When Will the Board Order the Payment of Costs?
The Board may order a party to pay all or part of the costs of the Board and/or another party. Costs will not be awarded as a matter of course, but only in certain circumstances. The party who is successful in the appeal is not automatically entitled to an award of costs.
According to the Board’s Rules, the Board may award costs when the conduct of a party has been “frivolous, vexatious, egregious or an abuse of process”. The Board can also award costs if a party has unreasonably delayed the proceedings or has not complied with a Board Order or the Board’s Rules.
“Frivolous” describes an appeal or conduct that is silly or lacking proper seriousness. “Vexatious” refers to actions taken by a party with intent to harass another party or the Board without relation to the merits of the appeal, or conduct that is for the sole purpose of delaying the proceedings. “Egregious” means extremely bad, shocking or flagrant conduct. An example of egregious conduct might be a party that intentionally presented evidence they knew was false, with the intent of misleading the Board. The Board could find that it is an “abuse of process” to use the appeal system for an improper purpose.
If a party fails to comply with a Board order or the Board Rules (for example on the production of documents in advance of the hearing), the Board could order the non-complying party to pay costs to the other party and/or the Board.
As another example, the Board’s Rules require that parties submit an application for an adjournment at least 14 days before the hearing. When the Board has to cancel hearings close to the scheduled date, it often incurs costs even though the hearing does not proceed. A late adjournment could, therefore, result in the Board ordering a party to pay those costs. The Board could also award costs when the conduct of the party has unreasonably lengthened the proceedings resulting in extra costs to the Board and other parties.
Amount of an Order for Payment of Costs
The Board may order that a party pay all or part of the actual expense incurred by the Board and/or another party as a result of the conduct of the party. You can access a tariff of costs from the Board’s office or website. The tariff estimates the costs incurred by the Board for various processes and will be used to determine any costs payable to the Board. If costs are awarded for another party’s expenses, the Board usually will request details from that party to determine the amount of the award.
How to Apply for Costs
A party may apply to the panel hearing their appeal for an order for costs. The panel may receive evidence of the expenses incurred and hear submissions about the party’s entitlement to costs at a hearing, on another date, or may deal with the application for costs through written submissions.
The Board can also make an order during an Appeal Management Conference or Online Dispute Resolution discussion, for the payment of costs incurred by the Board and/or a party.
This Information Sheet is intended to provide guidance to parties and alert them to the expectations and requirements of the Board. It not intended to fetter or restrict the Board’s discretion in making decisions on costs. The Board must consider each appeal on a case-by-case basis and exercise its discretion about whether or not to award costs in the context of the principles of natural justice and administrative law.