The Court dismissed an appeal from a decision of the Respondent Institute’s Appeal Tribunal which had decided to refer two allegations of unprofessional conduct to the Discipline Tribunal Roster Chair and not to allow the Appellant to make representations to the Appeal Tribunal. The Court held that, under the Act, it was premature for the Court to hear an appeal at this stage of the proceedings.

Administrative law – Accountants – Disciplinary proceedings – Procedural fairness – Judicial review – Natural justice – Appeal process – Hearings – Conduct of hearings

Partington v. Institute of Chartered Accountants of Alberta, [2005] A.J. No. 787, Alberta Court of Appeal, July 4, 2005, Russell and Picard JJ.A. and Ouellette J.

The Appellant was a Chartered Accountant who was investigated by the Respondent Institute’s Complaints Inquiry Committee following a complaint. The Committee had concluded that no further action should be taken. The Complainant appealed that decision to the Appeal Tribunal pursuant to section 80 of the Regulated Accounting Profession Act, R.S.A. 2000 c. R-12. The Appellant was notified by letter that he was entitled to be present at the hearing but that he and/or his legal counsel were not entitled to make representations to the Appeal Tribunal. Following a hearing at which counsel for the Complainant and counsel for the CIC made representations, the Appeal Tribunal issued a written decision allowing the appeal in part and referring two of the allegations of unprofessional conduct to the Discipline Tribunal Roster Chair. Section 81(1) of the Act provides that on such referral, a Disciplinary Tribunal is convened to conduct a hearing.

The Appellant appealed the Appeal Tribunal’s decision to the Court under section 117 of the Act. The central issue for the Court was whether, in interpreting section 117, it was intended that there could be an appeal to the Court from any decision of the Appeal Tribunal, or only from a decision of an Appeal Tribunal conducting a review of a Disciplinary Tribunal decision. The Appellant also argued that he had the right to make representations at the Appeal Tribunal hearing, not just the right to be present, because he was an interested party, and it was a public hearing.

Regarding the Appellant’s right to make representations to the Appeal Tribunal, the Court noted that there was consistency in the statute in that the investigated party cannot make representations before either the Complaints Inquiry Committee or the Appeal Tribunal while a complaint is being considered for referral to a Disciplinary Tribunal. It would not be in the interest of the public or of the profession to have the investigation and referral process usurp or replace a full hearing on the merits of the allegations of professional misconduct. In the result, the Appellant was not entitled to make representations to the Appeal Tribunal. He had no right to be heard at that stage of the investigation. Given the scheme of the Act, the importance of the public interest, and the opportunity that the Appellant would have to present his position before the Disciplinary Tribunal, there was no procedural unfairness.

Regarding the issue of the Appellant’s right to appeal from the Appeal Tribunal’s decision, the Court held that this appeal from a preliminary ruling in a disciplinary hearing was not appropriate for the following reasons: a decision in which the protection of the public and the integrity of the profession is engaged should not be made in a factual vacuum; the timing of such an appeal disrupts and delays the profession’s responsibility of self-discipline; a full hearing on the merits may make the appeal academic; and there is an appeal from the final decision following the disciplinary hearing. In the result, it would be premature for the Court to hear an appeal at this stage of the proceedings under the Act.

In a dissenting judgment, Ouellette J. (ad hoc) found that the Appellant had a right of appeal of the Appeal Tribunal’s decision under section 117 of the Act, since the very purpose of granting an investigated party the right of appeal is to ensure that an investigated party who is subjected to the public quasi-judicial Appeal Tribunal process has been dealt with fairly. If the intent of the Act was to only permit an appeal to the Court of Appeal of an Appeal Tribunal decision after a decision of the Discipline Tribunal, it would be explicitly stated.

Ouellette J. would have also found that there was a breach of natural justice in refusing to allow the investigated party to make representations before the Appeal Tribunal. The public hearing before the Appeal Tribunal affects the investigated party’s reputation, livelihood and profession and, as such, is quasi-judicial. A mere referral to a Discipline Committee could have a negative impact on the investigated party. To deny the investigated party the right to make representations or to be represented by counsel was unjust because the investigated party’s rights were in jeopardy. While there are varying degrees of natural justice and procedural fairness at the investigative stage, it is clearly greater when the matter is before the public body (the Appeal Tribunal).

Ouellette J. would have allowed the appeal and ordered that the decision of the Appeal Tribunal be quashed and the matter referred back to the Appeal Tribunal for further consideration, with the direction that the Appellant be entitled to make representations and the composition of the Appeal Tribunal be different in the second instance.

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