Divisional Court Strikes Down Costs Order of Colleges’ Discipline Committee
By Kate Hughes
On September 28, 2007, the Divisional Court set aside a decision of the College of Nurses of Ontario’s Discipline Committee which awarded costs against a member in a discipline proceeding. In that case, although the costs were very minimal ($100.00), the Divisional Court set aside the decision of the Discipline Committee as unreasonable.
The Discipline Committee of the College ordered costs against the Member after a short discipline hearing that proceeded entirely by way of an Agreed Statement of Facts and Joint Submission on Penalty. The Discipline Committee, on its own motion, ordered the costs and relied on a rule that they had created (“Rule 6") that stated if the Committee was not informed of a settlement at least 10 days prior to the hearing date, they could order costs against “the party responsible for the delay”. The Committee then ordered costs against the individual nurse, not the College. The facts were that both parties were negotiating the agreement in good faith right up until the day before the hearing, the member was not responsible for the delay, and in fact had contacted the College promptly after receiving late disclosure from the College.
While the nurse was successful in having the costs award struck down, the Divisional Court decided to set aside “for another day” the decision whether the rule itself should be struck down. The rule appears to be inconsistent with the Regulated Health Professions Act that limits the authority of the Committee to order costs in “an appropriate case”, and the Statutory Powers Procedures Act (“SPPA”) that prohibits an order for costs unless the conduct of a party has been “unreasonable, frivolous, or vexatious” or a party has acted in “bad faith”. The Court declined at this point to rule on this issue, given they found the particular decision to be unreasonable.
Although on its face, the rule appears to be applicable to both Colleges and Members, in practice, the rule would only be enforceable against Members. This is because Colleges are protected against most cost orders. The Regulated Health Professions Act Procedural Code states that no order may be made against a College unless it is shown that “commencement of proceedings were unwarranted”. This is a difficult test to meet even in cases where the College fails to prove professional misconduct. It would be impossible to meet in a case where the member acknowledges professional misconduct and the matter proceeds by way of agreed facts and penalty (and thus presumably the commencement of the proceedings were “warranted”). The effect of the Discipline Committee’s rule is that, as this case illustrated, the rule impacts only the individual member for costs even though the College may also be responsible for “delay” in reaching a negotiated settlement.
Further, an order of costs in circumstances where a Member has acted reasonably and reached a settlement with the College, but has not provided the requisite notice of settlement under the rule, is questionable when the settlement avoids a contested hearing, and often results in a saving of costs to the College.
The issue of costs against members in discipline proceedings before a number of Colleges has become particularly troubling for members. Costs awarded have been extremely high with respect to a number of colleges, many of whom have made precedential costs decisions at proceedings where the members are unrepresented or on basis of egregious facts. Unfortunately these case are causing some College’s Discipline Committee to, as a matter of course, order costs awards against members. This court challenge in the recent College of Nurses case was an attempt to put a halt to this tide of cases where costs are now becoming increasingly common. Although the costs award was not high in this case, it was struck down by the Court and hopefully will send a signal to future Discipline Committees who may be contemplating costs awards.
If you have any questions or concerns regarding costs awards of professional colleges, please do not hesitate to contact Kate Hughes.