Shreve v. Windsor (City) (No. 3), 1993 CanLII 16420 (ON HRT)

1993-05-25

BOARD OF INQUIRY (Human Rights Code)

Date: May 25, 1993

B E T W E E N:

Ontario Human Rights Commission

and

Alan Shreve

A N D:

Corporation of the City of Windsor and Jerry Hancock

DECISION ON MOTIONS FOR COSTS

Adjudicator:

Robert W. Kerr, Chair

Date:

May 25, 1993

Counsel for the Commission:

Mark Hart

Counsel for the Respondent Corporation:

Patrick Brode

Counsel for the Respondent Hancock:

Leonard P. Kavanaugh

JURISDICTION TO DISMISS

By a decision dated March 3, 1993 [1993 CanLII 16462 (ON HRT), 18 C.H.R.R. D/363] in this matter, I ruled that the proceedings were either dismissed or permanently stayed in light of various factors affecting the possibility of according the Respondents a fair hearing, as more fully set out in that decision. I acceded to the request of the Respondents that I reserve jurisdiction with respect to costs. Recognizing that dismissal of a complaint is a condition precedent to the power of a Board of Inquiry to award costs under s. 41(4) of the Human Rights Code, I indicated my willingness to dismiss the proceedings.
I was concerned, however, that a possible issue existed as to my jurisdiction to dismiss a complaint and award costs, as distinct from granting a permanent stay, without conducting a hearing of the actual merits of the complaint. For reasons set out in my decision of March 3, the preliminary hearing was conducted and my decision was rendered without regard to the actual merits of the complaint. Since the question of costs had not been addressed at all during the preliminary proceedings which resulted in my decision of March 3, there had been no occasion for argument of any such jurisdictional issue.
In order to ensure that there was an adequate opportunity for submissions to be made with respect to this potential issue before I made a decision which would render me functus officio on this issue, I ruled that I would dismiss the complaint, subject to my jurisdiction to do so. I reserved on this jurisdictional issue which needed to be decided only in the event of an application for costs. Such an application would provide an opportunity for any submissions with respect to jurisdiction.
The reason for my concern about jurisdiction lies in s. 39(1) of the Code which provides:

39(1)

The board of inquiry shall hold a hearing,

(a)

to determine whether a right of the complainant under this Act has been infringed;

(b)

to determine who infringed the right; and

(c)

to decide upon an appropriate order under section 41.

