PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION. Thomas Walker. Certified General Accountants of Prince Edward Island

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1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: Walker v. CGAs of PEI & Ano PESCTD 49 Date: Docket: S1-GS Registry: Charlottetown Between: And: Thomas Walker Certified General Accountants of Prince Edward Island Plaintiff And: Discipline Committee of the Certified General Accountants Association of Prince Edward Island Before: The Honourable Justice Gordon L. Campbell Respondent Intervenor Appearances: Applicant present on his own behalf John K. Mitchell, Q.C. - Solicitor for the Respondent J. Gordon MacKay, Q.C. - Solicitor for the Intervenor Place and Date of Hearing Place and Date of Decision Charlottetown, Prince Edward Island September 15, 2005 Charlottetown, Prince Edward Island September 30, 2005

2 Citation: Walker v. CGAs of PEI & Ano PESCTD 49 S1-GS Between: And: And: Thomas Walker Certified General Accountants of Prince Edward Island Discipline Committee of the Certified General Accountants Association of Prince Edward Island Plaintiff Respondent Intervenor Prince Edward Island Supreme Court - Trial Division Before: Campbell J. Date of Hearing: September 15, 2005 Date of Decision: September 30, 2005 [11 pages] Administrative Law - Judicial Review - Professional Discipline - Standard of Review - Reasonableness Simpliciter - Panel decision reasonable notwithstanding factual errors in evidence accepted by panel. Discipline panel decision withstands somewhat probing analysis. Cases Considered: Law Society of New Brunswick v. Ryan (2003), 1 S.C.R Statue Considered: Certified General Accountants Act, S.P.E.I. 1968, Cap. 64. Applicant present on his own behalf John K. Mitchell, Q.C. - Solicitor for the Respondent J. Gordon MacKay, Q.C. - Solicitor for the Intervenor

3 Campbell J.: Introduction: [1] Tom Walker was a member of the Certified General Accountants Association of Prince Edward Island. Following a conviction for stealing $20,000 from a client s account, the Discipline Panel of the Association adjudicated on complaints of professional conduct and terminated Mr. Walker s membership in the Association. Mr. Walker is applying to have the Panel decision set aside and to be returned to the status of being a member in good standing of the Association. [2] The applicant basis his application on the following eight grounds: (a) (b) (c) (d) (e) (f) (g) (h) The Professional Conduct Panel did not properly exercise its self regulation and self discipline obligations in a serious, fair and responsible manner toward the continuing membership of the Applicant; The Professional Conduct Panel did not accurately capture the details of the matter as is evidenced by errors in the decision, evidence and rationale sections of the report, and, therefore, reached a directive based on erroneous analysis; The sanctions proposed in the Panel Directive do not reflect the general principle of comparison in other jurisdictions, particularly, when the supporting details regarding specific Code violations are considered; The sanctions proposed in the Panel Directive are severe, unwarranted and harmful to the future economic well-being of the Applicant; the guiding principles regarding the procedural authority of the Panel and the sanctions proposed in the Panel Directive are in direct violation of natural justice afforded under Human Rights and Charter of Rights and Freedom Legislation in Canada; A duty of care by Certified General Accountants Association was not extended to the Applicant during the criminal investigation process, and, therefore, the Association was complicit in the Code violations ultimately breached by the Applicant; The Professional Conduct Panel did not exercise reasonable care and judgment in balancing its obligation between protecting the interest of its member (the Applicant) and the public; The Professional Conduct Panel was not sufficiently skilled in its human resources composition to competently sit in judgment on this professional misconduct hearing, and, in the alternative, did not employ third party external professional advisory resources in

