Prosper Chenjelani Appellant (Applicant) v. The Institute of Chartered, 2022 SKCA 66

Court of Appeal for Saskatchewan Docket: CACV3923 Citation: Chenjelani v Institute of Chartered Professional Accountants of Saskatchewan , 2022 SKCA 66 Date: 2022-06-02 Between: Prosper Chenjelani Appellant (Applicant) And The Institute of Chartered Professional Accountants of Saskatchewan (CPA SK) Respondent (Respondent) Before: Caldwell, Whitmore and Leurer JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On appeal from: 2021 SKQB 251 , Regina Appeal heard: March 3, 2022 Counsel: Prosper Chenjelani on his own behalf Virgil Thomson for the Respondent Whitmore J.A. I. INTRODUCTION [ 1 ] The appellant, Prosper Chenjelani, was registered as a member of the Institute of Chartered Professional Accountants of Saskatchewan [CPA SK] when his registration was cancelled for his failure, among other things, to pay his outstanding fees. [ 2 ] Mr. Chenjelani attended the University of South Africa, where he obtained a Bachelor’s Degree in accounting science.

He then moved to Canada and applied for certification as an accountant in Saskatchewan. He enrolled with the CPA Western School of Business [CPAWSB]. CPAWSB delivers the CPA Professional Education Program [CPA PEP] for accountant candidates in the Western provinces. [ 3 ] After much communication with CPAWSB’s Admission Services in the Registrar’s office of CPA SK, Mr.

Chenjelani’s registration as a CPA SK candidate was suspended and eventually cancelled by the CPA SK Board [Board] pursuant to Bylaw 33.5 of The Accounting Profession Regulatory Bylaws, 2018 (Saskatchewan) [Regulatory Bylaws], enacted pursuant to The Accounting Profession Act , SS 2014, c A-3.1 , as a consequence of his continued non-compliance with Regulatory Bylaw 10.4 and Bylaw 130.1 of The Accounting Profession Administrative Bylaws, 2020 (Saskatchewan) [Administrative Bylaws], as well as s. 2.4 of the Harmonized Education Policies [HEP], all of which relate to candidate registration fees. [ 4 ] Mr.

Chenjelani applied for judicial review of the decision of the Board, which upheld the decision of the CPA SK Registration Committee [Registration Committee] to cancel his registration as a candidate of CPA SK and which declined to reinstate him. A judge of the Court of Queen’s Bench, sitting in judicial review, dismissed his application: Chenjelani v Institute of Chartered Professional Accountants of Saskatchewan , 2021 SKQB 251 [ Decision ]. Mr. Chenjelani now appeals from the Chambers judge’s decision to this Court. I would allow the appeal, as I explain below. II.

THE QUEEN’S BENCH DECISION [ 5 ] The only evidence before the Chambers judge was the affidavit of Leigha Hubick, the Registrar of the CPA SK. The Chambers judge paraphrased the circumstances leading to the cancellation of Mr. Chenjelani’s registration as a candidate as follows: [7] The following chart sets out the chronology of events relevant to this application. This

summary is derived principally from the Hubick Affidavit which is the only evidence before me. DATE EVENT The applicant obtained a degree of Bachelor of Accounting Science from the University of South Africa. Subsequently, he moved to Canada and applied for certification from the “Certified General Accountants of Saskatchewan”. He enrolled with the CPA Western School of Business [CPAWSB]. The CPAWSB delivers the CPA Professional Education Program [CPA PEP] for candidates in the western provinces. This program is based in Edmonton, Alberta; however, at the time he was registered in the CPA PEP, the applicant lived in Saskatchewan.

January 2, 2015 The applicant obtained his transcript assessment* which expired on May 5, 2016. October 24, 2016 The applicant requested a further assessment because he had completed prepatory [ sic ] courses and was commencing the CPA PEP. This second transcript assessment expired on October 26, 2017.

