PROSPER CHENJELANI APPLICANT - v. -, 2023 SKKB 264

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 264 Date: 20 23 12 05 Docket: KBG-RG-02384-2022 Judicial Centre: Regina BETWEEN: PROSPER CHENJELANI APPLICANT - and - INSTITUTE OF CHARTERED PROFESSIONAL ACCOUNTANTS OF SASKATCHEWAN RESPONDENT Appearing: Prosper Chenjelani self-represented applicant Allison Graham for the respondent FIAT KLATT J. December 5, 2023 Overview [ 1 ] The applicant [Mr.

Chenjelani] seeks to quash the appeal decision of the Board of the Institute of Chartered Professional Accountants of Saskatchewan [Board], upholding the decision of the Discipline Committee of the Institute of Chartered Professional Accountants of Saskatchewan [Discipline Committee], finding him guilty of misconduct by “attempting to harass, threaten or intimidate staff members of the institute”. He also seeks to quash or reduce the cost sanction imposed by the Discipline Committee. [ 2 ] Under The Accounting Profession Act , SS 2014, c A-3.1 [ Act ], Mr.

Chenjelani had the right to file an appeal of the Board’s decision. However, he did not file an appeal within the required time limit. Rather, he filed an application to quash the appeal decision over ten months after the time limit to do so had already expired. [ 3 ] For the following reasons, I find that Mr. Chenjelani is out of time to appeal the decision, and his application is dismissed in its entirety. Background [ 4 ] The discipline hearing into the complaints against Mr. Chenjelani was heard in October 2020 and November 2020.

The Discipline Committee rendered its decision on December 9, 2020, finding him guilty of misconduct by attempting to harass, threaten, or intimidate staff members of the Institute of Chartered Professional Accountants of Saskatchewan [Institute]. [ 5 ] The Discipline Committee issued its decision respecting the cost award and fine [Sanctions Decision] on March 5, 2021. [ 6 ] Mr. Chenjelani appealed the Discipline Committee’s decisions to the Board. The appeal hearing was held on October 20, 2021. The Board rendered its decision on the appeal on November 29, 2021, dismissing Mr.

Chenjelani’s appeal. [ 7 ] Leigha Hubick, a chartered professional accountant and the Registrar of the Institute, filed an affidavit on behalf of the Institute. She stated that on or about December 14, 2021, some two weeks after the Board’s appeal decision was released, Mr. Chenjelani emailed her telling her that he had not yet decided whether he was going to appeal the Board’s decision. [ 8 ] Mr. Chenjelani also proposed that he pay the $15,000.00 ordered in the Sanctions Decision in installments: $7,500.00 on September 30, 2022, and $7,500.00 on September 30, 2023. [ 9 ] On December 16, 2021, Ms.

Hubick responded to Mr. Chenjelani that the Sanctions Decision provided that payment of the fine and costs had to be made within 30 days. She further indicated to him that they could come to an agreement on a

payment plan if he was willing to provide post-dated cheques. [ 10 ] On that same day, Mr. Chenjelani emailed Ms. Hubick, thanking her for being reasonable and saying he would send the “void checks” by February 15, 2022. [ 11 ] Mr. Chenjelani did not send the post-dated cheques, nor did he pay the installments as he had agreed. [ 12 ] On October 7, 2022, Mr. Chenjelani filed an originating application seeking to “quash the decision by the discipline committee and board … to find [him] guilty of misconduct…”. In his application, Mr.

Chenjelani claims to rely on his affidavit “justifying delay in requesting judicial review”. [ 13 ] On December 5, 2022, Mr. Chenjelani filed an application under s. 39(2) of the Act seeking a stay of the Board’s decision pending the disposition of his appeal. His application was heard before Morrall J., and the matter was argued on the basis that it was an appeal under s. 38 of the Act . On December 14, 2022, Morrall J. dismissed Mr. Chenjelani’s application for a stay pending the disposition of his appeal. Issues [ 14 ] The issues here are: 1.

