The Act does allow the Tribunal the right to award costs, but such awards have been rare. The reasons for this are intended not to dissuade potential complainants from seeking a remedy. ¹ It remains a fair summary that such awards are exceptional and require unusually abusive and/or dishonest behaviour to be considered.

The 2025 decision in Shodunke is one such case. The facts may be stated briefly. The judicial history is not so simple.

The complainant had been terminated within his probationary period. He asserted a human rights violation and commenced the complaint.  The employee had asserted that he was adversely treated due to his religious beliefs and his colour. The issue of his religious beliefs was that an ancestral king in Nigeria had died and his responsibilities as a chieftain required his adherence to certain religious rites which prevented him from attending work on the date of his termination. He alleged he had explained his circumstance to his employer, which acted to terminate him in any event. The employer denied any such statement was made and asserted the termination was based on performance issues.

A second complaint followed from an event which took place two months after his termination. The complainant was at a public mall using a telephone kiosk, asking about phone offers and to pay a bill. He alleged a security employed by the respondent asked him to leave the kiosk. This conduct was asserted to be an act of retaliation. The first complaint had not been filed at the time of this incident. The complainant had asserted that he had threatened, at that time, to report the employer to the “appropriate authorities”, which he later argued was referring to the human rights commission.

The company provided a contrary summary of this event, in which it maintained that the complainant’s conduct had caused the sales representative to feel unsafe and had made unwanted.

These complaints were investigated by a human rights officer, who recommended their dismissal, which was accepted by the Director. The employee sought a judicial review to the Chief of the Commission, one which was also dismissed. The employee sought again judicial review before the King’s Bench. This decision was in favour of the employee for the termination decision. This was based on the argument that the Commissioner could not make credibility findings. The chambers judge found that it was an error to conclude that the employer’s evidence was clearly more credible simply because it was supported by two persons as opposed to one, relating to what was said by whom on the date of termination.

The decision dismissing the second complaint was upheld. True to form, this decision was appealed to the Court of Appeal which upheld the chambers decision dismissing the JR application and the second complaint. The decision on the first complaint was not appealed.

The employer was successful in having the complaint dismissed, after which it brought a request for costs alleging that the complaint was frivolous, vexatious, that the complainant had acted improperly throughout the hearing and further that he had unfairly recorded the contents of the hearing. The details of the conduct of the complainant show that the conduct was clearly outrageous, and reflected dishonest and abusive conduct. Full details are set out in para 13 to 48. The decision records this exceptional conduct on the part of the employee.

This application was successful. The employer was allowed $25,000 in costs. The words were as follows:

            An award of costs against a complainant is only appropriate in circumstances where the complainant has engaged in conduct that was dishonest or significantly prejudicial to a party or the integrity of the process.[4]

[10]      For significant costs to be awarded at the conclusion of a proceeding, a party needs to have engaged in conduct that essentially amounts to an abuse of process, including:

1. dishonest conduct in the proceedings;
2. conduct that is significantly prejudicial to another party; or
3. conduct that is significantly prejudicial to the integrity of the process.[5]

This passage may be fairly read as applying to both sides of the dispute in theory.

An award of costs in favour on each of three complainants in a successful sexual harassment complaint was made in May of 2004 by the Tribunal in Oliva, Pascoe & Strong v Gursoy. The facts showed that:

The respondent engaged in constantly egregious behaviour including:

1. Extensive use of profanity and disrespectful language directed at the complainants;

2. Aggressive and disrespectful body language such as smirking, rolling his eyes, exaggeratedly laughing at the complainants’ testimony, pacing, stomping, waving his arms, and raising his voice;

3. Personal attacks on the character of counsel for the Director;

4. Repeatedly leaving and returning to the hearing without the Tribunal’s permission;

5. Regularly cutting off or speaking over counsel for the Director or the Tribunal Chair; and

6.   Making baseless allegations of bias and racism on the part of the Tribunal Chair which required additional Tribunal time and resources to address.

The same decision summarized other cases in which costs were considered:

In Facey, costs were awarded against a complainant who engaged in “constantly egregious behaviour”[9] including putting forward misleading evidence, making baseless allegations and attacks on the personal character of the respondent’s witnesses, and submitting inappropriate adjournment and disclosure requests mid-hearing.[10]

[20]      In Fisher, costs were awarded against a respondent who included intimate photographs of the complainant in its hearing materials even though the photographs were neither relevant nor material to the issues in dispute. The Tribunal found that the respondent’s decision to include the intimate photographs despite any obvious need to do so was significantly prejudicial to the complainant and deserving of sanction via a costs award.[11]

[21]      In Visser, “thrown away” costs were awarded against a complainant who “refused to participate in her own complaint in any meaningful way” and then failed to attend the hearing.[12]

[22]      In contrast, in Malko-Monterrosa, no costs were awarded where the Tribunal found that, while some of the complainant’s allegations were inappropriate to the forum, they did not cause significant delay or otherwise negatively impact the process.[13]

[23]      Similarly, in Ceresne, the Tribunal declined to award costs in respect of an interim application that “appeared to be unnecessary and caused undue delay, time and cost for both parties.”[14] The Tribunal determined that the application was not a result of dishonest conduct, nor was it significantly prejudicial such that an award of costs would be warranted.[15]

[24]      In Kahin, the Tribunal declined to award costs where the complainant was found to be not credible in his allegations against the respondent. The Tribunal noted that an adverse finding against a party, even with respect to credibility, would not, in and of itself, be sufficient to support an award of costs.[16] While the complainant may not have been credible, the Tribunal was not prepared to find, in that case, that the complainant had been “dishonest” nor that he had engaged in sufficiently improper conduct to justify a costs award.[17]

[25]      Finally, I note that Courts are typically reluctant to award costs to self-represented litigants unless “doing so would serve at least one of the policy reasons for which costs awards are made, apart from indemnification” namely, “encouraging settlement, preventing frivolous, vexatious or harassing litigation, and encouraging economy and efficiency during litigation.”[18]

 

The general theme emerges that costs are not routinely ordered and that exceptional conduct must be shown to warrant such an award.

1. Shodunke costs decision