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the case
On January 29, 2024, the Court of Appeal of Alberta released its decision in Chartered Professional Accountants of Alberta (Complaints Inquiry Committee) v Mathison, 2024 ABCA 33. This decision was an appeal from a disciplinary proceeding at the Chartered Professional Accountants of Alberta in which the member was found guilty of three allegations of unprofessional conduct. The majority judgment upheld the findings of unprofessional conduct, but overturned the appeal tribunal’s decision on sanction. One important issue determined by the Court was in relation to the wording of the allegations that had been made against the member. Two of those allegations alleged that the member “knew or ought to have known” about certain facts which made his conduct unprofessional. The majority of the Court rejected the suggestion that it was incumbent upon the discipline or appeal tribunal to make a specific finding of which aspect of the charge has been proven in relation to the member’s degree of knowledge. The majority noted that several professional disciplinary findings had been upheld by courts where a tribunal determined that the member “knew or ought to have known” without making a specific finding of which element applied. Importantly, the majority concluded that: “Finding that the professional ‘knew or ought to have known’ is equivalent to finding that the lower threshold of constructive knowledge has been met: the professional at least ought to have known, regardless of whether they actually did know” (para 46).
our two cents for free
It is common for lawyers involved in professional regulatory hearings to request an “order excluding witnesses” at the commencement of a hearing. While this is a routine request understood by the lawyers involved and likely by the tribunal, it may not resonate with witnesses who may be in attendance. The impact of such an order is to ensure that individuals who are expected to testify in the hearing do not learn about any of the evidence of witnesses who testify before them. It is meant to preserve the witness’s evidence and avoid it being changed or tailored based on what an earlier witness has said. Consider advising your tribunal chairs to take a moment to explain to any witnesses in attendance what the order means to avoid a situation where a person inadvertently breaches the order due to a lack of understanding.
question
What steps does your organization take to ensure that hearings are not being secretly recorded by participants?
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.