April 30, 2019 CPAWSB emailed the applicant reminding him that his annual fee payment was due on May 31, 2019. (Each year, a candidate is required to complete the CPA PEP annual enrolment form and pay an annual fee.) The email advised that if the applicant failed to remit this fee, his status as a candidate with the CPA PEP would be changed to “suspended”. June 4, 2019 As the applicant had completed the enrolment form but did not pay the annual fee, the Admissions Services of the CPAWSB [Admission Services] emailed him to advise that his candidacy was suspended for failure to pay the fee by May 31, 2019.

June 25, 2019 The Admissions Services emailed the applicant reminding him of his suspended status and advised him that he would be withdrawn from the CPA PEP if he did not pay the outstanding fees by June 30, 2019. July 4, 2019 After receiving no response to its June 25 th email, Admissions Services notified the applicant by letter and by email that he had been withdrawn from the CPA PEP for failure to complete the re-enrolment and pay all outstanding dues.

The applicant was also advised that he could reapply for admission by (1) submitting a new transcript assessment request, and (2) submitting a new CPA PEP Admission Application on MyCPA portal and select the registration category of “readmission”. February 19 – 26, 2020 Between these dates, the applicant corresponded with Admissions Services respecting his candidacy. He now resided in Ontario and wished to move his candidature to that province but was unable to do so because his membership in Saskatchewan had been suspended. February 20, 2020 The applicant emailed Ms.

Hubick to raise concerns about the CPAWSB, and its Admissions Services. March 3, 2020 Ms. Hubick replied to the applicant’s email advising that per CPA SK’s bylaws he was suspended and not expelled. He could reapply to the CPA PEP which would require another transcript assessment as part of that application process. March 10, 2020 The applicant emailed Ms. Hubick telling her that he wished to appeal to the CPA SK Board. He also included a package of information to be filed with the CPA SK Board under Regulatory Bylaw 38.1. March 16, 2020 Ms.

Hubick emailed the applicant and informed him she could not accept this package since Regulatory Bylaw 38.1 only applied when the Registrar or the appropriate regulatory committee had rendered a formal decision. Furthermore, any decision made by the CPAWSB in accordance with the Harmonized Education Policies had to be appealed to the CPAWSB’s Appeals Committee. However, this route was not available to the applicant as he not filed it within the requisite appeal period. She further advised him that he could apply for reinstatement under Regulatory Bylaw 37.1.

If he did that then the Registration Committee of the CPA SK would determine if his prior transcript assessment remained valid. March 21, 2020 The applicant emailed Ms. Hubick and advised that he believed he did not need to apply for reinstatement. However, he consented to referring this matter to the Registration Committee based upon the materials and written submissions he had forwarded to Ms. Hubick on March 10, 2020. May 5, 2020 Ms.

Hubick submitted a memorandum to the CPA SK Registration Committee advising its members among other things, that the applicant applied for readmission and recommended that due to COVID-19 it accepted the applicant’s transcript evaluation so as to permit him to challenge the September 2020 Common Final Exam, should he be allowed to do so.

May 7, 2020 The applicant was informed by letter that the Registration Committee had accepted the Registrar’s recommendation, and that he must complete his registration by May 25, 2020. He was advised further that he had to pay dues in the amount of $1,606.50 no later than May 31, 2020. This sum represented the amount of outstanding dues owed to CPAWSB. June 26, 2020 As May 25, 2020 came and went without any response from the applicant, Ms. Hubick emailed him to advise that the Registration Committee had granted him additional time to complete the reinstatement process, extending it to June 30, 2020.

She alerted him that if he failed to meet this deadline and to pay the outstanding dues, the approval of the Registration Committee would expire. June 26, 2020 The applicant replied to Ms. Hubick and stated that he now wished to write his final exam in May 2021, and not September 2020. He offered to pay the outstanding dues no later than July 31, 2020. June 28, 2020 Ms. Hubick replied by advising that she would have to take this request to the Registration Committee.

