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Administrative - Costs. Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court states an appellate SOR for an administrative tribunal costs award:[170] An appeal court will interfere with a tribunal’s costs award only if the tribunal made an error in principle or was plainly wrong: Kennedy v. College of Veterinarians, 2018 ONSC 3603 (Div. Ct.), at para. 24, citing Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
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[185] On a similar basis, contrary to the submissions of Mr. Kitmitto and Mr. Goss, I see no basis for concluding that the Tribunal made an error in principle or was plainly wrong in its exercise of discretion in fixing and allocating costs. At para. 91, the Tribunal explained the rationale for its costs allocation, based on the conduct of the respective parties and the extent to which OSC staff was successful in proving its allegations against them. The Tribunal did not err in doing so. . Casella v. Ontario (College of Chiropodists)
In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court, in assessing an appeal from a cost award, applied the same SOR to an administrative tribunal as to civil litigation:27. The standard of review that applies to an appeal of a costs award is one of considerable deference. A costs award should be set aside on appeal only if the adjudicator made an error in principle or was plainly wrong: Kennedy v. College of Veterinarians, 2018 ONSC 3603, at para. 24, citing Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. . Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court allowed a high costs order at the tribunal hearing, considering that it was appropriate in a professional disciple matter:[77] Ms. Yan also claims that the costs award ordered by the Discipline Committee was excessive.
[78] The hearing in this matter took place over seven days. The College’s costs in this case totaled approximately $122,580, which were comprised of the investigation costs, the prosecution’s legal costs, independent legal counsel’s costs, and the various hearing costs, including Panel member expenses and the costs of the court reporter.
[79] The Committee has broad and discretionary jurisdiction to award costs under the Code. It is appropriate for it to make costs orders against members who have engaged in misconduct so that the profession does not have to bear the weight of the expense of discipline proceedings through membership fees (Reid v College of Chiropractors of Ontario, 2016 ONCA 779 at para 24, aff’g 2016 ONSC 1041 [Reid (ONSC)).
[80] The Panel ordered Ms. Yan to pay a costs award of $65,000, being just over half of the College’s actual costs. The Panel considered relevant factors, including the relative success of the College, Ms. Yan’s conduct during the hearing process, the principle that costs are not punitive, and the impact of the costs order on Ms. Yan.
[81] The costs awarded in this case fall either within the range of or well below similar cases. In Walia v College of Veterinarians of Ontario, 2018 ONSC 6189 at paras 28, 31, leave to appeal to CA refused, (28 January 2019), leave to appeal to SCC refused, (27 June 2019), $142,000 was awarded to the College for an 11-day hearing. In Reid v College of Chiropractors of Ontario, 2016 ONSC 1041, at paras 216–218, 225–226, 234–236, $166,194 was awarded to the College for a 5-day hearing. In Clokie v The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773 at paras 58–59, 61, 74–75, $318,207 was awarded to the College for a 6-day hearing.
[82] For these reasons, I find the Panel’s decisions on penalty and costs were reasonable and that this ground of appeal should also be dismissed. . Dell v. Zeifman Partners Inc.
In Dell v. Zeifman Partners Inc. (Div Ct, 2020) the Divisional Court considered cost issues emanating under authority of the Statutory Powers Procedures Act:[2] The Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (the “Act”) establishes a statutory scheme to shield farmers from liability in nuisance for disturbances caused by “normal farm practices”, a term defined by the Act. The Board adjudicates disputes under the Act, and, in particular, determines whether an agricultural operation meets the “normal farm practice” standard.
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[28] Following the release of the merits decision, both parties submitted requests for costs under s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) and the Board’s Rules.
[29] Subsections 17.1(1) and (2) of the SPPA provide that a tribunal may order a party to pay all or part of another party’s costs on two conditions: the tribunal has made rules respecting the award of costs, and the conduct or course of conduct of a party against whom costs are awarded has been “unreasonable, frivolous or vexatious or a party has acted in bad faith.”
[30] The Board has enacted rules respecting the award of costs in accordance with s. 17.1 of the SPPA. Subsection 66(1) of the Board’s Rules provides that a party may seek costs where it believes that another party “has acted clearly unreasonably, frivolously, in a vexatious manner, or in bad faith, considering all of the circumstances.” Subsection 66(8) sets out a non-exhaustive list of conduct that can be found to be “clearly unreasonable, frivolous, vexatious or bad faith”. According to s. 66(9) of the Rules, if the party requesting costs has also conducted itself in an unreasonable manner, the Board has discretion to deny costs or reduce the quantum of a costs award.
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[46] As a starting point, it is important to emphasize that an award of costs is discretionary. Moreover, this Board has a limited authority to award costs. In order to make a costs award, it must find that the party against whom costs are sought has acted in a manner that is unreasonable, frivolous, or vexatious or the party has acted in bad faith. Even then, the Board can deny costs or reduce the quantum of costs to a party who has acted unreasonably. As the Board noted in its costs decision, its jurisprudence has established that no party has a right to costs, and costs awards are rare (Dubois v. Burkhardt (No.1), 2010 ONNFPPB 55 (CanLII)).
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