Dalhousie University v. Aylward

Dalhousie University v. Aylward Court Supreme Court Date 2001-04-02 Citation 2001 NSSC 51 Docket SH 166929 Judge/Registrar/Adjudicator Scanlan, J. Edward (Honourable Justice) (SC) Document Type Decision Relations Library Sheet - Dalhousie University v. Aylward - 2001 NSSC 51 - 2001-04-02 - Library Sheet Decision Content Date: 20010402 Docket: SH166929 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Dalhousie University v. Aylward , 2001 NSSC51] IN THE MATTER OF: the Human Rights Act, R.S.N.S. 1989, c. 214, as amended - and - IN THE MATTER OF: a Complaint by Carol Aylward (the “Complaint”) against James Cowan, Chair of the Board of Governors of Dalhousie University; Dalhousie Law School; Tom Traves, President of Dalhousie University; Dawn Russell, Dean, Faculty of Law, Dalhousie University; Professors Vaughan Black, H. Archibald Kaiser, Dianne Pothier, A. Wayne MacKay, Richard Devlin and Richard Evans; Dalhousie Faculty Association (“D.F.A.”); Tom Faulkner, President of D.F.A.; Michael Cross, D.F.A. President-Elect; D.F.A. Executive Committee Members Dianne Pothier, Marjorie Stone, Denis Riordan, Susan Holmes, Louise Spiteri and Sharon Barkhouse; and Barbara MacLennan, D.F.A. Professional Officer - and - IN THE MATTER OF: an Application by James Cowan, Chair of the Board of Governors of Dalhousie University; Tom Traves, President of Dalhousie University; and Dawn Russell, Dean, Faculty of Law, Dalhousie University, for a Declaration that N.S. Reg. 101/2000 is invalid and an Order in the nature of Certiorari to quash and set aside certain decisions and/or actions of the Nova Scotia Human Rights Commission and/or the Ombudsman of the Province of nova Scotia in relation to the Complaint BETWEEN: JAMES COWAN, CHAIR OF THE BOARD OF GOVERNORS OF DALHOUSIE UNIVERSITY; TOM TRAVES, PRESIDENT OF DALHOUSIE UNIVERSITY; and DAWN RUSSELL, DEAN, FACULTY OF LAW, DALHOUSIE UNIVERSITY APPLICANTS - and - CAROL AYLWARD; THE NOVA SCOTIA HUMAN RIGHTS COMMISSION; THE OMBUDSMAN OF THE PROVINCE OF NOVA SCOTIA; and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA RESPONDENTS ____________________________________________________________________________________________________________ D E C I S I O N ____________________________________________________________________________________________________________ Revised Decision: This decision has been corrected on May 16, 2014 and replaces the previously distributed decision. HEARD: at Halifax Nova Scotia, before the Honourable Justice E.J. (Ted) Scanlan on March 1, 2001 DECISION April 2, 2001 COUNSEL: Eric B. Durnford, Q.C./Bernadine MacAulay, on behalf of the Applicants Reinhold M. Endres, Q.C., on behalf of the respondent, Attorney General of Nova Scotia Eric Durnford, Q.C., for the Applicant Davies Bagambiire, Esq., on behalf of the Respondent, Carol Aylward Michael Wood, Q.C., on behalf of the Respondent, N.S. Human Rights Commission Peter W. Kidston, Esq., on behalf of the Respondent Ombudsman John C. MacPherson, Q.C., on behalf of the Interested Parties Vaughan Black, H. Archibald Kaiser and Dianne Pothier B. Lynn Reierson, on behalf of Interested Parties Wayne MacKay and Richard Devlin Raymond S. Riddell, Q.C., on behalf of Interested Party Richard Evans SCANLAN, J: [1] This is a decision on the issue of costs related to an application where the applicants asked this court to quash a decision by the Nova Scotia Human Rights Commission to refer a complaint to the Ombudsman ans subsequently the Ontario Human Rights Commission. On March 1st, 2001 I had ruled that the Nova Scotia Human Rights Commission did not have jurisdiction to refer a complaint made by Carol Aylward to the Ontario Human Rights Commission. The Nova Scotia Human Rights Commission agreed in that hearing that they did not have authority to refer the complaint to the Ontario Human Rights Commission. The Nova Scotia Human Rights Commission was prepared to sign a consent order which would have quashed the original referral of the matter to the Ombudsman and the Ontario Human Rights Commission. Carol Aylward, the original complainant, through counsel, indicated she opposed the consent order and therefore the applicants were required to have the matter dealt with by the Court. The only matter outstanding at this time is the issue of costs. All counsel involved in these proceedings agree this is a very unique case. There is very little relevant case law on the issue of costs. [2] On August 26, 1999, Ms. Aylward wrote to the Nova Scotia Human Rights Commission indicating that she wished to file a complaint against Dalhousie University, the university President, the Dean of the Law School and certain members of the Law School Faculty. She indicated that there was potential for a conflict of interest with the matter going before the Nova Scotia Human Rights Commission because of the relationship she and other members involved in this complaint had with that Commission. The Commission decided to refer the matter to the office of the Ombudsman to act as a “trustee”. Ms. Aylward was notified of this decision by a letter dated September 29th, 1999. Neither the applicants nor any other interested parties was advised of the Commission’s decision in relation to the conflict of interest, the decision to refer the matter to the Ombudsman or the subsequent decision to have the matter dealt with by the Ontario Human