Costs as punishment at the BC Human Rights Tribunal

The British Columbia Human Rights Tribunal has the power to award “costs” against a party as a form of punishment. This can be a powerful tool to ensure that parties do not engage in conduct that is unfair or jeopardizes the integrity of the complaint process.

The power to award costs is provided in section 37(4) of the BC Human Rights Code, which states:

“37(4) The member or panel may award costs

(a) against a party to a complaint who has engaged in improper conduct during the course of the complaint, and

(b) without limiting paragraph (a), against a party who contravenes a rule under section 27.3 (2) or an order under section 27.3 (3).”

Costs are discretionary and intended to punish a party that engages in improper conduct. Such an award is meant to deter and sanction improper conduct. The tribunal has stated that improper conduct includes any conduct which has a significant impact on the integrity of the tribunal’s processes, including conduct which has a significant prejudicial impact on another party.

Costs awards are punitive

In exercising its discretion to award costs and the amount to award, the tribunal will consider:

• The nature of the conduct in question.
• Any actual costs arising from the conduct.
• The seriousness of the impacts on the human rights system and other parties.
• Deterrence.

The tribunal is also permitted to consider a party’s explanation for their conduct, any other consequences that flow to the party due to their conduct, and the party’s ability to pay costs. In making a costs award, the tribunal will consider cost awards made in other decisions as a guideline, for the purpose of consistency and fairness.

These principles were recently considered in the decision of Jasaitis v. Corporation of the District of West Vancouver and another, 2025 BCHRT 299.

Discrimination complaint

Ms. Jasaitis was employed with the Corporation of the District of West Vancouver and was a member of the Amalgamated Transit Union, Local 134, until the District terminated her employment. After the termination, Jasaitis filed a complaint against the District and the union alleging discrimination in the workplace based on mental disability, sex, and political belief.

The District and union denied discriminating against Jasaitis and applied to dismiss her complaint on the basis that it had no reasonable prospect of success. The District and union also applied for an order of costs against Jasaitis on the basis that she had engaged in improper conduct in the course of the complaint.

Following a review of the evidence, the tribunal sided with the District and union and dismissed Jasaitis’ complaint on the basis that it had no reasonable prospect of success. The more interesting part of the decision, however, is the costs award.

Application for costs for delay in evidence disclosure

The District and union applied for an order of costs against Jasaitis because of her delay in disclosing a number of recordings she made during meetings with the District and union. The District and union argued that it was improper for Jasaitis to record the meetings in the first place, and breached confidentiality. They also argued that that the recordings revealed that Jasaitis made false allegations in her complaint. By disclosing the recordings late, the District and union further argued that Jasaitis failed to comply with her disclosure obligations and prejudiced them in the complaint process.

Jasaitis denied engaging in improper conduct and objected to the costs application.

With regard to the surreptitious recordings, the tribunal found that surreptitious recordings occurred well before Jasaitis filed her complaint and triggered the tribunal’s complaint process. Section 37(4) of the code applies to a party’s improper conduct during the course of a complaint. Therefore, the tribunal did not find this was a basis for costs.

With regard to the false allegations, the tribunal found that the recordings had already served their purpose with consequences flowing to Jasaitis. The recordings helped the Tribunal Member decide that some of Jasaitis’ complaint allegations had no reasonable prospect of success, which resulted in the dismissal of Jasaitis’s complaint. The dismissal of a complaint is a significant consequence on its own and, as a result, the tribunal did not find this was a basis for costs.

The tribunal also found that the recordings were central to Jasaitis’ complaint allegations and highly relevant. She was required to provide that disclosure to the District and union. Her failure to do so was a clear breach of her obligation to provide disclosure as directed by the tribunal.

Invalid explanation for failing to disclose

Jasaitis’ explanation for the breach is that her counsel was unable to review the recordings and determine their relevancy by the disclosure deadline. The tribunal found this was not a valid explanation for sitting on potentially relevant disclosure and letting the disclosure deadline pass without taking any further steps. The tribunal made the following comments:

• While in some cases assessing relevancy for disclosure may be complex and challenging, in this case the tribunal did not accept this as a reasonable explanation for Jasaitis’ late disclosure.

• The tribunal does not spring disclosure deadlines on parties. In this case, the Tribunal gave Jasaitis close to three months’ notice of her disclosure deadline.

• Jasaitis could have asked to extend her disclosure deadline, based on extenuating circumstances. Instead, she left the District and union with the impression that she had provided all relevant disclosure for more than eight months.

• In preparing her response to the dismissal applications, Jasaitis and her counsel acknowledged the recordings were relevant and disclosable. It should not have been on the District and union to discover the existence of the recordings in her response to the dismissal applications.

• Accepting her explanation would suggest to other parties that they could simply avoid disclosing relevant documents in their possession by neglecting to review them. This would set a bad precedent.

The tribunal found that the District and union were deprived of highly relevant and available disclosure at the time of preparing their dismissal applications. This was unfair and it could have made a difference to their choices and approaches to their dismissal applications.

The tribunal found that Jasaitis’ breach of her disclosure obligations was more than a technical breach. It resulted in needless inefficiency, a waste of the District’s, union’s and the tribunal’s resources, and a delayed resolution of the complaint.

Costs to deter, sanction conduct

Given the above, the tribunal found that a cost award was appropriate to deter and sanction such conduct. After reviewing previous costs awards, the nature of the conduct, the impact of the conduct, and Jasaitis’ ability to pay, the tribunal awarded $1,000 to the District and $500 to the union.

While the amounts were nominal, they send a strong message: the integrity of the tribunal’s process is central to its ability to carry out its mandate of enforcing the code.

Trevor Thomas is a co-founder and partner at Ascent Employment Law in Vancouver.