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SELF-GOVERNING PROFESSIONS - Discipline of members - Duty to act judicially

Wednesday, April 29, 2020 @ 9:25 AM  

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Appeal by Yee from a decision of an Appeal Tribunal dismissing his appeal from a Discipline Tribunal’s finding of professional misconduct. The appellant, a chartered account, was the president, chief financial officer, director and shareholder of Hermes Energy. The charges against him arose from a complaint made by a disgruntled investor in some of the assets owned by Hermes. The appellant was never retained by the investor in any professional capacity. In some correspondence between Hermes and the investor, the appellant used his professional designation in the signature line. The investor testified before the Discipline Tribunal that he placed confidence in those representations. The Discipline Tribunal found the appellant guilty of failure to document a trust agreement, failure to adequately substantiate overhead charges to the investor, failure to maintain records to properly account for the investor’s share of production revenue, and failure to respond to the investor’s request for information about his working interest. The appellant argued the Appeal Tribunal failed to apply the proper standard of review, that the decision was unreasonable, and that the Discipline Tribunal demonstrated a reasonable apprehension of bias and breached the principles of fairness and natural justice.

HELD: Appeal allowed. A new disciplinary hearing was ordered. The Discipline Tribunal’s conduct of the hearing gave rise to a reasonable apprehension of bias. The questioning of the appellant by the Tribunal about denials in the appellant’s statement of defence displayed a fundamental misunderstanding of the role of pleadings in civil litigation and suggested that the Tribunal members viewed those denials as untruthful statements by the appellant. Comments by members regarding their personal and professional values as a chartered accountant reflected a preconceived perspective about one of the live issues before the Tribunal. Taken separately, these comments might not rise to the level of a reasonable apprehension of bias, but viewed collectively, the repeated comments suggested a lack of impartiality toward the appellant and a pre-judgment about the important issues to be decided in the hearing.

Yee v. Chartered Professional Accountants of Alberta, [2020] A.J. No. 291, Alberta Court of Appeal, F.F. Slatter, J.D.B. McDonald and J. Strekaf JJ.A., March 6, 2020. Digest No. TLD-April272020005