Bill 872 — Certified General Accountants Act, 2008 (46th General Assembly, 1st Session)
Bill 872
Newfoundland and Labrador — Bills
First
Session, 46th General Assembly
Elizabeth II, 2008
BILL 72
AN ACT RESPECTING
CERTIFIED GENERAL ACCOUNTANTS
Received and Read the First Time ...................................................................................................
Second Reading .................................................................................................................................
Committee ............................................................................................................................................
Third Reading .....................................................................................................................................
Royal Assent ......................................................................................................................................
HONOURABLE
KEVIN O'BRIEN
Minister
of Government Services
Ordered
to be printed by the Honourable House of Assembly
EXPLANATORY NOTE
This Bill would revise the law
respecting the regulation of certified general accountants.
A BILL
AN ACT RESPECTING CERTIFIED GENERAL ACCOUNTANTS
Analysis
Short title
Definitions
Association
Appointment by minister
Objects of association
Registrar
Meetings
Fees
By-laws
Annual report
Certificate
Register
Accounting designations
Certain other accounting designations
Members only to use designations
Use of "Certified General
Accountants"
Saving
Definitions
Professional corporation
Corporate register
Annual certificate
Revocation of certificate
Effect of incorporation
Liability of member
Misconduct of a professional corporation
Limited liability partnerships
Definitions
Complaints and disciplinary panel
Allegation
Effect of filing allegation
Complaints authorization committee
Adjudication tribunal
Hearing
Copies of books, etc. as evidence
Guilty plea by respondent
Powers of adjudication tribunal
Filing and publication of decisions
De-registration and suspension
Failure to comply
Re-hearing
Costs of board
Collection of fine
Appeal to Trial Division
Action prohibited
Application of sections to professional
corporation
Regulations
Offence
RSNL1990 cC-6 Rep.
Commencement
Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Certified General
Accountants Act, 2008 .
Definitions
2. In
this Act
(a) "association" means the Certified
General Accountants Association of Newfoundland and Labrador continued under
section 3 ;
(b) "board" means the board referred to
section 3 ;
(c) "certificate" means a certificate to
practise as a certified general accountant;
(d) "member", unless the context
otherwise requires, means a member of the association;
(e) "minister" means the minister
appointed under the Executive Council Act
to administer this Act; and
(f) "registrar" means the registrar
appointed under
section 6 .
Association
(1) The
Certified General Accountants Association of Newfoundland and Labrador is continued as a
corporation without share capital for the purposes of
Part XXI of the Corporations Act .
(2) A person who is certified under this Act is a
member of the association.
(3) The association shall be governed by a board
of directors composed of
(a) 12 members elected from and by members of the
association in accordance with the by-laws; and
(b) 3 members appointed under
section 4 .
(4) The board shall elect from among the elected
members a chairperson, a first vice-chairperson, a second vice-chairperson, a treasurer
and a secretary or a secretary-treasurer.
(5) A member may be elected for a term set by the
by-laws which shall not exceed 3 years and is eligible to be re-elected, but
shall not serve as a member for more than 9 consecutive years.
(6) Where a person elected under subsection
(3) holds office for a period of 9 consecutive years the person is not eligible for
election as a member of the board until the expiration of 12 months from the
end of the year in which he or she was last a member.
(7) An elected member may resign his or her office
by written notice to the board.
(8) Where an elected member resigns, dies or becomes
incapable of performing his or her duties, the remaining members shall appoint
a replacement to serve until the expiry of the term of that elected member.
(9) Where the term of office of an elected member
of the board expires and a successor has not been elected, the member may
continue to hold office until a successor is elected but time served by that member
under this subsection shall not be counted for the purpose of subsection (5).
(8) Elected members shall serve without payment
for their services, but their travel and other expenses associated with their
duties as members may be paid by the association, in accordance with the by-laws.
Appointment by
minister
(1) The
minister shall appoint as members of the board 3 persons who are not certified
general accountants or persons licensed, registered or certified as accountants
under another Act who are suitable to represent the public interest.
(2) A person appointed under subsection (1) holds
office for a term of 3 years and is eligible to be re-appointed.
(3) Where a person appointed under subsection
(1) holds office for a period of 9 consecutive years the person is not eligible for
appointment as a member of the board until the expiration of 12 months from the
end of the year in which he or she was last a member.
(4) Where the term of an appointed member expires,
he or she continues to be a member until re-appointed or replaced but time
served by that member under this subsection shall not be counted for the purpose
of subsection (3).
(5) The association shall pay the expenses of a person
appointed under this
section in accordance with guidelines established by the
Lieutenant-Governor in Council.
(6) A person appointed under subsection (1) may
resign his or her appointment by written notice to the minister and shall
provide a copy to the chairperson of the board.