Rights Commission. [3] It is apparent from the steps taken by the Nova Scotia Human Rights Commission they were alive to the possibility they may not have authority to delegate their powers to the Ombudsman or the Ontario Human Rights Commission. There were attempts by the Commission to rectify the lack of jurisdiction. The related protocol was varied on two occasions, first in December of 1999 and again in September of 2000. In addition there was a variation in the regulations which would permit the delegation of authority. The Nova Scotia Human Rights Commission now acknowledges that power to delegate authority was not retroactive and it did not apply to the present case. [4] The applicants had repeatedly made the Nova Scotia Human Rights Commission aware of the concern they had over the lack of authority to delegate. They filed an Originating Notice (Application) on the 27th of October, 2000 asking for a judicial review of the decision to delegate. The Nova Scotia Human Rights Commission vigorously opposed the applicant’s suggestion that there was a lack of jurisdiction until January 31st, 2001. It was at that time the Nova Scotia Human Rights Commission first conceded there was a jurisdictional error. Commission counsel admitted that the attempted delegation of authority was not authorized by the applicable statute or regulations. [5] The applicants were not the only parties affected by the Commission’s rulings in this case. There are a number of other interested parties who are represented because their personal and professional credibility has been challenged by nature of this complaint. They have a vested interest in the main proceedings. Although they have not been formally joined as parties to the application now before the court their involvement has not been opposed or objected to by any of the parties. The interested parties include Professors Vaughan Black, H. Archibald Kaiser, Dianne Pothier, Wayne MacKay, Richard Devlin and Richard Evans. I agree those parties have an interest in these proceedings and they would be formally recognized as having standing on this application if requested. COSTS [6] As already noted, I have ruled that the Nova Scotia Human Rights Commission did not have jurisdiction to delegate their authority. Large sums of money have been expended by the applicants, the complainant and the interested parties. In terms of having the main compliant dealt with, it is likely a substantial portion of those monies have been wasted. The applicant indicates that they now have solicitor/client costs in excess of $75,000.00. Counsel for Ms. Aylward suggests she has expended fees and disbursements totally approximately $55,000.00. Counsel for Mr. Kaiser, Ms. Pothier and Mr. Black indicates fees of approximately $22,000.00. Counsel for Mr. Devlin and Mr. MacKay have incurred fees and disbursements, including taxes in the amount of $5,000.00. Counsel for Professor Evans indicates fees of $5,000.00 plus disbursements. The above enumerated figures do not include any monies expended by the Human Rights Commission, the Attorney General of Nova Scotia or the Ombudsman’s office. There has been a tragic waste of resources for all parties and the inquiry on the merits has not even begun. [7] It is a fundamental principle of administrative law that statutory bodies are required to act within the limits of their statutory authority. Actions taken by such bodies without lawful authority are nullities. In this case the decision by the Human Rights Commission to refer the matter to the Ombudsman and subsequently the delegation to the Ontario Human Rights Commission was done without statutory authority. It was the failure of the Nova Scotia Human Rights Commission act within the confines their authority that forced the applicants to make this costly application. The applicants and interested parties do not dispute any assertion by the Nova Scotia Human Rights Commission that they were acting in good faith. The applicants do, however, assert that the respondent Commission was alive to the issue of jurisdiction and the concession very late in the proceedings was one that could have been made at an earlier date thus avoiding the necessity of these very expensive proceedings. [8] Ms. Aylward resisted the application to prevent the Ontario Human Rights Commission from dealing with the complaint. Ms. Aylward’s counsel suggested there is clear evidence of mishandling of the complaint since it was made. I agree that the concession as to lack of jurisdiction could have and should have been made at an earlier date. Had that concession come at an early date huge sums of money could have been saved by all parties. The fact the Commission now says that it was acting in good faith does not save any money for the parties now. Clearly the fact the concession was not made until such a late date was not the fault of the applicant, the complainant, or the interested parties. [9] Mr. Wood for the Commission says it was only after the applicant’s brief was received that the Commission fully appreciated the applicant’s argument on the jurisdictional arguments. A statutory body such as the Human Rights Commission should not have to sit and wait for its jurisdictional limits to be explained by an affected party and have that party bear the cost of correcting the Commission’s errors. It was fully within the capacity of the Commission to do the