Duty of fairness in investigative stage is only limited, and investigating members authorized by the professional conduct committee of the Institute of Chartered Accountants to investigate the complaint met their duty by advising the applicant accountant of the generalities of what was being investigated. There was no obligation to provide full particulars. However, the professional conduct committee’s recommendation to hold a hearing was subject to judicial review, prior to the hearing being held. The decision had a significant adverse effect on the applicant and, as the professional conduct committee owed a duty of fairness to the applicant accountant, that duty of fairness may be defeated if judicial review was unavailable. Finally, the professional conduct committee had jurisdiction to investigate matters not specified in the complaint because these matters were sufficiently closely related to the complaint, it was in the context of public interest, there was lack of precise technical knowledge on the part of the public, and the legislative powers to investigate a complaint given to the committee were broad.

Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Investigations – Procedural fairness – Bias – Evidence – Judicial review – Compliance with legislation  – Jurisdiction – Public interest

Swanson v. Institute of Chartered Accountants of Saskatchewan, [2007] S.J. No. 701, Saskatchewan Court of Queen’s Bench, December 21, 2007, G.M. Currie J.

The applicant, a chartered accountant and member of the Institute of Chartered Accountants of Saskatchewan (the “Institute”), applied for an order quashing the decision of the Insititute’s professional conduct committee to hold a hearing into a complaint about the manner in which the applicant conducted an audit of the financial statements of Poundmaker Cree Nation. The applicant alleged that the decision of the professional conduct committee must be set aside because it failed in its duty of fairness to him, exceeded its jurisdiction, and that the circumstances gave rise to a reasonable apprehension of bias.

The Court found that the professional conduct committee had jurisdiction to investigate matters that were not specified in the letter of complaint. The Chartered Accountants Act, S.S. 1986, c. C-7.1, did not expressly state its purpose, but the goal is to act “in the best interest of the public”. Keeping in mind that members of the public are unlikely to know how to identify alleged breaches of the Act or bylaws with precision, some flexibility in interpreting what is “the complaint” is fair and appropriate. A fair investigation of a complaint can include the investigation of matters that, while not specified in the initial complaint, are related to the initial complaint. How closely related the matters must be is dictated first by the statutory provisions, and second by the circumstances of the case. In coming to this conclusion, the Court relied on the case of Stolen v. British Columbia College of Teachers (1995), 128 D.L.R. (4th) 453 (B.C.C.A.). In the context of public interest, the lack of precise technical knowledge on the part of the public, and the broad power to investigate and formulate a complaint given to the committee by the legislation, the Court found that the matters investigated by the committee were sufficiently closely related to the complaint as to fall within the area of proper investigation.

The Court also found that the circumstances demanded some duty of fairness on the part of the investigating committee to the member whose conduct was being investigated. In considering the nature of that duty of fairness, it is not the broad duty of fairness that typically is associated with rights to complete disclosure to a full hearing. It is a limited duty to act fairly. As a matter of its limited duty of fairness, the professional conduct committee owed a duty to the chartered accountant to advise him of the general matters being investigated. Here, the professional conduct committee identified 27 particulars of alleged breaches by the chartered accountant. Most of these had been discussed with him. In terms of the adverse effect of being charged and being a subject of a hearing, in the circumstances of this case, the chartered accountant did not suffer unfairness by virtue of some of the additional matters not being discussed with him.

Finally, there was no evidence that the professional conduct committee relied on irrelevant evidence and considerations, such as the motives of the actual author of the letter of complaint, in deciding to proceed with a hearing. The motivation of the author was of no relevance to the decision to proceed. Finally, there was no reasonable apprehension of bias, despite the allegation by the chartered accountant that one of the comments made by the investigating members was sarcastic. Even if the comment was made sarcastically, it was an isolated comment in a thorough and detailed investigation.

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