COURT FILE NO.: 200/04
DATE: 20041026
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: Barrington et al. (Applicants) v. The Institute of Chartered Accountants (Respondent)
BEFORE: Justices Carnwath, Matlow and Ground JJ.
COUNSEL: J.L. McDougall, Q.C. and Y. Park, for the Applicants, other than Chant
Robert Staley and Derek Bell, for the Applicant, Chant
Brian Bellmore, Paul F. Farley and Diana Soos, for the Respondent
E N D O R S E M E N T
MATLOW, J.
[1] This motion for review, made pursuant to section 21 (5) of the Courts of Justice Act, for an order setting aside the order of Whalen, J., sitting as a single judge of the Divisional Court, is dismissed.
[2] Counsel may make submissions regarding costs in writing to be delivered to the president of this panel within 30 days.
[3] The principal issue raised by this motion requires clarification of the application of and the relationship between section 10 of the Judicial Review Procedure Act (“JRPA”) and rule 68.04 (1) of the Rules of Civil Procedure.
(1) Section 10 reads as follows:
- When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application, the record of the proceedings in which the decision was made.
[4] Rule 68.04 (1), which applies to all applications for judicial review, reads as follows:
68.04 (1) The applicant shall deliver an application record and a factum,
(a) where the nature of the application requires a record of the proceeding before the court or tribunal whose decision is to be reviewed, within thirty days after the record is filed; or
(b) where the nature of the application does not require such a record, within thirty days after the application is commenced.
[5] The issue arises in the context of the following facts. The applicants are chartered accountants who have been charged with professional misconduct and are now engaged in proceedings pursuant to the respondent’s statutory powers to regulate and discipline its members. Those proceedings included an initial investigation of the applicants’ impugned conduct by the respondent’s Professional Conduct Committee (“PCC”) which is empowered, in part, “to make such preliminary investigations and enquiry as it deems proper into any … professional or other misconduct in any member” and “to exercise its discretion to make a charge against a member”. Pursuant to its exercise of those powers, the PCC conducted an investigation of the applicants and formally charged them with professional misconduct. Those charges are now before the respondent’s Discipline Committee (“DC”) for a hearing on their merits. Only the DC has jurisdiction to find any of the applicants guilty of professional conduct and to impose a penalty.
[6] By an application for judicial review which is still pending in this court, the applicants are seeking various relief which, if granted, would effectively terminate the entire proceedings.
[7] By their motion before Whalen, J., the applicants sought an order requiring the PCC to file with this court the record referred to in section 10 of the JRPA. It was clear then, as it is now, that the main purpose of the motion was to secure further production of documents which the respondent claims were privileged.
[8] We are all of the view that the respondent is not required to file the section 10 record. That record must be filed only when the decision sought to be reviewed is one “made in the exercise or purported exercise of a statutory power of decision” and it is evident that the exercise of the PCC’s limited power to investigate and charge is not such a decision.
[9] That term is defined in section 1 of the JRPA as follows;
“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court.
[10] Accordingly, it is not necessary, or appropriate, for us to engage in any consideration regarding whether any specific material or document ought to be produced by the respondent to the applicants. That is a matter which must first be raised before the DC and the material before us establishes that no motion has yet been made to the DC by the applicants to challenge the adequacy of the pre-hearing disclosure which has already been made.
[11] Although we all agree with the disposition made by Whalen, J., we respectfully prefer to analyse the application of section 10 of the JRPA by focusing on the statutory requirement that the application for judicial review involve a statutory power of decision rather than, as stated by the learned judge throughout his reasons, on whether the PCC acted “in an adjudicative capacity”.
[12] From this brief analysis, it will be evident that “the record of the proceedings” referred to in section 10 of the JRPA is quite different from the “application record” referred to in rule 68.04 (1) even though some of their contents may be the same. The former must be filed by the person making the decision but only when the decision is of the kind described in the statute. The latter must be filed by the applicant in all applications for judicial review, whether or not the subject of the application is such a decision. It follows that, if the application for judicial review does involve a statutory power of decision, both types of record must be filed.
MATLOW J.
CARNWATH J.
GROUND J.
DATE: 200410
COURT FILE NO.: 200/04
DATE: 20041026
ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
CARNWATH, MATLOW & GROUND JJ.
RE: Barrington et al. (Applicants) v. The Institute of Chartered Accountants (Respondent)
ENDORSEMENT
MATLOW J.
Released: 20041026