Case considered: Boissoin v. Lund, 2010 ABQB 123
There are several ABlawg posts written about the human rights case involving Dr. Darren Lund’s complaint to the Alberta Human Rights Commission (see here). The case concerned the publication in the Red Deer Advocate of a letter to the editor written by Stephen Boissoin, which Dr. Lund alleged violated s.3 of Alberta’s Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (“HRCMA“, recently re-enacted as the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 (“AHRA“)). Justice Earl Wilson recently issued a Memorandum of Decision on the issue of costs.
The procedural history of the case is helpful in understanding the costs issue. Dr. Lund complained to the Commission against the Red Deer Advocate, Stephen Boissoin and the Concerned Christian Coalition about the letter to the editor published on June 17, 2002. The Red Deer Advocate settled right away, agreeing to institute an anti-discrimination letter to the editor policy. After investigation, the Commission staff found that the complaint did not have merit. Dr. Lund appealed to the Chief Commissioner, who ordered that a Panel (now “Tribunal”) hear the matter. When a Panel is formed because of a decision of the Chief Commissioner, the complainant (in this case Dr. Lund) has carriage of the matter (see HRCMA, s.29 and AHRA, s.29). This means that the complainant must hire and pay for his own legal representation at the hearing. The Commission only provides legal representation when a Panel is hearing a matter that was determined by Commission staff to have merit.
The Panel found that Dr. Lund’s complaint had merit and made a number of orders under that complaint (see my post Offensive Publication Case Highlights the Tension Between Human Rights and Civil Liberties). While the Panel awarded a number of financial remedies, there was no order regarding costs. Next, Stephen Boissoin appealed the case to the Alberta Court of Queen’s Bench (see my post Court of Queen’s Bench Overturns Panel Decision in Boissoin v. Lund). The decision of the Panel was overturned. In his decision on the merits, Justice Wilson rejected Boissoin’s claim for full indemnification (100% repayment) of costs and said that costs would be in the cause (meaning costs will go to the ultimately successful party).
Mr. Boissoin applied to the Court of Queen’s Bench for an order for costs to be party-and-party in relation to all proceedings, including those before the Panel. Asking for party-and-party costs means that Boissoin wanted to be paid by Lund for his legal costs according to a schedule set out in the Alberta Rules of Court, Alta. Reg. 390/1968. Dr. Lund argued that either no costs should be awarded or that a lesser amount be awarded based on a different schedule of costs. Justice Earl Wilson of the Alberta Court of Queen’s Bench directed that each party should bear its own costs.
This is a departure from the general rule that costs are awarded on a party-and-party basis against an unsuccessful litigant (see McCarthy v. Calgary Catholic Separate School Board District No. 1,  A.J. No 55 (Q.B.) at para. 5). However, a court has discretion to depart from the general rule when the case is one of public interest (see Pauli v. ACE INA Insurance Co.,  A.J. No. 883 (C.A.) at para. 21). These kinds of cases usually deal with complex and difficult issues, or are of great importance to the community at large. Because the Boissoin v. Lund case involved public interest issues, such as whether s. 3(1)(b) of the HRCMA was within the legislative jurisdiction of the province of Alberta and whether it violated the Canadian Charter of Rights and Freedoms, it fell within the exceptional category. Alternatively, Justice Wilson noted that Boissoin was not successful in arguing the two public interest issues, and thus had only achieved mixed success. Hence, this was a case where each party should bear its own costs.
This seems to be a very fair decision because often human rights and civil liberties cases involve public interest questions. It would be a deterrent for an interested citizen to bring forward a legal issue that is in the public interest if he or she thought that s/he would have to pay the other party’s legal costs in the event of losing the case. As it was in this case, Dr. Lund, who clearly made the complaint in the public interest, was liable for significant legal costs, as he had carriage of the complaint before the Panel. While often lawyers will donate their time and resources for public interest litigants, there is no legal requirement that they do.