Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission)

Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) Court Court of Appeal Date 2005-04-22 Citation 2005 NSCA 70 Docket CA 225416 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); MacDonald, J. Michael (Honourable Chief Justice) (CA); Oland, Linda L. (Honourable Justice) Document Type Decision Relations Library Sheet - Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) - 2005 NSCA 70 - 2005-04-22 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Johnson v. Halifax (Regional Municipality), 2005 NSCA 70 Date: 20050422 Docket: CA 225416 Registry: Halifax Between: Halifax Regional Municipality Appellant v. The Nova Scotia Human Rights Commission and Kirk Johnson Respondents Judges: MacDonald, C.J.N.S.; Oland and Hamilton, JJ.A. Appeal Heard: February 10, 2005, in Halifax, Nova Scotia Held: Appeal allowed; the Board’s award as it applies to costs is set aside; and the costs of this appeal are to be paid to the Municipality by the Commission only, per reasons for judgment of MacDonald, C.J.N.S.; Oland and Hamilton, JJ.A. concurring. Counsel: W. Augustus Richardson, for the appellant Michael Wood, Q.C. and Jennifer Ross, for the respondent, The Nova Scotia Human Rights Commission Victor Goldberg and Martha Mann, for the respondent, Kirk Johnson Reasons for judgment: [1] This case involves a narrow issue in administrative law. Does a board of inquiry appointed under the Human Rights Act, R.S.N.S. 1989, c. 214 (“Nova Scotia Act”) have the power to order incidental legal costs as part of a compensation award to a victim of discrimination? I am satisfied that it has no such jurisdiction and consequently, in the matter before us, the Board erred in law by so ordering. Therefore, that part of the award should be set aside. BACKGROUND [2] In December of 1998, Kirk Johnson, an internationally recognized Nova Scotia boxer, laid a complaint under the Nova Scotia Act alleging that he was the victim of discrimination at the hands of the Halifax Regional Police, a division of the appellant Halifax Regional Municipality. The complaint was prompted by an incident that occurred on the evening of April 12th of that year. On that date, Mr. Johnson and his friend, Earl Fraser, were stopped by Constable Michael Sanford of the Halifax Regional Police. Mr. Fraser was driving Mr. Johnson’s 1993 Texas registered Ford Mustang at the time. Both Mr. Johnson and Mr. Fraser are black. The officer asked for proof of insurance and registration. Not satisfied with what was produced, the officer then ticketed Mr. Fraser and had the vehicle towed. [3] It was confirmed the next day that Mr. Johnson’s vehicle was properly registered and insured. Neither gentleman had committed an infraction. The vehicle was then released. [4] Mr. Johnson’s complaint triggered an investigation under the Nova Scotia Act which was followed by settlement negotiations. With no settlement achieved, in March of 2002, the Nova Scotia Human Rights Commission directed that a board of inquiry be appointed. In May of that year, Philip Girard was appointed as the Board. Following a lengthy hearing, the Board issued a comprehensive written decision in December of 2003 (reported at [2003] N.S.H.R.B.I.D. No. 2 (Q.L.)). He found that Mr. Johnson had been the victim of discrimination. He was awarded $10,000.00 in general damages, plus interest together with special damages of $4,920.00. The Board also awarded Mr. Fraser $1,000.00 as a result of what happened to him that April evening. Believing that he,“in general, had jurisdiction to award costs,” the Board encouraged the parties to reach an agreement, failing which he would issue a supplementary ruling. No agreement was reached. In May of 2004, the Board filed a supplementary decision (reported at [2004] N.S.H.R.B.I.D. No. 4 (Q.L.), and the following month an addendum thereto. He awarded Mr. Johnson two-thirds of his solicitor-client costs which were eventually taxed at $61,170.39. [5] The Municipality takes no issue with the amount of this award. It appeals the Board’s decision on the grounds that a board of inquiry set up under the Nova Scotia Act does not have the express or implied jurisdiction to award costs. THE BOARD’S DECISION [6] In its December 2003 decision on the merits of Mr. Johnson’s complaint, the Board, as earlier noted, assumed he had a general jurisdiction to award legal costs. At page 36 of that decision, he concluded: Mr. Goldberg requested an award of costs against the respondents on a solicitor-client basis. I find that it was reasonable for Mr. Johnson to have separate counsel, and that Mr. Goldberg’s participation in the inquiry was very valuable. There was little repetition as between commission counsel and Mr. Goldberg, and I find his presence did not unreasonably lengthen the inquiry. Some preliminary research on this question revealed that it was more complex than I had anticipated, however. I believe I have, in general, jurisdiction to award costs on this basis but there seems to be some conflict in the authorities as to what principles govern the award. See for example Nkwazi v. Correctional Services of Canada (2001), 41 C.H.R.R. D/109 (C.H.R.T.), where the