My power to award costs arises under section 41. Since the powers set out in s. 39(1) are expressed in mandatory and conjunctive language, it is at least arguable that an order as to costs can be granted only after a hearing in which the Board of Inquiry also determines whether a right of the complainant has been infringed.
I note that a similar question potentially arises as to the jurisdiction of a Board of Inquiry to dispose in any way of a complaint without a hearing of the merits. S. 39(1) could be read as compelling any Board of Inquiry to conduct a hearing of the merits, notwithstanding questions such as the possibility of a fair hearing which arose in this case. The decision of the Divisional Court in this matter (November 10, 1992) [1992 CanLII 14220 (ON CTGDDC), 21 C.H.R.R. D/146], however, recognizes the power of a Board of Inquiry to dispose of a complaint without a hearing of the merits if such a disposition is appropriate under s. 23(1) of the Statutory Powers Procedure Act.
A disposition of a complaint without a hearing on the basis of s. 23(1) of the Statutory Powers Procedure Act would not necessarily lead to an order under s. 41 of the Code. For this reason, I think it was important that I heard any submissions of the parties on my jurisdiction to order costs under s. 41(4) of the Code upon making a disposition of the complaint under s. 23(1) of the Statutory Powers Procedure Act where there had been no hearing of the merits as ordinarily required by s. 39(1) of the Code. I want to thank the parties for their assistance in this regard.
While the power of a Board of Inquiry to award costs is quite limited under s. 41(4) of the Code, it is also a remedial power for the purpose of compensating the Respondent where a complaint is trivial, frivolous, vexatious, made in bad faith, or causing of undue hardship. I conclude that it would defeat the remedial purpose of this section to read into it further limitations such as a condition precedent that there be a hearing of the merits before a complaint is dismissed for the purposes of an award of costs.
Some of the factors justifying costs under s. 41(4) may also be the very factors which would persuade a Board of Inquiry to dispose of a complaint at a preliminary stage as an abuse of process under s. 23(1) of the Statutory Powers Procedure Act. If such factors are present to the extent that preliminary disposition without a hearing of the merits is justified to avoid an abuse of process, it would be anomalous in the extreme for a Board to be required to conduct a hearing of the merits before exercising the remedial power to award costs.
If a Board of Inquiry has jurisdiction to dispose of a complaint under s. 23(1) of the Statutory Powers Procedure Act without a hearing on the merits, as indicated by the Divisional Court, the requirement of s. 39(1) of the Code that a Board determine the merits of a complaint must obviously be read in conjunction with s. 23(1) of the Statutory Powers Procedure Act. A disposition of a complaint on the basis of an abuse of process is also a disposition for the purposes of the Code.
If the disposition is that the complaint should not be further proceeded with, this is in effect a dismissal of the complaint. I conclude that such a disposition is sufficient to satisfy the condition precedent of dismissal for the purposes of a costs order under s. 41(4) of the Code. Having effectively dismissed the complaint on the basis of s. 23(1) of the Statutory Powers Procedure Act, I believe I have the jurisdiction to award costs under s. 41(4) of the Code.
I find some support for this conclusion in Johnson v. East York Board of Education (Ont. Bd.Inq., unreported, July 5, 1991) [reported 1991 CanLII 13131 (ON HRT), 17 C.H.R.R. D/175], even though Johnson is not strictly a precedent since it provided an opportunity for a hearing on the merits. In Johnson, the Complainant conducted himself as a witness in such a manner as to disrupt the hearing. The Board exercised its power under s. 23(1) of the Statutory Powers Procedure Act to demand an undertaking from the Complainant that he conduct himself in an orderly manner as a witness. When the Complainant refused to provide such an undertaking, the Board refused to allow the Complainant to continue testifying. The Board then gave the Commission an opportunity to present any other evidence in support of the complaint. The Commission offered no other evidence and the complaint was dismissed.
While there was an opportunity for a hearing on the merits in the Johnson case, the effect of the order under s. 23(1) of the Statutory Powers Procedure Act substantially restricted the possibility of a full hearing, albeit for good reason. Although the justification for an award of costs in Johnson was resolved in part by agreement between the Commission and certain Respondents and in part by concession from the Commission, it is obvious that the Board had no doubt of its jurisdiction to award costs. Thus, the decision supports the conclusion that, for the purpose of jurisdiction as to costs, the explicit requirement of s. 39(1) that the merits of a complaint be determined is to be read in conjunction with the powers of a Board under s. 23(1) of the Statutory Powers Procedure Act. In some circumstances, a complaint may be disposed of under the latter powers without a determination of the merits.
While I conclude that, having dismissed the complaint under s. 23(1) of the Statutory Powers Procedure Act, I have the jurisdiction to award costs under s. 41(4) of the Code, the question remains whether any of the other conditions set out in s. 41(4) for an award of costs are present. I turn now to that question.