4 Page: 2 analyzing the matters generally relating to related professional misconduct issues of accountants. [3] The first thing a reviewing court must do in respect of an application for judicial review is determine the extent of judicial review to be undertaken. We are to consider four factors, using a pragmatic and functional approach, to decide whether the standard of review will be one of correctness, reasonableness simpliciter, or patent unreasonableness. The four contextual factors are: 1) The presence or absence of a privative clause; 2) The relative experience of the reviewing court as compared to that of the tribunal, with respect to the issue in question; 3) The purpose of the legislation under consideration; and 4) The nature of the question - whether it is one of law, fact or mixed fact and law. [4] Regarding the first factor, there is no privative clause in the legislation creating the process under the Certified General Accountants Act, S.P.E.I. 1968, Cap. 64, nor is there a statutory right of appeal. It is therefore neutral in any expression regarding involvement by the courts. [5] As for the second factor, the members of the Discipline Panel of the Certified General Accountants Association are more familiar with the guiding principles and rules of conduct of practising Certified General Accountants than are the courts and they are more likely to have a better appreciation for the appropriateness of any proposed professional penalty than would the court. This would call for a more deferential approach by the courts. [6] The third issue relates to the purpose of the legislation and the disciplinary procedures of the Certified General Accountants (CGA) Association. The Association is established as a self regulating professional body with the authority to set and maintain professional standards, prescribe a Code of Ethics to govern discipline matters, provide procedures for the suspension or cancellation of membership where appropriate, provide for the hearing of complaints against members, etc. Given that the statute requires the CGA tribunal to regulate its members, address complaints, balance a range of choices of administrative responses and consider the public interest, the courts should lean towards showing a relatively higher degree of deference. [7] Finally, it appears that the question to be determined involves a mixed question of fact and law. Did the tribunal appropriately assess and consider the facts and did

5 Page: 3 they apply the appropriate sanction to those facts? [8] The facts are not extremely complex. The Panel was well positioned to assess and decide on the factual matters presented to it. Having determined the facts, it was then up to the Panel to apply the general principles to those facts and arrive at a sanction. This too would indicate that a degree of deference ought to be shown to the Committee. [9] As the Supreme Court of Canada concluded in similar circumstances in Law Society of New Brunswick v. Ryan (2003), 1 S.C.R. 247, I find that the appropriate standard of review is reasonableness simpliciter. Having selected the standard of review, it is now worthwhile highlighting how that standard is to be applied by this reviewing court. In Ryan, the Supreme Court of Canada addressed the issue as follows: 48 Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (see Southam, supra, at para. 61). In Southam, at para. 56, the Court described the standard of reasonableness simpliciter: An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. [Emphasis added.] 49 This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and "look to see" whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission, to those reasons (Baker, supra, at para. 65, per L'Heureux-Dubé J. citing D. Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286). 50 At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the fundamentally different process of reviewing a decision for correctness. When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct. In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision-maker is merely afforded a "margin of error" around what the court believes is the correct result. 51 There is a further reason that courts testing for unreasonableness must

6 Page: 4 avoid asking the question of whether the decision is correct. Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. For example, when a decision must be taken according to a set of objectives that exist in tension with each other, there may be no particular trade-off that is superior to all others. Even if there could be, notionally, a single best answer, it is not the court's role to seek this out when deciding if the decision was unreasonable A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79). 56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [Emphasis Added] [10] Many of the grounds set out by the applicant necessarily overlap with each other. In general, I find that the Panel properly exercised its authority and did so in a serious, fair and responsible manner. They did not violate the principles of natural justice, any human rights legislation or the Charter of Rights and Freedoms, as alleged. However, after reviewing and considering the submissions of the applicant and the respondents, I have determined that there are two areas in the tribunals decision that raise concerns. The decision is relatively short and is set out in its entirety below. DECISION The case involves a complaint against Thomas P. Walker, C.G.A. Mr. Walker was duly served with a notice of hearing dated March 26, The notice of hearing set out that Mr. Walker was charged with violating the following Rules of the Code of Ethical Principles and Rules of Conduct (hereinafter the Code ): Rule 101, Rule 102, Rule 206, Rule 206.1, Rule 305, Rule 402, Rule 404, Rule 606(a), Rule 607, and Rule