law is reviewed. If the parties cannot agree on the costs award within 30 days of the deadline for appealing this decision, they are to contact me and I will ask for written submissions and a hearing on this issue; I retain jurisdiction over the complaint for this purpose. [Emphasis added] [7] In his supplementary May 2004 decision, dealing exclusively with the issue of costs, the Board entered into a more detailed analysis of this jurisdictional issue. He compared the Nova Scotia Act to the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“federal Act”), and found them to be similar. He then referred to recent Federal Court of Canada cases involving the federal Act. These cases concluded that this legislation authorized an award for costs under that board’s power to “compensate..for expenses incurred.” By analogy, the Board concluded that the wording in the Nova Scotia Act was such as to grant him the necessary authority. Beginning at page 4, he explained: It is true that the wording of the Canadian Human Rights Act is not identical to that of the Nova Scotia Act, but on this point I am not convinced that the difference in wording is all that significant. The federal Act provides a Canadian Human Rights Tribunal with a long list of remedial powers; one of these requires a person who violates the Act to "compensate the victim ... for any expenses incurred by the victim as a result of the discriminatory practice." The Nova Scotia Act is much more economical in its drafting; it simply authorizes a board of inquiry to order any party who contravenes the Act "to rectify any injury caused to any person or class of persons or to make compensation therefor." I can see Mr. Moreash's argument that the use of the term "injury" suggests a focus on the direct harm suffered by a victim of discrimination, as opposed to ancillary expenses to which the victim might be exposed in trying to pursue a complaint before the Commission. However, the language appears to me to be sufficiently general so as not to exclude the wider interpretation. [8] The Board was also motivated by public policy considerations. Specifically, he feared that, with no hope of securing an award for costs, legitimate complainants may decide not to proceed to the adjudication level. At page 5 of his decision, he continued: ... The prospect of incurring such expenses without any prospect of reimbursement could well deter a complainant from pursuing a complaint under the Act to the point of adjudication. The whole point of the Nova Scotia Human Rights Act is to try and facilitate redress for victims of discrimination, and its provisions should be interpreted so as to try and achieve that end. Ultimately, I find that the reference to compensation for injury in the Nova Scotia Act is meant to include compensation both for direct harm as well as "compensation for expenses incurred" as those words are used in the federal Act. ... ANALYSIS The Standard of Review [9] The Municipality appeals under s. 36(1) of the Nova Scotia Act on a question of law: 36 (1) Any party to a hearing before a board of inquiry may appeal from the decision or order of the board to the Appeal Division of the Supreme Court on a question of law in accordance with the rules of court. [10] In considering the level of deference owed to the decisions of administrative boards, I am to take a pragmatic and functional approach and, in doing so, to consider four contextual factors. This direction has been repeated on numerous occasions by the Supreme Court of Canada. One of the more recent decisions is Alberta Union of Public Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727, where Iacobucci, J. confirmed: 14 The review of decisions taken by administrative bodies is governed by the pragmatic and functional approach, as established by the jurisprudence of this Court; see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63. Under this approach, reviewing courts consider four contextual factors: (a) the presence or absence of a privative clause or statutory right of appeal; (b) the relative expertise of the administrative body to that of the reviewing court with respect to the issue in question; (c) the purposes of the legislation and of the provision in particular; and (d) the nature of the question as one of law, fact, or mixed law and fact (Dr. Q, supra, at para. 26). According to the case law, a highly technical or mechanistic approach is to be avoided; instead the interplay among the four factors determines the level of deference owed to the administrative decision itself. This further correlates to three standards of review: correctness, reasonableness, and patent unreasonableness (Ryan, supra, at para. 24). [11] This court, in two recent appeals under this s. 36(1) of the Nova Scotia Act applied the above four point pragmatic and functional test. In doing so it confirmed correctness to be the appropriate standard. In Kaiser v. Dural, a division of Multibond Inc. (2003), 219 N.S.R. (2d) 91(C.A.) Hamilton, J.A. noted: [20] The applicable standard of review in this appeal is correctness. The Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 indicates the factors to be taken into account in determining the