Part X - Costs
41. Costs of Parties
41.01
Where the conduct or course of conduct of a party in a proceeding before the Tribunal has been unreasonable, frivolous or vexatious, or a party has acted in bad faith during a proceeding, the Tribunal may order the offending party to pay all or part of another party’s costs in the proceeding.
41.02
An order for costs pursuant to Rule 41.01 shall not be made unless it is requested by a party in a proceeding before the Tribunal. This request can be made at any stage of the proceeding prior to the release by the Tribunal of its final order in the proceeding. Where costs are requested, both the party requesting costs and the party against whom the order is requested shall be given a reasonable opportunity to make submissions to the Tribunal.
42. Criteria for Costs of Parties
42.01
In determining whether the conduct or course of conduct of a party in a proceeding before the Tribunal has been unreasonable, frivolous or vexatious, or whether a party has acted in bad faith during a proceeding, the Tribunal shall consider all relevant circumstances, including evidence that a party:
(a) failed to attend a hearing or pre-hearing conference before the Tribunal when properly given notice, without sending a representative and without contacting the Registrar and other parties to the hearing or pre-hearing conference;
(b) failed to comply in a timely manner with an undertaking, procedural order or direction of the Tribunal and thereby caused prejudice or delay to another party in the proceeding;
(c) failed to comply in a timely manner with the disclosure and production requirements set out in the Tribunal’s Rules or in any Practice Direction adopted by the Tribunal;
(d) failed to cooperate with other parties during preliminary proceedings or at the hearing;
(e) advanced a position that was frivolous, vexatious or manifestly unfounded;
(f) knowingly presented false or misleading evidence to the Tribunal; or
(g) refused to admit facts or documentary evidence not in dispute and which it should have reasonably admitted.
42.02
In determining the appropriate amount of costs under Rule 41.01, the Tribunal shall consider all relevant circumstances, including the following:
(a) the nature and duration of the conduct or course of conduct at issue;
(b) the degree and duration of the bad faith at issue;
(c) the extent of the prejudice caused to the party requesting costs;
(d) the amount of costs incurred by the party requesting costs; and
(e) the conduct or course of conduct of the party requesting costs.
43. Costs of the Tribunal
43.01
Where a party has engaged in conduct or a course of conduct that constitutes an abuse of the Tribunal’s process, the Tribunal may order said party to pay all or part of the costs of the Tribunal.
43.02
Before making an order for costs pursuant to Rule 43.01, the Tribunal shall give notice to the party against whom the order is intended and shall give this party a reasonable opportunity to make submissions.
43.03
The costs of the Tribunal consist of the expenses that the Tribunal has incurred in connection with the proceeding.
43.04
Where the Tribunal orders that its costs be paid, the Tribunal shall:
(a) fix the costs of the Tribunal; and
(b) indicate by whom the costs shall be paid and in what proportion.
43.05
In determining whether a party has engaged in conduct or a course of conduct that constitutes an abuse of the Tribunal’s process, the Tribunal shall consider all relevant circumstances, including the following factors:
(a) whether a party's conduct unreasonably delayed or prolonged the proceeding;
(b) whether a position advanced by a party was frivolous, vexatious or manifestly unfounded;
(c) whether a party failed to comply with a procedural order or direction of the Tribunal;
(d) whether a party was contemptuous towards the Tribunal;
(e) whether a party knowingly presented false or misleading evidence to the Tribunal; and
(f) whether the Tribunal was obliged to incur any extraordinary expenses in conducting the hearing as a result of (a), (b), (c), (d) or (e).