7 Page: 5 The notice of meeting also set out that the member failed to uphold the first ethical principle of the Code, the second ethical principle of the Code, the third ethical principle of the Code, the fourth ethical principle of the Code, and the sixth ethical principle of the Code. Mr. Walker was aware of his right to counsel in these proceedings, but chose to represent himself. PANEL DECISION Mr. Walker pled guilty to violating the sixth ethical Code and Rule 101, Rule 102, Rule 206, Rule 607, and Rule 607.1, and the Panel accepted the plea, and waived the other charges. We direct that: 1. Mr. Walker be expelled from the Certified General Accountants Association of Prince Edward Island membership. 2. That his expulsion be published in the CGA-PEI newsletter and in the three daily PEI newspapers. EVIDENCE At the hearing, Mr. Walker and Mr. MacKay made submissions to the panel. Mr. Walker received his CGA designation and membership in For most of his working career, he has been practicing public accounting as a sole practitioner. He has been extensively involved in community and his association. In December 2, 2002, Mr. Walker pled guilty to two counts of deceit, falsehood or other fraudulent means defrauding the estate of Lenny Kemp of monies totaling $20,000, by depositing two cheques of $10,000 each into the bank account of Walker & Co., contrary to Section 380(1) of the Criminal Code of Canada. He also pled guilty to two counts of stealing money, the property of the estate of Lenny Kemp, of a value exceeding $5,000, contrary to Section 334(a) of the Criminal Code of Canada. Mr. Walker stated, among other things, that his offenses were not related to the accounting profession as there was no engagement letter or fees involved, and he assisted the Kemps as a favor to a family friend. He stated that the event occurred during a stressful time of his life when he acted unnaturally and unintentionally and failed to employ the level of professional standards that would normally apply in a professional engagement. Mr. Walker accepted no responsibility for his actions. Mr. Walker instead

8 Page: 6 passed the blame for the entire matter onto the victim and her legal counsel. He stated in his testimony that: Consequently the error in interpretation by Mr. Frost and the lie by Ms. Kemp and the forwarding of the issue to the RCMP removed any opportunity for me to remedy this matter other than through the criminal court process. Mr. Walker also stated that he accepted a plea bargain offered by the criminal court as he wished to avoid the fallout from a criminal trial that would: Include for crown witnesses a confirmed liar (Ms. Kemp), and a barrister (Mr. Frost) that was prone to making fundamental interpretation errors. Mr. Walker also went on to blame complainant Robert Landry, CGA for not bringing the RCMP investigation to his attention. He also felt that a complaint by the Association should have come from a CGA public practitioner only, even though he stated on numerous occasions that he was not acting in his capacity as a public practitioner. The panel carefully reviewed the evidence and submissions provided by both parties. RATIONALE Despite the fact that Mr. Walker has had only one infraction during his career, and the conflicting evidence as to the nature of his role in administering the estate of Lenny Kemp, he did commit a very significant breach of trust, seemingly without remorse. There is no excuse for depositing estate monies into the operating account of his accounting practice, given Mr. Walker s professional training and lengthy experience as a public practitioner. Regardless of Mr. Walker s role in the administration of this estate, a professional accountant must act professionally whether he/she is acting as a professional accountant or acting as a friend. The Rules alleged to be violated in this case are not limited to activities involving fee-paying clients. The actions of Mr. Walker bring in to question his honesty and integrity, as well as the integrity of the CGA designation and the accounting profession. The panel unanimously concluded that Mr. Walker doesn t understand the seriousness of this matter nor does he determine that he is responsible for his actions. We therefore cannot conclude that Mr. Walker would be deterred from further similar actions.

