Courts are reflecting on how costs should be assessed in discipline hearings where findings have been made against registrants. Alberta’s highest court has shifted from a position that there should be no presumption of costs awarded to regulators to one where costs should focus on what expenses of the hearing process, excluding the usual overhead, should reasonably be borne by the registrant. See: Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (CanLII), and Charkhandeh v College of Dental Surgeons of Alberta, 2025 ABCA 258 (CanLII).
In the first Ontario court decision dealing with a significant costs order since Charkhandeh, the Divisional Court is not following either of those approaches. Rather, the Court retained its previous position that it is reasonable to impose costs on a registrant as a way to prevent the profession from bearing the entire expense of the hearing process, so long as the panel does not make any error in principle. The Court has identified one such error of principle as being where the panel does not consider whether the overall costs order is proportionate.
In Moore v College of Chiropractors, 2025 ONSC 6190, a chiropractor was found to have engaged in eleven instances of misconduct related to the care of a patient and her husband. The patient was vulnerable due to her frailty and pain. The panel found significant gaps in the assessment, treatment, documentation, and billing of the patients including non-disclosure and dishonesty. The panel imposed a reprimand, remediation, and a fifteen-month suspension (that could be reduced to twelve if there was compliance with the remedial order).
The panel also ordered the chiropractor to pay $690,376, representing 60% of the College’s costs and expenses. On appeal, the Court acknowledged the wide discretion available to the panel and that it was appropriate for the panel to consider that the chiropractor had prolonged the hearing, the length of the hearing (28 days), and the offer to settle made by the regulator. The Court also accepted that the reasonable expectations of the chiropractor are not a proper consideration.
However, the Court concluded that the panel had not considered the overall proportionality of the amount of the costs ordered. The tribunal could have done more to keep the lengthy hearing “within reasonable bounds”. While the panel was right to note that no evidence was led of the financial impact of the costs on the chiropractor, it was inevitable that the order would have a significant financial impact on him. The panel also did not address the potential chilling effect that such a high costs order would have on this and future registrants fully defending themselves. Proportionality requires panels to not simply make mathematical calculations (i.e., percentage of total costs, number of hearing days) when the amount at issue is so high. The Court concluded:
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.
There were several other aspects to the Divisional Court decision including confirming the use of non-Council public members, the exclusion of an expert witness, the use of written submissions, the appropriateness of the sanction, and that the panel decision was not initially signed by all its members. Regulators may also be interested in some of those determinations supporting their legal authority.
Ontario does not appear to be following the Alberta approach to costs.
