Ottawa, Ontario, December 13, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE HANSEN
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
and
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by the Applicant, the Attorney General of Canada, to set aside a decision of the Canadian Human Rights Tribunal ("Tribunal") dated September 1, 2004 in which the Tribunal awarded costs to a successful complainant who was represented by a non-lawyer.
BACKGROUND
[2] The Respondent, Jacqueline Brown, a member of the Royal Canadian Mounted Police ("RCMP"), filed a complaint of discrimination against her employer, the RCMP, with the Canadian Human Rights Commission ("Commission"). At the hearing of the complaint before the Tribunal, the Respondent was represented by Mr. Finding, a lay advocate.
[3] Prior to the hearing, Mr. Finding consulted the Tribunal to ascertain whether he could appear before the Tribunal as a lay advocate on behalf of the Respondent. The Tribunal determined that he could appear for the Respondent.
[4] At the hearing, the Commission did not participate other than to provide an opening statement. The Applicant did not object to Mr. Finding's appearance at the hearing. However, the Applicant asked for an opportunity to make submissions with respect to costs pending the Tribunal's decision on the merits of the complaint.
[5] The Tribunal found that the Respondent's complaint was substantiated and requested submissions from the parties on the questions of quantum of damages and costs. On the issue of costs, the Applicant submitted that the Tribunal did not have the jurisdiction to award costs. Further, even if it did have the jurisdiction, it could not make an order compensating the Respondent for the advocacy services of a non-lawyer.
[6] The Respondent asked for an order requiring the RCMP to pay her "legal and representation" costs for Mr. Finding and the costs of Ms. Heller, a lawyer she consulted prior to initiating the complaint.
THE TRIBUNAL'S DECISION
[7] The Tribunal noted that section 53 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ("Act") gives the Tribunal the power to award compensation including damages. The Tribunal observed that in human rights law legal expenses incurred by a complainant as a direct and inevitable consequence of a discriminatory practice are recognized as damages. The Tribunal concluded that the Respondent was entitled to recover the cost of her initial consultations with a lawyer and preliminary discussions with the Applicant for the purpose of determining whether it was necessary to file a complaint on the basis that these were foreseeable damages suffered as a consequence of the discriminatory practice.
[8] Regarding the Tribunal's jurisdiction to award costs, the Tribunal concluded that the power to award costs cannot be found in the Act. The Tribunal held that its jurisdiction derives more from its broad and quasi-constitutional mandate under the Act than from the literal wording of the Act. The Tribunal found that the Act's mandate gives the Tribunal all the incidental powers to protect the viability of the remedies under the Act. The Tribunal also found that the cumulative effect of subsection 53(2) in relation to personal remedies is Parliament's express intention to make a victim of discrimination whole. Therefore, the Tribunal has the power to order the payment of costs in order to preserve the damages awarded and, as a result, allow a victim of discrimination to an effective remedy. The Tribunal concluded that the Respondent was entitled to reasonable costs but was not entitled to claim the entirety of her legal costs because the principle of restitutio in integrum applies only to damages and not to costs.
[9] With respect to the Applicant's arguments based on subsection 50(1) of the Act that Mr. Finding was not entitled to represent the Respondent, the Tribunal observed that Mr. Finding represented the Respondent throughout the hearing with the full knowledge of the Applicant who did not object to his participation until the final submissions. The Tribunal also noted the position taken by the Applicant that Mr. Finding had contravened the British Columbia Legal Profession Act, R.S.B.C. 1998, c. 9 in doing so. The Tribunal commented that whether subsection 50(1) of the Act permits non-lawyers to represent complainants at Tribunal hearings is a live issue for the Tribunal but it should be resolved in a case where it has been properly addressed. Similarly, the question of whether a non-lawyer representative appearing before the Tribunal is practising law contrary to the governing provincial legislation should be dealt with in a case where the matter is properly raised at the outset of the process.