9 Page: 7 Furthermore, the Certified General Accountants Association must exercise its self-regulation and self-discipline obligation in a serious, fair and responsible manner, and must be seen to be doing so in order to protect the interests of the membership and the public. Mr. Walker s inappropriate behaviour and breach of trust cannot be condoned by the Certified General Accountants Association of Prince Edward Island, and he should not remain a member of the Association. DATED at Charlottetown, this 15 th day of June William Pitre, CGA, Chair Derek Huestis, CGA Paula Gallant, CGA Sherry Spence, CGA Ross White, CGA Jennifer Birch, CGA [Emphasis Added] [11] In the Panel decision, the tribunal recites that: Mr. Walker pled guilty to violating the sixth ethical Code and Rule 101, Rule 102, Rule 206, Rule 607, and Rule 607.1, and the Panel accepted the plea, and waived the other charges. [Emphasis Added] In fact, with respect to professional offences, Mr. Walker did not plead guilty to violating the sixth ethical code or Rule 102. [12] In the second paragraph under the heading EVIDENCE the Panel stated: In December 2, 2002, Mr. Walker pled guilty to two counts of deceit, falsehood or other fraudulent means defrauding the estate of Lenny Kemp of monies totaling $20,000, by depositing two cheques of $10,000 each into the bank account of Walker & Co., contrary to Section 380(1) of the Criminal Code of Canada. He also pled guilty to two counts of stealing money, the property of the estate of Lenny Kemp, of a value exceeding $5,000, contrary to Section 334(a) of the Criminal Code of Canada.

10 Page: 8 In fact, Mr. Walker pleaded guilty to one count of theft over $5,000 (being in respect of the sum of $20,000), contrary to section 334(a) of the Criminal Code of Canada. [13] At first glance there is a strong tendency to conclude that the tribunal proceeded on a false or at least incorrect evidentiary foundation which would have the effect of rendering their decision, at minimum, unreasonable and perhaps patently so. However, I am mindful of the admonition of Iacobucci J. in Ryan (last sentence of paragraph 56) where he states that a reviewing court should not seize upon one or more mistakes or elements of the decision which do not affect the decision as a whole. On a somewhat probing examination, do these errors affect the decision as a whole and render it unreasonable? [14] The professional practice of CGAs is regulated by a Code of Ethical Principles, and by a set of Rules of Conduct. The Code of Ethical Principles lists six principles, each of which are short statements dealing with such things as the member s responsibility to society, their clients, and their profession. The six principles are titled: 1) Responsibilities to Society; 2) Trust and Duties; 3) Due Care and Professional Judgment; 4) Deceptive Information; 5) Professional Practice; and 6) Responsibilities to the Profession. While there is understandably considerable overlap, the rules of conduct that follow each principle relate somewhat to that specific principle so that rules numbered in the 100 series relate to the first principle, rules numbered in the 200 series relate to the second principle, and so on. [15] While the applicant did not plead guilty to violating the sixth principle or Rule 102, he did plead guilty to violating Rule 101, 206, 607, and 607.1, which respectively state: R101 Discredit A member shall not permit the member s firm name or the member s name to be used with, participate in, or knowingly provide services to any practice, pronouncement, or act which would be of a nature to discredit the profession. R206 Trusteeship Members who handle money or other property in trust shall do so in accordance with the terms of the trust and the general law relating to trusts; the member shall maintain such records as are necessary to account properly for the money or other property. R607 Evidence of Professional Misconduct A member who has been found guilty or granted an absolute or conditional discharge of any criminal or similar offence which may cast doubt as to that member s honesty, integrity, or professional

