Gerald Kirby Applicant And: Chartered Professional Accountants of Newfoundland v. Labrador Complaints Authorization Committee, 2018 NLSC 136

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Kirby v. Chartered Professional Accountants of Newfoundland and Labrador Complaints Authorization Committee , 2018 NLSC 136 Date : June 19, 2018 Docket : 201801G3127 Between: Gerald Kirby Applicant And: Chartered Professional Accountants of Newfoundland and Labrador Complaints Authorization Committee Respondent Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 8, 2018

Summary: The Applicant requests an interim injunction pending the hearing of his Originating Application for certiorari and prohibition .

The Respondent has investigated an allegation pursuant to the Chartered Professional Accountants and Public Accountants Act and theRespondent’s Complaints Authorization Committee has requested that the Applicant appear before it to answer some questions before itdecides whether there are reasonable grounds to believe that the Applicant has engaged in conduct deserving of sanction. The Applicant is seeking, ultimately, an Order enjoining the Association from proceeding against him in any manner until civil andcriminal charges (that may be laid) against him have been finally disposed of.

The instant Application seeks to preserve the status quountil the Originating Application can be heard. The parties agreed that there is a serious question at issue. However, the Applicant was not successful in establishing that there would beirreparable harm and the balance of convenience favours the Respondent under the circumstances. The Application for an interim injunction was denied. Appearances: Sarah J. Clarke and Robert R. Regular Appearing on behalf of the Applicant Augustine F. Bruce, Q.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; R. v.Jarvis, 2002 SCC 73 , [2002] 3 S.C.R. 757; Cockeram v. College of Physicians and Surgeons of New Brunswick, 2013 NBQB197. STATUTES CONSIDERED: Evidence Act, R.S.N.L. 1990 c. E-16; Canada Evidence Act, R.S.C. 1970, c. E-10; Canadian Charter ofRights and Freedoms, s. 11,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Evidence Act, R.S.N.L. 1990 c. E-16 provides as follows: Witness not excused 5.

(1) A witness shall not be excused from answering a question upon the ground that the answer may tend to (

a) criminate him or her; or (

b) establish his or her liability to a civil proceeding at the instance of the Crown or of a person or to a prosecution under

an Act.

(2) Where, with respect to a question, a witness objects to answer upon a ground referred to in subsection (1), and where, but for this Actor

an Act of the Parliament of Canada, he or she would be excused from answering that question, then, although he or she is by reason ofthis Act or by reason of

an Act of the Parliament of Canada compelled to answer, the answer so given shall not be used or receivable inevidence against him or her in another civil proceeding or in another proceeding under

an Act. [2] Similarly,

section 5 of the Canada Evidence Act, R.S.C. 1970, c. E-10 states as follows: 5.

(1) Incriminating questions – No witness shall be excused from answering any question on the ground that the answer to thequestion may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of anyperson.

(2) Answer not admissible against witness – Where with respect to any question a witness objects to answer on the ground that hisanswer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of anyperson, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answeringthe question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall notbe used or admissible against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than aprosecution for perjury in the giving of that evidence or for the giving of contradictory evidence. [3] The Provincial and Federal legislation make it clear that evidence given under compulsion by a witness is not to be usedagainst that person in any subsequent criminal or civil proceedings. [4] The Applicant has been invited to attend a meeting of the Complaints Authorization Committee of the CharteredProfessional Accountants and Public Accountants Association for the purpose of determining whether or not a complaint against him iswarranted.

At this stage there is neither a complaint under the Association’s enabling legislation, nor have any criminal charges beenlaid. There is, apparently, a civil action that has been brought against the Applicant by the same complainant who has made allegationsagainst him to both the Association and the Royal Newfoundland Constabulary. [5] The Applicant is seeking, ultimately, the cessation of all Association action against him until the criminal and civilproceedings against him have been completely resolved.

With respect to the criminal matters, since there is as yet no criminal charge it isimpossible to say when, if ever, the criminal proceedings against him will be resolved. This is so because, for indictable offences, there isno statute of limitations. Indictable charges can be brought against the Applicant at any time.

