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Civil Litigation - Costs - Tribunal. Atkinson v. Economical
In Atkinson v. Economical (Ont Div Ct, 2026) the Ontario Divisional Court considered an awkward LAT (SABS) tribunal reconsideration issue, here where the applicant "challenges the LAT’s jurisdiction to issue a second reconsideration decision more than a year after their original reconsideration decision was issued and while the decisions were the subject of both a judicial review and an appeal". The case also involved a parallel HRTO application alleging discrimination in the LAT process.
Here the court considered an unusual case of costs against a tribunal:Issue #2- The Costs of the LAT Appeal
[56] The Applicant seeks costs of the LAT appeal in the sum of $56,653.67, inclusive of HST and disbursements from both the LAT and from Economical. The LAT opposes this request for costs, arguing that costs are usually not ordered against (or in favour of) administrative tribunals. Economical argues that there should be no costs or, in the alternative, that any costs awarded should be awarded against the LAT.
[57] Generally, costs are not awarded for or against a tribunal in a judicial review. This is because a tribunal’s submissions before the Court are generally limited to jurisdictional issues: R. v. Ontario Labour Relations Board, ex. parte Labourers International Union of North America Local 183, 1969 CanLII 326, [1969] 2 O.R. 116. The circumstances in which costs may be awarded for or against a tribunal are very limited. As noted in York Advertising v. Ontario (Human Rights Commission), 2005 CanLII 43910 (ON SCDC) at para 2:
[2] We recognize that it is only in very rare circumstances that this Court should award costs against a statutory tribunal. It is not sufficient, to justify making such an award, that the tribunal be found only to have acted in error or beyond its jurisdiction. Rather, there must be some unusual quality about the conduct of the tribunal that requires us to invoke our jurisdiction to make such an award in order to achieve a result that is just.
[58] The mere fact that an administrative tribunal has made an error will not be sufficient to justify an award of costs: Barrette v. Rayonier AM Canada Industries Inc. et. al., 2025 ONCS 319 (para. 18). However, there are some circumstances where a tribunal acts as an adversary that they will be either entitled to costs or subject to an award of costs: Reynolds v. Ontario (Alcohol and Gaming Commission, Registrar), 2019 ONSC 7057 at paras. 4 and 5.
[59] I am not persuaded that this case has the unusual qualities necessary to justify an award of costs against the LAT. The LAT’s first two decisions in this case would not have attracted an award of costs against the LAT, just as the decisions in Plante did not attract an award of costs against the LAT. In both cases, the same error was made, and it is the type of error that is corrected on appeal. The September 12th, 2025, decision was an effort to try and ensure that this matter proceeded on the merits. Again, while the decision contains an error of law, there is nothing so egregious or adversarial about the decision that an award of costs should be justified.
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