The respondent Institute of Chartered Accountants cross-appealed the Discipline Tribunal’s finding of not guilty on the third of three charges of misconduct. The Tribunal had applied the Kienapple principle, and held that charges 1 and 3 were not sufficiently distinct in order to justify a finding of guilt on both. The Appeal Tribunal allowed the cross-appeal, and at the Court of Appeal level, the Court found that the Appeal Tribunal properly applied the Kineapple principle, and agreed that the elements which go to guilt in charges 1 and 3 differed, notwithstanding the fact that they relate to a common act.

Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Penalties and suspensions – Evidence – Kienapple rule

Danyluik v. Alberta (Institute of Chartered Accountants, Complaints Inquiry Committee), [2014] A.J. No. 186, 2014 ABCA 78, Alberta Court of Appeal, February 26, 2014, P.W.L. Martin and B.K. O’Ferrall JJ.A. and R.E. Nation J. (ad hoc)

Professional disciplinary proceedings were commenced against three accountants for misconduct. The Discipline Tribunal held the appellants guilty of one of three charges. The appellants were subject to a reprimand and a fine of $10,000 in addition to paying the costs of the hearing. The Tribunal rejected a request that the publication of the decision be made in the Edmonton Journal or the Globe and Mail. In relation to the third charge, the Tribunal applied the Kienapple principle, and held that charges 1 and 3 were not sufficiently distinct in order to justify a finding of guilt on both. The appellants appealed the guilty finding and the respondent cross-appealed the finding of not guilty on charge 3.

The Appeal Tribunal dismissed the appellants’ appeal and allowed the respondent’s appeal, finding the appellants guilty of charge 3 due to a different interpretation of the effect of the Kienapple principle. The Appeal Tribunal directed that in addition to the publications directed by the Discipline Tribunal, publication of notices of the decision should also be made in the Edmonton Journal and the Globe and Mail. The appellants appealed this decision to the Court of Appeal on three grounds, and all were dismissed.

The Court discussed the Kienapple principle and determined that the elements which go to guilt in charges 1 and 3 differ, notwithstanding the fact that they relate to a common act. The Court stated that the publication of the Tribunal’s findings in a public newspaper is an issue of discretion, and that it was a reasonable exercise of the Tribunal’s authority to require further publication as a result of the conviction on charge 3.

This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at khill@harpergrey.com or review  her biography at http://www.harpergrey.com.

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