same research and formulate the correct legal opinion. As I said, the Commission was aware of the applicant’s concern over the jurisdictional issues and they themselves shared these concerns. They however vigorously opposed any suggestion they were wrong. [10] A statutory body that has wide ranging powers such as the Human Rights Commission must take care to ensure they act within the confines of their statutory authority. The level of care to be exercised must take into account the fact that any decision by the Commission can have a very serious impact on the lives, profession and careers of people who come before the Commission. The Commission was more than an adjudicating body in the present case. [11] The Commission was an active participant in opposing the attempts of the applicant to obtain redress to correct an error made by the Commission. The Commission became a litigant in the present application. [12] Counsel for the applicants urge the Human Rights Commission to follow the example set by the Canadian Human Rights Commission in the case of Radulesco v. The Canadian Human Rights Commission (1984), 14 D.L.R. (4th) 78 (S.C.C.) . In that case the Commission acknowledged that the substance of the case against the appellant was not communicated to her prior to the decision. They also acknowledge that the appeal should be allowed with costs to the appellant on a solicitor/client basis. A distinction between the present case and the Radulesco case is that the Canadian Human Rights Commission had agreed to pay the costs on a solicitor/client basis. There is no such consent in the present case. [13] The issue of solicitor/client costs was discussed in Young v. Young et. al. (1993) 108 D.L.R. (4th) 193, at p. 283 where the Court said: Solicitor-client costs are generally awarded only where there has been an reprehensible, scandalous or outrageous conduct on the part of one of the parties. I am not convinced in the present case that the actions of the Commission were so egregious as to warrant costs be awarded on a solicitor-client basis. In Toronto-Dominion Bank v. Lineaux [1997] N.S.J. No. 199, the Nova Scotia Court of Appeal pointed out that costs are clearly in the discretion of the Court but that the discretion must be exercised judiciously. The Court noted that the parties conduct both before and during the litigation process as well as the degree of success achieved are relevant to the exercise of the Court’s discretion as to costs. [14] The court recognizes there are many things to consider when deciding whether a successful party should recover costs. This includes a balancing of the interests of litigants and the public at large.. On the one hand the Court recognizes that it would be a hollow victory if parties are to routinely succeed in litigation yet suffer a substantial loss in real terms because of the fees they must pay counsel. Party and party costs are not intended to be a full indemnification for the successful party. They should however represent a real and substantial contribution to the cost of litigation while ensuring that access to the Courts is not denied by putting the cost of litigation beyond the reach of the perspective losers. The fact that there is not full indemnification for costs except in rare circumstances encourages litigants to resolve their differences by way of settlement or some other dispute resolution process. Those guiding principles apply to this litigation the same as any other. [15] I indicated that it is in only rare and exceptional circumstances that costs are awarded on a solicitor/client basis. An award of solicitor/client costs is usually intended to reflect the Court’s disapproval of the conduct of a party in litigation. There are other situations where solicitor/client costs have not been awarded but there have been very substantial awards. In Canada (Canadian Human Rights Commission) v. Canada 3000 Airlines Ltd. [1999] F.C.J. No. 955, the Court did not award costs on a solicitor/client based on fees of $18,026.00 but the Court did award costs in the amount of $10,000.00 which is at a scale considerably higher than normal. [16] In their brief the appellant suggested that the actions of the Nova Scotia Human Rights Commission in this case were unforgivable. They suggest that the Commission purported to do something which it was not authorized to do and then maintained that position for many months, only to concede at the last minute they made an error. The applicant compares this to the conduct as condemned by the Supreme Court of Canada recently in British Columbia Human Rights Commission et. al. v. Blenco; Snell et. al. Capitol Interveners (2000) 190 D.L.R. (4th) 513. In Blenco the complainants filed sexual harassment complaints before the Human Rights Commission and the Commission took 30 months to investigate. The Court determined that the prejudice inherent in the delay, was sufficient to justify a stay of the inquiry, but noted there was no constitutional right outside the criminal law to be tried within a reasonable time. The Court did go on to find that the delay amounted to an abuse of process pursuant to the principles of administrative law. Even though the respondent was not successful in obtaining a stay the Court ordered costs be awarded against the Commission to the respondent and complainants on a party and party basis. [17] In the present case the Human