COURT FILE NO.: 25/02

DATE: 2002-10-17

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: KENNETH FITZ-ANDREWS (Respondent) v. THE INSTITUTE OF CHARTERED ACCOUNTANTS OF ONTARIO (Applicant)

BEFORE: Justice Edward Then

COUNSEL: Ms. Cynthia Amsterdam for the Applicant and Robert Maxwell for the Respondent

HEARD: October 9, 2002

E N D O R S E M E N T

[1] The applicant, Institute of Chartered Accountants of Ontario, seeks an order setting aside or lifting the stay which I granted to the respondent on February 20, 2002 pending his application for judicial review by the Divisional Court of the order of the Appeal Committee of the Institute of Chartered Accountants rendered December 14, 2001 with reasons delivered on March 21, 2002. The order of the Appeal Committee upheld the order of the Discipline Committee which had ordered that:

a) the applicant be reprimanded in writing by the Chair of the Discipline Committee of the hearing,

b) the applicant be fined $15,000 to be remitted to the Institute within 30 days from the date of the Discipline Committee decision and order,

c) the applicant be expelled from membership in the Institute and thereby suspending his right to practice as a chartered accountant,

d) that the decision and order of the Discipline Committee be published in the publication “Checkmark” and in the Globe and Mail newspaper,

e) that the applicant surrender his Certificate in the Institute.

[2] In granting the stay, this court applied the test outlined by the Supreme Court in R.J.R. MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. 385.

[3] This court found that the respondent had established that: 1) there was a serious issue to be tried; 2) he would suffer irreparable harm if the stay were not granted; 3) the balance of convenience favoured his position.

[4] In seeking a lifting of the stay the applicant does not take issue with the first branch of the test. As to the second branch of the test, the applicant is prepared to forego the publishing of the decision and order of the Discipline Committee in “Checkmark” and the Globe and Mail. While the applicant does not formally challenge the finding of “irreparable harm” it will be obvious that this factor is now less compelling.

[5] On the third branch of the test, the applicant submits that there has been a substantial change in circumstances so that the balance of convenience now favours the present applicant.

[6] I agree with this submission.

[7] In granting a stay the endorsement of this court contained the following two paragraphs:

[10] In order to minimize any concern with respect to the public interest both the applicant and the respondent have agreed that the application for judicial review be expedited. The applicant is prepared to expedite the perfection of the application and to accommodate itself to the earliest date (in May or June 2002) for hearing convenient to the respondent which the Court is in a position to offer subject to the prompt rendering of reasons by the Appeal Committee.

[11] Accordingly, the application for a stay of the decision of the Appeal Committee is granted pending the hearing of the application for judicial review by the Divisional Court on condition that the applicant accommodate the respondent by bringing the application for judicial review as expeditiously as possible and on condition that the applicant not accept any new business which can reasonably run beyond the hearing date for the judicial review.

[8] In response to the concerns of the Court a hearing date of June 17 and 18, 2002 for the judicial review was agreed to by counsel. However, respondent’s counsel advised in a letter sent on June 6, 2002 that he was caught in a lengthy trial. Notwithstanding the inconvenience to the court by this late communication resulting in the loss of two hearing dates, an adjournment was granted by the court. A new hearing date, October 9, 2002 was agreed to by counsel. The date for the filing of the respondent’s material was to be September 3, 2002.

[9] The respondent did not file his material on September 3, 2002 and the applicant’s counsel sent a letter to the respondent’s counsel on September 4, 2002 and again on September 10, 2002.

[10] On September 11, 2002, the respondent’s counsel replied that he was still involved in the long trial, that the failure to file the material was his fault for which he could offer no excuse. He promised to deliver a factum by September 16 or 17. On September 23, 2002 the assistant to respondent’s counsel requested a copy of the Appeal Committee’s reasons which were delivered to the respondent. (The original copy of these reasons were subsequently located by the respondent’s counsel). As of October 1, the respondent had not filed a factum.