Subsequently, she prepared a memorandum to the Registration Committee recommending that since updated transcript assessments could now be obtained there was sufficient time for the applicant to obtain a new transcript assessment and complete the re-application process before May 2021. She recommended to the Registration Committee that he be required to do so, as well as paying all outstanding dues by July 31, 2020. July 7, 2020 The Registration Committee accepted Ms. Hubick’s recommendation, and extended the deadline for payment of the academic fees to July 31, 2020. July 16, 2020 Ms.

Hubick advised the applicant that the Registration Committee directed that he should obtain an updated transcript assessment. As well, he must pay all outstanding fees by July 31, 2020. She further advised the applicant how to complete the reapplication process. July 27, 2020 The applicant emailed Ms. Hubick and told her he was unwilling to re-do the transcript assessment. He believed this process would require him to do additional courses. He required that the Registration Committee reconsider its decision. August 17, 2020 As the applicant had failed to pay the outstanding fees by July 31, 2020, Ms.

Hubick emailed him to advise that the Registration Committee would not reconsider its decision because there had been no change in his circumstances. She reiterated that his reinstatement could not be completed without payment of those fees and receipt of an updated transcript assessment. Ms. Hubick further advised the applicant of his right of review by the CPA SK Board, and provided to him the relevant rules relating to requests for review of regulatory committee decisions. She stated that the CPA SK Board would consider the cancellation of his registration as a candidate at its September 2020 meeting.

September 8, 2020 The applicant responded to Ms. Hubick’s August 17 th email. He advised that he, instead, would rely upon his original written submissions, and asked her to file those submissions with the CPA SK Board. September 15, 2020 The CPA SK Registration Committee advised the CPA SK Board of the reasons for its decision to require the applicant to obtain an updated transcript assessment. September 22 and 23, 2020 The CPA SK Board met via video conference.

At that meeting it upheld the decision of the CPA SK Registration Committee requiring the applicant to obtain an updated transcript assessment and pay all outstanding fees. The CPA SK Board also cancelled the applicant’s registration. The applicant did not appear personally at this meeting. October 20, 2020 Ms. Rebecca Parry, Executive Assistant to the CPA SK Board, emailed the applicant on behalf of the Chair of the CPA SK Board, Ms. Carrie Carson, CPA, CA, to advise him of the CPA SK Board’s decision.

October 20, 2020 Ms. Hubick also emailed the applicant to advise him that hisregistration with CPA SK had been cancelled. *A transcript assessment is required by the CPAWSB before any admission application can be submitted. It ensures that courses taken bya candidate meet CPAWSB standards and identifies if any education requirements remain outstanding which can be completed throughCPA prepatory [sic] courses or a post-secondary institution. Transcript assessments are valid for one year.

For reapplications, a newtranscript is required unless the previous assessment is less than one year old. [6] In the Court of Queen’s Bench, Mr. Chenjelani argued that he was denied procedural fairness and natural justice when theBoard dismissed his appeal from the Registration Committee’s decision and cancelled his registration as a candidate.

He also soughtjudicial review on the ground that the Board’s decision was unreasonable. [7] The Chambers judge identified that the Board’s decision should be reviewed on a standard of reasonableness, followingCanada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov], but that the question of whether abreach of procedural fairness had occurred should be reviewed on a standard of correctness.

The Chambers judge found that Mr.Chenjelani had not been denied procedural fairness and was “satisfied that the scope of the procedural safeguards which should beafforded to the applicant fall ‘at the lower end of the procedural fairness spectrum’” (Decision at para 40, quoting Feng v Saskatchewan(Economy), 2020 SKCA 6 at para 70, 70 Admin LR (6th) 237).

