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RHPA - Costs. Moore v. College of Chiropractors
In Moore v. College of Chiropractors (Ont Div Ct, 2025) the Ontario Divisional Court dismissed most of an appeal (but for costs), this brought against a "decision rendered by a panel of the Discipline Committee of the College of Chiropractors of Ontario".
Here the court extensively considers a costs award (to the College) by a "panel of the Discipline Committee of the College of Chiropractors of Ontario", and some specific factors involved in deciding the costs award (including high costs barring a member from advancing their argument):[134] In Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at paras. 24-25, Epstein J.A. in dismissing a motion for an extension of time to file leave to appeal, summarized the standard of appellate review of costs awards:The courts have recognized this jurisdiction [to award costs] and have described it as being broad and discretionary: Freedman v. Royal College of Dental Surgeons, [2001] O.J. No. 1726 (Div. Ct.), at paras. 3, 6; Aronov v. Royal College of Dental Surgeons, [2002] O.J. No. 5973 (Div. Ct.), at para. 54. The courts have also identified the College's right and responsibility to protect its members from the weight of the expense of protracted disciplinary hearings: Aronov, at para. 53.
The standard of review of reasonableness applies to the Costs Decision as the College was interpreting its own statute and was exercising discretion in making the award: Venneri v. College of Chiropractors of Ontario, 2010 ONSC 473, [2010] O.J. No. 334, at para. 6. A decision is only unreasonable if there is no line of analysis in the reasons that could reasonably lead the administrative tribunal from the evidence to the conclusion reached: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55. See also Haydarian v. Royal College of Dental Surgeons of Ontario, 2023 ONSC 1221, (Div. Ct.), at para. 41.
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[138] I would not disturb the findings made by the Panel that the appellant’s actions prolonged the hearing. This is a relevant factor to consider, and I would defer to the Panel who oversaw the case and is most familiar with its conduct: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.), at para. 232.
[139] As well, the reasonable expectations of the unsuccessful party are not a factor that is considered: Reid, at para. 228. In Clokie v. Royal College of Dental Surgeons, 2017 ONSC 2773 (Div. Ct.), at para. 72, the Court commented:The costs award unsuccessfully challenged in Reid was $166,194.50. The court concluded that the panel considered the appropriate principles and upheld the award. In doing so, the court noted that s. 53.1 of the Code expressly permits a broader costs claim than the scope of a claim in a civil proceeding. The court held the reasonable expectations of the losing party need not be considered, but that proportionality should be considered, as it was here. [140] Offers to settle that were made by the respondent were a proper consideration: Reid, at para. 233. Given that the settlements offered by the respondent involved substantively shorter periods of suspension than the penalty the appellant received, it cannot realistically be said that they were unreasonable.
[141] That all said, in my view, the Panel made errors of law in deciding the quantum.
[142] In the costs’ decision, it referred to the following two factors amongst others in its initial determination of whether the granting of any costs would be appropriate: (1) the previous cautions given to the appellant about his billing practices, and (2) his conduct in challenging the recusal motion in the Divisional Court. These were appropriate considerations on that question. However, the Panel in moving on to the question of quantum, expressly stated it would consider all the factors on the question of the appropriateness of a costs order on the issue of the quantum. I struggle to see how the two factors referred to above have any bearing on deciding what the quantum should be. Neither factor led to any additional time or costs before the Panel. I find that the Panel erred in taking into account irrelevant considerations in fixing the quantum.
[143] More importantly, looking at the Panel’s costs decision as a whole, there is merit to the appellant’s position that the Panel failed to take into account the principle of proportionality. Proportionality is a key consideration in making a costs award: Reid, at para. 227; Clokie, at para. 72.
[144] The Panel did consider that costs orders against members who have engaged in misconduct were appropriate so that the profession did not have to bear the weight of the expense of discipline proceedings through membership fees. As well, it did recognize that the appellant’s right to access to justice needed to be balanced against that. And no one can quarrel with its conclusion that a significant costs award should be granted given all the relevant factors including the fact this was a 28-day hearing, and the appellant bore much of the responsibility for its length.
[145] Nonetheless, when it came to assessing the quantum, missing from the Panel’s reasons, was any consideration of proportionality.
[146] Aside from the lack of any reference to proportionality, portions of the decision support my conclusion that the Panel failed to give it adequate attention.
[147] First, the Panel stated that it did a careful review to determine whether any reasons existed to justify a reduction in the quantum, but briefly concluded that “[n]one were found.” In my opinion, this reasoning is indicative of its error in not considering overall proportionality.
[148] Second, there was no consideration of the multiple nature of the allegations, their complexity, or the seriousness of the allegations in assessing whether the overall quantum was proportional. The focus of the decision was almost entirely on the deficiencies of the defence’s conduct of the case.
[149] Third, in response to the appellant’s submissions that any cost award above $200,000 - which he argued should be a general cap on costs - would be financially devastating, the Panel gave the impact of the quantum on the appellant little or no weight. This is revealed by its reference to the fact that the appellant presented no evidence of his financial success or lack of it to show it would be so devastating. In addition, it reasoned based on the appellant’s evidence given at the liability phase about the number of patients he sees in a day, his billing policy and his fee, that this “suggests a level of financial success”. Thereafter, the Panel referred to the “potential” negative effect on the appellant.
[150] I recognize that the lack of evidence on such negative impacts can be a proper factor when calculating costs: Clockie, at para. 66. However, it is an unreasonable approach to minimize the impact of such a large costs award based on sparse evidence given by the appellant about what his average day looks like and his general fees for service. Given the large amount of the award, while devastation may not have been proven, it is inevitable that such a large award “would”, not “could”, have a significant negative impact. It was wrong to reason otherwise and then to briefly conclude there was no reason to reduce the award.
