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In the recent Alberta case of Dr. Ignacio Tan III v Alberta Veterinary Medical Association, 2022 ABCA 221, the Court of Appeal considered costs ordered against a member.
The Hearing Tribunal found the member engaged in unprofessional conduct. On appeal, the Committee of Council upheld the Hearing Tribunal’s decision and ordered the member to pay 80% of the costs of the appeal (an amount equal to about $23,000.00). In the reasons for its decision, the Committee of Council held that, if a member’s appeal is unsuccessful, the member should be responsible for most or all of the costs and, therefore, a reduction of 20% was reasonable in the circumstances.
The member appealed to the Court of Appeal, claiming the order to pay 80% of the costs was unreasonable on the basis that it was excessive and impedes access to justice.
The proper standard of review for costs is reasonableness.
The Court of Appeal held:
- There is no presumption that a member is or should be responsible for most or all of the costs of a conduct proceeding. It is acceptable for the profession to recover some of its costs, but a self-regulating profession must necessarily incur costs to discipline and some of this burden is unavoidable.
- One purpose of costs is indemnification. However, full indemnity is seldom appropriate. Partial indemnity ensures discipline proceedings are completed in a proportional manner with regard to the expenses being incurred.
- An important consideration is the right of a professional to reasonably defend the charges. The costs regime should not preclude professionals from raising a legitimate defence.
The Court of Appeal found the Committee of Council erred in assuming a presumption or expectation of full indemnity and reduced the order to payment of 50% of the costs.
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An order for costs is not a presumption, such an order must be reasonable in the circumstances. Your reasons for decision should touch on why an order for costs is reasonable, and why the amount being awarded is reasonable in the circumstances.
Do you think ordering costs is or can be a bar to access to justice for disciplined members?
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