Application for judicial review of decision of Professional Conduct Tribunal of Certified General Accountants’ Association of Ontario convicting the applicant of professional misconduct.

[2014] O.J. No. 1580

2014 ONSC 1865

Ontario Superior Court of Justice

D.R. Aston, H.E. Sachs and Edwards JJ.

April 3, 2014

The applicant was a practicing certified general accountant and member of the Certified General Accountants’ Association of Ontario (“CGAAO”). The CGAAO commenced an investigation in relation to the applicant. Following the investigation, it commenced disciplinary proceedings.

A hearing was scheduled for July 20, 2012. Prior to the hearing date, the applicant requested an adjournment in order to obtain new counsel. The matter was adjourned to October 24, 2012. Following the adjournment, the CGAAO sent the applicant a request to admit facts and documents that, if admitted, would be sufficient to convict the applicant of the alleged misconduct. The applicant did not respond to the request to admit during the 20 day time period prescribed by the CGAAO’s Bylaws. He was deemed to have admitted the matters set out in the request to admit. Prior to the scheduled hearing, the applicant’s new counsel requested the CGAAO consent to withdraw the deemed admissions and allow him to respond substantively. The CGAAO refused the request. The applicant brought a motion before the CGAAO’s Conduct Tribunal for leave to withdraw the deemed admissions. The motion was dismissed without reasons.

The applicant’s hearing proceeded before the Conduct Tribunal. He was convicted of professional misconduct solely on the basis of the deemed admissions. No witnesses were called. The applicant was not permitted to call evidence to contradict the deemed admissions.

The applicant exercised his statutory right of appeal to the CGAAO’s Appeal Tribunal. His appeal was dismissed.

The applicant applied for a judicial review of the decisions of the Conduct Tribunal and the Appeal Tribunal on the basis there was a breach of natural justice at the hearing before the Conduct Tribunal. The court held that the standard of review applicable to a breach of natural justice is whether the proceeding was procedurally fair or not. If the proceeding is not procedurally fair, it cannot stand. In order to assess whether the proceeding was procedurally fair, the court held it had to analyze the preliminary decision to deny the applicant leave to withdraw the deemed admissions.

On judicial review, the CGAAO submitted the court lacked jurisdiction to conduct such an analysis, because the decision was a preliminary one. Previously, the applicant had sought to judicially review that preliminary decision; however, the CGAAO successfully argued the application was premature and the applicant was required to exhaust his internal remedies under the statutory scheme prior to seeking judicial review. Having done so, and in the context of that procedural history, the court found that the CGAAO’s position that the preliminary ruling was no longer capable of being judicially reviewed was “disingenuous.”

The court held that as the Conduct Tribunal gave no reasons for refusing the motion, its ability to analyze the decision was constrained; however, on any standard of review, the decision could not stand. The court held it was unreasonable in the circumstances for the Conduct Tribunal to conclude that the applicant did not have a reasonable explanation or a plausible excuse for failing to respond to the request to admit during the 20 day period. Further, as the deemed admissions were effectively determinative of the alleged misconduct, the Conduct Tribunal was required to weigh the prejudice to the CGAAO against the prejudice to the applicant and the administration of justice. As there was no prejudice to the CGAAO that could not be compensated for in costs, and the prejudice to the applicant was that a conviction would be a foregone conclusion, the balance militated in favour of the applicant. The court held that in refusing the applicant’s motion to withdraw the deemed admissions, the Conduct Tribunal reached an unreasonable decision.

The court went on to consider the absence of reasons, despite the fact that the applicant’s basis for judicial review was not founded on this ground. The court held the absence of reasons in these circumstances was troubling. The CGAAO argued reasons are never required for interim decisions under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the "SPPA"), as the legislation provides, pursuant to section 16.1 (3), that “an interim decision or order need not be accompanied by reasons.” However, the court held that the SPPA does not go so far as to state that reasons will never be required for an interim order or decision. Pursuant to the duty of procedural fairness requirements established in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in some circumstances procedural fairness will require some explanation for a decision. The court held that as a finding of professional conduct is of great significance to a professional, and the consequence of the particular decision was significant as it was determinative of the misconduct proceeding, the Conduct Tribunal had a duty to give reasons for the refusal of the motion. The failure to do so was a further breach of natural justice.

The court quashed the conviction for professional conduct, the decision of the Conduct Tribunal, and the decision of the Appeal Tribunal, and granted the applicant’s motion to withdraw the deemed admissions. The court granted the applicant 20 days to respond to the request to admit. The matter was remitted to the Conduct Tribunal for a hearing on the merits before a differently constituted panel.