Appeal Courts uphold substantial costs awards for regulators
By Sean Kelly & Michiko Gartshore
Professional regulators can incur substantial costs through discipline processes. These costs are often associated with investigations, hearings as well as committee member expenses and are an unfortunate by-product of ensuring the colleges or associations uphold their mandates to protect the public by holding members accountable.
Two recent appellate Court decisions demonstrate a significant shift in the approach to costs in professional discipline cases where meaningful portions of expenses incurred are being ordered against the member found to be at fault, rather than fully on the college or association.
In Covant v. College of Veterinarians of Ontario, 2023 ONCA 564 (appeal to the Supreme Court of Canada dismissed on May 2, 2024), the Court of Appeal for Ontario upheld a penalty involving, amongst other items, a public reprimand and a costs award equating to one third of the legal and hearing costs, amounting to $94,235.
The Court found no error in the costs awarded, finding that it was appropriate for the Discipline Committee to use the award to deter other members from engaging in similar conduct, and at the same time, maintaining the public’s confidence in the College’s ability to regulate its members. Importantly, the Court specifically acknowledged that “the Committee commands a wide discretion in determining whether the College’s costs should be paid.”[1]
In a related decision, Zheng v Manitoba Veterinary Medical Association, 2023 MBCA 77 (appeal to the Supreme Court of Canada dismissed on May 2, 2024), an Inquiry Panel of the Manitoba Veterinary Medical Association found a member guilty of several infractions and required the member, amongst other penalties, to pay costs of $50,000. In upholding the significant costs award, the Manitoba Court of Appeal noted the Inquiry Panel’s duty in serving and protecting the public interest in the delivery of veterinary services by sanctioning members. Other relevant factors included the members lengthy discipline record and that previous remedial efforts had been unsuccessful. Importantly, the Court acknowledged that deference ought to be awarded to the Inquiry Panel’s expertise in determining sanctions for members of the profession.
These two recent decisions appear to reflect a shift from the approach in Jinnah v Alberta Dental Association and College, 2022 ABCA 336 where the Alberta Court of Appeal stated that significant costs awards should not be ordered against registrants found guilty of unprofessional conduct, without compelling reasons.
Such a shift is welcomed on the part of colleges, associations and other professional regulators particularly given the substantial costs associated with discipline processes. In situations where the governing statute permits investigation and/or hearing costs to be awarded, regulators now have persuasive case law to support larger costs awards to recoup some of the resources expended in professional discipline cases.
Join us for an upcoming webinar
To help those in regulated professions understand these developments, Stewart McKelvey Labour & Employment lawyers Sheila Mecking, Sean Kelly, and Michiko Gartshore will host a webinar on Monday, May 27. They will review the process around investigations, and will explore key topics essential in effective decision making and fair outcomes. You can register via the link above, or contact events@stewartmckelvey.com for more information.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors, or a member of our Labour & Employment Group.
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[1] Covant v. College of Veterinarians of Ontario, 2023 ONCA 564 at para 80.