BASIS FOR AWARDING COSTS

An award of costs under s. 41(4) of the Code requires, not only a dismissal of the complaint, but also that at least one other condition set out in s. 41(4) be met. The other conditions are that the complaint was trivial, frivolous, vexatious, made in bad faith, or causing of undue hardship upon a Respondent. It was accepted by the parties that these conditions should be considered in light of the overall processing of the complaint, and not merely on the basis of the originating complaint form. This is supported by the decision awarding costs in Pham v. Beach Industries Ltd. (1987), 1987 CanLII 8544 (ON HRT), 8 C.H.R.R. D/4008 (Ont. Bd.Inq.), at D/4021-3.
The Board in Pham draws on the definitions of trivial, frivolous, and vexatious found in Black's Law Dictionary. All of these terms connote lack of a substantial basis for pursuing a legal claim. Thus, these factors tend to relate more to the initiation of a complaint than to the subsequent handling of the complaint by the Commission. At the same time, it is conceivable that a complaint which on its face appears serious might, following investigation by the Commission, be recognized as lacking in foundation. In that event, further pursuit of the complaint by the Commission could be trivial, frivolous, or vexatious.
Since these three factors all raise the question of whether there is a substantial foundation for a complaint, at whatever point this assessment is made, a finding that a complaint is trivial, frivolous, or vexatious necessarily involves making some conclusion with respect to the merits of the complaint. For reasons stated in my decision of March 3, the preliminary hearing before me proceeded on the basis that my ruling would not be influenced by the merits. This facilitated the handling of certain evidence relevant to the preliminary issue of abuse of process without having to resolve at that stage disputes as to the admissibility of this evidence in relation to the merits of the complaint. As a result, the admissibility of this evidence for the purpose of determining the merits has never been decided. In addition, there may be evidence related to the merits which was not introduced at the preliminary hearing because it had no bearing on the abuse of process issue.
Given that the preliminary hearing proceeded on the basis that the merits would not be considered, I have grave hesitation about making a determination based on the preliminary hearing record as to whether the complaint was trivial, frivolous, or vexatious. There are serious objections in terms of fairness to making any determination involving the merits of the complaint on the basis of the preliminary hearing.
In any event, even relying on the preliminary hearing record, for whatever it is worth with respect to the merits, I see no basis for finding either that the original complaint was made without foundation or that a lack of foundation should have been apparent to the Commission as a result of its investigation. The advocacy role adopted by the Commission's investigating officer, which was one of the findings in my decision of March 3, probably caused her, and in all likelihood the Commissioners acting on the basis of her investigation, to overestimate the strength of the case against the Respondents. This is quite a different thing, however, from a finding that the complaint was lacking in foundation to the extent that it was trivial, frivolous, or vexatious.
Bad faith raises different considerations. It involves some ulterior or improper motivation on the part of those involved in forwarding the complaint. I note first that I see no basis whatsoever for questioning the good faith of the Complainant. If a question of bad faith arises, it relates solely to the processing of the complaint by the Commission.
In my view, there are only three aspects of the Commission's handling of the complaint which raise possible questions of bad faith. The first relates to the advocacy role adopted by the investigating officer, the second to an attempt to elevate the complaint into a basis for requiring the Respondent Corporation to adopt an equity hiring policy for minorities, and the third to the excessive delay in the processing of the complaint.
Notwithstanding the criticism in my March 3 decision of various aspects of the advocacy role adopted by the investigating officer, my decision does not involve any conclusion that the officer was acting in bad faith. Neither do I think that the fact that she conducted the investigation in this way gives rise to any inference of bad faith on the part of the Commission. While it is the Commission's policy that the officer should conduct an impartial investigation, the deviation from this policy evident in this case is better categorized as error, rather than bad faith.
With respect to the effort to get the Respondent Corporation to introduce an equity policy going beyond the specific facts of the complaint, I have already indicated in my decision of March 3 that the legislation contemplates this type of action by the Commission. While my decision indicated that any abuse of process involved was one that could be remedied by the Board of Inquiry, this was not a finding that any such abuse occurred. Again I see no basis for attributing bad faith to the Commission.
As indicated by my decision of March 3, the reasons for the excessive delay were not explained, apart from the workload of the investigating officer. This means there was a complete lack of other evidence on this matter. There was neither, on the one hand, evidence justifying the delay nor, on the other hand, evidence that the delay was improperly motivated. A finding of bad faith is a sufficiently serious matter that I do not think it should be inferred from a mere lack of evidence.
While evidence of justification for the delay might have assisted the Commission on the preliminary motions, there was no special onus on it to provide such justification. There were various ways in which the Respondents could have elicited evidence that the delay was improperly motivated, if such was the fact. They did not attempt to do so.
I find no basis, therefore, for concluding that the complaint, either in its origin, or as a result of its handling by the Commission, was trivial, frivolous, vexatious, or in bad faith.
This leaves the question under s. 41(4)(b) of the Code whether:

in the particular circumstances undue hardship was caused to the person complained against,