[10] On the question of whether the fees of a lay representative are recoverable, the Tribunal simply noted the parties' positions on the matter. The Applicant argued that there is no authority under the Act to award costs for the services of a lay representative. The Respondent argued that there was no reason to distinguish between representatives who are lawyers and those who are not, and suggested that the Tribunal should follow the approach of the British Columbia Labour Relations Board in Graham (Re), [2000] B.C.L.R.B.D. No. 1 in which the Board recognized that the fees of non-lawyer representatives should be recoverable.
[11] Finally, on the question of whether the Applicant waived its right to argue that the Tribunal cannot award "legal and representation fees" to a non-lawyer, the Tribunal acknowledged the Applicant's argument that it may have waived any objection to the Respondent being represented by a non-lawyer but it did not waive its right to argue entitlement to costs. The Tribunal found that the Applicant's failure to object to Mr. Finding's participation in the hearing constituted a waiver for the entirety of the proceedings.
[12] The Tribunal ultimately concluded that the Respondent was entitled to recover the costs of her initial consultations with her lawyer including the preliminary discussions with the Applicant for the purpose of determining whether it was necessary to file a complaint as "expenses incurred" as a result of a discriminatory practice under paragraph 53(2)(c) of the Act. Based on the Tribunal's residual power to award costs in order to preserve the compensation awarded to a successful complainant, the Respondent was also entitled to her reasonable costs. Finally, given the Federal Court's supervisory role over the Tribunal, the Tribunal indicated that it made sense to have regard to the factors listed in Rule 400(3) of the Federal Court Rules, 1998 in determining what costs are appropriate under the Act.
ISSUE
[13] The first issue raised by the Applicant is whether the Tribunal erred in law in finding that it possesses a residual power to award costs absent express statutory authority to do so. For the purpose of this judicial review, it is not necessary to consider the issue of the Tribunal's jurisdiction to award costs. Assuming, without deciding, that the Tribunal does have the jurisdiction to award costs, the determinative issue on this judicial review is whether the Tribunal erred in law and in fact in awarding costs to the Respondent for "legal and representation fees" of a non-lawyer.
SUBMISSIONS OF THE PARTIES
[14] In summary, the Applicant submits that even if the Tribunal has a residual power to order costs, it does not extend to an award of costs for representation by a non-lawyer. The Applicant takes the position that based on the wording of subsection 50(1) of the Act non-lawyers are not permitted to represent parties before the Tribunal. Further, in the absence of a federal statute that would allow non-lawyers to charge a fee, it is an offence for non-lawyers to charge representation fees under paragraph 85(1)(a) of the Legal Profession Act. As an aside, at the hearing of this judicial review, the Applicant submitted that it was not necessary for the Court to decide whether subsection 50(1) precluded non-lawyers from representing parties before the Tribunal.
[15] The Respondent submits the Applicant knew at the commencement of the hearing that Mr. Finding was a non-lawyer and was charging a fee for his services. Although the Applicant asked the Tribunal to reserve on the issue of costs until a decision on the merits had been rendered, the Applicant made no objection to Mr. Finding's status until after the decision on the merits was issued. The Respondent points out that if the Applicant had raised the objection in a timely manner, the Respondent would have had an opportunity to consider the option of being represented by a lawyer. In these circumstances, the Respondent maintains that the Applicant waived the right or is estopped from arguing the Respondent's entitlement to costs for representation by a non-lawyer.
[16] As well, the Respondent takes the position that the Act allows non-lawyers to appear before the Tribunal and to charge fees. The Respondent relies on the Supreme Court of Canada's decision in Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113 as authority for the proposition that any conflict between the Act and the Legal Profession Act must be resolved in favour of the Act.
