View cases - Stewart McKelvey

70“child care issue”. They felt that they knew, without ever speaking to the Complainant, what wasbetter for her and what she needed. This course of action was, in my view, reckless.[248] In the circumstances, I order CN to pay to the Complainant the sum of $20,000,in additional compensation under section 53(3) of the Act.(vi) Compensation for expenses[249] In her closing arguments, counsel for the Complainant sought an award for legal cost.The question whether the Tribunal had the authority to award costs and whether that authoritycould be found in paragraph 53(2)(c) of the Act, which authorizes the Tribunal to compensate acomplainant for any expenses incurred as a result of the discriminatory practice, was dealt with bythe Federal Court of Appeal in Canada (Attorney General) v. Mowat, 2009 FCA 309, a decisionrendered in the closing days of the hearing.2010 CHRT 24 (CanLII)[250] After an analysis of Human Rights Code in various provinces that allowed an award forcost and after analyzing the purported intent of Parliament, the Federal Court of Appealconcluded at paragraph 95:The quest is to determine whether Parliament intended to endow the Tribunal withthe authority to award costs to a successful complainant. For the reasons given, Iconclude that Parliament did not intend to grant, and did not grant, to the Tribunalthe power to award costs. To conclude that the Tribunal may award legal costsunder the guise of “expenses incurred by the victim as a result of thediscriminatory practice” would be to introduce indirectly into the Act a powerwhich Parliament did not intend it to have.[251] Taking into consideration the decision of the Federal Court of Appeal, the Tribunal cannotaccede to the Complainant’s request that CN be ordered to pay her legal cost.[252] The Complainant and Kasha Whyte have submitted out of pocket expenses which amountto $336.68, each being accountable for half this amount. Under the provision ofparagraph 53(2)(c) of the Act, CN is ordered to reimburse half this amount to the Complainant.