Simon's Legal Resources

Civil Litigation - Costs - Tribunal

. The Jos. Rashotte Company Limited v. Quinte Conservation Authority

In (Div Ct, 2026) the Divisional Court considered a party's unusual request for costs from the tribunal, here in a JR context:

[17] I have considered the principles governing costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 131(1) provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[18] The Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) confirmed that costs are fundamentally discretionary and that the objective is to fix an amount that is fair and reasonable in the circumstances rather than simply indemnifying a successful litigant for actual expenses incurred.

[19] The starting point in most civil proceedings is the determination of success and the application of the factors set out in Rule 57.01 of the Rules of Civil Procedure. However, judicial review proceedings involving administrative tribunals engage additional considerations that have developed through the jurisprudence. There is no dispute in this case that the QCA Board acts as an administrative tribunal in respect of appeals of development permit refusals and in that function is governed by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

[20] The basic principle relating to costs against an administrative tribunal is set out as follows:

It has been recognized ... that, contrary to the normal practice, costs do not necessarily follow the event where administrative or quasi-judicial tribunals are concerned. They may be awarded only in unusual or exceptional cases, and then only with caution…where the tribunal has acted in good faith and conscientiously throughout, albeit resulting in error, the reviewing tribunal will not ordinarily impose costs.

See: Donald J.M. Brown & John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada, 2009), para. 5:47.

[21] This text has also been cited by the Divisional Court in Reynolds v. Ontario (Alcohol and Gaming Commission, Registrar), 2019 ONSC 7057 (Ont. Div Crt.) at para. 4:

It is true that costs are not normally awarded to or against an administrative tribunal that does not participate in a defense of the merits of its decision. As stated in Donald J.M. Brown and The Honourable John M. Evans in Judicial Review of Administrative Action in Canada, “[g]enerally unless the agency is acting in a proper adversarial role, an administrative tribunal will neither be entitled to nor ordered to pay costs” (at para. 5:2560 (2019)).

[22] In Faruk v. The Landlord and Tenant Board, 2023 ONSC 2191, at paragraph 73, the Divisional Court acknowledged that the proceedings had been caused by a failure on the part of the administrative tribunal in question. However, the Court emphasized that, as a general rule, it does not award costs against an administrative tribunal because of errors it has made. It is inevitable that administrative tribunals will make mistakes, but a costs order is not necessarily an appropriate response to those errors.

[23] The courts have recognized that administrative tribunals occupy a distinctive role within the justice system. Their function is adjudicative rather than adversarial. Consequently, tribunals ordinarily neither recover nor pay costs when their decisions are challenged through judicial review proceedings. ....

....

[29] .... The law remains focussed on the fact that costs are not awarded against an administrative tribunal except in certain circumstances. Examples cited are where the administrative tribunal cast itself in an adversarial position, breached the rules of procedural fairness, was the initiator of the litigation in question or where bias has necessitated a new hearing.

....

[33] The QCA’s position concerning prematurity and jurisdictional issues was a legal position available to it. As several authorities have recognized, the advancement of procedural or jurisdictional arguments does not, by itself, constitute adversarial conduct sufficient to justify a costs award against a tribunal: see Weyerhaeuser Company Limited v. Ontario (Human Rights Commission), 2007 CanLII 65623 (ON SCDC) at para. 24.

[34] In the end, I am not satisfied that this is one of the cases where the interests of justice require a departure from the ordinary rule. The Applicant seeks costs because it ultimately obtained the relief it sought. However, the jurisprudence concerning administrative tribunals makes clear that the usual "costs follow the event" principle does not apply with the same force in judicial review proceedings involving adjudicative bodies. Even where tribunal decisions are set aside, courts have exercised restraint in awarding costs absent adversarial conduct or other exceptional circumstances.

[35] In addition, I consider my discretion under s. 131 of the Courts of Justice Act and considering the relevant factors under Rule 57.01 of the Rules of Civil Procedure. I conclude that this is an appropriate case for no order as to costs. The Respondent acted in its adjudicative capacity. The judicial review was resolved without a determination on the merits. The QCA did not assume an adversarial role. No exceptional circumstances have been established that would justify departing from the general rule applicable to administrative tribunals.

. 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.