He also found that the Board’s decision, “while brief, is enough to satisfythe justification, transparency and intelligibility requirements of a reasonable decision as identified in Dunsmuir [v New Brunswick, 2008SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]], and confirmed in Vavilov at paras 86 and 87” (Decision at para 44). [8] He thereupon dismissed Mr. Chenjelani’s application. [9] Mr. Chenjelani now appeals to this Court. III. JURISDICTION AND STANDARD OF REVIEW [10] Pursuant to s. 7(2) of The Court of Appeal Act, 2000, SS 2000, c C-42.1, Mr. Chenjelani has a right of appeal to this Court.

Therespondent, CPA SK, agrees that Mr. Chenjelani does not require leave to appeal. [11] The role of the Court of Appeal in review of administrative decisions such as this is to determine whether the Chambers judgeselected the correct standard of review and correctly applied that standard: Dr. Q v College of Physicians and Surgeons of BritishColumbia, 2003 SCC 19 at para 43, [2003] 1 SCR 226 [Dr.

Q], and Akpan v The University of Saskatchewan Council, 2021 SKCA 129 atpara 16 [Akpan]. [12] The Chambers judge determined that the standard of review of administrative decisions is presumptively reasonableness as perthe Supreme Court of Canada’s decision in Vavilov. This presumption can be rebutted by clear indication of legislative intent for anotherstandard to apply or where the rule of law requires it: Vavilov at para 33.

No such situation where the presumption of reasonableness couldbe rebutted appears to exist in this case which the Chambers judge correctly identified. [13] With regard to the procedural fairness question, the Chambers judge concluded that correctness was the appropriate standard ofreview for whether procedural fairness was afforded to Mr. Chenjelani in the administrative proceedings.

This was a correct determinationas well: Saskatoon Co-operative Association Limited v Saskatchewan Joint Board, Retail, Wholesale and Department Store Union, 2016SKCA 94 at para 19, 484 Sask R 157, and Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 56. [14] Given that the Chambers judge selected the appropriate standards of review in his decision, this Court must now assess whetherthose standards were applied correctly: see, generally, Dr.

Q and Akpan. [15] Regarding questions of procedural fairness, Akpan held that an appeal court’s role in this context is to determine whether theprocedure at issue was fair in the circumstances: see para 20, citing Kuspar v Regina Provincial Correctional Centre, 2020 SKCA 142 atpara 37, 474 CRR (2d) 285. In Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA 86, [2020] 4 WWR 212, also cited inAkpan, this Court stated that, when assessing fairness in a certain context, “the ultimate issue is always whether the process accords withthe underlying values reflected by the duty of fairness” (at para 29). IV.

ISSUES AND ANALYSIS A. Is the issue of procedural fairness before this Court? [16] In his notice of appeal, Mr. Chenjelani characterized his grounds of appeal as follows: a. The chambers judge made a pulpable [sic] and overriding error by failing to consider the referenced Regulatory Board Rule 333.1 in itsdecision.

The case before the Court was whether the Bylaws and the Board Rules were followed leading up to the cancellation of myregistration; in this case they were not, Regulatory Board Rule 333.1 was not followed, the court in the result failed to consider that samecritical Board Rule, thus committing an error of law. [17] CPA SK argues that Mr. Chenjelani’s submissions go beyond what is in the notice of appeal because he did not indicate that hewas appealing the Chambers judge’s determination on procedural fairness. In my view, the crux of Mr.

Chenjelani’s issue is whether theapplicable Bylaws and Rules were followed by the CPA SK, whether by CPAWSB, the Registration Committee or the Board. Although itmay not be explicitly stated in the notice of appeal, issues regarding an administrative body’s failure to follow its own rules andprocedures engage questions of procedural fairness, as parties have a legitimate expectation that an administrative body will follow its ownrules: Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 26 [Baker].

[ 18 ] CPA SK additionally argues that the validity of the original suspension was never properly before the Chambers judge and therefore should not be considered by this Court. It contends that the decision before the Registration Committee and the Board dealt with the requirement to redo a transcript assessment and not with the validity of Mr. Chenjelani’s initial suspension. I respectfully disagree, as I will explain below. [ 19 ] While CPA SK is correct that the Board’s final decision to cancel Mr.