Whether the court has jurisdiction to extend the time within which an appeal may be filed where the statute providing for an appeal does not expressly provide for it; and 2. If the court cannot extend the time for Mr. Chenjelani to appeal, can he seek judicial review of the Board’s decision? The Legislation [ 15 ] Under the Act , a registrant, defined in s. 2 of the Act as “a person that holds a valid registration and includes a member, firm or candidate”, may appeal a decision of the Discipline Committee to the Board. [ 16 ] A further appeal of the Board is available to a registrant.

The following provisions are relevant to the matter before the court: Appeal to board 37(1) A registrant may appeal the decision or any order of the discipline committee to the board by serving the registrar with a notice of appeal within 30 days after the decision or order is made if: (

a) the registrant has been found guilty of professional misconduct or professional incompetence by the discipline committee; or (

b) the registrant is subject to an order made pursuant to

section 34.

(2) An appellant shall set out the grounds of appeal in a notice of appeal mentioned in subsection (1).

(3) On receipt of a notice of appeal, the registrar shall file with the board a true copy of: (

a) the formal complaint sent and notice served pursuant to

section 31 or the report of the professional conduct committee pursuant to

section 34; (

b) the transcript of the evidence presented to the discipline committee; and (

c) the decision and order of the discipline committee.

(4) The appellant or the appellant’s lawyer or agent may obtain from the registrar a copy of the documents filed pursuant to subsection (3) on payment of the costs of producing them.

(5) On hearing an appeal the board may: (

a) dismiss the appeal; (

b) quash the finding of guilt; (

c) direct a new hearing or further inquiries by the discipline committee; (

d) vary the order of the discipline committee; or (

e) substitute its own decision for the decision appealed from.

(6) The board may make any order as to costs that it considers appropriate.

(7) A member of the board who is a member of the discipline committee shall not participate in the hearing of an appeal pursuant to this section. Appeal to court 38 A registrant whose conduct is the subject of an order of the board pursuant to

section 37 may appeal that order to a judge of the

court within 30 days after the order of the board, and

section 37 applies with any necessary modification. Effect of appeal 39(1) Subject to subsection (2), the commencement of an appeal pursuant to

section 37 or 38 does not stay the effect of the decision ororder appealed from.

(2) On five days’ notice to the registrar, the appellant may apply to the court for a stay of the decision or order appealed from,pending the disposition of the appeal. [17] Mr. Chenjelani relies on Rule 3-56(3) of The King’s Bench Rules that relates to originating applications forjudicial review. Rule 3-56(3) states: 3-56(3) Subject to rule 3-63 and any enactment limiting the time in which an originating application for judicial review may be made, ifthere has been undue delay in making an originating application, the Court may refuse to grant any remedy sought if the order: (

a) would be likely to cause substantial hardship to or substantially prejudice the rights of any person; or (

b) would be detrimental to good administration. Analysis 1. Does the Court have jurisdiction to extend the time within which an appeal may be filed where the statute providing for anappeal does not expressly provide for it? [18] During the hearing before me, Mr. Chenjelani confirmed that he was seeking an appeal of the decision of the Board. Hefurther acknowledged that the Act provides for a right of appeal within 30 days of the decision and that he did not file an appeal in thattime frame.

He argues, however, that Rule 3-56(3) of The King’s Bench Rules permits the court to extend the time within which toappeal if the delay is not undue. [19] The Institute argues that Mr. Chenjelani was aware of his right of appeal and did not choose to exercise it until long afterthe appeal period had passed.

The Institute argues that the court has no jurisdiction to extend the time to appeal because the statutoryappeal mechanism does not expressly provide for it. [20] The law in this province is clear that the court has no jurisdiction to extend the time to appeal absent an expressstatutory provision allowing it: Geml v Cope, 2013 SKCA 39, 414 Sask R 43; Houston v Saskatchewan Teachers’ Federation, 2009 SKCA 70, 331 Sask R 157; Egware v Regina (City), 2016 SKQB 388, 56 MPLR (5th) 35[Egware]. [21] Mr.

