Kahlon v Canadian National Resources Limited, 2022 AHRC 140 (Ahanonu) is a new Alberta Human Rights Tribunal Decision where an employer was not awarded costs on an application, despite the complainant not complying with an earlier order and forcing the employer to bring this application.
This case is important because it illustrates how difficult it is for an employer to get a costs award against a complainant under any circumstances. The reasoning is also a bit unusual in some ways.
Facts
The following are the pertinent facts found by AHRT Commission Member Ahanonu:
- The complainant Victor Kahlon filed a human rights complaint against CNRL, alleging discrimination on the grounds of mental and physical disability
- The parties attended a pre-hearing conference and were ordered to disclose all relevant documentation
- The complainant did not disclose his applications for CPP benefits. CNRL asked for it, but the complainant refused to provide it because he did not think it was relevant
- CNRL brought an application to force the complainant to disclose his CPP application. It was successful and the AHRT ordered the complainant to provide it by a specific date
- The complainant still did not provide it. He did, however, say that he had attempted to get a copy of his CPP application to provide had not heard back. In response, CNRL asked for a copy of his correspondence to CPP requesting the application, but the complainant apparently did not respond to that
CNRL brought another application (this one) seeking another order for production of the CPP application, and an application seeking a “costs” penalty against the complainant for failure to comply with the prior order.
Analysis / Conclusion
The Alberta Human Rights Tribunal first noted that it has jurisdictional authority to order documents to be produced in a human rights action, citing Section 4 of the Alberta Public Inquiries Act.
The AHRT noted that CNRL was entitled to its documents in a timely manner, and the explanation the complainant gave for not complying with the earlier order to produce documents was “not satisfactory”.
The Director of the Human Rights Commission argued that costs should not be granted against a complainant unless the complainant has engaged in “improper conduct”, which it argued did not happen in this case. The AHRT did not explicitly state that the complainant engaged in improper conduct, but clearly implied that the Complainant would need to have a good explanation for failing to comply with the prior order if he was going to avoid a costs award against him:
[21] I do not agree with the Director that the application for costs should be dismissed. However, I do not have enough information to determine whether the complainant has engaged in improper conduct. I believe it is more prudent to address the issue of costs at the conclusion of the hearing, as the Tribunal will have the information that is required to determine the issues.
In the result, the AHRT ordered that:
- the complainant was required to produce the records he was previously ordered to produce, about a month from the date of the decision
- the issue of CNRL’s application for costs (for violating previous order) was not dismissed outright, but would be dealt with at the complaint hearing when there would presumably be enough information
My Take
The adjudicator’s refusal to dismiss the application for costs strongly implies that if, at the complaint hearing, the complainant does not have a good explanation for his failure to this point to produce the previously ordered documents, that would count as “improper conduct” justifying a costs award. I base this on the following:
- the adjudicator did not challenge the Director’s argument that costs should only be awarded against a complainant for “improper conduct”,
- the adjudicator did note that the complainant’s reasons for failing to comply were not satisfactory, and
- the adjudicator did not dismiss the application.
- ipso facto, the adjudicator was indicating that failure to comply with the prior production order could be “improper conduct” by the complainant
- that presumably means the complainant would be required to have a good reason for his failure to comply. I can think of no other possible interpretation which would explain why the adjudicator determined there was not enough information to fully decide the matter in this sitting.
It makes sense to me that a failure to comply with a production order could be considered improper conduct deserving of a penalty of some kind: there are few things more annoying and prejudicial than when the other side will not produce the required documents, even after you get a production order.
However, the decision that there was not enough information to decide the issue of costs at that application is an odd one to me. Normally in an application (in a court or a tribunal), the party opposing the application is required to provide the evidence supporting their position. If there is something they need evidence on but they do not supply any, they lose the application. If a party did not get sufficient notice of the application or did not have a chance to supply evidence, normally the application is adjourned. However, in my view: this application was not adjourned per se, but was partially ruled on, because:
- the adjudicator’s stated reason for not deciding the costs application was that there were not enough facts available to decide it
- however, the adjudicator allowed the application on production of documents to proceed, and on the costs application the adjudicator determined that the reasons provided by the complainant for failure to comply were not satisfactory
- So the complainant gave evidence of reasons, which the adjudicator said were unsatisfactory, but the adjudicator then said there was not enough evidence to decide the costs application.
I would be surprised if this decision were appealed, because the potential costs award for CNRL on this application would be very low, and its legal counsel is surely aware of this. However, I think if this would have been for a substantial sum of money, an appeal would have been likely on this unusual decision.
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