The civil action could well go on for yearsbefore it is resolved. [6] In the present Application, the Applicant seeks an interim injunction until the hearing of the Originating Application forjudicial review of a decision denying him an adjournment of any hearing pending resolution of the potential criminal charges and civilaction against him. [7] Ms. Clarke correctly stated the test adopted by the Supreme Court of Canada for the granting of injunctions in RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311: there must be a serious question, theremust be irreparable harm and the balance of convenience must favour the Applicant. She argued that forcing the Applicant to appearbefore the Complaints Authorization Committee is tantamount to taking away his right to remain silent. [8] It is common ground between the parties that, since the specter of a criminal charge may be looming, there are serious issuesto be tried. I will proceed with my decision as if that were a given. [9] In R. v.

Jarvis, 2002 SCC 73 , [2002] 3 S.C.R. 757 Iacobucci, J. and Major, J. said at paragraph 65: In giving expression to this principle, however, s. 7 does not envelop an abstract and absolute rule that would prevent the use ofinformation in all contexts in which it is statutorily compelled: Jones, supra, at p. 257; S. (R.J.), supra, at paras. 96-100; Fitzpatrick,supra, at paras. 21 and 24; White, supra, at para. 45.

A court must begin “on the ground”, with a concrete and contextual analysis of allthe circumstances, in order to determine whether or not the principle against self-incrimination is actually engaged: Fitzpatrick, at para.25; White, at para. 46. This analysis necessarily involves a balancing of principles. One must, in assessing the limits on compellabilitydemanded by the principle against self-incrimination, consider the opposing principle of fundamental justice suggesting that relevantevidence should be available to the trier of fact in a search for truth: S. (R.J.), at para. 108, per Iacobucci J.

These competing interestswill often be brought to the foreground in regulatory contexts, where the procedures being challenged have generally been designed (andare employed) as part of an administrative scheme in the public interest: Fitzpatrick, at para. 27. As the Court stated in White, at para.48: In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting theindividual against undue compulsion by the state.

This was the case, for example, in Fitzpatrick, supra, where the Court emphasized therelative absence of true state coercion, and the necessity of acquiring statements in order to maintain the integrity of an entire regulatoryregime. In other contexts, a reverse situation will arise, as was the case, for example, in Thomson Newspapers, supra, S. (R.J.), supra,and Branch, supra.

In every case, the facts must be closely examined to determine whether the principle against self-incrimination hastruly been brought into play by the production or use of the declarant’s statement. [10] Is the principle against self-incrimination engaged in this case? I don’t think so. First of all, there are no criminal charges laidin this matter. There may never be any criminal charges laid if the police investigator deems that he does not have reasonable and

probable grounds to lay an Information. Or, if charges are laid, they may not survive a Crown attorney’s assessment of whether or not there exists a reasonable probability of conviction.

But should both of these obstacles be overcome, the principle against self- incrimination is still not engaged because any information given by the Applicant under compulsion is protected under the sections of the federal and provincial Evidence Acts mentioned at the beginning of this decision – such information cannot be given to the police or any third parties, and cannot be used against the Appellant in any criminal proceeding or civil action. [ 11 ] Secondly, the right of the public in ensuring that professional bodies, such as that governing the activities of chartered professional and public accountants, properly regulate their professional members, supersedes the rights of those members to remain silent.

Membership in a professional association is a privilege. By becoming a member one ascribes to the laws, rules and regulations that govern membership. One is obligated to follow the law and the rules of the association – including those that pertain to discipline. This requires the Applicant to attend the meeting of the Complaint Authorization Committee when invited, and to answer such questions as may be put to him when he does so.

The answers he gives to the Committee will determine whether there is any substance to the allegation – sufficient to catapult it to “complaint” status deserving of sanction, or whether there is insufficient information to warrant any further action. [ 12 ] The Applicant says that requiring him to attend and respond will cause him irreparable harm. He cites damage to his business reputation and associated loss of income. The Respondent says that the offer to respond to the investigation report is in keeping with the CAC’s duty of procedural fairness.

