In Chartered Professional Accountants of Alberta (Complaints Inquiry Committee) v. Mathison, 2024 ABCA 33 (Mathison), the Court of Appeal of Alberta reaffirmed the high threshold required for cancellation of a professional’s registration.
The role of professional regulators
Professional regulators wield an enormous amount of power over their members. A regulator can effectively end a professional’s career that took years of education and hard work to obtain. This power is a necessary measure to ensure that the public is properly protected and the integrity of the profession maintained. In exchange for such enormous power, however, professional regulators must be judicious in their discipline of members.
As put by Justice Wakeling in his dissent:
92 This is an important professional regulatory case of interest to all Canadians. It brings into question the standards a professional regulator must adhere to before it deprives a regulated member of the right to practice a profession and earn a livelihood and the appropriate response of a professional regulator that has good cause to believe a complainant is weaponizing the professional regulator’s complaint process.
93 Regulators of professionals exercise powers that may destroy a regulated member’s career and deprive him or her of a livelihood. The public and regulated members accept that this is a necessary consequence of protecting the public interest. But they expect regulators to wield their enormous powers fairly and with the utmost care, keenly aware of the adverse effects a regulated member may suffer as a result of a finding of unprofessional conduct. And they also expect appeal courts to set aside regulatory dispositions that fall short of this high standard. In doing so, a court protects the public interest, the regulated member charged with misconduct, other regulated members, the regulator, and the complainant. No one benefits if a court upholds an errant disciplinary decision. The community needs highly skilled professionals in the workforce doing what they are trained to do.
Background
Darrell Mathison, a chartered professional accountant, was the subject of a disciplinary hearing before the Disciplinary Tribunal of the Chartered Professional Accountants of Alberta (CPAA) in relation to his conduct as the CFO of Canada Pump and Power (CPP).
On December 19, 2018, a Discipline Tribunal of the CPAA found Mathison guilty of unprofessional conduct and imposed a two-year suspension of his registration.
On May 27, 2021, an Appeal Tribunal of the CPAA cancelled Mathison’s registration as a chartered professional accountant.
Sanctions
Sanctions imposed by a professional regulator are intended to be commensurate with the offence committed. Wilful blindness, recklessness, carelessness, negligence and fraudulent behaviour are all sufficient to ground a finding of professional misconduct in appropriate circumstances. That said, not all professional misconduct is treated equally and different acts (and the requisite level of knowledge) carry different levels of blameworthiness.
In this case, it was alleged that Mathison engaged in unprofessional conduct by receiving funds he “knew or ought to have known” he was not authorized to receive and by failing to perform his duties as CFO of CPP with integrity and due care.
After carefully considering the evidence before it, the Discipline Tribunal determined that Mathison had committed unprofessional conduct. While Mathison’s conduct was deserving of sanction, it did not demonstrate the same level of fraudulent intent as in other cases that have resulted in cancellation. Members in those other cases had clearly “defrauded,” “embezzled” or “misappropriated” funds. The Discipline Tribunal explained that Mathison’s conduct did not rise to that level. Based on that finding, the Discipline Tribunal imposed a number of sanctions, including a two-year suspension of his registration.
On review, the Appeal Tribunal held that the Discipline Tribunal erred in concluding that “Mathison lacked the same level of intent as in previous cases of fraud, embezzlement or misappropriation of funds that resulted in cancellation.” It found the Discipline Tribunal erroneously limited its own discretion to order cancellation, noting that “[c]ancellation should not be reserved for only the most serious cases and only the most serious offenders.” The Court disagreed.
In the Court’s view, the Discipline Tribunal heard all the evidence, reached a factual conclusion with respect to the seriousness of the conduct and exercised its discretion as to the appropriate sanction based on its findings. These were findings and conclusions the Discipline Tribunal was entitled to make – not a fettering of discretion. The Court also held that the necessary findings of fact were not made to apply the Appeal Tribunal’s statement that “it is appropriate to recognize a legitimate public expectation that a [chartered professional accountant (CPA)] who chooses to engage in the intentional and wrongful taking of a client or employer’s money should no longer be a CPA” to Mathison. In this case, Mathison was found to have “known or ought to have known” that he lacked authorization. This finding, in the Court’s view, fell short of intentional and wrongful taking of a client or employer’s money.
Conclusion
In the result, the two-year suspension of Mathison’s registration was reinstated as the appropriate penalty.
Takeaway
The threshold for cancellation of a professional’s registration is more than mere negligence. Professional regulators must adhere to a high standard before depriving a regulated member of the right to practice their profession. Given this high bar, cancellation ought to be reserved for only the most serious cases and the most serious offenders. For more information on this topic, please reach out to the authors, Michael Sestito and Katherine Martin.
