The Court dismissed an application for a declaration that a complaint received by the Institute of Chartered Accountants (the “Institute”) related to matters outside of its jurisdiction on the grounds that allowing judicial review at this stage would amount to a collateral attack on the discipline hearing decision. As well, there was inordinate delay which was the fault of the applicant. In the intervening 6 year period between the time the application was commenced and set down for hearing, the applicant had fully participated in a discipline hearing where he was found guilty of unprofessional conduct and unsuccessfully appealed the Discipline Tribunal’s decision.

28. October 2008 0

Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Investigations – Judicial review – Delay – Jurisdiction – Remedies – Self-governing professions – Declaratory relief

Curda v. Institute of Chartered Accountants of Alberta, [2008] A.J. No. 800, 2008 ABQB 443, Alberta Court of Queen’s Bench, July 17, 2008, J.M. Ross J.

In 2002, the applicant member of the Institute of Chartered Accountants of Alberta (the “Institute”) commenced an application seeking a declaration that his brother’s complaint to the Institute alleging that he had failed to act with reasonable diligence as executor of their mother’s estate related to matters outside the jurisdiction of the Institute as his involvement in the estate matters was personal, and he was not providing services to the public as a chartered accountant. The application was set down for hearing but adjourned. The Institute proceeded with its investigation, referred the matter to a Discipline Tribunal for a disciplinary hearing where it was found that the applicant was “guilty of unprofessional conduct in respect of his executorship of the estate”. The applicant was ordered to pay a fine and costs of the investigation and hearing.

The applicant filed a Notice of Appeal and was advised of the requirement that he must order and pay for a copy of the discipline hearing transcript. He then brought an unsuccessful preliminary application to an Appeal Tribunal to dispense with the requirement for a transcript. His appeal was later struck by the Appeal Tribunal for failure to obtain a transcript. The applicant did not appeal the Appeal Tribunal’s decision to the Court of Appeal. The Institute then obtained judgment in Provincial Court against the applicant for $25,000 in respect of costs and the fine. In response, the applicant set down his application for a declaration that the Institute’s proceedings were outside its jurisdiction in 2008.

The Court declined to grant the declaration. The challenged disciplinary process against the applicant had taken place. The applicant participated in the process and had full opportunity within the context of that process to raise his objections to jurisdiction. He had access to an adequate alternative remedy. The attempt by the applicant to revive his judicial review application at this time violated the principles prohibiting collateral attack on the final decision in the disciplinary proceeding as summarized in Alberta (Energy Resources Conservation) v. Sarg Oils Ltd., 2002 ABCA 174; [2002] A.J. No. 938.

As well, a declaration is an equitable and discretionary remedy subject to equitable defences such as delay, and which should not be granted where it would be useless or embarrassing. The delay was found to be inordinate and inexcusable and it was the applicant’s responsibility to bring the application in time. By all appearances, he submitted to the jurisdiction of the discipline process or at least elected to have the jurisdictional issue determined within that process. Finally, declaratory relief, which merely declares rights as between parties (in the case the right of the Institute to deal with the complaint brought by the applicant’s brother) would no longer have any practical effect now that the process was complete.

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