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the case
The decision of the Alberta Court of Appeal in Sturt v Chartered Professional Accountants of Alberta, 2023 ABCA 146, supports the proposition that, until the merits of the allegations in a regulatory proceeding are determined, procedural applications and appeals from those decisions ought to be discouraged.
The appellant is a chartered accountant facing disciplinary proceedings for alleged misappropriation of funds from his former employer. After investigation, the inquiry committee determined there was sufficient evidence of unprofessional misconduct to warrant sending the matter to a hearing. At this point, the appellant had entered an interim voluntary suspension with the regulator.
Before the hearing could proceed, however, the appellant applied to the Court of King’s Bench for an injunction to stop the regulator from proceeding with the hearing. He argued the regulator should have considered his settlement offer to never resume practice in exchange for not admitting wrongdoing. He also contended the investigation prior to the hearing was procedurally unfair.
The King’s Bench judge dismissed the application, finding that it was premature. The Court of Appeal upheld this finding, noting that “interlocutory and procedural issues including an allegation of procedural fairness arising from an inadequate investigation, should generally occur after the administrative proceedings have concluded, save for rare and exceptional circumstances.” In the Court’s view, until the board or tribunal has had an opportunity to address the matter, such court applications are generally premature.
The Court also held that “challenges in proceedings that interrupt, delay or bifurcate a tribunal’s work are to be avoided.” Court challenges that occur in the mid-stream of a regulatory proceeding undermine the objectives of self-regulation. Premature appeals can lead to excessive delay, which is difficult for the regulated member “living under the cloud of disciplinary proceedings” and which also “undermines the the public’s confidence in the profession’s ability to self-regulate.
In summary, the Court’s decision is a strong stand in favour of allowing the administrative process to fully run its course in most instances before any procedural issues with the underlying investigation are raised in Court.
our two cents for free
Consider whether your investigative process provides adequate procedural protections for the affected party. While the level of procedural fairness required varies depending on context, it can be useful to reflect on whether your process:
- provides affected parties with notice of the case to be met;
- affords affected parties sufficient opportunity to present their case; and
- has safeguards to limit reasonable apprehensions of bias or actual bias.
question
To what extent does your investigations process allow an affected party to present submissions in support of their position?
Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:
- A Case: a (very) brief summary of a recent and relevant case;
- Our Two Cents for Free: practical insight inspired by the files on our desks right now; and
- A Question: something to get you thinking about ways to enhance your work.
This newsletter is for information only and does not constitute legal advice.