Chenjelani’s candidacy pursuant to Regulatory Bylaw 33.5 and to require him to have a new transcript assessment performed did not deal with the validity of his initial suspension by CPAWSB, the validity of that suspension is and has remained a live and unresolved issue throughout the entirety of these proceedings. The final decision by the Board was predicated on the initial suspension by CPAWSB pursuant to Regulatory Bylaw 33.5 and it is that suspension and the procedure that followed it that Mr. Chenjelani contends was procedurally unfair to him. In his notice of application for judicial review, Mr.

Chenjelani put these points squarely at issue. His grounds were: [1.] The decision to suspend and ultimately cancel my Registration as a candidate was made contrary procedural fairness and/or, [2.] The institute failed to follow its own Regulatory Bylaws and Rules in reaching the decision to suspend and finally cancel my registration. (Regulatory Board Rule 333.1 and/or Bylaw 33.) [ 20 ] The premise of the Chambers judge’s Decision was that all policies and procedures had been adhered to.

In this regard, he stated at paragraph 41 that the decisions made by the Registrar, the Registration Committee and the Board were administrative in nature and governed by internal policies and procedures which “were followed, and often exceeded”. [ 21 ] In my view, the issue of the validity of the initial suspension and the procedural fairness issues that Mr. Chenjelani argues arose from and following the making of that decision were, in fact, before both the Board and the Chambers judge; however, they were not resolved in either instance.

I say that because the issue before the Chambers judge was the Board’s review of the Registration Committee’s decision to require Mr. Chenjelani to retake the transcript assessment and, ultimately, its decision to cancel Mr.

Chenjelani’s registration pursuant to Regulatory Bylaw 33.5, which states: Cancellation 33.5 When a suspended registrant continues to not comply with the Rule underlying the suspension for a period of one (1) year after the original date of non-compliance his registration shall be cancelled. [ 22 ] While the Board’s decision does not explicitly include a determination of the validity of the initial suspension, Mr. Chenjelani was not seeking a mere review of that decision. He was seeking a review of the fairness of the procedures that led to that decision, as indicated in his notice of application.

Therefore, the procedural fairness of that entire process, which included the way in which the initial suspension was carried out, was properly before the Chambers judge. [ 23 ] In the Decision , the Chambers judge first correctly identified the standard of review to be applied to questions of procedural fairness: [22] Correctness is often referred to as the operative standard of review when issues of procedural fairness arise.

The task for a court on a judicial review application where breaches of procedural fairness are alleged is to determine if the proceedings were fair to the applicant in all the circumstances. This involves considering whether the applicant knew the case to be met and had a full and fair chance to respond and be heard.

See, for example: Canadian Pacific Railway Company v Canada (Attorney General) , 2018 FCA 69 at para 56 ; United Food and Commercial Workers, Local 1400 v Saskatchewan Joint Board, Retail, Wholesale and Department Store Union , 2016 SKCA 94 at para 19 , and Knapp v ICR Commercial Real Estate , 2019 SKQB 59 at paras 25-35 . [ 24 ] In my opinion, however, the Chambers judge erred in his application of this standard because he failed to appreciate that there was an issue as to the procedural fairness of the Board’s decision that was predicated on whether the initial suspension was valid.

He, therefore, did not appreciate that Mr. Chenjelani’s argument was that, in suspending him and then cancelling his registration based on that suspension, the CPA SK had acted outside its own Rules and Bylaws. [ 25 ] Unfortunately, although the Chambers judge engaged in an analysis of the procedural fairness afforded to Mr. Chenjelani by the Registration Committee and the Board, he did not address the procedural deficiencies that were alleged to have occurred in the initial suspension process, which underpinned the rest of the decisions that had been made by CPA SK.