11 Page: 9 competency, shall promptly inform the Association of the conviction, finding of guilt or discharge, as the case may be, when the right of appeal has been exhausted or expired. In such cases, the member may be charged with professional misconduct by the member s Provincial Ethics Committee. A certificate of conviction by any competent court shall be sufficient evidence of the conviction and the perpetration of the offence. R607.1 Criminal and Similar Offences Criminal or similar offences include, but are not limited to, the following offences: (a) (b) (c) fraud, theft, forgery or income tax evasion; violation of the provisions of any securities legislation; or any criminal or similar offence for conduct in, or realted to, the member s professional capacity, or for conduct in circumstances where there was reliance on their membership in, or association with, the Association. [16] As I have indicated, the Panel was wrong when, in the EVIDENCE section of their decision, they listed four Criminal Code of Canada offences to which the applicant pleaded guilty instead of just listing the one offence to which he did actually plead guilty. [17] Firstly, in analysing the nature of the professional offences to which the applicant did plead guilty and comparing those to the additional offences to which the Panel indicated he had pleaded guilty, it is my conclusion that the error of the Panel while clear on the face of the record is not substantial. It is difficult to comprehend how one could plead guilty to a criminal charge of theft over $5,000 and plead guilty to conduct which brings discredit to the Association without also having somehow infringed the principle requiring you to enhance the image of the profession and the Association. Similarly it is difficult to find any substantially different impact on the applicant between pleading guilty to the criminal charge of theft, acknowledging that such conduct violates Rule 607 (Evidence of Professional Misconduct) and (Criminal and Similar Offences) and 206 (Trusteeship) and that of pleading guilty to those offences and additionally acknowledging that one participated in conduct which a reasonably prudent person would believe to be unlawful (contrary to Rule 102). [18] Secondly, in dealing with the misstatement of the criminal charges to which the applicant pleaded guilty, it is helpful to review the RATIONALE portion of the Panel s decision.

12 Page: 10 Despite the fact that Mr. Walker has had only one infraction during his career, and the conflicting evidence as to the nature of his role in administering the estate of Lenny Kemp, he did commit a very significant breach of trust, seemingly without remorse. There is no excuse for depositing estate monies into the operating account of his accounting practice, given Mr. Walker s professional training and lengthy experience as a public practitioner. Regardless of Mr. Walker s role in the administration of this estate, a professional accountant must act professionally whether he/she is acting as a professional accountant or acting as a friend. The Rules alleged to be violated in this case are not limited to activities involving fee-paying clients. The actions of Mr. Walker bring in to question his honesty and integrity, as well as the integrity of the CGA designation and the accounting profession. In the opening sentence, the Panel concludes that the applicant has committed only one infraction during his career. [Emphasis Added.] The applicant had no infractions prior to the current matter coming before the Panel. The one infraction to which they refer was the theft of $20,000. They correctly identify that such conduct constitutes a very significant breach of trust. The breach of trust was the depositing of estate monies into the applicant s own account. They conclude that his conduct brings into question his honesty and integrity. They then go on to determine what they consider to be the appropriate penalty. [19] There is no indication that the Panel s RATIONALE or the penalty they impose was more severe because they misunderstood the number of criminal counts of theft and/or fraud. They dealt only with one infraction. In the EVIDENCE section of their decision they accurately recite that the subject of their inquiry was the sum of $20,000 which was taken from the Estate of Larry Kemp by way of two cheques of $10,000 each. Obviously if a criminal court sentenced an accused in respect of four counts when the accused only pleaded guilty to one count, the error would justify intervention by the Appeal Court. However, we are not dealing with the imposition of criminal sanctions. The Panel was not comprised of a group of lawyers who might view the number of criminal counts or their technical descriptions differently than would non-legal adjudicators. Further, the terms of Rule specifically group fraud and theft in the same category under 607.1(a). It is not unreasonable for a panel of CGAs to consider that one single infraction involving the theft of $20,000 in estate funds is sufficiently offensive to warrant expulsion from the Association. [20] Taking a pragmatic approach and viewing the Panel s decision and reasons as a whole, I find that there s a clear line of analysis within the body of the decision that could reasonably lead the Panel, based on the evidence before it, to the conclusion at which it arrived. The Panel decision, while inaccurate in places and poorly written, is supported by reasons that can withstand a somewhat probing examination.

13 Page: 11 [21] I therefore dismiss the application in its entirety, with costs to the respondents. September 30, 2005 Campbell J.

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