(7) A person appointed under subsection (1) may be
removed from office by the minister before the expiration of his or her term of
office and no compensation shall be paid to him or her other than an amount
owing under subsection (5).
Objects of association
5. The
objects of the association are
(
a) to promote and increase the knowledge, skill,
and proficiency of certified general accountants;
(
b) to protect the integrity of the profession;
and
(
c) to serve and protect the public interest in
all matters relating to the conduct of certified general accountants.
Registrar
(1) The
board shall appoint a person, either from among the elected members of the
board or from outside the board, as the registrar.
(2) The registrar is, by virtue of the office, a
member of the board where he or she is appointed from outside the board but he
or she does not have the right to vote.
(3) The board may pay the registrar for performing
his or her duties under this Act, in accordance with the by-laws.
Meetings
(1) A
quorum of the board is 8 members, one of whom is a member appointed under
section 4.
(2) Except where prohibited in the by-laws, a
member may, where a majority of the members consent, participate in a meeting
of the board by means of the telephone or other telecommunication device that
permits all persons participating in the meeting to communicate with each
other.
(3) Where a quorum under subsection (1) exists, a
majority of that number is sufficient to make a decision, and in the event of a
tie the person presiding at the meeting shall cast the deciding vote.
(4) The chairperson shall preside at meetings of
the board and the association.
(5) In the absence of the chairperson, the first
vice-chairperson and in the absence of the latter the second vice-chairperson
shall preside at a meeting of the board or the association.
(6) The association shall hold an annual general
meeting, to which all certified general accountants shall be invited, to elect
the members of the board.
(7) At the annual general meeting the association shall
appoint an auditor to audit the accounts of the association and report on the
financial statement prepared by the association.
(8) The board may in its by-laws provide for
voting at a meeting of the board or the association or in an election of
members by mail or electronic means.
Fees
(1) In
prescribing the fees payable under this Act, the board shall, so far as it is
practicable, ensure that the amount of fees is sufficient to enable it to
discharge the duties of the association under this Act.
(2) All money received by the association shall be
applied by it to its duties under this Act.
By-laws
(1) The
board may make by-laws not inconsistent with this Act respecting
(
a) the holding and procedure of its and the
association's meetings;
(
b) the appointment of committees and the duties
and responsibilities of those committees;
(
c) the election of members of the board under
subsection 3 (3) and setting the terms of
office;
(
d) the payment of travel and other expenses of
elected members of the board;
(
e) the employment and remuneration of staff and
consultants;
(
f) a code of ethics which shall include
(
i) a definition of "professional misconduct"
and "conduct unbecoming" for the purposes of sections 27 to 44 ,
(ii) provisions respecting conflict of interest,
and
(iii) rules respecting methods of advertising;
(
g) the remuneration and payment of travel
expenses of members of adjudication tribunals;
(
h) the participation of members at a meeting of
the board or the association by telephone or other telecommunications device
under
section 7 ; and
(
i) voting by members by mail or electronic means.
(2) A by-law may be made, amended or repealed at a
meeting of the board provided that 30 days notice, in writing, of the making,
amendment or repeal of the by-law and of the meeting are given to members of
the board.
(3) The board shall have its by-laws available for
inspection by the public on reasonable notice and at reasonable hours.
Annual report
(1) The
board shall prepare and submit to the minister not later than 6 months after
the end of its financial year
(
a) a report on the activities of the association in
the previous year; and
(
b) the association's audited financial statements
for the previous financial year.
(2) The minister shall table a copy of the annual
report and the audited financial statement in the House of Assembly within 15
days of receiving it if the house is sitting and if the house is not sitting
within 15 days after it next begins to sit.
(3) Where the board fails to comply with
subsection (1), the association is guilty of an offence and on
summary
conviction may be fined $1,000.
Certificate
(1) A
person who
(
a) has passed the prescribed examinations and has
met the additional requirements that may be prescribed by the board; or
(
b) is a member of an incorporated association or
body of accountants having similar objects and purposes, whose membership in
the association or body is secured by examination, under the conditions that
the board considers appropriate, and who has complied with the other conditions
of membership that are set by the board; and
(
c) pays the certification fee set by the board,
is entitled to be certified as a certified
general accountant.
(2) As a condition of receiving a certificate, a
person shall provide proof that he or she has obtained professional liability
insurance coverage in a form and amount satisfactory to the board.
(3) Subsection (2) does not apply to a person who
does not provide accounting services directly to the public.
Register
(1) The registrar shall keep a register in
which shall be entered the names of all persons certified under this Act.
(2) The register shall be open to inspection by a
member of the public during normal business hours at the office of the board.
Accounting designations
13. A
person certified under this Act is entitled to take or use the designation
"Certified General Accountant" either alone or in combination with
other words or the initials " CGA ".