STANDARD OF REVIEW
[17] I am in agreement with the conclusion reached by Justice Gibson in International Longshore & Warehouse Union(Marine Section) Local 400 v. Oster, [2002] 2 F.C. 430 that the standard of review of decisions of the Tribunal regarding questions of law is correctness and with respect to questions of mixed fact and law is reasonableness simpliciter. As the determinative issue raises a question of mixed fact and law, the decision will be reviewed on a standard of reasonableness.
ANALYSIS
[18] Did the Tribunal err in law and in fact in awarding costs to the Respondent for "legal and representation fees" to a non-lawyer?
[19] Turning first to the questions of waiver and estoppel, the Applicant conceded that it may have waived its right to object to the Respondent being represented by a non-lawyer. However, the Applicant maintains that it did not waive its right to argue costs. This assertion is borne out by the Tribunal's acknowledgment that there was "nothing to suggest that it [the Applicant] consciously intended to abandon its right to contest the question of costs". However, as noted above, the Tribunal concluded that the decision not to object to Mr. Finding's participation constituted a waiver to the entirety of the proceedings. The Tribunal reasoned that the Applicant could not waive its right to dispute the matter for some purposes and not for others.
[20] In my view, it does not follow from the fact that the Applicant did not object to Mr. Finding's appearance as a lay advocate, that the Applicant would not be objecting to a claim for the legal and representation costs of a non-lawyer in the event the complaint was found to be substantiated. The questions of status to appear before a tribunal and entitlement to costs are separate and distinct issues.
[21] In the Supreme Court of Canada's decision in Saskatchewan River Bungalows Ltd. v. Maritime Life Insurance Co., [1994] 2 S.C.R. 490 at para. 20, Justice Major stated that "[w]aiver will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them". In my opinion, the absence of objection to Mr. Finding's appearance as a lay advocate does not amount to an "unequivocal and conscious intention to abandon" the right to argue the issue of costs payable for representation by a non-lawyer. Nor does it amount to a representation that would prevent the Applicant from raising the argument.
[22] I agree with the Applicant that, in the circumstances of the present case, it is not necessary to decide whether subsection 50(1) of the Act precludes representation by non-lawyers. However, the Respondent's argument, based on the decision in Mangat, above, that the Legal Profession Act does not apply in this case because the Act permits non-lawyers to appear before the Tribunal and charge a fee necessitates a consideration of the wording of subsection 50(1). It reads:
| 50.(1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. |
50.(1) Le membre instructeur, aprPs avis conforme B la Commission, aux parties et, B son appréciation, B tout intéressé, instruit la plainte pour laquelle il a été désigné; il donne B ceux-ci la possibilité pleine et entiPre de comparaître et de présenter, en personne ou par l'intermédiaire d'un avocat, des éléments de preuve ainsi que leurs observations. |
[23] In its written submissions, the Respondent argued that when considered in the context of the Act as a whole, the term "counsel" in subsection 50(1) includes non-lawyers. At the hearing, the Respondent resiled somewhat from this position in light of the Applicant's argument based on the principles of statutory interpretation.
[24] The Applicant points out that in the French version of the text of subsection 50(1) the term « avocat » is used for "counsel". The Le Grand dictionnaire terminologique, defines « avocat » as "[p]ersonne qui, réguliPrement inscrite B un barreau, conseille en matiPre juridique ou contentieuse, assiste et représente ses client en justice" and gives "lawyer" as the English equivalent.
[25] In R. v. Mac, [2002] 1. S.C.R. 856 at 857, Justice Bastarache held that where the words of one version of bilingual legislation may give rise to an ambiguity, the Court should first look at the other version to ascertain whether its meaning is plain and unequivocal. Where the ambiguity in one version is resolved by the clear and unambiguous language of the other version, there is no need to consider other rules of statutory interpretation.
[26] In the present case, the French text is clear and unambiguous. Accordingly, I conclude that the term "counsel" in the English version means "lawyer" and excludes non-lawyers. However, this does not end the matter.
