Recovering legal expenses after you’ve had a worthless human right complaint lodged against you is not a sure thing by any means.
In their capacity as executive members of the Yukon Junior Mushers Association (YJMA), Darren Kingvig and Sean Fitzgerald revoked a man’s membership due to repeated profane temper tantrums. The man, Swiss immigrant Michael Salvisberg, then lodged a complaint with the Yukon Human Rights Commission, alleging prejudice against immigrants and Europeans. The YJMA hired a lawyer and ran up $3000 in legal bills before Mr Salvisberg dropped his complaint.
Now a Yukon court judge has ruled that he cannot order the complainant to repay the association’s legal expenses.
Salvisberg was well known within the Yukon's mushing community for his outbursts, often including obscenities, at local dog sled races, especially when his son was competing. A number of such outbursts prompted the association to suspend Salvisberg's membership.
The group put further sanctions on Salvisberg, barring him from coaching his son at the 2006 Arctic Winter Games.
. . .
Salvisberg countered with a complaint to the Yukon Human Rights Commission, claiming the association was prejudiced against Europeans and recent immigrants from Europe.
He eventually dropped that complaint, but not before the group had spent more than $3,000 on legal fees, which it had hoped to recoup in small claims court on Friday.
Judge John Faulkner ruled that Salvisberg's evidence alleging the groups had discriminated was scanty at best.
Faulkner added, however, that even if Salvisberg's evidence was completely fabricated and slanderous, the Yukon small claims court has no jurisdiction to award costs in a matter before the human rights commission.
Further confusing detail from the Whitehorse Star (full story behind a subscriber wall, unfortunately).
When Fitzgerald and Kinvig tried to secure compensation for legal fees through the human rights commission, they were told this was outside the commission’s jurisdiction.
Salvisberg told the court he stands by his position that only the commission has jurisdiction in this case.
“I’m forced to agree with the defendant,” Faulkner said in his decision. “It does not follow that small claims court has jurisdiction (in this matter).”
Faulkner said compensation would only have been possible if Salvisberg’s allegations to the commission had been proved false.
Something isn’t right there, or else it’s simply Catch-22 all around. The commission says it doesn’t have jurisdiction to order unsuccessful complainants to repay their targets’ legal fees; however, the unsuccessful complainant says it does so have jurisdiction. Doesn’t the commission know best what its own mandate entails? What is more, the trial judge agrees with the unsuccessful complainant—sort of.
Kingvig and Fitzgerald graciously look on the bright side: They are happy that their original decision to bar Salvisberg has been vindicated. True, but they’re still out $3000 through no fault of their own.
This is not justice.