Certain other
accounting designations
14. A
person certified under this Act may take or use the designation "Fellow of
the Certified General Accountants" or the initials "FCGA" either
alone or in combination with other words or initials upon being authorized to
do so by the board in accordance with the regulations made under
section 46 .
Members only to
use designations
15. Only
a person who is certified under this Act is entitled to take or use the designation
"Certified General Accountant" or "Fellow of the Certified
General Accountants" or the initials " CGA " or "FCGA"
either alone or in combination with other words, or a name, title, initials, or
description, implying or calculated to imply that the person is a certified
general accountant, or a name, title, initial, or description implying, or
calculated to imply that the person is a certified general accountant.
Use of "Certified
General Accountants"
16. A
corporation, or an association, whether incorporated or not, shall not, except
with the consent of the board, take or use in the province as part of its name
the words "Certified General Accountants" or another word, name,
title, initials, or description implying or calculated to imply that its members
are certified general accountants.
Saving
17. Nothing
in this Act confers upon the board a right to interfere with or to prevent a
person from acting as a public accountant or an accountant in the province or
from so designating himself or herself.
Definitions
18. In
sections 19 to 25
(a) "non-voting share" means an issued
share of a professional corporation that is not a voting share; and
(b) "voting share" means an issued share
of a professional corporation with the right to vote at a meeting of
shareholders attached to it.
Professional corporation
(1) One
or more members may incorporate a corporation to provide the services of a certified
general accountant.
(2) The corporation shall be incorporated under
the Corporations Act .
(3) The name of the corporation shall meet the
requirements of subsection 17(1) of the Corporations
Act .
(4) A corporation shall not provide the services
of a certified general accountant unless it is registered and certified under
this Act.
Corporate
register
(1) The
registrar shall maintain a register of professional corporations in which shall
be entered the names of those corporations permitted under this Act to provide
the services of a certified general accountant.
(2) The board shall direct the registrar to
register a professional corporation that establishes that
(
a) all the voting shares of the corporation are
beneficially owned by and registered in the name of one or more members and
there is no restriction on the right of each member to exercise his or her vote
as he or she wishes to;
(
b) the non-voting shares are owned by a natural
person;
(
c) all the directors of the corporation are
members, and there is no agreement restricting the powers of the directors to
manage the business and affairs of the corporation in relation to the provision
of services of certified general accountants;
(
d) all of the persons who will be providing the
services of certified general accountants as employees of or on behalf of the
corporation are members;
(
e) the articles of the corporation restrict it to
providing the services of a certified general accountant and related matters;
(
f) the corporation is in good standing under the Corporations Act ; and
(
g) the corporation has complied with other
requirements for registration in the regulations made under
section 46 .
(3) The corporate register shall be published in
accordance with
section 12 and a copy of the
register shall be available for inspection under that section.
(4) The association may enter into a reciprocal
agreement with a board, association or other body having responsibility for the
certification of certified general accountants in another jurisdiction for the
registration of corporations from that jurisdiction in the register of the board.
(5) Notwithstanding subsection (2), the voting
shares of a professional corporation may be held by
(
a) an executor or administrator of the estate of
a deceased member to discharge the duties of that position; or
(
b) a trustee in bankruptcy to discharge his or
her duties as trustee in respect of the corporation or a member,
for no longer than 180 days, or a longer
period where the registrar permits.
Annual certificate
(1) A
professional corporation may apply for a certificate to provide the services of
a certified general accountant in the province and the board shall certify the
corporation if
(
a) the professional corporation is registered
under this Act;
(
b) the application is accompanied by a fee which
may be established by the association; and
(
c) the professional corporation continues to meet
the requirements for registration set out in
section 20
and other requirements for being certified which may be set out in this Act and
the regulations made under
section 46 .
(2) The holder of a certificate issued under this
section is entitled to recover from a person, in a court of the province having
jurisdiction to order payment from the person, reasonable charges for the provision
of professional services by the certificate holder.
(3) A certificate issued under this
section
expires on January 15 following the day upon which it comes into force.
Revocation of certificate
22. A
certificate issued under
section 21 may be
revoked by the board where
(
a) the professional corporation ceases to meet a
requirement for registration and certification under this Act;
(
b) the professional corporation contravenes this
Act or the regulations; or
(
c) a member is disciplined under sections 27 to 44 in respect
of professional services performed by him or her as an employee of or on behalf
of the professional corporation.
Effect of
incorporation
(1) A
member who provides professional services to or through a professional
corporation is, notwithstanding his or her relationship to the professional
corporation or the relationship between the recipient of those services and the
professional corporation, subject to
(
a) the application of this Act as if he or she
were providing services as an individual member; and
(
b) the same duties and responsibilities in
connection with his or her dealings with recipients of the services of the
professional corporation as if he or she were providing services directly to
those recipients.
