Asfaw v Chartered Professional Accountants of Manitoba, 2023 MBCA 103

Citation: Asfaw v Chartered Professional Accountants of Manitoba, 2023 MBCA 103 Date: 20231211 Docket: AI22-30-09805 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Marianne Rivoalen Madam Justice Freda M. Steel Madam Justice Diana M. Cameron BETWEEN : achamyelesh asfaw ) S. B. Simmonds, K.C. and ) C. J. Suderman Appellant ) for the Appellant ) - and - ) T. L. Welsh and ) M. D.

Grayson chartered professional ) for the Respondent accountants of manitoba ) ) Appeal heard and Respondent ) Decision pronounced: ) December 11, 2023 Cameron JA (for the Court) : [ 1 ] This is an appeal as of right made pursuant to section 86(1) of The Chartered Professional Accountants Act , CCSM c C71 [the Act ], of a decision of the discipline panel (the panel) of the respondent, the Chartered Professional Accountants of Manitoba (the CPA), finding the appellant guilty of committing acts of professional misconduct by (

a) knowingly and falsely representing herself to the public as being eligible and qualified to provide public accounting services when she was not qualified to do so; and (

b) performing other regulated services without obtaining a permit and without being registered to do so. [ 2 ] The appellant also appeals the penalty imposed consisting of (

a) a suspension of one month or until her website is brought into compliance with the Act , whichever period is longer; (

b) the completion of an ethics course at her own cost, as selected by the CPA; (

c) a fine of $10,000; and (

d) a payment of $30,000 in costs. [ 3 ] At the hearing, we dismissed the appeal with brief reasons to follow.

These are those reasons. [ 4 ] The grounds of appeal are that a breach of procedural fairness occurred when the panel requested submissions regarding appropriate sanctions after the hearing of the matter, but before the findings of guilt, and that this process resulted in an apprehension of bias. [ 5 ] In support of her first ground, the appellant submits that the “high duty of procedural fairness” in this matter requires that the same procedure, as is followed in sentencing hearings in criminal matters, should have been applied to her process.

That is, submissions on sanction should only be heard after a determination of guilt.

We disagree. [ 6 ] While a high duty of procedural fairness is required when a professional body is considering allegations of professional misconduct (see Kuny v College of Registered Nurses of Manitoba , 2017 MBCA 111 at para 17 ), the comparison of a criminal proceeding to the administrative one at issue in these proceedings is inappropriate. [ 7 ] In our view, unlike the separate sentencing hearing required to be conducted after an offender has been found guilty of an offence as contemplated in section 720(1) of the Criminal Code , the panel correctly determined that the Act allows for a single hearing regarding both guilt and sanction.

Section 71(1) of the Act allows the discipline committee to determine its own practice and procedure subject to its bylaws (see Chartered Professional Accountants of Manitoba, “Bylaws” (23 June 2022), online (pdf): <www.cpamb.ca/common/Uploaded%20files/Regulatory/2022-cpa-manitoba-bylaws.pdf> (date accessed 11 December 2023) (the CPA bylaws)). Here, neither the Act nor the CPA bylaws require a separate hearing. Rather, sections 78 to 81 of the Act confirm the panel’s

authority to make an order against a party at the conclusion of a professional misconduct hearing that results in a finding of guilt. Section 83(1) of the Act provides that a discipline panel “must make a written decision on the matter, consisting of its findings, any ordermade by it and the reasons for the decision.” Bylaw 960 of the CPA bylaws is similarly worded and refers to

section 83 of the Act. Thisis to be contrasted to a finding of deemed professional misconduct made pursuant to

section 79 of the Act.

In that case, section 80(1)provides that the discipline panel “must give the person an opportunity to make submissions to it about any aspect of the matter.” [8] In addition, the jurisprudence supports that a party’s procedural right to be heard in administrative proceedings doesnot necessarily amount to a right to have separate hearings on liability and sanction (see, for example, Best Import Auto Ltd v MotorDealer Council of British Columbia, 2018 BCSC 834 [Best Import], where an application of the “fairness factors” (at para 50)enunciated in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, led the Court toconclude that there was no right to separate hearings on liability and sanction); Johal v Funeral Services, 2012 ONCA 785 at para 9[Johal], where the Court found no prejudice where the appellant was given notice during the hearing on the merits of the possiblesanctions; and Therrien (Re), 2001 SCC 35 at paras 89-90 [Therrien], where a separate hearing was not required in circumstances bothfactually and legislatively similar to the present case. [9] Furthermore, as in Best Import, Johal and Therrien, the facts in this case demonstrate that the appellant knew at thetime of the hearing what the possible and requested sanctions were.

She had two opportunities to make submissions regarding penalty. The first was at the conclusion of the hearing dealing with the alleged misconduct after counsel for the CPA’s Complaints InvestigationCommittee made submissions regarding penalty and the second after counsel for the panel wrote to the parties asking for submissionsregarding penalty should the panel find the appellant guilty of one or two of the charges against her.

Despite being represented bycounsel, the appellant chose not to take advantage of either opportunity. [10] Regarding bias, we see no apprehended institutional bias, nor do we see any in the actions taken by the panel (see, forexample, The New Brunswick Real Estate Association v Moore, 2007 NBCA 64, where the discipline committee’s policy of having onehearing regarding both liability and penalty did not give rise to a reasonable apprehension of bias). The panel’s request for submissionsin the event that a finding of guilt was made was in compliance with the legislation and supported by the jurisprudence.

The recorddemonstrates that the panel considered liability before sanctions. [11] In the result, the appeal was dismissed with costs. JA CJM JA