The Court ordered that a de novo hearing by the Director of Companies (Manitoba) involving fresh evidence was required for accountability and for justice to be seen to be done and further that no costs should be ordered against either the Director or the respondent either by the Court of Appeal or the lower court

25. October 2011 0

Administrative law – Decisions of administrative tribunals – Director of Companies Office – Business names – Hearings – Hearing de novo – Judicial review – Failure to provide reasons – Costs

Brian Neil Friesen Dental Corp. v. Director of Companies (Manitoba), [2011] M.J. No. 268, 2011 MBCA 71, Manitoba Court of Appeal, August 26, 2011, F.M. Steel, M.H. Freedman and R.J.F. Chartier JJ.A.

The parties requested that the Court of Appeal hear submissions regarding two issues which arose from reasons issued in an earlier decision. The parties sought clarification as to whether the new hearing ordered by the court, to be held before the Director of Companies Office (Manitoba) (the “Director”), should be held de novo, and also as to whether costs should be awarded against the Director for failing to provide adequate reasons in his original decision. The Director had previously issued a decision declining a name change direction under s.13 of the Business Names Registration Act, C.C.S.M., c. B110.

On the issue of the nature of the further hearing, the court held that if a decision is quashed by the courts, it puts the parties back to the circumstances that prevailed prior to the decision. As the court did not simply order that the Director provide more detailed reasons, but instead vacated the decision and ordered a further hearing, both justice and common sense required that the hearing be de novo where parties would be free to submit whatever facts and arguments they wished.

On the issue of costs, the court held that since there had been no misconduct on the part of the Director, and since he played a limited role in the appeal and was an impartial decision-maker, an order for costs against him would be inappropriate. Further, as this had been the first occasion during which the sufficiency of the Director’s reasons had been the subject of judicial comment in court, and since there had been no misconduct on the part of either party, it followed that no award for costs should be made in either the court of appeal or the lower court.

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