(2) The relationship between a professional
corporation and a person receiving services from or through the corporation is
subject to the laws relating to the confidential and ethical relationship between
a member and his or her client.
(3) All rights and obligations pertaining to
communications made to, or information received by, members apply to the shareholders,
directors, officers and employees of a professional corporation.
Liability of member
(1) Notwithstanding
a provision to the contrary in the Corporations
Act , a member who provides services as a certified general accountant through
or on behalf of a professional corporation is liable to a person in relation to
those services to the same extent and in the same manner as if the member provided
those services as an individual and that liability is not affected because of
the member's relationship to the professional corporation as a shareholder,
director, officer, employee or in another capacity.
(2) A member is jointly and individually liable
with a professional corporation for all claims made against the corporation in
connection with the provision of services by the member.
(3) In this
section "member" includes a
person formerly certified under this Act or a predecessor Act as a certified
general accountant.
Misconduct of a
professional corporation
(1) A
member is liable to be disciplined under sections 27
to 44 for the actions or conduct of a
professional corporation while the member was a shareholder, director, officer
or employee of the professional corporation.
(2) A member shall not be liable to discipline
under subsection (1) where the member proves that he or she did not know and
could not reasonably have known about the relevant actions or conduct of the professional
corporation.
(3) A power of inspection, investigation or
inquiry that may be exercised in respect of a member under
section 31 may be exercised in respect of a professional
corporation or its records in connection with an inquiry under subsection (1).
(4) A professional corporation is jointly and
individually liable with the member for all fines and costs the member is
ordered to pay in connection with an inquiry under subsection (1).
(5) In this section, "member" includes a
person formerly certified under this Act or a predecessor Act as a certified
general accountant.
Limited liability
partnerships
26. Two
or more persons certified under this Act to practice as certified general
accountants are eligible, as required by
section 56 of the Partnership Act , to apply to be registered under that Act as a
limited liability partnership.
Definitions
27. In
this
section and sections 28 to 44 ,
(a) "allegation" means a written
document alleging that a person presently or formerly certified as a certified
general accountant has engaged in conduct deserving of sanction;
(b) "complainant" means a person making
an allegation described in
section 29 ;
(c) "conduct deserving of sanction"
includes
(
i) professional misconduct,
(ii) failure to maintain standards of practise,
(iii) conduct unbecoming a certified general accountant,
(iv) incapacity or unfitness to practise as a certified
general accountant, and
(
v) acting in breach of this Act, the regulations
or the code of ethics made under
section 9 ;
(d) "costs incurred by the association"
includes
(
i) out of pocket expenses incurred by or on
behalf of the association,
(ii) amounts paid by the association to
adjudication tribunal members as remuneration and for expenses, and
(iii) the actual cost of legal counsel for the association
and the adjudication tribunal;
(e) "disciplinary panel" means the panel
of persons appointed under
section 28 from
which the members of an adjudication tribunal are chosen; and
(f) "respondent" means a certified
general accountant, former certified general accountant, a corporation to which
sections 18 to 25
apply, a former corporation, a student or former student against whom an
allegation is made.
Complaints and
disciplinary panel
(1) The board shall appoint at least 3 of
its members, at least one of whom is a member appointed under
section 4 , to constitute a complaints authorization committee.
(2) The registrar is not eligible to be a member
of the complaints authorization committee.
(3) The board shall appoint the chairperson and
vice-chairperson of the complaints authorization committee from the persons
appointed under subsection (1).
(4) The board shall appoint at least 4 certified
general accountants who are not members of the board, one of whom shall be appointed
to serve as chairperson, and the minister shall appoint at least 2 persons who
are not certified general accountants or persons licensed, registered or
certified as accountants under another Act to represent the public interest,
who shall together constitute a disciplinary panel.
(5) Of the members first appointed to the
disciplinary panel, one half shall be appointed for a term of 2 years and the
remainder for a term of 3 years and all subsequent appointments of members to
the disciplinary panel shall be for a term of 3 years.
(6) Notwithstanding the expiry of his or her term,
a member of the disciplinary panel continues to be a member until he or she is
re-appointed or his or her replacement is appointed.
(7) Persons appointed to the disciplinary panel
may be reappointed.
(8) Members of the disciplinary panel shall serve
on the panel without payment for their services, but may be remunerated for
service as a member of an adjudication tribunal and paid their travel and other
expenses associated with the work of that tribunal by the association, in accordance
with and at the rates set by the by-laws.