standard of review to be applied on an appeal from an administrative tribunal. These factors are whether there is a privative clause, whether the tribunal has expertise, the purpose of the Act as a whole, and the provision in particular, and the “nature of the problem,” whether it is a question of fact or law that is in issue. [21] In this case the Act does not contain a privative clause and s. 36 of the Act provides for a right of appeal on questions of law from a board’s decision. This suggests a searching review rather than deference is applicable in this appeal. Persons appointed under the Act to sit on boards of inquiry are not required to have any particular expertise or experience, again suggesting no deference is to be given to the board’s decision. The Act has a mixed purpose; a public interest to deter and eliminate discrimination on the bases enumerated in s. 5 of the Act and a private interest to remedy specific violations of the Act. Here the complaint was made by Mr. Kaiser to remedy an alleged specific violation of the Act, a private interest especially given the limited remedies being sought. Hence, any deference that may be warranted if there were a public interest at stake is not warranted in this appeal. The issues before the court on this appeal are questions of law, again suggesting no deference. Hence, the standard of review is one of correctness, without any deference to be shown to the board’s decision. [12] In Nova Scotia (Human Rights Commission) v. Play It Again Sports Ltd. (2004), 227 N.S.R. (2d) 292 (C.A.), Chipman, J.A. confirmed the approach taken in Dural and added that the issue must involve a question of law to even be considered on appeal: [47] ... The Act does not contain a privative clause but rather provides this right of appeal on questions of law and this suggests that a searching review, rather than deference, is applicable. [48] However, the searching review must relate to questions of law only, because such questions are the only ones that can be raised on this appeal. [13] The present appeal involves the Board’s interpretation of s. 34(8) of the Nova Scotia Act and specifically whether that provision authorized the Board to include legal costs as part of a compensation order. Because the Board was involved in an exercise in statutory interpretation, the Municipality urges us to consider this a question of law commanding a correctness standard. [14] The Commission however urged that the Board’s presumed expertise in the area of human rights ought to be afforded “some deference.” This submission is set out in its factum: 9. In the case at bar, there is no privative clause in the Act, a fact which militates in favour of less deference to the tribunal’s decision. The tribunal itself, however, is mandated to interpret the Act and to determine whether there has been a violation of the Act, and if so, what remedies flow from such violation. The tribunal’s expertise in interpreting the Act should be accorded some deference. [15] I do not accept the Commission’s argument in this regard. It is not enough to say that the Board had a particular expertise in a certain area. Instead, as Lethbridge, supra directs, the focus is on “the relative expertise of the administrative body to that of the reviewing court with respect to the issue in question.” In the case before us, the Board considered whether its authority to order “compensation” included the ability to order legal costs. With respect, the Board has, in this area, no more expertise than this court. Questions of compensation and awards for legal costs are topics that we routinely consider. Accordingly, I see no reason to move from the correctness standard. See Creager v. Provincial Dental Board of Nova Scotia, [2005] N.S.J. No. 32 at para. 19. Did the Board have jurisdiction to award costs? i. Framing the Issue [16] Nova Scotia’s Act provides no expressed authority to award legal costs. Therefore, any such ability must be implied, with s. 34(8) representing the only potential jurisdictional basis: Power of board 34(8) A board of inquiry may order any party who has contravened this Act to do any act or thing that constitutes full compliance with the Act and to rectify any injury caused to any person or class of persons or to make compensation therefor.[Emphasis added] [17] Thus, any award of legal costs would have to be as “compensation” to “rectify” an injury. The Board’s reasoning is set out at page 4 of his decision: The usage of the word "rectify," which signifies "to put right" or "to make whole," also suggests the wider interpretation. In simple terms, I think the legislation directs the board of inquiry to "make the complainant whole," and I see nothing in the general language used to prohibit an award of legal costs. The learned editor of the text Discrimination and the Law (Scarborough: Carswell, 2004) takes this approach at 15- 125: Neither the federal Act nor the legislation of the Northwest Territories, New Brunswick or Nova Scotia specifically confers a power on the respective tribunals to award costs. However, it could be plausibly argued that in both cases this power could be inferred from the plenary jurisdiction of the tribunals to bring