[11] As president of the panel which was to hear the application for judicial review on October 9, 2002, I met with counsel in chambers on October 3, 2002 as it had become obvious that the application for judicial review could not go ahead on October 9 as scheduled and that the October 9 hearing date would be lost to the court. On October 3, 2002, it was determined that the application for judicial review would be adjourned to a date to be set by the registrar and that the Institute’s application for an order lifting the stay would be heard by me, on October 9, as I had made the order imposing the stay.

[12] On October 9, 2002, the position of respondent’s counsel on the issue of the lifting of the stay was that while his actions in failing to perfect the appeal were inexcusable and for which he took full responsibility, those failings should not be visited on his client who he submits is blameless. Mr. Maxwell submits that in these circumstances the balance of convenience has not changed.

[13] Ms. Amsterdam submits that when the stay was ordered, the court clearly recognized that the acknowledged risk to the public interest, given the respondent’s conviction of serious charges involving dishonesty and moral turpitude, could be tolerated if the application was proceeded with expeditiously. It is submitted that the inexcusable conduct of counsel has precipitated an egregious delay in the hearing of the application thus exposing the public interest to a risk that the court should not tolerate and that the court did not intend.

[14] While I agree that the inexcusable delay is the fault of counsel, I am greatly disturbed by the lack of concern on the part of his client. No material was filed by the respondent indicating his concern with respect to the egregious failings of his counsel to honour the deadlines geared to an expeditious hearing in order that the respondent could continue to pursue his livelihood. More importantly, there is no indication that the respondent is prepared to take any steps to assure the court that the timelines and hearing date will be honoured in the future. On May 21, 1997, the respondent was reprimanded for failing to co-operate with the Professional Conduct Committee’s Investigation into the charges which are the subject of the application for judicial review as follows:

It is essential that you cooperate in the future, and we mean the immediate future. Your breach of the rules has resulted in a delay of over one year in the investigation of the complaints, which on the face of them, based on the evidence, are serious complaints.

The profession and the public have an interest in the timely investigation of complaints. Your refusal to cooperate is not a private matter between you and the complainants.

Chartered Accountants have a duty to their clients, the profession and the public to adhere to appropriate standards. Mr. Fitz-Andrews, your failure to cooperate has prevented the Professional Conduct Committee from examining whether or not any standards have been breached.

You have told us you regret your actions and that you will cooperate in the future. We expect you will. We do not want any repetition of these charges you face today….

[15] In failing to express his concern to the court at the failings of his counsel to honour his obligations to the court, but more importantly, in failing to assure the court that those obligations would be honoured going forward, the court is not persuaded that the respondent appreciates that he has a personal responsibility to assure that the timelines of the court are adhered to just as he had personal responsibility to co-operate with the investigation.

[16] The stay order by this Court on February 20, 2002 was granted on two conditions in the public interest. The requirement of expedition has been egregiously breached by respondent’s counsel thereby exposing members of the public to unacceptable risk for a period of time which is intolerable given the conviction of the respondent of serious offences involving dishonesty and moral turpitude. Furthermore, the silence of the respondent with respect to his counsel’s failings does not assure the court that the respondent feels any responsibility that the timelines will be adhered to. Under these circumstances, it is the view of the court that the balance of convenience favours the applicant.

[17] I am fortified in this conclusion as the respondent has also filed no material indicating what prejudice, if any, he will suffer from the lifting of the stay in circumstances where the respondent would have wound down his practice as a chartered accountant pending the application for the judicial review to have been heard on October 9, 2002 as the second condition requires. Moreover, in view of the undertaking of the applicant not to publish the decision and order of the Discipline Committee in "Checkmark” and the Globe and Mail, the nature of any damage to the respondent’s practice and reputation is significantly diminished. This of course directly affects the balance of convenience.

[18] In my view, given the material change in circumstances which effects the public interest, the stay granted by this Court on February 20, 2002 is lifted save for the concession made by the applicant that the decision of the Discipline Committee not be published in “Checkmark” and the “Globe and Mail”.

[19] The application for judicial review is adjourned to March 5, 2003 preemptory to the respondent with or without counsel. The respondent has undertaken to file his materials on or before October 17, 2002. The applicant will file his material on or before January 7, 2003.

[20] Costs to the applicant in any event of the cause. If the parties cannot agree, written submissions may be made within 21 days of the receipt of this endorsement.

THEN J.