SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
IN THE MATTER OF the Judicial Review Procedure Act,
AND IN THE MATTER OF charges preferred by the
Professional Conduct Committee of the
Institute of Chartered Accountants of Ontario
on February 18, 2004
RE: J. DOUGLAS BARRINGTON, F.C.A., PETER D. CHANT, F.C.A.,
ANTHONY POWER, F.C.A., AND CLAUDIO RUSSO, C.A.
Applicants
- and -
THE PROFESSIONAL CONDUCT COMMITTEE OF THE
INSTITUTE OF CHARTERED ACCOUNTANTS OF ONTARIO
AND
ATTORNEY GENERAL OF ONTARIO
Respondents
BEFORE: Mr. Justice Whalen
COUNSEL: J.L. McDougall, Q.C. & Young Park, for the applicants, Barrington, Power and Russo
Robert Staley & Derek Bell, for the applicant, Chant
Brian Bellmore & Karen Mitchell, for the respondent, Professional Conduct
Committee of the Institute of Chartered Accountants of Ontario
Sara Blake, for the respondent, Attorney General of Ontario
HEARD: June 16, 2004
E N D O R S E M E N T
WHALEN J.
1Section 10 of the Judicial Review Procedure Act (“J.R.P.A.”) provides:
s. 10 When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of such decision has been served on the person making the decision, such person shall forthwith file in the court for use in the application the record of the proceedings in which the decision was made.
2It is not in dispute that a record must be filed.
3It is also agreed that Rule 68.04(1) governs the process of filing a record, but the issue is whether subsection (a) or (b) of the Rule applies. If Rule 68.04(1)(a) applies, the record must be prepared and filed by the respondent. If Rule 68.04(1)(b) applies, then the applicant must prepare and file the record.
4It was not disputed that the Divisional Court may review the investigative process leading to the laying of the charges before the Discipline Committee. This was confirmed and discussed in Wall et al. v. Institute of Chartered Accountants, Divisional Court of Ontario, decision of December 19, 2002 (File No. 447/02).
5It was made clear in Wall that a case of manifest unfairness must be established for a successful review of an investigation such as this. Other observations made by the court in Wall are also useful in approaching the present motion.
6The court should exercise caution that it does not interfere with the adjudicative role of the administrative body, including its internal process of investigation. Scrutiny is warranted where there has been some manifest unfairness. Also, the duty of fairness may be more limited in the investigative stage than at the adjudicative. Furthermore, the court should not encourage a multiplicity of proceedings, especially at the interlocutory stage. Efficiency in time, resources and complexity should be maintained. The administrative body should be permitted to do the job, especially where it is a body of particular expertise.
7Rule 68.04(1)(a) applies where the review is of the decision of a tribunal or court before which there was a proceeding. Otherwise, Rule 68.04(1)(b) applies.
8I am satisfied that the Professional Conduct Committee (“PCC”) was neither a “court” nor a “tribunal” in its investigative function, or that its decision to refer charges was made as such. Its function in investigating and laying charges was not an adjudicative one. Adjudication may follow if the hearing of the charges proceeds to decision. Therefore, Rule 68.04(1)(a) does not apply. A record must be filed in the instant case pursuant to Rule 68.04(1)(b).
9It was submitted that where judicial review was available, as admitted here and confirmed in Wall, a decision had necessarily been taken affecting the rights or privileges of a person. This being the case, there was necessarily the exercise of a statutory power of decision within the meaning of s. 10 of the J.R.P.A. The case of Abel et al. and Advisory Review Board (1980), 1980 1824 (ON CA), 31 O.R. (2d) 520 (C.A.) at p. 532 (quoting Dickson J. in Martineau v. Matsqui Institution Disciplinary Board (No. 2), 1979 184 (SCC), [1980] 1 S.C.R. 602 at pp. 622-623) was cited as authority.
10In my view, the cited/quoted portion in Re Abel refers to remedy, whereas Rule 68.04 deals with process. The remedy of judicial review is broadly available to address administrative unfairness, including at the investigative level.
11However, Rule 68.04(1)(a) addresses the process of filing a record where the decision sought to be reviewed is the result of a proceeding before a tribunal or court acting in an adjudicative capacity. There has been no such adjudicative proceeding at this stage.
12Although I have some sympathy for the applicants’ concerns with respect to disclosure issues, it is not the proper role of this court at this stage to be considering those issues or making rulings. I should not presume that the Discipline Committee will not rule properly or adequately. The tribunal should be permitted to do the job mandated. It should make its own rulings on such matters, either at a preliminary stage or in the course of hearing the charges.
13This court should not manage the Committee’s cases or direct it before it has conducted its own hearings on the issues at hand. This court is a court of review.
14For these reasons, the motion is dismissed.
15As counsel suggested, they may address the issue of costs in written submissions not to exceed 3 pages each in length. The respondent shall file and serve its submissions within 7 days of the date of these reasons and the applicants shall serve and file their responding submissions within 7 days thereafter. The respondent may reply (if necessary) within 7 days of the last of the applicants’ submissions being served but limited to 1½ pages.
WHALEN J.
DATE: 20040617