about restitutio in integrum and/or to further the purposes of the enactments. [18] For its part, the Municipality maintains that the award of costs in the case before us resulted from the litigation process and, as such, is separate and apart from a compensation award. In other words, it is not a form of “compensation” flowing from “the injury” but a distinct product of the process. Thus, for the Municipality, the conclusion is inevitable. With “compensation” being the only jurisdictional umbrella under which the Board’s authority to award costs could be inferred, this aspect of the award cannot survive. [19] Therefore, my task is to consider the term “compensation” and what it encompasses in the context of s. 34(8). Is it a “make whole” form of relief, thereby enabling an award of costs or is it an award divorced from and outside the realm of “compensation”? ii Analysis [20] Having carefully considered this interesting issue, I am of the view that the Board’s authority to “compensate” in s. 34(8) does not include the capacity to award legal costs. A compensation award is separate and distinct from an award for costs. The former relates to the victim’s injury, the latter relates to the process. Accordingly, the Board had no power to award Mr. Johnson legal costs and this part of the order must be set aside. I have reached this conclusion for the following reasons. [21] Historically, costs have been exclusively a creature of statute with no common law authority to award them. In fact, this court, albeit over 75 years ago, confirmed that the power to award costs could only be by “express statutory authority.” In Re Charles Brown (1928), 60 N.S.R. 76 (C.A.), at p. 78, Chisholm, J. for a unanimous five judge panel noted: By this enactment, the learned judge below has within his district the same power as a judge of the Supreme Court; and the next question arises whether a judge of the Supreme Court has authority to award costs on an application under chapter 231. The Act is silent as to costs. The recovery of costs eo nomine was unknown to the common law; the courts have no inherent power to award costs, which can only be granted in any case or proceeding by virtue of express statutory authority. [22] Interestingly, in Brown, the Supreme Court of Nova Scotia, in fact, was (at that time) found to have no authority to award costs short of an express provision. A fortiorari, one would expect the same result for administrative tribunals. By virtue of the Judicature Act, the Supreme Court of Nova Scotia was later vested with this express authority. Several Nova Scotia administrative bodies also have this power: See, for example, s. 28(1) of the Utility and Review Board Act, SNS 1992,c. 11, as amended; s. 52 of the Expropriation Act, RSNS 1989, c. 156, as amended, and s. 56 of the Commercial Arbitration Act, SNS 1999, c. 5. Significantly, a board of inquiry under the Nova Scotia Act is not given any specific power to award costs. [23] Although, as noted, Brown, supra, is a dated case, it has been applied by this court in relatively recent years. See Family and Children’s Services of Annapolis County v. Clark, [1983] N.S.J. No. 586, which, in turn, was even more recently applied by the Supreme Court of Nova Scotia in Nova Scotia (Minister of Community Services) v. Elliott (Guardian ad litem of), [1995] N.S.J. No. 150. In that case, R. MacDonald, J. noted: [7] As to jurisdiction, Macdonald, J.A. as he was then in Family and Children's Services of Annapolis County v. Clark (1983), 62 N.S.R. (2d) 365 at page 366 ‑ The Family Court is a statutory court of record created by S.N.S. 1967, c. 98. As such it can only have jurisdiction in the substantative matter of costs if such jurisdiction is expressly given it by the Act creating it or some other Act. There is no inherent jurisdiction in statutory courts to award costs. The words used by Macdonald, J.A. are clear and concise. No such words can be found in the Adult Protection Act or the Family Court Act relating to costs or fees. [24] Another decision of this court provides helpful guidance on this issue. In Re: Labour Relations Board (Nova Scotia) v. Digby Municipal School Board et al (1982), 52 N.S.R. (2d) 81; 135 D.L.R. (3d) 582; (affirmed by the Supreme Court of Canada at [1983] 2 S.C.R. 311) the court, by way of stated case, was asked to opine on the Labour Relations Board’s authority to order legal costs to a successful employee under what was then s. 34(2) [now 36(2] of the Trade Union Act, R.S.N.S. 1989, c. 475, which provides: 34 (2) Where a complaint from a party to collective bargaining is referred to the Board pursuant to subsection (1), the board shall inquire into the complaint and may dismiss the complaint or may make an order requiring any party to the collective bargaining to do the things that in the opinion of the board are necessary to secure compliance with Section 33, and may order an employer to pay to any employee compensation not exceeding a sum which, in the opinion of the Board, is equivalent to the remuneration that would, but for a failure to comply with clause (b) of Section 33, have been paid by the employer to the employee. [Emphasis added] [25] Beginning at p. 592, the court