(9) The complaints authorization committee and an
adjudication tribunal appointed under
section 32
and a person appointed by either of them may summon witnesses and require those
witnesses to give evidence, orally or in writing, upon oath or affirmation, and
produce the documents and things that either of them considers necessary to the
full investigation and hearing of an allegation or complaint and have the
powers, privileges and immunities that are conferred on a commissioner
appointed under the Public Inquiries Act,
Allegation
(1) An
allegation shall be in writing and signed by the complainant or his or her
solicitor, and filed with the registrar.
(2) The registrar or the board may on his or her or
its own motion make an allegation and file it, and the allegation has the same
effect as an allegation referred to in subsection (1).
(3) Where the registrar has been informed that a respondent
has been convicted of an offence under the provisions of the Criminal Code or a similar penal statute
of another country or has been suspended by a governing body of certified
general accountants in another province or territory of Canada or another
territory or country for reason of professional misconduct, conduct unbecoming
a certified general accountant, or professional incompetence, the information
shall be dealt with by the registrar as an allegation.
(4) For the purpose of subsection (3), a certified
copy of the record of a conviction or findings made or the action taken by an
external regulatory body constitutes proof, in the absence of evidence to the
contrary, of the conviction or findings made or the action taken by that body,
without proof of the signature of the convicting justice or person purporting
to have signed on behalf of that body.
Effect of filing
allegation
(1) Where
it appears to the registrar after notifying the respondent of the allegation that
the allegation may be resolved satisfactorily and where the complainant and the
respondent consent, the registrar may attempt to resolve the matter.
(2) Where the allegation is not satisfactorily
resolved by the registrar under subsection (1), he or she shall refer the allegation
and all other allegations to the complaints authorization committee.
(3) The registrar shall inform a complainant and a
respondent of the referral of the allegation to the complaints authorization
committee.
Complaints authorization
committee
(1) Where
an allegation has been submitted to the complaints authorization committee, the
committee may exercise one or more of the following powers:
(
a) refer the allegation back to the registrar for
an investigation or alternative dispute resolution in accordance with the regulations;
(
b) conduct an investigation itself or appoint a
person to conduct an investigation on its behalf;
(
c) conduct a practice review into the
respondent's practice or the conduct of a corporation to which sections 18 to 25 apply of
which the respondent is a voting shareholder; and
(
d) require
the respondent to appear before it.
(2) Where the complaints authorization committee
is of the opinion there are no reasonable grounds to believe the respondent has
engaged in conduct deserving of sanction, the committee shall dismiss the
allegation and give notice in writing of the dismissal to the complainant and
the respondent.
(3) Where the complaints authorization committee
is of the opinion that there are reasonable grounds to believe that a
respondent has engaged in conduct deserving of sanction, the allegation is
considered to constitute a complaint, and the committee may
(
a) counsel or caution the respondent;
(
b) instruct the registrar to file the complaint
against the respondent and refer it to the disciplinary panel; and
(
c) suspend or restrict the respondent's certificate
to practice.
(4) Where the complaints authorization committee
suspends a certificate under subsection (3), the committee shall give notice of
the suspension to the public as required by the regulations.
(5) A person conducting an investigation under subsection
(1) may
(
a) require a respondent to
(
i) undergo an examination he or she considers
necessary and as arranged by the registrar, and
(ii) permit the registrar or a member of the complaints
authorization committee or a person appointed by the complaints authorization
committee to inspect and copy the records of the respondent and other documents
relating to the subject matter of the investigation; and
(
b) require another person to permit the registrar
or a member of the complaints authorization committee or another person
appointed by the complaints authorization committee to inspect and copy records
and other documents relating to the subject matter of the investigation held by
that person,
and the respondent or other person shall
comply.
(6) Where the registrar, a member of the complaints
authorization committee or a person appointed by the authorization committee requests
that a respondent or another person provide information under subsection (5),
that information shall be provided within 7 days of receipt of the request or a
different period as specified in the request.
(7) An action for damages does not lie against a certified
general accountant or another person to whom a request is made solely because
he or she provides information requested of him or her under subsection (5).
(8) A complainant whose allegation is dismissed by
the complaints authorization committee under subsection (2) may, within 30 days
after receiving notice of the dismissal, appeal the dismissal to the Trial
Division by filing a notice of appeal with the Registrar of the Supreme Court.
(9) Subsections (5), (6) and (7) apply to the
Crown.
Adjudication
tribunal
(1) For
the purpose of dealing with complaints referred to the disciplinary panel, the
chairperson of the disciplinary panel shall appoint from it an adjudication
tribunal consisting of 3 persons, of whom 2 shall be certified general
accountants and one shall be a representative of the public interest.
(2) The chairperson of the disciplinary panel
shall appoint one of the certified general accountants on an adjudication
tribunal to be the chairperson.
Hearing
(1) Where
a complaint has been referred to the disciplinary panel under paragraph 31 (3)(b), an adjudication tribunal shall hear the complaint.
