BC HPRB: When the HPRB may award costs against a complainant

When the Inquiry Committee of a college under BC’s Health Professions Act (the “Act”) disposes of a complaint without a citation, the complainant may apply for review by the Health Professions Review Board (the “HPRB”). When will the HPRB award costs against a complainant who has applied for review?

The HPRB recently made its first awards of costs, sought by the College of Chiropractors of BC (the “College”) respecting seven related applications for review (the “Applications”) brought by one complainant, a chiropractor complaining about other chiropractors. The HPRB issued separate but similar reasons for each application. We discuss them together, citing paragraphs from Decision No. 2012-HPA-045(a) as a representative example.

The HPRB clarified that costs should be invoked only in exceptional circumstances, such as where one party has acted in an “improper, vexatious, frivolous, or abusive” manner. The HPRB was clear that this is not a low standard, and that it will consider factors such as prejudice to the other party.

Procedural History: The Complainant, a chiropractor, made complaints to the College alleging marketing infractions by various fellow registrants. After the Inquiry Committee disposed of the complaints, he brought eight applications for review to the HPRB. The Review Board suggested mediation, but the Complainant advised he was not interested in mediation, and the HPRB directed a hearing process. The Complainant did not provide written submissions within the deadlines for any of the Applications. After the College had provided its submission, the Complainant withdrew all but one of the Applications (leaving one of the eight applications outstanding, i.e., matter 2012-HPA-043 (“Matter 43”)). The College asked to address the issue of costs, and after the HPRB determined Matter 43 on its merits, the HPRB set a schedule for the parties to address costs. The Complainant did not provide submissions within the deadline.

Costs under s. 47(1) of the ATA: The issue was whether the HPRB should award costs to the College under s. 47(1) of the Administrative Tribunals Act (the “ATA”) given the College’s involuntary participation in the Applications.

Section 47(1) of the ATA permits the HPRB to award costs (a) requiring a party to pay part of the costs of another party or an intervener in connection with the application; (b) requiring an intervener to pay part of the costs of a party or another intervener in connection with the application; and/or (c) if the tribunal considers the conduct of a party has been improper, vexatious, frivolous or abusive, requiring the party to pay part of the actual costs and expenses of the tribunal in connection with the application.

The HPRB determined that costs should be invoked only in exceptional circumstances, which include circumstances where one party has acted in a manner that is considered to be “improper, vexatious, frivolous or abusive”. [2012-HPA-045(a), [29]] The HPRB considered this approach consistent with the test used by other provincial tribunals. This test was adopted where an application was made for a party to pay the costs of another party, even though the language of s. 47(1) only expressly applies the language of “improper, vexatious, frivolous or abusive” to subsection 47(1)(c).

Conduct of the Complainant: The HPRB asked if the circumstances were sufficiently exceptional to warrant an award of costs for the withdrawn Applications:

  • the Complainant’s conduct toward the College, such as threats to proceed with the Applications unless the College cancelled fines/costs ordered against him in unrelated disciplinary proceedings, was improper and abusive;
  • the Complainant refused to attempt to resolve matters through mediation;
  • the Complainant gave no indication that he would be abandoning the Applications;
  • the College incurred unnecessary expenses as a result of the Complainant’s actions in leading the College to believe that he would proceed with the Applications;
  • the Complainant’s submissions on costs were void of credibility; and
  • the Complainant’s most recent submissions were another transparent example of his attempt to “abuse the administrative process and the function” of the HPRB. [2012-HPA-045(a), [45]]

The HPRB cautioned that each factor would, on its own, not necessarily be conduct that was exceptional to the extent that it would warrant costs. [2012-HPA-045(a), [46] However, the HPRB stressed the importance of parties complying with the HPRB’s directions, as a failure to do so “jeopardizes the integrity of the Review Board process, creates unreasonable delay, and can significantly prejudice the interests of opposing parties”. [2012-HPA-045(a), [48]]

The HPRB characterized the Complainant’s behaviour as a whole as bargaining in bad faith with the College, intentionally heading the College to believe that the Applications would require a full hearing, and then subsequently withdrawing the Applications after the College unnecessarily spent considerable limited resources responding to the Applications. This behaviour significantly prejudiced the College and was exceptional to the point that it was improper, vexatious, frivolous and abusive, justifying an award of costs. [2012-HPA-045(a), [49-52]]

Quantum: While the College’s actual costs incurred were relevant, they were not determinative; the purpose of costs is primarily punitive, rather than compensatory. [2012-HPA-045(a), [58]] The HPRB awarded costs of $2,500 in matters 2012-HPA-39(a), -040(a), -041(a), -042(a), -044(a) and -045(a), and $2,2000 in 2012-HPA-046(a).

The Complainant v. The College of Chiropractors of BC, 2012-HPA-039(a)

The Complainant v. The College of Chiropractors of BC, 2012-HPA-040(a)

The Complainant v. The College of Chiropractors of BC, 2012-HPA-041(a)

The Complainant v. The College of Chiropractors of BC, 2012-HPA-042(a)

The Complainant v. The College of Chiropractors of BC, 2012-HPA-044(a)

The Complainant v. The College of Chiropractors of BC, 2012-HPA-045(a)

The Complainant v. The College of Chiropractors of BC, 2012-HPA-046(a)

LCF/KP/MN