CITATION: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. S.V.D., 2016 ONSC 1688
DIVISIONAL COURT FILE NOs.: 15-DC-2144 and 15-DC-2154
DATE: 2016/03/28
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kruzick, Swinton, and V.J. Mackinnon JJ.
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry
Applicant
– and –
S.V.D. and M.V.D., C.C. and G.C. and Child and Family Services Review Board
Respondents
Counsel: Peter E. Chisholm, for the Applicant S.V.D. and M.V.D., appearing in person Ross Stewart, for C.C. and G.C. Margaret Leighton and Brian A. Blumenthal, for the Child and Family Services Review Board
AND BETWEEN:
C.C. and G.C.
Applicants
– and –
S.V.D. and M.V.D., The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry and Child and Family Services Review Board
Respondents
Counsel: Ross Stewart, for the Applicants Peter E. Chisholm, for the CAS S.V.D. and M.V.D., appearing in person Margaret Leighton and Brian A. Blumenthal for the Child and Family Services Review Board
HEARD at Ottawa: By written submissions
RULING ON COSTS
BY THE COURT
Overview
[1] Costs of a judicial review application to this court are sought against the Child and Family Services Review Board (“CFSRB”) by each of the parties opposite. In addition, the V.D.’s and the Children’s Aid Society seek costs of the hearing conducted by the CFSRB. In support of the claims for costs, each relies on this court’s finding of reasonable apprehension of bias on the part of the CFSRB in its conduct of the original hearing.
[2] This court does not have jurisdiction to award costs of the proceeding before the CFSRB. The conduct of a tribunal during the proceeding before it is only relevant in the determination of costs of a subsequent judicial review application in exceptional circumstances, which are not present here. The submissions by the CFRSB to this court during the application for judicial review do not warrant a departure from the general practice that on an application for judicial review costs will not be awarded for or against an administrative tribunal.
Divisional Court cannot order costs in respect of the hearing before the CFSRB
[3] A court’s jurisdiction to award costs is statutory, not inherent, and is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). 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.
[4] Rule 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 defines a “proceeding” to mean “an action or application”. Relying on this definition, the Court of Appeal held that a hearing before a tribunal is not a “proceeding” within the meaning of s. 131(1) of the CJA (Poulton v. Ontario Racing Commission (1999), 177 D.L.R. (4th) 507, at para. 19).
[5] Poulton has been cited for the principle that the Divisional Court does not have authority to award costs of a hearing before an administrative tribunal in a number of cases: see e.g. Rathé v. Ontario (Health Professions Appeal & Review Board) (2002), 166 O.A.C. 161 (Div. Ct.) and Lim v. Assn. of Professional Engineers (Ontario), 2011 ONSC 2673, 23 Admin L.R. (5th) 106 (Div. Ct.).
[6] There is one Ontario case, B. (J.) v. Catholic Children’s Aid Society of Metropolitan Toronto (1987), 59 O.R. (2d) 417 (Div. Ct.), in which the Court awarded costs of the appeal before it as well as costs of the earlier administrative tribunal hearing. The Court cited no authority for this cost award and the case has never been followed on this point.
[7] We conclude that B. (J.) is an anomaly and that the correct principle is that s. 131 of the Act does not grant this Court authority to award costs for hearings before administrative tribunals.
[8] This makes sense since the CFRSB itself does not have the authority to order costs of its own proceedings. Poulton suggests this is a reason why this court should not order costs of the proceeding before the administrative tribunal (at para. 21):
The Commission had no power to award him costs if successful there, and it would be an “unfortunate anomaly” that having lost there he should be better off by succeeding in judicial review. (See Department of Health and Social Security v. Envoy Farmers Ltd. [1976], 2 All E.R 173 at 176.)
Should costs of the application for judicial review be awarded against the CFSRB?
