If a discipline committee absolves a member of misconduct, but fails to address the issue of “costs” immediately (i.e., payment of a sum to cover expenses by a successful respondent to an unsuccessful regulator, or vice versa), that does not mean that the committee is foreclosed from dealing with costs because it has completed its function, or is in other words “functus officio,” if the enabling statute contemplates a two-step process. That was the reasoning of the New Brunswick Court of Appeal in Fecteau v. College of Psychologists of New Brunswick, 2014 NBCA 74, where a registrant found “not guilty” of professional misconduct sought to address costs, but the College argued, and the Discipline Committee agreed, that the committee had completed its function by making a finding, albeit without dealing with costs. The court found that while the committee had made a final decision about misconduct, the statute contemplated a two-step process involving a separate order on costs which was to follow any findings about professional misconduct or incompetence. Only after such findings could parties make submissions about costs.
Fecteau v. College of Psychologists of New Brunswick, 2014 NBCA 74
Lisa Fong and Michael Ng