concluded that the Labour Relations Board enjoyed no such power. It stated: The Board does not have power to award legal costs against the school board to the union or the employees. Costs may be awarded by a legislative tribunal only to the extent that the enabling legislation so provides. I see no such authorization in the Trade Union Act of Nova Scotia. [Emphasis added] [26] I acknowledge that s. 34(2) of the Trade Union Act authorizes compensation in the context of remuneration to employees. Nonetheless it is another example of where, in the absence of wording which specified costs, an administrative board’s statutory ability to compensate was found to exclude the power to order legal costs. [27] The Commission argues that the power to order legal costs flows from the Board’s authority to order special damages which, in the case before us, the Municipality did not contest. These damages consisted of Mr. Johnson’s travel costs. I refer to the Commission’s factum: 50. The Commission notes that the Appellant is not contesting the award of the special damages which were ordered payable in the amount of $4920. The authority and jurisdiction for awarding of the special costs must arise from the same source as the authority to award any other expenses in connection with the complaint, as all such expenses or costs are part of a "make whole" award. [28] I disagree with this submission. In Williamson v. Williams (1998), 223 N.S.R. (2d) 78; N.S.J. No. 498 (Q.L.), this court confirmed that legal fees incidental to prosecuting the claim should not be considered part of the claim, while legal fees flowing from but unrelated to prosecuting the claim could be included as special damages. In that case, the plaintiff investor successfully sued his broker for breach of fiduciary duty. These allegations also made the broker the subject of a disciplinary hearing. When, as part of that investigation the investor was asked to meet with the investigating authorities, he retained counsel to assist him. His legal fees were found to be recoverable as part of his overall (breach of fiduciary duty) damage award. However, this court held that his legal fees incidental to the action were not part of the claim per se. Freeman, J.A. confirmed: [12] . . . It was open to the appellant to prove any damages claimed in the pleadings under the broad heads of general and special damages. The particular subset identified as consequential damages involved $6,556.43 in legal fees arising from dealings with the Royal Canadian Mounted Police, representatives of the Toronto Stock Exchange, and representatives of the respondents in the investigation leading to the disciplinary proceedings against Mr. Williams. The trial judge considered that this claim arose from the nature of the breach but said it was "best addressed in the determination with respect to costs." [13] It is a safer principle to keep a clear line of definition between costs and damages. Costs are legal fees incurred within a proceeding directed toward procuring desired results. Damages are the monetary measure of the wrong or harm the proceeding is intended to redress. ... The legal expenses claimed as consequential damages by the appellant had nothing to do with bringing his claims to court, but they were a foreseeable result flowing from the breach of fiduciary duty by Williams and Scotia Bond. They were proven as damages, and Dr. Williamson is entitled to them. I would allow consequential damages of $6,556.43, adding this to the $90,644.64 already considered to arrive at a total of $97,201.07. ... [14] The legal expenses claimed as consequential damages by the appellant had nothing to do with bringing his claims to court, but they were a foreseeable result flowing from the breach of fiduciary duty by Williams and Scotia Bond. They were proven as damages, and Dr. Williamson is entitled to them. I would allow consequential damages of $6,556.43, adding this to the $90,644.64 already considered to arrive at a total of $97,201.07. [Emphasis added] [29] In the case at bar, the Board compensated Mr. Johnson for legal fees flowing directly from the prosecution of his complaint against the appellant. On the basis of Williams, this relief should be considered separate and apart from a s. 34(8) “compensation” award. Therefore, the Board, having no jurisdiction to order any relief, expressed or implied, beyond s. 34(8), had no authority to award Mr. Johnson his costs. [30] Courts in other provinces have also rejected the implied authority of human rights tribunals to order legal costs in the face of similar legislation. For example, in Ontario (Human Rights Commission) v. Ontario (Liquor Control Board) (1988), 25 O.A.C. 161, the Divisional Court dealt with s. 41(1)(b) of the Human Rights Code, R.S.O. 1990, c. H-19: 41. (1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order, (a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and (b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish. [Emphasis added] [31] Similar to s. 34(8) of the Nova Scotia Act which authorizes a board of inquiry “to make compensation therefor,” this Ontario provision allows its tribunal “to make restitution including monetary