Although the Pham decision makes reference to the question of undue hardship, at D/4024, the view expressed is merely that false allegations made in bad faith would constitute undue hardship.

This is not particularly helpful in this case since I have found no bad faith. In any event, I question the correctness of this approach to hardship. Since bad faith and undue hardship are quite separate grounds for an award of costs under s. 41(4), it would seem more appropriate that they be treated as distinct matters, rather than merged together.
In the remedial context, hardship is generally used to refer to the economic or other impact of granting or denying a remedy upon a party affected. This is the sense in which I think the term is used in s. 41(4)(b) of the Code.
Given the limited nature of the power to award costs under s. 41(4) of the Code, it cannot have been intended that the ordinary effects of an unsuccessful human rights complaint upon a party complained against would constitute undue hardship. Otherwise, the power to award costs on this basis would apply in every case of an unsuccessful complaint.
In order to determine what is undue hardship, therefore, I think it useful to consider the ordinary effects of a complaint upon a Respondent. Financially any complaint will give rise to some legal cost in mounting one's defence against the allegations. In terms of other impacts, any Respondent will experience some burden in examining the complaint and preparing a response. To the extent that the complaint becomes a matter of public knowledge, a corporate or business Respondent is likely to experience some impairment of reputation affecting its good will. Any individual Respondent is also likely to experience some stress out of concern over the impact of the complaint on one's good name and career.
Further with respect to financial impact, I think the legislation contemplates that potential involvement as a Respondent to a human rights complaint is one of the risks of doing business in Ontario. I think the intent is that the normal legal costs of these proceedings be distributed as an expense of doing business, rather than awarded as costs under s. 41(4). Thus, for a corporate or business Respondent which is in a position to include these costs in its operating expenditures, I do not think such normal costs constitute undue hardship. For an individual Respondent whose income is in the form of wages or salary, however, the normal costs of such proceedings may be an undue hardship because such a person has no way of distributing these costs.
With respect to other impacts, I think again the normal effect on reputation and the normal stress resulting from being named as a Respondent are not sufficient to constitute undue hardship. Some effect greater than in the ordinary case is required.
The financial impact of the costs in this case is somewhat self evident from the amount of the claims presented, but there is no other evidence of the economic effect of these costs on either Respondent.
During the preliminary hearing, evidence was led by the Respondent Hancock as to the non-financial effects of having the complaint pending against him over an extended period of time. While this evidence was led to show prejudice if the complaint proceeded to a hearing, it is also relevant to the question of hardship. It indicated that the Respondent Hancock experienced stress, and in particular concern for the effect the complaint might have on his employment relationship with the Respondent Corporation.
Although the non-financial impact of the complaint upon the Respondent Corporation was loss a subject of evidence, I think I can take notice of the character of the Respondent Corporation. Such a public body is likely to suffer particularly in reputation from allegations that it has violated the Code.
My interpretation that the normal costs of defending against a human rights complaint will not ordinarily constitute undue hardship to a corporate or business Respondent is applicable to the Respondent Corporation. While it is a form of government, not a business, the Respondent Corporation is in a position to distribute costs such as those normally resulting from a human rights complaint.
At the same time, it is conceivable that in some circumstances even a corporate or business Respondent may suffer undue financial hardship as a result of defending against a complaint under the Code because of the abnormal nature of the costs involved. An argument can be made that the costs in this case are abnormal. They relate, not to the usual presentation of a case with respect to the merits of a complaint, but to remedying unfairness in the process resulting from the way in which the Commission proceeded. Against this, it may be argued that, since the preliminary motion was successful, the proceeding has probably been less costly than a normal hearing on the merits.
