• Human Rights Tribunal Asks Complainant to Pay Respondent’s Legal Costs
  • September 1, 2014 | Author: Maggie Campbell
  • Law Firm: DLA Piper (Canada) LLP - Vancouver Office
  • On August 15, 2014, the BC Human Rights Tribunal (the “Tribunal”) released its decision in Ma v. Dr. Iain G.M. Cleator and another, 2014 BCHRT 180 (“Cleator”), where it ordered the complainant to pay a portion of the respondent’s costs. In doing so, the Tribunal sent a strong message about its expectations for honesty and integrity in its process.

    The complainant, Kim Ma, was a medical office assistant to the respondent, Dr. Iain Cleator. After a couple of years of employment, Ms. Ma took an extended maternity leave. When she returned to the workplace, she found some significant changes: the clinic was much busier, it had more staff, and new office procedures had been put in place. Ms. Ma was resistant to these changes and immediately had conflict with the new office manager. Her employment was subsequently terminated by Dr. Cleator about a month after she returned from her leave.

    Ms. Ma brought a complaint to the Tribunal alleging that Dr. Cleator discriminated against her on the basis of family status, sex (pregnancy) and mental disability.

    After a lengthy ten-day hearing, the Tribunal dismissed Ms. Ma’s complaint in its entirety, since it found that Ms. Ma had deliberately fabricated the allegations against Dr. Cleator. Further, the Tribunal concluded that she had lied under oath at the hearing and had forged or altered documents that she presented as evidence. The Tribunal found Ms. Ma’s behaviour to be so egregious that it did something uncommon: it ordered her to pay $5,000 towards Dr. Cleator’s legal fees.

    Under normal circumstances, neither party is awarded legal fees (commonly referred to as costs) in the Tribunal process. The Tribunal views these awards as only being appropriate when a party’s conduct is so bad that it has a significant impact on the integrity of the Tribunal’s process and, as such, is deserving of penalties. The awards are not designed or intended to actually make the other party whole for the legal fees spent. Rather, the objective is to send a message to the complainant, and the public in general, about the Tribunal’s expectations for integrity and conduct.

    In Cleator, the Tribunal thoroughly reviewed past cost awards involving similar conduct and found that they typically ranged between $1,000 and $5,000. Ms. Ma’s conduct was found to be so appalling that it deserved the top end of the spectrum. Ms. Ma’s fabricated complaint resulted in an immense waste of the Tribunal’s resources and had a significant prejudicial impact on the respondent, Dr. Cleator.

    Of course, an award of $5,000 likely only represented a fraction of the actual legal fees Dr. Cleator spent defending himself in this lengthy hearing. However, this Decision should provide some comfort to employers who may find themselves in a similar situation since it shows that the Tribunal is willing to strike back when parties are dishonest and use its process for false purposes.