The appeal by an accountant (“Macdonald”) of a decision of the discipline tribunal panel of the Institute of Chartered Accountants (the “Tribunal”) cancelling his membership and requiring him to pay costs of $6,832 was dismissed where the Court concluded that Macdonald should have raised the issue of double jeopardy before the Tribunal

23. February 2010 0

Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Penalties and suspensions – Investigations – Fairness – Offences – Double jeopardy

Macdonald v. Institute of Chartered Accountants of British Columbia, [2009] B.C.J. No. 2369, British Columbia Supreme Court, November 27, 2009, A.M. Stewart J.

Macdonald was at all times a member of the Institute of Chartered Accountants of British Columbia. In 2008, a professional conduct investigation of Macdonald was commenced by the Institute and an investigator was appointed by the Institute. The Professional Conduct Enquiry Committee of the Institute subsequently met, considered the investigation report and then made a “determination and recommendation”. This was accepted by Macdonald. Pursuant to the Determination and Recommendation, a recommendation was made, in spite of the fact that it had been determined that grounds existed to establish that Macdonald was in contravention of Rule 105 and Bylaw 650, that a complaint not be raised on the condition that Macdonald accept an anonymous reprimand and pay a fine of $5,000.

Subsequently, the Institute’s Professional Conduct Enquiry Committee delivered a further Statement of Complaint against Macdonald to the Tribunal. The Tribunal found that, as alleged in the Statement of Complaint, Macdonald had transgressed Bylaw 650 (a member must answer requests of a practice review officer for information and permit a practice review officer to have access to books, documents, etc.); Rule 105 of the Rules of Professional Conduct (a member must cooperate with practice review officers and a Professional Conduct Inquiry Committee investigation); and Rule 201.1 (a member must act at all times in a manner which will maintain the good reputation of the profession and its ability to serve the public). As a result of the Tribunal’s decision, Macdonald’s membership in the Institute was cancelled and he was ordered to pay costs. Macdonald then appealed the decision of the Tribunal.

On appeal, Macdonald’s primary position was that the Tribunal’s findings against him violated the rule against double jeopardy by reason of his acceptance of the Determination and Recommendation of the Professional Conduct Inquiry Committee. It was Macdonald’s contention that he had already been disciplined for contravening Rule 105 and Bylaw 650. The Court held that Macdonald’s position that the Statement of Complaint was in violation of the rule against double jeopardy was not squarely put to the Tribunal and should have been. This was not a procedural quibble. The Court noted that only the Tribunal could make findings of fact relating to this issue. The issue of double jeopardy could not be considered properly if it was not raised. There was no ruling by the Tribunal with respect to the issue of double jeopardy and, consequently, no decision could be examined by the Court for “reasonableness”. This was sufficient to dispose of the appeal. The Court also noted that, in its opinion, the Statement of Complaint was structured in such a way that it was clear that any finding made against Macdonald was not to be based on events that had previously resulted in the acceptance by Macdonald of the Determination and Recommendation. In the result, the appeal was dismissed.

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