Although we could remit this matter to the Court of Queen’s Bench to correct that oversight, the circumstances of this case permit this Court to directly address the issues of procedural fairness. B. Was the initial suspension of Mr. Chenjelani procedurally fair? 1. Who suspended Mr. Chenjelani? [ 26 ] From the correspondence and the documentation in the appeal book, it is clear that CPAWSB was the entity that suspended Mr. Chenjelani’s candidate status with CPA SK. Ms. Hubick, who was the Registrar of CPA SK at the relevant times, averred in her affidavit that “[o]n June 4, 2019, Mr.

Chenjelani was sent an email again by Admissions Services at the CPAWSB advising that his candidacy was suspended for failure to pay dues by May 31, 2019”. There is no evidence that there was any other action or decision on the part of CPA SK to suspend Mr. Chenjelani. Therefore, the only conclusion, based on the evidence, is that Mr. Chenjelani’s candidate status with CPA SK was suspended by CPAWSB. 2. From what was Mr. Chenjelani suspended? [ 27 ] There is, unfortunately, some uncertainty as to the effect of Mr. Chenjelani’s suspension by CPAWSB. Mr.

Chenjelani touched on this issue briefly in his oral argument, but it was not fully dealt with. I understand his argument to be that there are two different registration processes or statuses to be contemplated. First, there is a student’s registration and enrollment in the CPA PEP, which is

offered and governed by CPAWSB. Second, there seems to be a process concerning the student’s candidacy registration with CPA SK. Mr. Chenjelani takes issue with the fact that CPAWSB suspended him from not only the CPA PEP but also from his candidacy for registration as a full member with CPA SK itself. It is the latter that he contends, in his argument, that CPAWSB did not have the jurisdiction to do. [ 28 ] From the evidence on the record, it appears as though Mr. Chenjelani’s

interpretation of what occurred has merit. CPAWSB suspended his candidacy from CPA SK for non-payment of fees, then subsequently withdrew him from the CPA PEP course. Mr. Chenjelani does not seem to take issue with the validity of his withdrawal from the CPA PEP course; he disputes the validity of the suspension by CPAWSB of his candidacy for registration as an accountant with CPA SK. 3. Does CPAWSB have the authority to suspend a student candidate? [ 29 ] Mr. Chenjelani takes the position that CPAWSB had no authority to suspend his CPA SK candidacy.

He relies primarily on the Regulatory Bylaws, the Administrative Bylaws and The Accounting Profession Regulatory Board Rules, 2019 (Saskatchewan) [Rules], which outline the procedure that the Registrar, the Registration Committee and the Board must follow when considering the suspension of registrants. I note that the Regulatory Bylaws and the Rules have since been amended, but no changes have been made to the provisions relevant to this appeal. [ 30 ] In making these arguments, Mr.

Chenjelani points to Regulatory Bylaw 33.1 and Rules 333.1–333.2: Regulatory Bylaw Suspension 33.1 The Board shall establish Rules for suspension of registration rights where a registrant has not complied with: (

a) A requirement specified in a Rule or a notice within the time specified in a Rule or a notice; or … … Rules Suspension 333.1 Further to Bylaw 33.1, the Registrar shall recommend a suspension of a registration to the Registration Committee. The Registration Committee has the authority to suspend a registration. 333.2 Further to Bylaw 33.3, a registrant may provide a written submission to the Registration Committee within the time period established in the suspension recommendation from the Registrar. The written submission may include information and documentation pertaining to: (

a) the basis for not proceeding with the suspension of the registration; or (

b) the plan to comply with the Rules underlying the suspension of the registration. [ 31 ] CPA SK points to many different Rules, Bylaws and provisions that purportedly give CPAWSB the authority to suspend candidates, but none of these state that CPAWSB has the authority to suspend candidates from CPA SK outright; they provide only that CPAWSB has the authority to suspend candidates from the CPA PEP. [ 32 ] Further, I am unable to find anything in the record that establishes that the registration of a student as a candidate with CPA SK and the registration/enrollment of the student in CPA PEP are separate and distinct processes with different fees, registration requirements or statuses within CPA SK.

