A decision of an appellate administrative tribunal, from which an unqualified right of appeal to an appellate court exists, on the issue of how long it should take a professional self-regulating disciplinary body to prosecute a disciplinary proceeding, is one which should be reviewed on a standard of reasonableness

26. August 2008 0

Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Judicial review – Investigations – Delay – Standard of review – Reasonableness simpliciter – Privative clauses – Stay of proceedings

Hennig v. Institute of Chartered Accountants of Alberta, [2008] A.J. No. 707, 2008 ABCA 241, Alberta Court of Appeal, June 30, 2008, C.A. Fraser C.J.A., P.W.L. Martin J.A., F.F. Slatter J.A

The appellants were accountants or auditors of a company which was investigated by the Alberta Securities Commission. Two years after this investigation, the Institute of Chartered Accountants (“ICA”) received a complaint about the conduct of the appellants arising from allegations that were made by the Commission. An investigator was appointed by the ICA to investigate the complaint. There was a 28-month delay in delivering the investigator’s report to the appellants. On the basis of the report, the ICA Discipline Tribunal advised the appellants that a hearing into the allegations of unprofessional conduct would be conducted. The total time involved between the receipt of the complaint and the decision to hold the hearing was four years and one month.

The appellants applied to the Discipline Tribunal for a stay of the charges based on the delay. This application was dismissed, as was the appellants’ appeal to the Appeal Tribunal. The Appeal Tribunal’s decision was further appealed to the Alberta Court of Appeal.

The first step for the Court of Appeal was to determine the appropriate standard of review for the Appeal Tribunal’s decision. The Court recognized that, while the professional accounting disciplinary process is governed by its own statutory regime, consistency in approach across professional disciplinary fields was desirable and general principles could be elucidated from decisions involving other professional bodies.

How long it should normally take to prosecute a disciplinary proceeding, and what is needed to prosecute and defend an accountant’s disciplinary proceeding are questions within the expertise of the Appeal Tribunal. Whether prejudice arose to the appellants is a matter of fact on which the Appeal Tribunal, as a tribunal of first instance, has an advantage. The question of whether a new hearing is required is, to an extent, discretionary.

The relevant legislation contained a qualified privative clause which provided that the decisions of the Appeal Tribunal were final, subject to exceptions, but that the Court of Appeal could hear appeals on all issues. A qualified privative clause was not, in the Court’s view, intended to signal deference and, in the circumstances, the appropriate standard of review was reasonableness.

The second issue before the Court was whether the Appeal Tribunal’s decision to dispose of the appeal was reasonable.

A new hearing was not required to canvas the underlying facts, which were not an issue.

The Appeal Tribunal’s failure to first state the standard of review which it applied to the Discipline Tribunal’s decision was not fatal. While it is better to first state the standard and then apply it, the Appeal Tribunal reached the conclusion that the Discipline Tribunal’s decision was correct and therefore clearly passed the standard of reasonableness.

The 28-month delay in preparing the investigation report was not inordinate, given the complexity of the case. The appellants did not suffer significant prejudice from the delay. The prosecution was to be based primarily on documentary evidence, none of which was lost as a result of the delay. While the Court viewed the delay as a “concern”, in the context of the reasons for part of the delay (i.e., awaiting the outcome of the investigation by the Securities Commission), the conclusion of the Appeal Tribunal that the delay did not amount to abuse of process was not unreasonable.

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