(2) The parties to a hearing are the board and the
respondent and a party may be represented by his or her counsel at a hearing.
(3) A hearing shall be conducted in public but an
adjudication tribunal may exclude the public from a hearing, or from part of
it, where it considers the desirability of protecting a party to the complaint
or a witness against the consequences of possible disclosure of personal
matters outweighs the desirability of holding the hearing in public.
Copies of books,
etc. as evidence
34. A
copy or extract of a book, record, document or thing certified by
(
a) a member of the complaints authorization
committee; or
(
b) a person authorized under subsection 31 (5) to conduct an investigation,
who made the copy or extract under
subsection 31 (5) is admissible in evidence in
an action, proceeding or prosecution, in the absence of evidence to the
contrary, as evidence of the original book, record, document or thing and its
contents.
Guilty plea by
respondent
(1) Where
a respondent pleads guilty to one or more of the charges set out in a
complaint, the adjudication tribunal shall, without calling evidence or hearing
witnesses, unless the tribunal believes it is appropriate to do so, hear
submissions from the parties.
(2) Where a respondent pleads guilty, and
following submissions under subsection (1), the adjudication tribunal may
(
a) reprimand the respondent;
(
b) order that the respondent be suspended for a
fixed period that it considers appropriate, until conditions which it may
impose are fulfilled, or until further order of the adjudication tribunal;
(
c) allow or direct the respondent to surrender
his or her certificate to the board upon those conditions that may be considered
appropriate and strike the respondent's name from the register;
(
d) impose a fine not to exceed $25,000 to be paid
to the association;
(
e) order that the respondent pay the costs or a
part of the costs incurred by the association in the investigation and hearing
of the complaint;
(
f) order that the registrar publish a
summary of
the decision including the information set out in subsection 37 (4) and other information that the tribunal may
specify; and
(
g) order that the respondent comply with one or
more of the following:
(
i) make restitution to the complainant or other
person affected by the conduct of the respondent,
(ii) obtain medical treatment,
(iii) obtain counselling,
(iv) obtain substance abuse counselling or
treatment, until the respondent can demonstrate to the board or other body or
person designated by the adjudication tribunal that a condition related to
substance abuse rendering the respondent incapable or unfit to practise has
been overcome,
(
v) engage in continuing education programs,
(vi) complete a course of studies satisfactory to
the board or another body or person designated by the adjudication tribunal,
(vii) report on his or her compliance with an order
made under this
section and authorize others involved with his or her treatment
or supervision to report on it,
(viii) restrict his or her professional practice or
continue his or her practice under specified conditions,
(ix) permit periodic inspection of records relating
to his or her practice, or
(
x) impose other requirements that are just and
reasonable in the circumstances.
(3) The costs incurred by the association to
ensure the compliance of a respondent with an order or direction of an
adjudication tribunal under this
section shall be borne by the respondent.
Powers of adjudication
tribunal
(1) Upon
the hearing of a complaint, an adjudication tribunal shall decide whether or
not a respondent is guilty of conduct deserving of sanction.
(2) Where an adjudication tribunal decides that a
respondent is not guilty, it shall dismiss the complaint and may, where it
believes that the submission of the complaint to the tribunal for a hearing was
unreasonable,
(
a) order that those costs that the tribunal
considers appropriate be paid by the association to the respondent; and
(
b) make another order that it considers
appropriate.
(3) Where an adjudication tribunal decides that a
respondent is guilty, it may
(
a) reprimand the respondent;
(
b) order that the respondent be suspended for a
fixed period that it considers appropriate, until conditions which it may
impose are fulfilled, or until further order of the adjudication tribunal;
(
c) allow or direct the respondent to surrender
his or her certificate to the board upon those conditions that may be considered
appropriate and strike the respondent's name from the register;
(
d) impose a fine not to exceed $25,000 to be paid
to the association;
(
e) order that the respondent pay the costs or a
part of the costs incurred by the association in the investigation and hearing
of the complaint;
(
f) order that the registrar publish a
summary of
the decision including the information set out in subsection 37 (4) and other information that the tribunal may
specify; and
(
g) order that the respondent comply with one or
more of the following:
(
i) make restitution to the complainant or other
person affected by the conduct of the respondent,
(ii) obtain medical treatment,
(iii) obtain counselling,
(iv) obtain substance abuse counselling or
treatment, until the respondent can demonstrate to the board or other body or
person designated by the adjudication tribunal that a condition related to
substance abuse rendering the respondent incapable or unfit to practise has
been overcome,
(
v) engage in continuing education programs,
(vi) complete a course of studies to the
satisfaction of the board or other body or person designated by the adjudication
tribunal,
(vii) report on his or her compliance with an order
made under this
section and authorize others involved with his or her treatment
or supervision to report on it,
(viii) restrict his or her professional practice or
continue his or her practice under specified conditions,
(ix) permit periodic inspection of records relating
to his or her practice, or
(
x) impose other requirements that are just and
reasonable in the circumstances.