[9] Generally, an administrative tribunal will not be entitled to nor required to pay costs. There are exceptions, however, including:
where [the administrative tribunal] cast itself in an adversarial position, acted capriciously in ignoring a clear legal duty, made a questionable exercise of state power, breached the rules of procedural fairness, effectively split the case so as to generate unnecessary litigation, manifested a notable lack of diligence, imperilled the settlement process mandated by legislation, or was the initiator of the litigation in question, or where bias among tribunal members had necessitated a new hearing.[^1]
[10] This passage was cited with approval in Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244, 43 B.C.L.R. (4th) 65, at para. 47. Lang was cited in M.-M. (C.) (Litigation Guardian of) v. Children’s Aid Society of Waterloo (Regional Municipality), 2005 CarswellOnt 2346 (S.C.), as authority for the proposition that costs may be levied against a tribunal where bias among tribunal members had necessitated a new hearing, with the acknowledgement that the issue was not in play in that case, and where in fact, the court awarded no costs.
[11] We are not aware of any Ontario case in which reasonable apprehension of bias on the part of the tribunal led to a costs award against the tribunal on a later judicial review application. In Roberts v. College of Nurses (Ontario) (1999), 128 O.A.C. 353 (Div. Ct.), a statutory appeal from a decision of the Discipline Committee of the College of Nurses, the Divisional Court quashed the administrative tribunal’s decision on grounds of reasonable apprehension of bias. The Court awarded the appellant costs of the appeal against the College (which is independent from the Discipline Committee of the College of Nurses).
[12] In York Advertising Ltd. v. Ontario (Human Rights Commission) (2005), 204 O.A.C. 297 (Div. Ct.), at para. 2, the panel noted:
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.
[13] Costs were awarded against the tribunal in York Advertising because the tribunal had been fully engaged in an adversarial way in the court hearing and had been wholly unsuccessful on each issue argued.
[14] By way of contrast, the Divisional Court declined to order costs against the Human Rights Tribunal in Weyerhaeuser Co. Ltd. (c.o.b. Trus Joist) v. Ontario (Human Rights Commission) (2007), 224 O.A.C. 116 (Div. Ct.). Of significance to the case at bar the panel in Weyerhaeuser held that the conduct of the Human Rights Commission and Tribunal during the human rights proceedings was not a relevant consideration in determining costs of the judicial review application. The court said at para. 16:
this court does not have jurisdiction to award costs in the human rights proceedings. It follows that the conduct of the parties during the human rights proceedings is not a relevant consideration in determining an appropriate costs award in the judicial review application. To conclude otherwise would allow Weyerhaeuser to indirectly obtain costs from this court for the human rights proceedings contrary to the intention of the Legislature as expressed in the Code and CJA.
[15] In our view, this case is governed by Weyerhaeuser and not by York Advertising. The CFSRB’s submissions at the judicial review application were brief, focused, and were not of an adversarial nature. The submissions were primarily directed to its specialized role as an adjudicator of a child-related matter and in support of granting some latitude to a decision-maker to question witnesses in relation to the best interests of a child. Nothing in the conduct of the judicial review application by the CFSRB warrants an award of costs of that application against it.
[16] Moreover, this is not a case like Lang, above. Although the conduct of the Chair of the CFSRB did give rise to a reasonable apprehension of bias and amounted to a denial of procedural fairness, this is not a case where the conduct rises to such a level that a costs order is necessary to achieve a just result.
Conclusion
[17] This court does not have jurisdiction to award costs in the CFSRB proceedings. The claims by the Applicants, and by the unsuccessful Respondents, S.V.D. and M.V.D., for costs of the judicial review application against the CFSRB are denied.
[18] In the alternative, the V.D.’s sought costs against the Children’s Aid Society. As they were not successful in the application, they are not entitled to costs.
Kruzick J.
Swinton J.
V.J. Mackinnon J.
Released: March 28, 2016
CITATION: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. S.V.D., 2016 ONSC 1688
DIVISIONAL COURT FILE NOs.: 15-DC-2144 and 15-DC-2154
DATE: 2016/03/28
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kruzick, Swinton, and V.J. Mackinnon JJ.
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry
AND
S.V.D. and M.V.D., C.C. and G.C., and Child and Family Services Review Board
AND BETWEEN:
C.C. and G.C.
AND
S.V.D. and M. V.D., The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry, and Child and Family Services Review Board
RULING ON COSTS
The Court
Released: March 28, 2016
[^1]: Donald J.M. Brown, Q.C. and the Honourable John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Carswell, 2014), at 5-57.