COURT FILE NO.: 192/06

DATE: 20071107

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: THE PROFESSIONAL STANDARDS AND COMPETENCE COMMITTEE of the CERTIFIED GENERAL ACCOUNTANTS ASSOCIATION OF ONTARIO (Applicant) v. APPEAL TRIBUNAL OF THE CERTIFIED GENERAL ACCOUNTANTS ASSOCIATION OF ONTARIO AND SUSAN VINT (Respondents)

BEFORE: CARNWATH, JENNINGS and GANS JJ.

COUNSEL: Karen Jolley for the Applicant Lyle Kanee for the Respondent Appeal Tribunal of the Certified General Accountants Association of Ontario Susan Vint in person

HEARD: OCTOBER 31, 2007

E N D O R S E M E N T

JENNINGS J.:

[1] The applicant applies for judicial review of the decision of the Appeal Tribunal of The Certified General Accountants Association of Ontario (“the Tribunal”) made November 16, 2005 (dissent rendered November 24, 2005) and asks that the decision be varied in several respects. In the alternative the applicant asks that the decision of the Tribunal be quashed and the matter be remitted back to a newly constituted tribunal for a re-hearing. The substantive issue raised by the applicant is whether the Tribunal decided issues without providing the applicant the opportunity to respond to the issues that are unilaterally raised, thereby breaching its obligation of fairness to it, and failing to comply with the rules of natural justice.

[2] The Certified General Accountants Association of Ontario is the governing body for approximately 16,000 certified general accountant members and 9,000 students. By The Certified General Accountants of Ontario Act, 1983 the Association has the power to regulate qualification, performance and discipline standards for certified general accountants in Ontario.

[3] Susan Vint is a member of the Association.

[4] In 2004 the Association established the applicant Professional Standards and Competence Committee (“the Committee”) to deal with issues of competence concerning its members. At the same time the association established the Competence Tribunal to hear matters brought before it by the Committee. Two former clients of Ms. Vint filed complaints against her which were heard by the Competence Tribunal. Its decision was appealed to the Appeal Tribunal by the Competence Committee and not by Ms. Vint. It is from the Appeal Tribunal’s decision that this application is brought.

[5] In a 21 page decision the majority of the Tribunal determined a number of issues, chief amongst which was its conclusion that the Competence Tribunal did not have the jurisdiction to make compensatory orders. Ms. Vint did not appeal the compensatory orders made against her; the Competence Committee raised on its appeal only the quantum of the compensatory orders made by the Competence Tribunal.

[6] Other than asking for the source of the Competence Tribunal’s jurisdiction to make a compensation order, the Appeal Tribunal did not advise the parties that it took any issue with or was in any way questioning the jurisdiction of the Competence Tribunal to order compensation. Accordingly, no opportunity was given to fully address that vital issue. In determining the issue, the Appeal Tribunal held that compensatory orders were not rehabilitative and accordingly were not justum generic with the powers given to the Competence Tribunal under article 9.5 of the by-law. The applicant was not able to make any submissions on this point.

[7] Other matters on which no opportunity was given to the applicant to make submissions include a reference to and the attachment of 28 reported cases to the majority decision, which were not drawn to the attention of the applicant; and the requirement that the applicant reimburse Ms. Vint for the amounts she paid to the complainants.

[8] When a tribunal makes a decision on matters not before it and fails to give the parties the opportunities to address matters of concern to the Tribunal, it breaches a basic tenet of administrative law – the duty to act fairly. The duty requires, at a minimum, that the person be told the case to be met and given an opportunity to respond (see Nicholson v. Haldemand-Norfolk (Regional Municipality) Commissioners of Police (1978), 88 D.L.R. (3d) 671 (S.C.C.)).

[9] Accordingly, we find that the decision of the Appeal Tribunal must be quashed and the matter remitted to a hearing before a differently constituted panel. In making that order we hold that the Tribunal, by virtue of its special expertise, is in a better position than is this court to determine whether to grant the remedial orders requested by the applicant.

[10] Further, we decline the applicant’s invitation to give directions to the Tribunal on the question of the power of the Competence Tribunal to make compensatory orders. The respondent on this application took no position on that issue and in our opinion it is preferable that the matter be determined after full argument before the Tribunal.

[11] Accordingly, the application is allowed, the decision of the Tribunal is quashed and the matter is remitted for a new hearing before a panel differently constituted.

[12] No costs being demanded, none are awarded.

RELEASED: 20071107 CARNWATH J.

JENNINGS J.

GANS J.: (Dissenting in part):

[13] I have read the endorsement of my colleague, Jennings J. I am in agreement with the result, in that I would send the matter back to a new panel of the Appeal Tribunal so that full argument can be made on the issue of the limits, if any, to the jurisdiction of the Competence Tribunal.

[14] I am of the view, however, that the decision of the majority of the Appeal Tribunal is not correct and that the decision of the minority member of the Appeal Tribunal is compelling and is to be preferred. Indeed, such a conclusion was implicit in the position of counsel for the Respondent, who declined to wade in on that debate and sought merely to leave the matter to be determined on the basis of the standard of review in respect of the decision of the Appeal Tribunal, simpliciter. While I do not think it necessary to express an opinion on the standard of review in the circumstances of the instant application, I am of the opinion that an order for compensation is not only rehabilitative, but also acts as a specific deterrent for behaviour that falls below minimally acceptable levels of competence of a member of the Association and can be meted out jurisdictionally by the Competence Tribunal, as it purported to do.

RELEASED: 20071107

GANS J.