It is the Respondent’s opportunity to address the “serious concerns” that were outlined in the investigation report. [ 13 ] The Respondent says that the Applicant has provided no evidence of irreparable harm. To the contrary, the Respondent has provided evidence that a restriction or suspension of the Applicant’s public accounting licence would impact less than 3% of the Applicant’s current business – based upon the Applicant’s statements to the investigator.

I find that the Applicant would not suffer irreparable harm if he were to attend before the Complaints Authorization Committee to discuss the “serious issues” that have been brought to their attention. Certainly, any such pecuniary loss is easily quantifiable and compensable. [ 14 ] As for the Applicant’s contention that he would suffer irreparable harm due to damage to his business reputation, that possibility exists if the Complaints Authorization Committee finds that there are reasonable grounds for believing that the Applicant’s conduct is deserving of sanction.

The degree of harm, of course, will be directly related to the nature of the conduct. It could be trivial or it could be major. However, criminal courts and the outcome in civil actions should not determine whether or not the Applicant has engaged in conduct that is deserving of sanction.

That is a task that the legislature has entrusted to the Association and the Complaints Authorization Committee of the Association. [ 15 ] Even if I were to find that there is a serious issue at stake and I were to find that there would be irreparable harm, I must nevertheless decide whether the balance of convenience favours the Applicant or the Respondent. The Respondent has indicated that the responses given by the Applicant to the Committee are not shared with the complainant.

There is, therefore, no danger that the complainant’s testimony in any subsequent criminal or civil proceeding will be tainted or tailored because she has had access to his responses. Whether or not the Respondent takes that position, the law is clear that a “use immunity” would apply to any information extracted from the Applicant by virtue of the inquisitorial powers given to the Complaints Authorization Committee. [ 16 ] Since any information given by the Respondent is protected by federal and provincial Evidence Acts and the Canadian Charter of Rights and Freedoms , s. 11,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, I find that the Respondent would suffer the greater harm if the Application were to be granted. This is so because the interest of the public is at stake – nullifying the ability of the Association to discipline its members would be contrary to the public interest. The public has a vested interest in having matters pertaining to discipline dealt with promptly.

The Applicant is protected by the legislation earlier mentioned and, of course, by sections 7 and 24 of the Charter – which guarantee the rights to life, liberty and security of the person – including protections against incrimination from compelled statements – and provide for remedies in the event of breach. [ 17 ] I find that the balance of convenience does not favour the Applicant.

The Applicant’s interest in having all of the Respondent’s actions against him cease pending the conclusion of criminal proceedings that have not been instituted, and civil proceedings that may, or may not, relate to the subject matter that is before the Respondent’s Complaints Authorization Committee, is more than outweighed by society’s interests in seeing to it that the Committee concludes its deliberations at the earliest opportunity and determines whether or not a formal complaint against the Applicant is warranted. Sopinka and Cory, J.J.

In RJR – MacDonald stated at page 346 as follows: In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined.

The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action. [ 18 ] In Cockeram v.

College of Physicians and Surgeons of New Brunswick , 2013 NBQB 197 , the Court of Queen’s Bench granted an interim injunction restraining the College from obtaining any particulars about the alleged sexual assaults against a number of complainants. In that case there were, in fact, criminal proceedings instituted against Dr. Cockeram in relation to those complainants. In addition, the College was obligated to provide Dr. Cockeram’s responses to the complainants by virtue of the Act and Regulations. The Court nevertheless allowed the College to proceed with its investigation (except for the responses of Dr.

Cockeram that were prohibited by injunctive relief). The Cockeram case is clearly distinguishable from the present case. Here we have no criminal charges and there is no sharing of the Applicant’s responses with the complainant. [ 19 ] This is not an appropriate case in which to exercise the Court’s discretion in favour of granting an interim injunction pending the outcome of Originating Application that the Applicant has brought in this matter. [ 20 ] In the result, the Application is dismissed. The Respondent shall have its costs of the Application on Column 3 of the

Schedule

of Costs. _____________________________ Vikas Khaladkar Justice