posted as to its development.

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