The Court held that the application of the Applicant actuary was premature. The Applicant was subject to disciplinary proceedings by the Respondent self-governing professional association and brought an application to stay the proceedings for inordinate delay. The Court held that the disciplinary process of the Respondent had to run its course before the Applicant could bring an application for judicial relief.

Administrative law – Decisions of administrative tribunals – Canadian Institute of Actuaries – Actuaries – Disciplinary proceedings – Professional governance and discipline – Professional misconduct / conduct unbecoming – Judicial review application – Premature – Delay – Stay of proceedings – Jurisdiction of tribunal – Remedies – Alternative remedies

A.D.M. v. Canadian Institute of Actuaries, [2008] A.J. No. 959, Alberta Court of Queen’s Bench, August 21, 2008, B.E.C. Romaine J.

An Actuary, C, completed a valuation report for a pension plan for the year ending December 31, 1999 (the “Report”) and a cost certificate (the “Certificate”). A peer, the Applicant Actuary, reviewed the Report and Certificate in 2001. The Applicant co-signed the Report under the designation ‘peer-reviewed’ and co-signed the Certificate under the heading ‘actuarial opinion’. In late 2002, the Deputy Superintendent of Pensions for the Province of Alberta made a complaint to the Defendant self-governing professional association about the Applicant and C.

Various delays took place between late 2002 and early January, 2007. On January 26, 2007, the Applicant filed an application to stay the proceedings because of inordinate delay on the part of the Defendant. The Defendant opposed the application on the basis that it was premature.

The Court first noted that, generally speaking, a court would not entertain an application for judicial review until the proceedings are completed and an applicant had exhausted all appeal routes. The Applicant tried to distinguish those decisions on the basis that they were decided in the context of disciplinary decisions where appeals were available. In the Applicant’s case, there was no decision yet.

The Court considered the expertise of the tribunal at issue and noted the tribunal would have been in a better position to determine the appropriate length of delay. The Applicant argued that the delay in this case was so inordinate and inexcusable that it could defeat the jurisdiction of the tribunal. The Court held that, in considering the ultimate inquiry, the Applicant had not been so prejudiced that his interests could not be adequately protected within the administrative scheme. Therefore, his application was premature.

The Court continued, in the alternative, to assess whether the delay was inordinate. First, the delay was not, in and of itself, unacceptable or oppressive because the complaint involved a highly specialized area of actuarial valuation. In addition, the Applicant was responsible for some of the delay during the four-year period. Therefore, the Court would have dismissed the application for a stay. Finally, if the Court found that some judicial intervention was appropriate, the Court would have ordered the parties to comply with applicable timelines, rather than ordering a stay.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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