Tribunal members’ questions and comments during discipline hearing demonstrate reasonable apprehension of bias

Administrative law – Decisions reviewed – Institute of Chartered Accountants; Judicial review – Reasonable apprehension of bias – Natural justice – Procedural requirements and fairness – Appeals; Accountants – Professional misconduct or conduct unbecoming

Yee v. Chartered Professional Accountants of Alberta, [2020] A.J. No. 291, 2020 ABCA 98, Alberta Court of Appeal, March 6, 2020, F.F. Slatter, J.D.B. McDonald and J. Strekaf JJ.A.

The appellant was President, CFO, and director and shareholder of an oil and gas company. He was a member of the Chartered Professional Accountants of Alberta.

A disgruntled investor started commercial litigation regarding transactions with the oil and gas company. The appellant was never retained by the investor in his professional capacity. The appellant had, however, used his professional designation in the signature line in communications with the investor.

The investor made a complaint to the Chartered Professional Accountants of Alberta. It charged the appellant with unprofessional conduct in relation to the transactions in dispute. The Discipline Tribunal found the appellant committed unprofessional conduct in respect of his handling of those transactions. On appeal, the Appeal Tribunal overturned the conviction on one count and upheld three other counts. A dissenting member of the Appeal Tribunal would have set aside the decision on the basis of bias.

The appellant appealed to the Court of Appeal on the basis of bias in the Discipline Tribunal’s conduct of the appeal. The Court, in three separate concurring judgments, allowed the appeal.

The Court found the members of the Discipline Tribunal questioned the appellant and made comments during the hearing in a manner that demonstrated a reasonable apprehension of bias. The tribunal members expressed personal and professional views that reflected a preconceived perspective about the main issues before the Discipline Tribunal. Members expressed personal views on the appellant’s conduct throughout the hearing. One member stated, in respect of the conduct, “It’s remarkable.” Another member stated, “Oh I have comments. I have many things to say.” This demonstrated a lack of impartiality toward the appellant and pre-judgment of the issues.

The Court noted that if one member of the Appeal Tribunal found there was actual bias, it is difficult to see how a reasonable apprehension of bias would not taint the entire proceeding before the Discipline Tribunal.

The Court found a breach of procedural fairness cannot be cured. The appeal was allowed. The matter was remitted to a new panel of the Discipline Tribunal.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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