I am persuaded that the abnormal nature of the proceedings in this case justifies a finding that, in these circumstances, there was undue hardship on the Respondent Corporation. Although the practical result may have been less costly than a normal hearing, the Respondent Corporation was at risk that it might be unsuccessful on its motion and might, therefore, incur the normal costs in addition to this abnormal cost. Moreover, this risk still exists since there is a possibility of appeal which may yet result in further proceedings. Thus, I think the costs of the preliminary hearing are appropriately characterised as abnormal, even if the costs of a normal hearing may have been saved.
Treating this as a case of undue hardship is further justified in my view by the consideration that the issues raised by way of the preliminary motion were to a considerable extent matters of first impression involving important questions of public interest as to the fairness of Commission procedures. I think it is an undue hardship to impose the cost of pursuing such an issue upon the party which finds itself involved in the particular case of first impression. Parties commonly find themselves faced with such issues by what is largely an accident of the litigation process.
Thus, I would exercise my discretion to award costs to the Respondent Corporation based on undue hardship in light of the abnormal nature of the proceedings needed to raise the issues of fair process which this case presented.
While it is not strictly necessary for me to comment on the non-financial impact of the complaint on the Respondent Corporation since I have decided to award costs on the basis of financial hardship, my findings with respect to other impacts may become relevant in the event of further proceedings. Although I have taken notice of the effect of such a complaint on the reputation of a public body, this should not be exaggerated. A private corporation or business also may suffer harm to reputation as a result of a human rights complaint. In general I think this sort of impact on reputation is a normal effect of such a complaint and not, therefore, a basis for a finding of undue hardship.
The length of time that it took to process the complaint is a factor that potentially takes this case outside the norm. I am not, however, persuaded of this. This type of impact on reputation is really only experienced to the extent that the complaint is a matter of public knowledge. Because the Commission treats complaints with confidence until the point at which a Board of Inquiry is appointed, the impact of a complaint in terms of public reputation is unlikely to be greatly affected by the length of time that a complaint is being processed by the Commission. There is no evidence of the actual impact of the complaint on the Respondent Corporation's reputation or how this was effected by the passage of time. Thus, I see no basis for finding that the non-financial impact on the Respondent Corporation was abnormal in this case.
With respect to the financial impact on the Respondent Hancock, I have indicated that even the normal costs of defending against a complaint may be an undue hardship upon an individual Respondent who has no way of distributing these costs. I am hesitant about making such a finding, however, in the absence of evidence as to the actual financial impact of the legal costs upon the Respondent Hancock.
The possibility exists that even costs incurred by an individual Respondent may be distributed. For example, the individual's employer may undertake to assist in meeting such costs. Indeed, if costs were to be awarded to an individual Respondent as a matter of course on the basis of undue hardship, there would be a risk that a corporate or business Respondent could use this to try to avoid the impact of the normal costs of defending a human rights complaint. A corporate or business Respondent might rely heavily on counsel engaged nominally to represent an individual Respondent in order to benefit from the availability of costs to the individual Respondent. In the absence of evidence of the actual financial impact of the proceedings on the Respondent Hancock, I lack an adequate basis on which to find that the Respondent Hancock, as an individual Respondent, was subjected to undue financial hardship.
On the other hand, the abnormal nature of the proceedings in this case are as relevant to the financial impact on the Respondent Hancock as they are to the financial impact on the Respondent Corporation. Consequently, I conclude that, like the Respondent Corporation, the Respondent Hancock has been subjected to undue financial hardship arising from the abnormal nature of the preliminary hearing in this case.
Again this conclusion means that it is not strictly necessary for me to determine whether the Respondent Hancock was subjected to undue hardship because of the non-financial impact of the complaint upon him, but my views on this may become relevant in the event of further proceedings. As already noted, there is evidence on the record as to the stressful impact of the complaint upon the Respondent Hancock.