From the record, it appears that CPAWSB is entirely responsible for managing student candidates within CPA SK. This, however, does not weigh in favour of the argument that CPAWSB has the lawful authority to suspend a candidate’s registration with CPA SK. It merely confirms that CPAWSB has exercised that authority in practice; whether it did so validly or invalidly remains at question. [ 33 ] It is also important to note that, as argued by CPA SK, the Regulatory Bylaws and the Rules are meant to govern accountants who are registered as members of the governing body, as well as student candidates.

Therefore, as the argument goes, while the suspension procedure outlined in the Regulatory Bylaws makes sense if a registered accountant has failed to pay their annual dues, the procedure makes less sense for student candidates, who are managed largely by CPAWSB. [ 34 ] In that regard, CPA SK urges this Court to look to the Western Operating and Agency Agreement, entered into between CPAWSB and CPA SK and other provincial institutes, and the Bylaws as supporting CPAWSB’s authority to oversee and manage students’ candidate registrations with CPA SK. For example, CPA SK points to

Article 7.5 of the Western Operating and Agency Agreement, which states: 7.5 Tuition, Dues and Fees Remittances

(1) In respect of Learners of each Western Province, as part of the Administrative Services, CPAWSB will invoice and collect such Learners’ tuition and other fees and dues on behalf of the applicable Western Province.

(2) CPAWSB will hold all tuition and other fees and dues in respect of the Learners of a Western Province on behalf of the applicable Western Province in a segregated bank account acceptable to such Western Province.

(3) Subject to

Section 6.2(2), CPAWSB shall remit tuition and other fees and dues in respect of the Learners of a Western Province to such Western Province in accordance with a

schedule and process agreed with the Parties, initially to be within five (5) days of the approval of

such amounts by the Board, made after the end of each three (3) month calendar period during the Term (and, in the case of the end of the Term, within five (5) days of the approval of such amounts by the Board after the end of the Term. (Emphasis added) [ 35 ] As this indicates, a student’s registration as a candidate with CPA SK and their enrolment as a student in the CPA PEP are all done through CPAWSB.

While perhaps the registration fees ultimately go to different places (i.e., the registration fee eventually goes to CPA SK and the tuition payments remain with CPAWSB), from the student candidate perspective, the entire registration/enrollment/education process appears to be done through CPAWSB. [ 36 ] Therefore, while it appears from much of the record that CPA SK has by written agreement delegated its responsibility over student candidates to CPAWSB, and that CPAWSB has in fact carried out that registry function, there is nothing in the statute, the Bylaws or the Rules that states that this contractual delegation of statutory authority altered the suspension process for candidates vis-à-vis registered members.

CPA SK says this gap is filled by s. 2.4 of the HEP and the relevant Bylaws in relation to suspensions. In that regard, it argues the HEP and Bylaws provide CPAWSB with the authority to suspend candidates. However, the HEP specifically refers to the suspension of students from “their respective programs”, not the suspension of candidates from CPA SK itself. In any event, the

preamble to the HEP states that “[t]he specific regulations and bylaws of the provincial/regional bodies take precedence over these general guidelines and requirements”. Furthermore,

Article 6.7(2) of the Western Operating and Agency Agreement has similar language and states that that agreement does not diminish the applicable legislation of any western province. Moreover, Administrative Bylaw 130.10 states that if a candidate does not pay their fees, they may be suspended “in accordance with The Accounting Profession Regulatory Bylaws 2018 (Saskatchewan)”, indicating that the suspension procedure in the Bylaws must be followed. None of this supports the conclusion sought by CPA SK, which is that CPAWSB had the lawful authority to suspend Mr.

