Court of Appeal of Quebec

Loubier c. Smith

May 09, 2019

500-09-026713-172

Thibault, Dufresne, Schrager

Appeal from a judgment of the Superior Court granting an application for judicial review of a judgment of the Professions Tribunal. Dismissed.

The Ontario Securities Commission (OSC) rendered a decision against the respondent chartered professional accountant declaring that he had breached the obligations prescribed by the Ontario Securities Act (R.S.O. 1990, c. S.5) and imposing penalties of over $2 million. The appellant assistant syndic then filed a disciplinary complaint against the respondent that included one count of having violated  s. 11(1) of the Code of ethics of chartered professional accountants (O.C. 58-2003 of 22-01-2003, (2002) 135 G.O. II 968). The Disciplinary Council dismissed the complaint on the ground that the appellant had not discharged its burden of proof in that it failed to offer expert evidence on the law in Ontario. The Professions Tribunal overturned that decision after applying the standard of correctness to the issue on the need to use an expert witness in foreign law and on the palpable and overriding error regarding the sufficiency of the evidence to give rise to the application of s. 11(1). The Superior Court granted the application for judicial review and upheld, for different reasons, the Council’s conclusion.

 

In fact, the Council erred in concluding that expert evidence was necessary to interpret Ontario securities law. Moreover, when a specialized tribunal such as the Professions Tribunal interprets its home statute or a statute it is responsible for applying, the standard of reasonableness applies. In this case, the Superior Court’s conclusion that the administrative decision rendered by the OSC was not equivalent to a judgment convicting the respondent of an offence within the meaning of s. 11(1) does not contain any error justifying an intervention. The recognition by an administrative authority that a person breached Ontario securities laws, as serious as the breaches or violations may be, does not meet that provision’s requirement of a criminal or penal conviction by a court competent to render such a judgment.

With respect to ss. 128 and 149.1 of the Professional Code (CQLR, c. C-26), while s. 128 appears to provide the syndic with a general basis upon which to file a complaint, s. 149.1 does not. The first paragraph of that provision, as it was worded at the relevant time, allows a syndic to seize the disciplinary council “of any decision of a Canadian court declaring the professional guilty of a criminal offence”. That is not the case here. The fact that the OSC fined the respondent for violations of Ontario securities laws does not mean that the decision rendered can be equated with a judgment rendered by a court with jurisdiction to convict a person of a penal or criminal offence for violating a tax act or a securities act. The terminology used in both languages in s. 11(1) of the code of ethics is that applicable to criminal or penal matters. The Professions Tribunal correctly stated that in matters of ethics, the objective of the mechanisms put in place is to favour a broad interpretation likely to produce the desired effect, which is to protect the public. The specialized tribunal’s interpretation of the statutory provision at issue, however, must be reasonable. In this case, the Professions Tribunal’s interpretation cannot be one of the possible outcomes.

***Provision interpreted: s. 11(1) of the Code of ethics of chartered professional  accountants 

 

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca. This link open an external website in a new window.

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