compensation.” Granted, unlike Nova Scotia’s Act, the Ontario Code (elsewhere in the legislation) also provided for an award for costs in other limited circumstances. Nonetheless, the court looked for an “express provision” in order to justify this type of authority. Rosenberg, J. notes: [53] The Legislature has expressly provided for the recovery of costs in limited circumstances “to the person complained against” under s. 40(6) of the Ontario Human Rights Code, supra. The power of the Board of Inquiry under s. 40(1) to “make restitution including monetary compensation” is not an express provision for the award of costs to complainants under the code. [Emphasis added] [32] In Re: City of Moncton and Buggie et al. (1985), 21 D.L.R. (4th) 266; leave to appeal to Supreme Court of Canada refused [1986] 1 S.C.R. xi, the New Brunswick Court of Appeal considered what was then that province’s Human Rights Code, R.S.N.B. 1973, c. H-11. Under its s. 20(4), the board of inquiry recommended to the commission, in very general terms “the course that ought to be taken.” In turn, under s. 21(1)(c) the commission, again in very general terms, could direct “whatever order it deems necessary to carry into effect the recommendations of the Board.” Despite this very general authority, Hoyt, J.A., at p. 276 concluded: . . . the commission in its order giving effect to the board of inquiry’s recommendations ordered the city to pay Mr. Buggie costs of $1,000. While s. 20(4) of the Act gives the board of inquiry wide powers to “recommend to the Commission the course that ought to be taken with respect to the complaint” and s. 21(1)(c) gives to the commission the power to “issue whatever order it deems necessary to carry into effect the recommendations of the Board”, these powers do not, in my view, carry with them the power to award costs against a party. Thus para. 4 of the commission’s order of May 16, 1984, cannot stand. [33] Furthermore, in the case before us, the Board’s interpretation of s. 34(8) could result in the parties receiving unequal treatment. For example, traditionally, in civil matters costs go to the winning parties, whether they be prosecuting the claim or responding to it. Yet under s. 34(8), only respondents who contravene the Act can be ordered to pay “compensation.” In other words, there is no authority to direct an unsuccessful complainant to pay compensation. If the ability to order legal costs is grounded in the power to order compensation, then recovery is restricted to only one type of successful party, namely, the complainant. Under the Board’s interpretation of s. 34(8), a successful complainant could be awarded costs but should a complaint be dismissed, a successful respondent could never receive costs. [34] In concluding that the Board had no jurisdiction to make this award, I again acknowledge the Board’s reliance on the Federal Court authorities to justify this aspect of his award. Yet, in my view the federal legislation is sufficiently different from the Nova Scotia Act so as to make these authorities distinguishable. Section 53(2)(c) and (d) of the federal Act are the operative provisions: (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: . . . (c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; (d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; . . . [Emphasis added] [35] I note that unlike Nova Scotia’s legislation, the federal Act authorizes compensation “for any expenses ... as a result of the discriminatory practice.” The reference to “any expenses” is very broad and in that context may arguably include legal fees. This is different from Nova Scotia’s limited authority to provide “compensation” for the “injury.” As stated earlier, in Nova Scotia “compensation” for the “injury” at least in the context of this Act, excludes any award for legal fees incidental to the process. [36] In reaching this conclusion, I am also mindful of the broad and liberal approach courts should follow when interpreting human rights legislation. In fact, the Supreme Court of Canada suggests a “privileged status” for human rights legislation in this country. For example, in University of British Columbia v. Berg, [1993] 2 S.C.R. 353, Lamer, C.J.C., explained: 38 In my reasons in Heerspink, I commented on the unique nature of human rights legislation (at p. 157-58): When the subject matter of a law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. 39 Following Heerspink, this Court has had many occasions to comment on the privileged status of human rights legislation. In Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., supra, McIntrye J. observed (at p. 547) that “Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary – and it is for the courts to seek out its purpose and give it effect.” This Court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to LaForest J. in Robichaud, at p. 89, “must be so interpreted as to advance the broad policy considerations underlying it”. These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which directs that “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” [Emphasis added] [37] I note that the Chief Justice in Berg referred to the Federal Interpretation Act, R.S.C. 1985, c. I-21 for guidance. Nova Scotia’s Interpretation Act, R.S.N.S. 1989, c. 235 provides a similar mandate to consider an act’s objects. Section 9(5) reads: 9 (5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters ... (d) the object to be attained; [38] The objects of Nova Scotia’s Act are clear. They are set out in the statute. 