ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, JENNINGS AND SWINTON JJ.
B E T W E E N:
LANA POTTRUFF Appellant
- and -
COLLEGE OF NURSES OF ONTARIO Respondent
Kate Hughes, for the Appellant Ian Roland, for the Respondent
HEARD at Toronto: September 28, 2007
SWINTON J.: (Orally)
1This is an appeal from a costs order of $100.00 made by the Discipline Committee of the College of Nurses of Ontario, after a hearing which proceeded by way of Agreed Statement of Fact and a Joint Submission on Penalty.
2Rule 6 of the Discipline Committee Rules of the College of Nurses provides for a costs award against the party responsible for the late notification of a settlement. Here, the settlement was reached the day before the hearing.
3A costs award is subject to a reasonableness standard of review (see Smith v. College of Physicians and Surgeons of Ontario, [2006] O.J. No. 948 (Div. Ct.) at paragraphs 52-55 and Chuang v. Royal College of Dental Surgeons of Ontario, [2006] O.J. No. 2300 (Div. Ct.) at paragraph 19).
4The Discipline Committee made a factual error when it inferred that the applicant had received disclosure on or about August 30, 2006, rather than in early October.
5The Committee also erred in failing to consider whether the College was at least equally responsible for the late notification of the settlement. The evidence is clear that both parties were negotiating the terms of the Agreed Statement of Facts up until the day prior to the hearing.
6The Committee also failed to give any reason why it departed from the joint submission of the parties that costs should not be awarded against the member. Nor did it deal with the College prosecutor’s submission that costs should be ordered against a member who has settled the case against her only in rare and exceptional circumstances.
7In our view, the decision of the Discipline Committee awarding costs is unreasonable. We leave for another day the issue of the validity of Rule 6.
8The appeal is allowed and the costs order dated October 24, 2006 is set aside.
BROCKENSHIRE J.
9Costs, after submissions, allowed at $6,000 plus GST and disbursements as claimed.
BROCKENSHIRE J.
JENNINGS J.
SWINTON J.
Date of Reasons for Judgment: September 28, 2007
Date of Release: October 17, 2007
COURT FILE NO.: 15/07
DATE: 20070928
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BROCKENSHIRE, JENNINGS AND SWINTON JJ.
B E T W E E N:
LANA POTTRUFF Appellant
- and -
COLLEGE OF NURSES OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: September 28, 2007
Date of Release: October 17, 2007