The Court of Appeal dismissed the Institute of Chartered Accountants appeal from an Appeal Tribunal’s decision ordering a stay of proceedings based on an abuse of process. The Appellant’s investigator had received information relevant to the complaint against the respondent from various sources, which was sent to an email address which the investigator’s wife had access to. On that basis the Appeal Tribunal concluded that the investigator had disclosed confidential information without the respondent’s consent contrary to the Regulated Accounting Profession Act.

Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Judicial review – Stay of proceedings – Abuse of process – Investigations – Disclosure of third party records – Jurisdiction

Clark v. Alberta (Institute of Chartered Accountants, Complaints Inquiry Committee), [2012] A.J. No. 505, 2012 ABCA 152, Alberta Court of Appeal, May 23, 2012, C.D. Hunt, C.D. O’Brien and J.D.B. McDonald J.J.A.

The Appellant, the Complaints Inquiry Committee, was the prosecutorial branch of the Institute of Chartered Accountants of Alberta (the “Institute”). The Institute had received a complaint concerning the Respondent, Daniel Francis Clark C.A., in relation to his professional services alleging that he had sent unprofessional emails and disclosed confidential client information to third parties. The Chair of the Appellant committee determined that an investigation was warranted and assigned an investigator to investigate whether the Respondent was guilty of unprofessional conduct.

The investigator instructed the Respondent to provide information relating to the investigation to the investigator’s wife’s email address. The Respondent later provided affidavit evidence stating that he was not comfortable with providing the information to the investigator’s wife, and sent the information to her address due solely to the Institute’s request that he provide “utmost cooperation” to the investigator. The respondent further deposed that he had learned that the investigator had gathered information from the complainant and other interested persons using his wife’s email address.

At a hearing before the Institute’s Discipline Tribunal, the respondent applied to dismiss the proceedings on the grounds that the Discipline Tribunal had lost jurisdiction because the investigator had disclosed confidential information in the course of investigating the complaint contrary to s. 129(2) of the Regulated Accounting Profession Act. The Discipline Tribunal dismissed the application as they found the respondent had, in essence, consented to the disclosure, but the decision was overturned by an Appeal Tribunal which ordered a stay of proceedings based on an abuse of process.

The Appellant appealed the decision of the Appeal Tribunal. The Court held that, as there was no basis on which a finding of consent could be sustained, the Appeal Tribunal’s decision was reasonable and the appeal should be dismissed despite the sparseness of reasons provided by the Appeal Tribunal. The Court concluded that it was impossible to infer that the Respondent consented to the disclosure of information gathered by the investigator from the complainant and other parties. As the Institute had conceded that the investigator’s wife might have seen some of the emails, it was reasonable for the Appeal Tribunal to conclude that disclosure had been made without the Respondent’s consent.

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