WeirFoulds recently acted as Amicus Curiae in a
judicial review involving the interpretation of a regulator's
jurisdiction to award costs. Although the case focused on the
particular statutory framework applicable to the Appeals Committee
of the Real Estate Council of Ontario
("RECO"), the case contains important
lessons for other regulators.
In Registrar REBBA v. Jolly, 2016 ONSC 2338
("Jolly"), the question was
whether RECO's Appeals Committee was constrained by the
requirement in the Statutory Powers Procedure Act
("SPPA") that before an order
for costs can be made, there must be a finding that the conduct of
a party has been unreasonable, frivolous, vexatious or in bad
faith. Neither the Real Estate and Business Brokers Act,
2002 ("REBBA") nor the
tribunal's own Rules of Practice imposed such a condition. In
this case, RECO's Appeals Committee declined to order costs and
ruled that the SPPA's rules regarding costs governed.
RECO subsequently applied for judicial review.
The Divisional Court upheld the decision of RECO's Appeals
Committee and concluded that the tribunal could only award costs in
the situation contemplated by the SPPA – that is,
when a party's conduct is unreasonable, frivolous, vexatious,
or in bad faith. The court went on to note that s. 32 of the
SPPA provides that the SPPA's provisions
govern in the event of a conflict, unless the tribunal's
enabling Act contains express language to the contrary. As
REBBA did not expressly exempt RECO's Appeals
Committee from the requirements under the SPPA, the
SPPA's costs provisions prevailed.
Consequently, although REBBA and RECO's own Rules
of Practice explicitly
address the issue of costs, the Divisional Court's decision
confirms that the Appeals Committee may only award costs in the
circumstances captured by the SPPA.
Lessons for Regulators
The Jolly decision is a reminder to regulators that
there are often layers of legislation that must be considered when
formulating Rules of Practice. Occasionally there is conflict
between a regulator's governing statute and the SPPA,
which may be by mistake or by design. Either way, the conflict must
be managed carefully to ensure that the regulator acts in a manner
that is consistent with its own jurisdiction.
In respect of costs orders, many regulators are exempted from
the provisions of the SPPA in one of two ways. First, some
regulators have legislation that stipulates that where there is
conflict with the SPPA, their own legislation prevails.
Second, regulators whose committees are entitled to award costs in
accordance with the provisions of an Act that were in force on
February 14, 2000 are exempted from the SPPA's costs
regime (by virtue of a grandfathering provision).
For regulators who are not exempt, a legislative change is
necessary. This was the conclusion of the court in Jolly and the
decision of the Divisional Court in Barrington v. The Institute
of Chartered Accountants of Ontario, 2010 ONSC 338, 260 O.A.C.
199, a decision that considered a similar issue and that ultimately
led to legislative reform for the regulator in issue.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).