(4) The costs incurred by the association to
ensure the compliance of a respondent with an order or direction of an
adjudication tribunal under this
section shall be borne by the respondent.
Filing and publication
of decisions
(1) An
adjudication tribunal shall file a decision or order and its reasons made under
subsection 35 (2) or 36
(2) or (3) with the registrar and provide a copy to the complainant and the
respondent and the respondent's employer.
(2) The registrar shall maintain a copy of a
decision or order filed under subsection (1) for a minimum of 5 years after the
day the decision is filed and shall upon receiving a request to view the
disciplinary records in relation to a certified general accountant permit a person
to view those records.
(3) The registrar shall publish a
summary of a decision
or order of an adjudication tribunal in a newspaper of general circulation in
or nearest to the community in which the respondent practises within 14 days of
the expiry of the appeal period under
section 43
unless a court otherwise orders where the decision or order
(
a) suspends the respondent;
(
b) allows or directs the respondent to surrender
his or her certificate;
(
c) restricts the respondent's practice;
(
d) specifies conditions for the continuing
practice of the respondent; or
(
e) requires that a
summary of the decision or
order be published.
(4) The
summary of the decision published under
subsection (3) shall include
(
a) the name of the respondent and the address
where he or she practises;
(
b) the date, location and a brief description of
the conduct of the respondent that was found to be deserving of sanction;
(
c) the name of the complainant, unless the
complainant has requested that his or her name be withheld;
(
d) the contents of the order in relation to the
actions referenced in paragraphs (3)(
a) to (d); and
(
e) other information specified for publication in
the decision or order.
(5) Where a decision published under this
section
is confirmed, varied or set aside, the registrar shall within 14 days of the
filing of the subsequent decision or order publish a
summary of the decision or
order and subsections (2) and (3) apply, with the necessary changes.
(6) The registrar may give notice of the decision
and information respecting the decision to the other persons the board may
direct and shall include a
summary of the decision in a certificate of good
standing issued in relation to the respondent.
De-registration
and suspension
(1) Where
a respondent is allowed or directed to surrender his or her certificate, his or
her rights and privileges as a certified general accountant cease.
(2) Where a member or student is suspended, his or
her rights and privileges as a certified general accountant or student cease
for the period of suspension.
(3) Where conditions or restrictions have been imposed
upon a respondent's ability to carry on his or her practice, his or her rights
and privileges as a certified general accountant shall be limited to the extent
specified by the conditions or restrictions.
Failure to comply
(1) On
application by the association to the disciplinary panel, an adjudication
tribunal may make an order suspending the rights and privileges of a respondent
where it determines that the respondent has failed to comply with a decision or
an order under subsection 35 (2) or 36 (3).
(2) The parties to the application are the association
and the respondent.
(3) An order of an adjudication tribunal under
this
section may suspend the rights and privileges of the respondent for a
fixed period that the adjudication tribunal may consider appropriate, or until
conditions which it may impose are fulfilled, or until further order of the
adjudication tribunal.
Re-hearing
(1) Where
a decision or order of the adjudication tribunal
(
a) suspends the respondent;
(
b) allows or directs the respondent to surrender
his or her certificate;
(
c) restricts the respondent's practice; or
(
d) specifies conditions for the continuing
practice of the respondent,
and where the respondent alleges that new
evidence has become available or a material change in circumstances has
occurred since the making of the decision or order, the respondent may apply to
the complaints authorization committee for a supplementary hearing to discharge
or vary the decision or order based on the new evidence or material change in
circumstances.
(2) An application under subsection (1) shall be
made not more than 90 days after the new evidence becomes available or the
material change in circumstances has occurred.
(3) Where an application is made to the complaints
authorization committee under subsection (1), and the committee is of the opinion
that new evidence has become available or that a material change in
circumstances has occurred, as alleged by a respondent, the matter shall be
referred to an adjudication tribunal as if it were a matter referred under
paragraph 31 (3)(
b) and sections 33 to 38 apply, with
the necessary changes, to the referred matter.
(4) The parties to a supplementary hearing under
this
section are the respondent and the association.
(5) For the purpose of this section, in addition
to an order that an adjudication tribunal may make under
section 36 , a tribunal may
(
a) vary the original decision or order made under
section 36 ; or
(
b) discharge the original decision or order, with
or without conditions.
Costs of board
(1) Where
a person who was ordered to pay the costs of the association under paragraph 35 (2)(
e) or 36 (3)(
e) fails to pay in the time required, the board may suspend the certificate of
that person until the costs are paid.