Some stress of this nature upon an individual Respondent would be normal in any case. In line with my interpretation of s. 41(4) of the Code, I do not think the normal impact of such stress would constitute undue hardship. The excessive length of the time that it took the Commission to process the complaint in this case, however, takes the impact of stress on the Respondent Hancock beyond anything that can be viewed as normal.
In contrast to non-financial impact on the Respondent Corporation, the confidentiality of the Commission's procedures does not serve to shield the Respondent Hancock from this type of impact. On the contrary, a significant part of this stress related to concern about how the Respondent Corporation might treat him in light of the complaint. The Respondent Corporation was, of course, fully aware of the complaint.
The experience of such stress is largely a function of the individual Respondent's internalized reaction to the complaint. Public knowledge of the complaint has little bearing on this. I think the experience of stress by the Respondent Hancock over the lengthy period that the Commission took to process this complaint is a form of undue hardship which also gives me power to award costs to him.
Thus, I have the power to award costs to both Respondents based on undue hardship in the particular circumstances. There is financial hardship in the case of both Respondents because of the abnormal nature of the preliminary hearing in this case. There is also non-financial hardship on the Respondent Hancock because of the stressful impact during the excessive period of time that it took the Commission to process the complaint.
Even though the conditions precedent to an award of costs under s. 41(4) of the Code are present, it is still at the discretion of the Board of Inquiry as to whether to actually make such an award. There are other factors in this case which I need to consider in exercising this discretion.
Where an employee is named as a Respondent to a human rights complaint, it is usually the case that the employer is also named. Given that the liability of the employer depends largely on the actions of the named employee, the employer and the employee generally have a common interest in the proceeding. While the employer may take action against an employee based on the allegations in a complaint — indeed this may be called for if the employee is engaging in discriminatory practices — such action will rarely be an issue within the human rights proceeding on the complaint. In terms of the human rights proceeding, it normally behooves the employer to present the best available defence on behalf of the employee.
In light of this, employers frequently provide representation both of their own interest and that of their employees in human rights proceedings. Given the commonality of interest, and the objective that such proceedings should be handled expeditiously by an administrative process, it can be quite wasteful for such Respondents to engage separate counsel.
The preliminary hearing in this matter well illustrates the potential for wasteful proceedings. Counsel for the two Respondents frequently repeated each other in the examination of witnesses and the making of submissions. While there were minor differences between the cases presented on behalf of the two Respondents, these could easily have been dealt with by one counsel drawing the relevant distinctions. It is hard to find any actual conflict of interest between the cases presented on behalf of the two Respondents.
The Respondent Corporation followed the approach of representing the employee at the outset. The record indicates further that the engagement of separate counsel was initiated at the Respondent Corporation's suggestion, not out of the concern of the Respondent Hancock. The record does not indicate that the Respondent Corporation actually threatened to withdraw its representation of the Respondent Hancock. While it was certainly the right of the Respondent Hancock to engage separate counsel at any point, it is less than obvious that this was a reasonable decision making it appropriate that the Respondents be awarded two sets of costs.
Another factor is that the Commission moved at the beginning of the preliminary hearing to have the Respondent Hancock removed as a named Respondent. While the Respondent Hancock had the legal status to continue as a party to the proceedings notwithstanding this motion, it was not really necessary for him to remain a party to protect his legal rights. Indeed he was potentially placing himself at greater risk to remain a party since, as the Board of Inquiry, I could still make an order against him as long as he remained a party.
While the Respondent Hancock would already have incurred some costs prior to the motion to remove him as a named party, it would seem that the major part of the costs being claimed would not have been incurred until later. Thus, the costs incurred by the Respondent Hancock were largely the result of his own decision to remain a party and to participate fully in the proceedings. He did so even though this was unnecessary to protect any actual legal interest he had in the proceedings before me and extensively duplicated representations being made by the Respondent Corporation.
