Unlike the Superior Court of Justice, the Human Rights Tribunal of Ontario (HRTO) generally does not have the authority to award legal costs to the winning party. This means that even if you win your discrimination case against your employer, you will likely have to pay your own lawyer out of your settlement.
When pursuing a claim against an employer for violating the Ontario Human Rights Code, workers understandably want justice. 📍 Whether you faced discriminatory termination in Hamilton, or harassment in a Sudbury retail store, hiring a law firm to fight back feels like the right step. However, an immediate concern is whether the employer can be forced to pay your legal bills.
A common misconception among applicants is the “loser pays” rule. 📜 While this rule applies in standard civil lawsuits across Canada, the human rights tribunal operates under an entirely different set of rules. Understanding these limitations is critical before you commit thousands of dollars to legal representation.
Why the HRTO Does Not Award Legal Costs in Ontario
The Human Rights Tribunal of Ontario was designed to be a highly accessible, cost-free forum. 🏦 Because the government does not charge filing fees, the legislation intentionally omits the power to award legal costs. This protects vulnerable applicants from being bankrupted if they lose against a large, well-funded corporate employer.
The flip side of this protection is that successful applicants cannot recover their own legal expenses. 💵 When an adjudicator rules in your favour, they can order the employer to pay you “general damages” for injury to dignity, feelings, and self-respect, as well as lost wages. However, they will strictly decline requests to add your lawyer’s invoice to the final judgment.
| Legal Forum in Ontario | Can You Win Legal Costs? | Risk of Paying Employer’s Costs if You Lose? |
|---|---|---|
| Superior Court of Justice (Civil Suit) | Yes (Partial or Substantial Indemnity) | High (You may pay the employer’s legal bill) |
| Human Rights Tribunal of Ontario (HRTO) | No | Zero (Each side pays their own lawyer) |
Strategic Steps to Manage Legal Costs
Because the HRTO will not order your employer to pay your lawyer, you must be strategic about how you structure your legal claim and representation. 📈 Here are the steps most applicants take to maximize their financial outcome.
Step 1: Utilize Free Government Resources
Before hiring private counsel, reach out to the Human Rights Legal Support Centre (HRLSC). 📞 They provide free legal advice and, in some strong cases, free representation at the tribunal. This completely eliminates the worry of legal fees, leaving your final award untouched.
Step 2: Negotiate “Costs” into a Settlement
Most HRTO claims are resolved at the mediation stage rather than a full hearing. 💰 While an adjudicator cannot order costs, parties are free to negotiate whatever they want in a voluntary settlement. Your lawyer can firmly demand a larger global settlement sum from your employer to quietly offset your legal fees.
Step 3: Consider Suing in Civil Court Instead
If you were wrongfully dismissed alongside facing discrimination, you might choose to file a lawsuit in the Ontario Superior Court of Justice instead of the HRTO. 📒 In civil court, judges can award damages for Human Rights Code violations AND order the losing employer to cover a portion of your legal fees. An experienced Ontario employment lawyer can help you choose the best venue.
How Much Does it Cost in Ontario?
Understanding the financial realities of an HRTO claim helps manage your expectations. 💸 Keep these figures in mind when deciding how to proceed:
- Tribunal Fees: $0 CAD. There are no fees to file forms or attend mediation.
- Contingency Fees: If you use a private law firm on contingency, expect them to deduct 25% to 35% directly from your HRTO settlement or award.
- General Damages Ceiling: Be realistic. HRTO awards for injury to dignity generally range from $10,000 to $30,000 CAD, though exceptional cases have reached over $100,000. Your lawyer’s cut comes from this amount.
How Long Does the Process Take?
Opting for early resolution is the best way to save on legal costs. ⏱️ A negotiated settlement at HRTO mediation usually takes 6 to 10 months. If you push for a full hearing, expect to wait 2 to 3 years, which will dramatically increase your lawyer’s billable hours if you are paying an hourly rate.
Frequently Asked Questions (FAQ)
If my employer acted in bad faith, will the HRTO award costs?
Generally, no. Even if your employer’s conduct was egregious or they purposefully delayed the tribunal process, the HRTO still lacks the statutory authority to award legal costs. They may, however, increase your general damages award.
Can I force my employer to pay my lawyer if we settle at mediation?
You cannot “force” them, but settlements are purely voluntary. Your lawyer can ask for a lump sum that implicitly covers both your damages and your legal fees. If the employer agrees, the matter is resolved.
Is it better to go to Civil Court to win legal fees?
It depends. Civil court allows you to win legal fees, but it also exposes you to the risk of paying your employer’s legal fees if you lose. The HRTO offers a risk-free environment where you never pay the other side’s costs.
Does the Ministry of Labour handle human rights claims?
No. The Ministry of Labour deals with Employment Standards Act violations (like unpaid overtime or minimum wage). Discrimination and harassment based on protected grounds strictly belong to the HRTO or the civil courts.
Can my union pay for my human rights lawyer?
If you are in a unionized workplace in Ontario, human rights complaints are typically handled through the grievance arbitration process, not the HRTO. In most cases, your union provides legal representation at no direct cost to you.
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