2 The purpose of this Act is to (a) recognize the inherent dignity and the equal and inalienable rights of all members of the human family; (b) proclaim a common standard for achievement of basic human rights by all Nova Scotians; (c) recognize that human rights must be protected by the rule of law; (d) affirm the principle that every person is free and equal in dignity and rights; (e) recognize that the government, all public agencies and all persons in the Province have the responsibility to ensure that every individual in the Province is afforded an equal opportunity to enjoy a full and productive life and that failure to provide equality of opportunity threatens the status of all persons; and (f) extend the statute law relating to human rights and to provide for its effective administration. [39] That said, I believe it is one thing to give the Nova Scotia Act a broad and liberal interpretation so as to ensure its objects are met. It is quite another to cloak the Board with jurisdiction that the legislature did not give to it. The very important and worthwhile objects of this legislation can be met without empowering the Board to order costs relative to the complaint process. In other words, this authority is not necessary to achieve the stated legislative objectives. On this point, I refer to Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, decided after Berg, supra. Here, the Supreme Court considered whether the federal Act impliedly vested the Federal Court with the right to grant injunctive relief. The Court concluded that remedial powers (at least in the context of injunctive relief), should be implied only if they are necessary to implement the terms of the legislation. Bastarache, J., for the majority, noted at para. 16: In my opinion, the standard for finding an implied power in the existing jurisprudence is actually much more stringent. An injunctive power has only been implied where that power is actually necessary for the administration of the terms of the legislation; coherence, logicality, or desirability are not sufficient. [40] Although in dissent, McLachlin, J. (as she then was) and Major, J. nonetheless agreed with this proposition. See para. 64. [41] Again, I turn to Rosenberg, J. in Ontario (Human Rights Commission) v. Ontario (Liquor Control Board), supra, where continuing at para. 53, he said: The rule of liberal interpretation to carry out the objects of the Code to remedy, as far as possible, the effects of and prevent discrimination do not apply to procedural matters or the question of costs. [42] Earlier in my decision, I acknowledged the Board’s public policy concerns, i.e., the potential chilling effect on complainants should they not be eligible for costs in a contested hearing. The Board feared that legitimate complaints may be abandoned. However, as stated, I cannot create jurisdiction where none exists. This is best addressed by the Legislature which if it finds it warranted, could always expressly provide this form of relief and any limitations on its availability. This has already been done to varying degrees in other provinces, i.e., Prince Edward Island, Newfoundland, Manitoba, Alberta and British Columbia. [43] Further, on this point, I also note that in Nova Scotia claims are shepherded through the board process by Commission counsel. That is not to say that independent counsel for the complainant is never necessary. In fact, in this case, the Board highlighted the important role played by Mr. Johnson’s counsel. I simply observe that commission counsel is appointed for all board hearings with the mandate to see that “the case is appropriately and fully presented.” This, to some extent, serves to temper the “potential chill” feared by the Board. [44] Finally, Mr. Johnson’s counsel had described how Mr. Johnson, a declared victim and successful complainant, is out significant money even with the Board’s award for costs. On this point, the Municipality’s counsel confirmed that his client had already paid the $61,000 or so in costs to Mr. Johnson, emphasized that it was seeking clarification for future cases only, and gave some indication that the Municipality would not seek to recover those monies were the appeal allowed. COSTS OF THE APPEAL [45] The Commission acknowledged that costs in the amount of $2,500.00 should follow the event. This appears reasonable to me. I would order the Commission to pay $2,500.00 to the Municipality, together with disbursements as agreed or to be taxed. However, in the special circumstances of this case, I would not order costs against Mr. Johnson personally. DISPOSITION [46] I would allow the appeal and set aside the Board’s award as it applies to costs. I would further order that the costs of this appeal be paid to the Municipality by the Commission only and in the amount stated above. MacDonald, C.J.N.S. Concurred in: Oland, J.A. Hamilton, J.A.