[27] The Respondent argues that the permissive wording of subsection 50(1) and the fact that it does not specifically exclude non-lawyers, the purpose of the legislation being to eliminate discrimination, the general rule that parties appearing before administrative tribunals may be represented by an agent of their choosing, the importance of facilitating access to administrative tribunals, particularly, where human rights issues are at stake and complainants may be particularly vulnerable make it clear that the Act permits non-lawyers to appear and charge a fee. The Respondent argues that the reasoning in Mangat, above, applies to the circumstances of this case. Accordingly, the Legal Profession Act does not apply to non-lawyers appearing before the Tribunal.
[28] Under the Legal Profession Act, it is an offence for a non-lawyer to engage in the practice of law performed for or in the expectation of a fee either directly or indirectly from the person for whom the acts are performed.
[29] This is the same legislation that was considered in Mangat, above. In that case, a non-lawyer appeared as counsel or advocate on behalf of foreign nationals for or in the expectation of a fee before the Immigration and Refugee Board ("IRB"). The Law Society of British Columbia applied for a permanent injunction to prevent Mr. Mangat and his consulting company from engaging in the practice of law in contravention of the Legal Profession Act.
[30] Mr. Mangat and his company did not dispute that they were engaged in the practice of law but maintained that their conduct was permitted under sections 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2. These sections state:
| 30. Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person's own expense. |
30. L'intéressé doit être informé qu'il a le droit de se faire représenter par un avocat ou un autre conseiller et se voir accorder la possibilité de le choisir, à ses frais. |
| 69. (1) In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person's own expense, be represented by a barrister or solicitor or other counsel. |
69. (1) Dans le cadre de toute affaire dont connaît la section du statut, le ministre peut se faire représenter par un avocat ou un mandataire et l'intéressé, à ses frais, par un avocat ou autre conseil. |
[31] The Supreme Court of Canada concluded that there was a conflict between the two statutes. Sections 30 and 69(1) of the Immigration Act expressly authorized non-lawyers to appear before the tribunal for a fee but the Legal Profession Act prohibited non-lawyers from engaging in the practice of law for a fee. The Court found that it was impossible to comply with both statutes without frustrating Parliament's purpose. The Court concluded that where there is a conflict between two statutes the principle of paramountcy applies and, in that case, the Immigration Act prevailed over the Legal Profession Act.
[32] In my opinion, this case is distinguishable from Mangat, above. In the present case, there is no statutory conflict. Unlike the Immigration Act, the Act does not contain a statutory provision authorizing non-lawyers to appear for a fee before the Tribunal or a provision in relation to expenses for such representation. Again without deciding the issue, even if the Tribunal has the implied jurisdiction to award costs to a successful complainant under the Act, Parliament has not expressly authorized non-lawyers to appear for a fee before the Tribunal in the legislation. On the other hand, the Legal Profession Act clearly prohibits non-lawyers from appearing as counsel or advocate for a fee. In this case, the Legal Profession Act prevails.
[33] For these reasons, I conclude that the Tribunal erred in awarding costs to the Respondent for Mr. Finding's fees. The Tribunal's decision in relation to the award of costs is set aside. It may be that there are some items such as out of pocket disbursements that are allowable expenses and not fees. I leave it to the Tribunal to make the appropriate award for such items.
[34] Although the Applicant was successful on this judicial review, given the circumstances of this matter, there will be no award of costs.
ORDER
THIS COURT ORDERS that the Tribunal's decision in relation to the award of costs only is set aside and the matter is remitted for the Tribunal's consideration of allowable expenses.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1771-04
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
v. JACQUELINE BROWN
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 23, 2005
APPEARANCES:
| Jan Brongers Keitha Richardson
|
|
| Charles Gordon Fiorillo Glavin Gordon
|
SOLICITORS OF RECORD:
| John H. Sims, Q.C. Deputy Attorney General of Canada
|
|
| Fiorillo Glavin Gordon Vancouver, BC
|