Rights Commission does acknowledge the success of the applicants and submit that costs should be awarded on a party and party basis. Mr. Wood for the Nova Scotia Human Rights Commission refers to Krupp MaK Maschinenbau GmbH et al v. Black (1996) 151 N.S.R. (2d) 79 saying the Courts there established a range for costs in contested chambers matters at $300.00 to $1,500.00. Counsel also referred to Grandview Farms Limited v. C.B.C.L. Limited (1997) 170 N.S.R. (2d) 166 where the Court dealt with two different applications arising out of the same matter. The arguments spanned two days in Chambers. The Court awarded costs of $3,500.00 plus disbursements. The matter was taken on appeal and the Court of Appeal reversed the Trial Judge’s decision awarding costs to the appellant totalling $3,500.00 for the appeal and the original application. [18] It is clear that even though the actions of the Human Rights Commission were without malice they have had a substantial financial impact on all parties. All parties have incurred substantial legal fees. The applicants were justified in strenuously resisting any attempt by the Commission to delegate its authority as is evidenced in the eventual admission by the Nova Scotia Human Rights Commission that they did not have authority to delegate. The applicants in no way contributed to the errors of the Nova Scotia Human Rights Commission. The Commission in the circumstances of this case was more than a panel simply evaluating a complaint. They actually entered the form, asserting they had rights and powers to something which they had no authority to do. [19] I am satisfied that there must be a balancing of the interests of the parties and general interests of the public in a case such as this. I am cognizant of the fact that it would be contrary to the interests of the administration of justice to have a tribunal such as the Nova Scotia Human Rights Commission stifled for fear of incurring liability for costs. It would be contrary to public interest in general if administrative bodies failed or refused to act simply to avoid liability for costs. On the other hand it should be recognized that these creatures of statute exercise a great deal of authority. Their decisions can have far reaching consequences for any party who chooses to file a complaint or who is forced to defend a complaint filed with the Commission. The Human Rights Commission must act carefully, taking into account the import of any decision they might make. [20] In the present case the Commission was aware for many months that there was a potential problem with the issue of their authority to delegate. This is evidenced by the remedial steps taken in an attempt to cure the jurisdictional problem. As I have already noted, they now concede those remedial steps did not rectify the problems. [21] There is a general public interest in having some assurance that individuals are not left alone in defending their rights when a quasi-judicial body exceeds, or worse, abuses their authority. To force individuals to bear the cost of challenging that type of error would place the individual at an extreme disadvantage when asserting their rights as against a publically funded body. The public at large has a vested interest in making sure that individual rights are protected. Protection of individual rights is one of the fundamental purposes for bodies such as Human Rights Commissions to exist. When it is the actions of the commission the individual needs protection from, then it is important not limit the ability to get that protection by denying the affected individuals the right to recover a substantial portion of their costs. It would be contrary to public interest to leave individuals alone to bear the cost of protecting themselves from the improper actions of a commission such this. As I have said this is a very unique case. The fact the commission was acting in good faith is small comfort to the affected parties who have spent tens of thousands of dollars and have not even begun the hearing process. It would not achieve that balancing of the interests of the parties to say that the applicants alone must be now left to bear the costs. [22] The complexity of this case suggests that costs should not be awarded as though this was a simple chambers application. The parties have expended very substantial amounts. I am satisfied costs should be awarded to the applicants on a party and party basis. The amount should be a real and substantial contribution to their actual costs although in this case it is substantially less than solicitor client costs. I award costs to the applicant in the amount of $30,000.00. THE COMPLAINANT [23] It is clear that Ms. Aylward has an interest in ensuring that the complaint is dealt with properly and in an expeditious manner. It has now been almost two years since she first indicated she may be filing a complaint and now finds out that almost everything that has been done up to this point has been a waste of resources and time. The matter now before the court is substantially different than the actual complaint itself. Much of the time and resources expended by Ms Aylward on the present application has been taken up by Ms. Aylward refusing to accept the position of the Nova Scotia Human Rights Commission that there was a jurisdictional error. Even on the date of the hearing, March 1st, 2001, Ms. Aylward’s counsel