Nova Scotia Court of Appeal
Summary: The Nova Scotia Court of Appeal set aside a Nova Scotia Board of Inquiry's award of legal costs to complainant Kirk Johnson.
Kirk Johnson is an internationally known boxer. He is black and his home is in Nova Scotia. A Nova Scotia Board of Inquiry ruled that the Halifax Police discriminated against Mr. Johnson and his friend, Earl Fraser, because of their race in 1998. In a supplementary decision the Board of Inquiry awarded Mr. Johnson two-thirds of his legal costs, determined to be $61,170.39.
The Halifax Regional Municipality appealed this award on the grounds that the Board of Inquiry had no jurisdiction to award legal costs.
The Court of Appeal determined at the outset that the standard of review to be applied in this case was correctness, as a question of law was involved.
The Board of Inquiry awarded legal costs pursuant to s. 38(4) of the Nova Scotia Human Rights Act. This section permits a Board of Inquiry, when it has found that the Act was violated, to "rectify any injury caused to any person. . . or to make compensation therefor". The Board of Inquiry reasoned that this wording was similar to the provision in the Canadian Human Rights Act under which legal costs have been awarded, and noted that the Federal Court has upheld those awards.
The Nova Scotia Court of Appeal noted a significant difference between the two provisions. The Canadian Human Rights Act permits the Canadian Human Rights Tribunal to compensate a victim of discrimination "for any expenses incurred . . . as a result of a discriminatory practice". The reference in the federal Act to "any expenses" is very broad and is different from the Nova Scotia reference to "compensation" for the injury.
The Court of Appeal determined that in the absence of a specific authority to award legal costs in the Nova Scotia Human Rights Act, a Board of Inquiry cannot make such an award. It noted the concern that if a Board of Inquiry cannot order legal costs, complainants may be deterred from pursuing legitimate complaints, and from retaining their own counsel, which is sometimes necessary, despite the presence of the Human Rights Commission. The Court considered that this concern should be addressed through legislative amendment.
The award for legal costs to Mr. Johnson was set aside. The Court noted that the Municipality had already paid Mr. Johnson the $61,170.39 and did not intend to seek to recover the money. The aim of the appeal was to obtain clarification for future cases...