[151] Finally, the Panel failed to consider some of the authorities that have commented about the discomfort of such high costs’ awards in a discipline context. Costs awards should not be so high as to create a real practical barrier to Members being able to defend themselves in discipline proceedings. In the instant case, it should be borne in mind that the factual issues concerned a course of treatment for two related persons over a relatively short period of time. There is no good reason that a hearing into these matters should have consumed 28 days of hearing time. While a large portion of the blame for the overlitigation of this case rests on the appellant, as found in the costs’ decision below, some of it rests on the tribunal itself for not keeping the proceedings within reasonable bounds. I would have thought the case over litigated if it had taken half as long.
[152] I appreciate the respondent’s argument that when the amount awarded in this case is calculated on a per day cost basis, it is less than the costs awards in other cases when fewer hearing days were involved. However, respect for proportionality cannot simply be reduced to mathematical calculation on a comparative basis and as noted above, the hearing took much longer than it should have taken. In addition, using a percentage of the total actual costs as a method in awarding costs is just a recognition of a guideline, like partial indemnity scale in civil cases: Bayfield v. College of Physiotherapists of Ontario, 2014 ONSC 6570 (Div. Ct.), at para. 9. A range such as 2/3rds, 60%, 50%, or less has been used as guideposts in other health professions discipline prosecutions: Casella v. Ontario College of Chiropodists, 2024 ONSC 899, at para. 54; Walia v. College of Veterinarians of Ontario, 2021 ONSC 4023 (Div. Ct.), at paras. 30-31; Dhaliwal v. College of Veterinarians of Ontario, 2025 ONSC 1931 (Div. Ct.), at para. 156; Chuang v. Royal College of Dental Surgeons of Ontario, 2006 CanLII 19433 (ON SCDC), 211 O.A.C. 281 (Div. Ct.), at para. 19; Yan v. College of Traditional Chinese Medicine Practitioners and Puncturists of Ontario, 2022 ONSC 5464 (Div. Ct.), at paras. 80-82.
[153] In terms of authorities that have commented on such high costs award, I refer to Reid, at paras. 234-236 where an award of $166,194.50 or 51% of the total sought was described by the majority as “high” but given the reduction already given by the Discipline Committee, it remained reasonable. Yet, noteworthy, given the magnitude of the award, the majority declined to award costs on the appeal. In Clockie, a cost award of $318,297.87, 2/3 of the costs incurred by the college, was upheld on appeal but described by the court as “unusually high” and that the court would expect more moderate awards. The court in Chuang determined that costs awarded of $250,000 of a total cost of $400,000 was unduly high and fixed costs at a lower amount of $200,000.
[154] I recognize that committing errors of principle in awarding costs awards and failing to heed the proportionality principle does not automatically lead to appellate interference: Barry v. Anantharajah, 2025 ONCA 603, at paras. 31, 44-48. However, in my opinion, even giving due deference to the Panel and applying the deferential standard of review on costs awards, given the errors identified, this costs award is unreasonable. I would accede to this ground of appeal.
[155] Considering the factors that were properly identified by the Panel and having due regard to the principle of proportionality and some division of responsibility for the length of the proceedings, I would fix costs below in the amount of $450,000. . Casella v. Ontario (College of Chiropodists)
In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court considered professional discipline tribunal costs, here in an RHPA-HPPC context:5. Section 53.1 of the Health Professions Procedural Code[1] (the “Code”) confers on the Committee broad discretion to order costs against a member. The Committee’s costs award is entitled to significant deference; a court should not interfere unless the adjudicator made an error in principle or was plainly wrong. There are no grounds to interfere with the costs award in this case.
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Issue 4: Did the Committee err in its Costs Decision?
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52. The Appellant submits that the quantum of costs awarded was demonstrably excessive. The liability hearing lasted 1.5 days during which the Appellant admitted nearly the entirety of the College’s case. The Appellant argues that the costs award greatly exceeds awards for regulated health professions where a costs tariff is in place. He further submits that it does not appear that the court has ever upheld a costs award of this magnitude for such a short, streamlined hearing and that the Committee offers no meaningful explanation for its unprecedented costs award.
53. The College presented a detailed Bill of Costs to the Committee. The Appellant did not. A comparison of parties’ bills of costs is frequently how an appropriate amount for costs is determined. The Appellant argued that the file was overworked and the costs disproportionate. The Committee looked at the evidence, heard the submissions and gave reasons. In these circumstances, it would be inappropriate to second guess the Respondent’s Bill of Costs, especially since the Appellant failed to provide one of the main bases on which a court can assess whether another party’s costs are disproportionate—their own bill of costs.
54. Section 53.1 of the Code grants the College broad discretionary power to make costs orders. A Committee’s costs award is entitled to significant deference; a court should not interfere unless the adjudicator made an error in principle or was plainly wrong. The Committee recognized that the amount ordered was significant but found that it reflected approximately two-thirds of the actual costs incurred, and that this was a reasonable amount for the Appellant to pay given the need to ensure that the membership at large is not left with the burden of paying a disproportionate share of the costs associated with proceedings generated as a result of another member’s misconduct. While the Appellant argued that the Alberta Court of Appeal has taken a different approach to the awarding of costs in professional regulatory proceedings ( a large portion of the costs should be borne by the membership), that case is not binding on us and is not consistent with the approach taken by the Ontario courts.
55. The tariff rates set by other Colleges do not bind or limit the Committee’s statutory discretion to award costs.
56. There is no error in principle or other basis for this court to intervene with respect to the costs award.
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