Chenjelani argued that where the legislation does not provide for an appeal procedure, the appropriate vehicleshould be an originating application for judicial review. In this case, he is only half-right; he properly filed his appeal by way oforiginating application. [22] But, the Act provides for an appeal process and sets a time limit within which to do so. As the time limit to appeal issubstantive, not procedural, this Court has no inherent jurisdiction to enlarge the appeal period: see Egware. [23] I conclude that Mr. Chenjelani is out of time to appeal the Board’s decision. 2.

As an alternative to an appeal, can Mr. Chenjelani seek judicial review of the Board’s decision? [24] Mr. Chenjelani is a self-represented litigant who used the terms “judicial review” and “appeal” somewhatinterchangeably. The two mechanisms are not the same and call for different standards of review. What is clear to me is that he intendedhis application to be an appeal of the Board’s decision, not an application for judicial review. [25] For one thing, after filing his appeal, Mr.

Chenjelani applied for a stay of the penalty imposed pending thedetermination of his appeal, an application permitted by s. 39(2) of the Act. The matter was heard and decided as if there was an appealafoot. [26] Secondly, although by no means definitive, Mr. Chenjelani confirmed in the hearing before me that he was appealingthe Board’s decision, not seeking a judicial review of it. [27] Thirdly, Mr. Chenjelani’s application for the appeal of the Board’s decision does not contain any hallmarks of judicialreview, such as complaints of procedural fairness or lack of jurisdiction.

The only reference he makes to judicial review is contained inpara. 18 of his application in which he states he would be relying on his affidavit in “justifying the delay in requesting judicial review”. [28] Calling the application one for judicial review does not transform it into one. In my view, Mr.

Chenjelani simply wantsan appeal of the Board’s decision upholding the Discipline Committee’s findings. [29] The law is well-settled that the courts will not engage in judicial review of a decision where the applicant had a right ofappeal or an adequate alternative remedy that was not pursued: Arch Transco Ltd. v Regina (City), 2002 SKCA 126, 227 Sask R 139;Huerto v Saskatchewan, 2008 SKCA 107, 311 Sask R 288; Moyer v Corman Park (Rural Municipality), 2015 SKQB 281, 483 Sask R158; McCarty v Saskatchewan College of Psychologists, 2011 SKQB 471, 391 Sask R 105.

See also Canadian Pacific Ltd. v MatsquiIndian Band, (SCC), [1995] 1 SCR 3. [30] Mr. Chenjelani was well aware of his right of appeal. He does not suggest he did not know there was a time limit. Heattempted to explain his failure to appeal in the prescribed time limit in a three-paragraph affidavit stating:

1. That on or about December 13, 2021, my mother passed away. 2. That for the months following her passing, I was both emotionally and mentally distressed. 3. That at the time of her passing I also had another active legal proceeding against [ sic ] respondent before the Court of Appeal for Saskatchewan. [ 31 ] When Mr. Chenjelani emailed Ms. Hubick the day after his mother died, he only told her that he had not yet decided whether to appeal the Board’s decision. In the months that followed, he handled his appeal in another action against the Institute in the Court of Appeal. [ 32 ] To convert Mr.

Chenjelani’s appeal into a judicial review would open the door for other litigants to ignore statutory limitation periods, thereby preserving their desire for a review of the decision made by an administrative body. To allow Mr. Chenjelani to use an application for judicial review in place of a complete appeal regime would be contrary to the settled jurisprudence on the issue. [ 33 ] I have considered the statutory appeal process available to Mr. Chenjelani.

Section 38 of the Act allows for the appeal to this Court and the full panoply of remedies contained in s. 37 of the Act is available to the court in an appeal. The statutory appeal process would have been a complete and appropriate avenue of review. [ 34 ] Thus, to the extent that Mr. Chenjelani relies on Rule 3-56(3) of The King’s Bench Rules , it does not assist him. Rule 3- 56(3) applies to applications for judicial review, not to statutory appeals.

In the circumstances of this case, including his stated grounds of appeal, I have concluded that he cannot circumvent the statutory limitation period by bringing an application for judicial review. Conclusion [ 35 ] Mr. Chenjelani’s application cannot stand. His application is dismissed in its entirety. [ 36 ] The Institute is entitled to costs under Column I in the tariff of costs, payable forthwith. J. B. L. KLATT