Proration of Fees is a Policy Decision

Many regulators charge annual fees. Some regulators do not prorate them; practitioners must pay the entire annual fee even if they are only registered for part of the year. Of course this can be frustrating for practitioners registered late in the year. In a recent case, one practitioner challenged this approach in Court.

In Dylan v. Law Society of Nunavut, 2020 NUCJ 32 (CanLII), http://canlii.ca/t/j9xnz a practitioner was registered two-thirds into the year. He argued that a refusal to prorate his fees was “unreasonable and leads to an absurd result” and that no reasons were given for that decision. The Court held that the discretion of the regulator to set the fee payment rules was supported by the enabling legislation. In fact, the regulator had, in those rules, permitted proration in rare circumstances. The Court went on to say:

Even if the application for review had been successful, the remedy would have been to remit the matter to the LSNU for reconsideration. The remedies sought would not have been available. There are a multitude of fee structures that an organization may choose to implement, prorating being just one option. Even if an organization chooses to prorate fees, there are further choices to made, such as whether prorating will be done on a daily, weekly, or monthly basis. These are not decisions for a court to make on judicial review. They are decisions for the governing organization to make.

Despite this ruling favouring regulators, it is still useful for regulators to explain the rationale for its rules on the payment of fees.

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