(2) Costs ordered to be paid to the association under
paragraph 35 (2)(
e) or 36 (3)(
e) are a debt due the association and may be recovered by a civil action.
Collection of
fine
(1) Where
an order is made under
section 35 or 36 imposing a fine on a respondent, the association may
issue a certificate stating the amount of the fine due and remaining unpaid and
the name of the person by whom it is payable, and file the certificate with the
Registrar of the Supreme Court.
(2) Where a certificate is filed with the Registrar
of the Supreme Court under subsection (1), it has the same effect and all
proceedings may be taken on the certificate as if it were a judgment of the
Trial Division for the recovery of the amount stated in the certificate against
the person named in the certificate.
(3) A person named in a certificate filed under
this
section may, within 30 days after the certificate is filed, apply to a
judge of the Trial Division for a review, on a question of law or jurisdiction,
of the certificate.
(4) On application under subsection (3), the judge
may make any amendment to the certificate that is necessary to make the certificate
accord with the judge's decision.
(5) There is no appeal from a decision of a judge
made under this section.
(6) A certificate filed under this
section may
also be filed in the judgment enforcement registry on the expiration of the 30
day period referred to in subsection (3) in accordance with
Part III of the Judgment Enforcement Act and be enforced
in accordance with that Act.
Appeal to Trial
Division
(1) The
association or the respondent may, within 30 days after receiving notice of the
decision or order of an adjudication tribunal under this Act, appeal the
decision or order to the Trial Division by filing a notice of appeal with the
Registrar of the Supreme Court.
(2) An appeal under this
section does not stay the
decision or order being appealed unless the Trial Division orders otherwise.
Action prohibited
44. An
action for damages shall not lie against the association, disciplinary panel, an
adjudication tribunal or the individual members of those bodies, a person
appointed to conduct an investigation under subsection 31 (5), the registrar, or an officer or employee of
the association for
(
a) an act or failure to act, or a proceeding
initiated or carried out in good faith under this Act, or carrying out their
duties or obligations as an officer, employee or member under this Act; or
(
b) for a decision or order made or enforced in
good faith under this Act.
Application of
sections to professional corporation
(1) Sections
27 to 44 apply,
with the necessary changes, to a corporation to which sections 18 to 25 apply, as if
it was a person certified as a certified general accountant under this Act.
(2) Regulations made under
section 46 respecting the disciplining of a person certified as
a certified general accountant under this Act under sections 27 to 44 apply to a
corporation to which sections 18 to 25 apply as if it was a person certified as a
certified general accountant under this Act.
Regulations
(1) The
board may, with the approval of the minister, make regulations
(
a) prescribing conditions for the certification of
a person to practise as a certified general accountant and for the renewal of
certificates;
(
b) providing for the issuance of provisional
certificates;
(
c) for the purpose of giving effect to
section 14 ;
(
d) respecting the incorporation of companies
under sections 18 to 25 ;
(
e) respecting eligibility to form limited
liability partnerships;
(
f) respecting the suspension of a certificate under
paragraph 31 (3)(c);
(
g) approving schools and programs of accountancy;
(
h) respecting alternative dispute resolution for
the purposes of sections 27 to 44 and the procedure for that resolution; and
(
i) prescribing time limits for events in the
disciplinary process in sections 27 to 44 , including time limits for:
(
i) the filing of an allegation,
(ii) the resolution of an allegation by the
registrar,
(iii) the conduct of an investigation under
section 31 ,
(iv) consideration of an allegation by the
complaints authorization committee following completion of an investigation,
(
v) responding to a complainant and respondent at
each stage of the process,
(vi) the conduct of a practice investigation under
paragraph 31 (1)(c),
(vii) the appointment of an adjudication panel under
section 32 , and
(viii) the conduct of a hearing and the filing of a
decision or order by an adjudication panel following completion of the hearing.
(2) Notwithstanding subsection (1), the minister
may make regulations to prescribe time limits for events in the disciplinary
process under sections 27 to 44 where the board does not do so in a time period
the minister considers reasonable.
Offence
(1) A
person who contravenes this Act, other than
section 15
or 16 , commits an offence and is liable on
summary conviction to a fine not exceeding
(
a) in the case of a natural person, $5,000 for a
first conviction and to a fine not exceeding $10,000 for a second or subsequent
conviction; and
(
b) in the case of a corporation, $25,000 for a
first conviction and to a fine not exceeding $50,000 for a second or subsequent
conviction.
(2) A person who contravenes
section 15 or 16 is liable on
summary conviction to a fine not exceeding $10,000 for each offence.
RSNL1990 cC-6
Rep.
48. The Certified
General Accountants Act is repealed.
Commencement
49. This Act comes into force on November 1, 2009 .
Earl G. Tucker, Queen's Printer