In Facey v Bantrel Management Services Co., 2019 AHRC 4 the Alberta Human rights Tribunal made a watershed costs award against a complainant. Tribunal Chair Langlois-Klassen acknowledged in her decision that costs should only be awarded against a complainant in “unusual circumstances”; however, counsel for the Respondent, successfully argued that this was a case deserving of sanction through costs.

The Respondent, Bantrel Management Services Co., received a complaint when it terminated the contract of the Complainant, an independent contractor, in relation to an oil sands project. The Complainant alleged that Bantrel discriminated against him on the basis of race or colour by wrongly and prematurely terminating his contract, reducing his compensation, and treating him differently than other contractors. The Tribunal dismissed the Complainant’s allegations as unsubstantiated in Facey v Bantrel Management Services Co., 2018 AHRC 9, and the parties were directed to make submissions regarding costs.

Section 32(2) of the Alberta Human Rights Act states that “A human rights tribunal may make any order as to costs that it considers appropriate.” Bantrel argued that the Complainant in this case engaged in an abuse of the human rights process with the sole and deliberate intention of seeking a financial gain. It argued that it should be entitled to recover at least some of the significant costs that it necessarily incurred in the course of dispensing with the complaint. The Complainant argued that there were no facts to support an award of costs and relied on previous Tribunal decisions in support of the notion that costs are rarely awarded against the complainant. The Tribunal ultimately accepted Bantrel’s argument and awarded $20,000 in costs against the Complainant, the largest costs award against a complainant in the history of Alberta human rights law.

In rendering its decision, the Tribunal refused to award costs on the basis that the complaint was dismissed, but found that conduct of the Complainant (and by extension – his legal counsel) at the hearing stage justified granting an award. While the Tribunal acknowledged that racial stereotyping  is “a sociological fact in Canada”, it held that the allegations of discrimination in this case took on “a life of their own” in the mind of the Complainant as he was repeatedly impeached throughout his testimony, made assertions contrary to documentary evidence, and engaged in inflammatory behaviour during the course of the proceedings. The Tribunal accepted Bantrel’s argument that the Complainant was motivated solely by the prospect of financial gain and held that it was more likely than not that the Complainant should have known that he was not entitled to the remedy he was seeking. The Complainant was found to have contravened section 10(2) of the Alberta Human Rights Act, which states that “No person shall, with malicious intent, make a complaint under this Act that is frivolous or vexatious.” In awarding $20,000 in costs against the Complainant, the Tribunal acknowledged that the award “departs from previous awards issued by this Tribunal” but held that “drawn out and consistently egregious behaviour of this sort cannot be condoned, and in fact, must be discouraged.” Interestingly, the Tribunal also noted that it may have considered awarding costs against the Complainant’s legal counsel directly if Bantrel had advanced such an argument.

While this case represents a departure from past Alberta Human Rights Tribunal decisions regarding costs, it is an important reminder that complainants are not immune to consequence where allegations of discrimination are unfounded and unsupported by evidence. The underlying goal of encouraging victims of alleged discrimination to proceed with their complaints is not unfettered and the motivation underlying the complaint is subject to scrutiny by the employer and the Tribunal. While the case is currently under appeal to the Court of Queen’s Bench of Alberta, it remains an important consideration for employers and employees litigating human rights complaints in Alberta.

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