In Facey v Bantrel Management Services Co., 2020 ABQB 719 Austin Ward successfully defeated an appeal of a watershed costs award granted against a complainant in a human rights case.  

The respondent to the appeal, Bantrel Management Services Co., received a human rights complaint when it terminated the contract of the appellant 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 Alberta Human Rights 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. 

Bantrel argued that the complainant engaged in an abuse of the human rights process with the sole and deliberate intention of seeking a financial gain and, as such, they should be entitled to recover at least some portion of the significant costs that it necessarily incurred in defending against the complaint. In Facey v Bantrel Management Services Co., 2019 AHRC 4, The Tribunal 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. The complainant appealed the Tribunal’s decision to the Court of Queen’s Bench of Alberta on the grounds that the Tribunal did not provide a proper explanation for making such a significant costs award, and that an award of such magnitude was unreasonable as it would have the effect of dissuading complainants pursuing legitimate human rights complaints. Bantrel opposed the appeal on the grounds that the costs award was reasonable and properly justified in the circumstances. 

In a decision published on November 24th, 2020, Justice J. W. Hopkins of the Court of Queen’s Bench of Alberta agreed with Bantrel’s arguments and dismissed the complainant’s appeal on all grounds. The Court applied the new standard of review framework from the Supreme Court of Canada’s decision in Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 and held that there were no palpable and overriding errors in the Tribunal’s decision warranting reversal of the costs award. The Court found that the Tribunal “understood the principled distinction between a complaint dismissed as unproven and a complaint brought on the basis of fundamentally false allegations” when it characterized the complainant’s behaviour as “dishonest as well as misleading in a consistently egregious manner” [para 39]. The Tribunal “acted judicially by considering [the parties’] submissions [regarding costs] in the context of weighing all the evidence and the factual circumstances before it” prior to exercising its broad remedial authority to award costs under the Alberta Human Rights Act. On the issue of the magnitude of the costs award, the Court held that “the award of significant costs for improper conduct is neither aberrant nor unprecedented, particularly where the Legislature has not prescribed a statutory limit” [para 54]. The Tribunal “considered the principle regarding the chilling effect of costs and nevertheless, in a deliberative way, imposed the cost after weighing the facts, evidence and the entirety of the circumstances in the proceedings” [para 36]. Although significant, the costs award “was not arbitrarily chosen outside the Record before the Tribunal or existing human rights jurisprudence” [para 62], and was reasonable and justified in the circumstances.

In upholding the largest costs award against a complainant in Alberta human rights history, the Court confirmed that complainants are not immune to consequence where allegations of discrimination are unfounded or 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. Where, as in the present case, a complainant is motivated by contempt for a former employer or pursuit of personal financial gain, the consequences of advancing baseless allegations of discrimination may be severe.

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