The main concern which appears to have led the Respondent Hancock to continue participation as a party was the refusal by the Commission to withdraw its allegations concerning him. The complaint against the Respondent Corporation turned essentially on these same allegations, however, so it could not reasonably be expected as a legal matter that these allegations would be withdrawn. In essence, the Respondent Hancock's continued participation as a party appeared to be based on the mere fact that his involvement would continue to be a subject of inquiry, not on any question of legal right. 1 have some concern that to award costs to the Respondent Hancock in these circumstances would encourage unnecessary complication of human rights proceedings.
On the other hand, it was the Complainant and the Commission's investigating officer who named the Respondent Hancock as a party in the first place. The offer to remove him as a named party came very late in the day in terms of these proceedings. As already noted, some of the costs would already have been incurred by that time.
Moreover, at the time this offer was made, it was projected that the preliminary hearing would take only four days. It was developments later during the preliminary hearing that contributed largely to it becoming a seven-day hearing, and probably increased the preparation time at least proportionately. Thus, it was not entirely unreasonable for the Respondent Hancock at the relevant time to exercise his right to remain a party in order to, among other things, preserve a claim as to costs.
The limitation on my power to award costs is related factor which I think relevant. When the motion was made to remove the Respondent Hancock as a named party, I think the most equitable resolution would have been to grant this motion subject to an order to the Commission to pay the Respondent Hancock's costs up to that stage. Unfortunately, I lacked the power to make such an order. The only alternative to continuing as a party presented to the Respondent Hancock was the less than equitable option of withdrawing without any undertaking as to costs.
On balance, therefore, I do not think that the Respondent Hancock should be denied costs for having elected to continue as a party to the proceedings. I would exercise my discretion to award costs to both Respondents.
At the same time, I am not persuaded that in the circumstances it is appropriate to award full costs to both Respondents. As I have already indicated, the separate representation of the Respondents was wasteful. This arose in two ways. First, two counsel were present throughout the hearing when one would have sufficed to represent both parties. Secondly, the full participation of both counsel resulted in repetition in the examination of witnesses and in the making of submissions which probably lengthened the hearing.
The parties were agreed that the motions for costs should be dealt with on the basis of general principle, rather than treated as a taxation. Accordingly, I do not think I should act as a taxing officer by trying to measure the impact on the length of the hearing resulting from the repetitive aspect of the separate representation of the Respondents. On the other hand, I do think I should act upon my conclusion that the participation of two counsel to represent the essentially common interests of the Respondents was wasteful in this type of proceeding.
Thus, I will award only one set of costs. I see no basis for distinguishing between the Respondents as to how this award should be shared. Each Respondent claimed the same amount of costs. Therefore, I have simply divided the claim of each in half.
It was agreed among the parties that the quantum of costs for each Resnondent should be based on eight hearing days at $1500 per day and four days of preparation at $1000 per day. This results in costs to each Respondent in the amount of $16,000. Consequently, I award costs in the amount of $8,000 to each Respondent.
A minor question arose whether the eight days of hearing covered by costs should include a day spent on a preliminary motion to adjourn these proceedings pending the initial Divisional Court application or the day spent on the motions for costs. Eight hearing days would include one of these two days, but not both. The Respondents claimed costs for the day spent on the motion for adjournment, but not for the day on the motions for costs. The Commission submitted that costs should not he awarded for the day spent on the motion for adjournment, but conceded it would be appropriate for any award of costs to cover the day spent on the motions for costs.
Obviously, it makes no practical difference which submission I accept. I think, however, that the position of the Commission is sounder. Since the Respondents were unsuccessful on the motion for adjournment, I would be reluctant to exercise my discretion to award costs for that day. On the other hand, it seems entirely appropriate that the Respondents receive costs on the motions for costs since these flow naturally out of my decision on the case.

Robert W. Kerr Adjudicator