insisted that the attempted delegation was appropriate or alternatively that the Commission should not have been permitted to make a decision that the delegation was improper. Alternatively her counsel argued that the order quashing the decision to delegate to the Ontario Human Rights Commission should not be granted because that application to quash was out of time. I rejected all of the arguments made by counsel for Ms Aylward. [24] On this application the monies expended by Ms. Aylward have been expended in arguing a position which was not well founded in law. This has not only cost her a lot of money but it has caused the other parties to incur substantial costs even after the commission was prepared to concede the jurisdictional error. It is true that Ms Aylward did not contribute to the original mistake as to jurisdiction. In terms of expenditure of resources to have that error corrected much of the costs have resulted from Ms Aylward''s refusal to acknowledge the commission had no authority to delegate its authority to the Ombudsman or the Ontario Human Rights Commission. It is difficult to envision a valid legal principle that would justify this court now awarding costs to a party who is unsuccessful in asserting a claim especially when that ongoing assertion has caused all other parties, including the respondent, to incur substantial legal fees. In view of the above noted factors I am not prepared to award costs to Ms Aylward on this application. OTHER INTERESTED PARTIES [25] I have referred to the amounts other interested parties expended on legal fees in relation to the present application. Counsel for those parties refer the Court to Johnston v. The Law Society of Prince Edward Island [1987] P.E.I.J. No. 89 as authority for the position that the Court does have discretion to award costs to an interested party even though they have not been party to a proceeding. In the Johnston case there was a complaint lodged with the Law Society relating to a barrister who was described as an interested party with standing, and who, through counsel, participated fully on the applications. Counsel for Mr. Johnson conceded his client’s liability for cost to the respondent Law Society but he denied liability for costs with respect to the interested party on the grounds that he was not a party to the proceedings as contemplated by the Rules. The Court said at p. 5: I am of the opinion that Mr. Scales is not a person who should thereby be excluded from costs. He is a person who was served with notice of or attended the proceeding, although not named on the record within the meaning of the definition of the Judicature Act. [26] Even if it could be argued that he did not fall within that category, it was in respect of him whom the application originally commenced these proceedings, by virtue of his complaint to the Law Society that he, Scales, had been guilty of unprofessional conduct. Party in the strict sense or not, he is vitally concerned in the outcome of these proceedings and in each step thereof. He could be said to have a vested interest therein. I do not think it equitable that the applicant can gratuitously involve him in these proceedings, which go to his professional integrity, and then deny that he is a “party” thereto when he intervenes, be it as an interested party withstanding, or otherwise, in defence of that integrity. [27] Both the Law Society and Mr. Scales will be entitled to an order for their costs, to be taxed in separate bills, on a party and party basis against the applicant. [28] In this case the interested parties were in a situation which is analogous to the barrister in the Johnston case. They are not a parties to the present application but have a vested interest. In addition one group of interested parties have filed substantial briefs as a means of assuring their interests are protected. Counsel for the interested parties in this case concede that the work related to the present application was substantially performed by counsel for Mr. Cowan et. al. and, to a lessor but substantial extent, by Mr. MacPherson on behalf of Mr. Kaiser, Ms. Pothier and Mr. Black. Mr. MacPherson in his submissions indicated that cost to his clients so far is approximately $22,000.00 so far. The increased level of involvement by Mr. MacPherson is apparent through the volume of materials he submitted . The professional reputation of the individual members of the board which Ms. Aylward complains of is at stake. No doubt they have a vested interest in the final determination of the issues which are the subject of complaint. [29] I again refer to the difficult balancing task before the Court when it comes to the issue of costs. I am cognizant of the need to ensure that an organization such as the Nova Scotia Human Rights Commission acts within the limits of statutory authority. I apply the same principles which I had referred to in relation to the main applicant. I am satisfied that, based on the unique circumstances of this case, there should be an award of costs to those interested parties based on the extent of their involvement in these proceedings. Costs are awarded to the interested parties, Black, Kaiser and Pothier shall have costs on this application in the amount of $5,000. in total. MacKay and Devlin will have costs in the amount of $1,000. total. Evans will also be entitled to costs in the amount of $1,000. J. 04/02/01