Chenjelani from his registration as a candidate with CPA SK. [ 37 ] While Regulatory Bylaw 11.2 gives the Board the power to delegate the registration and administration of CPA PEP to CPAWSB, the Bylaws say nothing about whether the suspension procedure outlined under Regulatory Bylaw 33.1 should not or does not apply to CPA PEP candidates because they are under the administrative “management” of CPAWSB by reason of a contract for services. [ 38 ] In fact, given the

definitions in the interpretive provisions of The Accounting Profession Act , the suspension procedure under the Bylaws should apply equally to candidates and registered accountants. The following

definitions are relevant: 2 In this Act: … (e) “candidate” means an individual who is registered with the institute and enrolled in an education program approved by the institute ; … (k) “member” means an individual whose registration is in good standing; … (o) “registrant” means a person that holds a valid registration and includes a member, firm and candidate; … (r) “suspended registrant” means a person whose registration with the institute has been suspended. (Emphasis added) [ 39 ] The suspension procedures under Regulatory Bylaw 33.1 and Rule 333.1 specifically use the term “registrant”, which is defined in The Accounting Profession Act to mean “a person that holds a valid registration” and which expressly includes “candidates”. [ 40 ] Given this, I agree with Mr.

Chenjelani that, regardless of whether the Board intended to contractually delegate the jurisdiction to suspend a candidate’s registration with CPA SK to CPAWSB, that authority remained with CPA SK pursuant to all of the Bylaws, Rules, policies and agreements filed with this Court. This means that the manner in which Mr. Chenjelani was suspended from his registration as a candidate in no way complied with the procedure outlined under Regulatory Bylaw 33.1 and Rules 333.1 and 333.2. [ 41 ] I turn now to consider whether the effect of not following this procedure gave rise to procedural unfairness.

Before I do that, it is worth commenting that following his (albeit invalid) suspension, Mr. Chenjelani was given significant latitude by the Registrar and the Registration Committee and was afforded several opportunities to rectify his situation before it got to the point where his registration was ultimately cancelled. Additionally, although it was not the proper procedure, Mr. Chenjelani was given many notices of the impending suspension and cancellation of his registration, which he chose to ignore. It is not lost on me that Mr.

Chenjelani chose not to respond or take any action when notified that he was required to pay the fees that he knew he owed in order to maintain his enrolment and his registration. While this makes it difficult to sympathize with Mr. Chenjelani, this does not detract from the fact that the mandated suspension procedure was not followed by CPA SK nor does it affect the following analysis of whether that failure gives rise to procedural unfairness. 4.

Did CPA SK’s failure to follow its own procedures give rise to procedural unfairness? [ 42 ] The framework for determining the content and scope of procedural fairness owed to any given individual in an administrative context was settled by the Supreme Court in Baker . In that decision, L’Heureux-Dubé J. outlined a list of non-exhaustive factors relevant to determining the content of the duty of fairness, as follows:

(a) “[T]he nature of the decision being made and the process followed in making it” (at para 23); (b) “[T]he nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (at para 24, quotingOld St. Boniface Residents Assn.

Inc. v Winnipeg (City), (SCC), [1990] 3 SCR 1170); (c) “[T]he importance of the decision to the individual or individuals affected” (at para 25); (d) “[T]he legitimate expectations of the person challenging the decision” (at para 26); and (e) “[T]he choices of procedure made by the agency itself” (at para 27). [43] In addressing the legitimate expectations factor, L’Heureux-Dubé J. indicated that: [26] … As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to theindividual or individuals affected by the decision.

If the claimant has a legitimate expectation that a certain procedure will be followed,this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d)57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada(Minister of Employment and Immigration), (FCA), [1989] 3 F.C. 16 (C.A.). … (Emphasis added) [44] CPA SK’s submission under Baker focuses mainly on the final decision of the Board and it does not address the originaldecision to suspend Mr.

Chenjelani that was undertaken by CPAWSB. This, in my opinion, is where the procedural fairness issues arise.As the Chambers judge indicated in his decision, once the Registrar got involved, “both the Registrar and Registration [Committee] wentout of their way to assist the applicant” (at para 38). From the record of communication, it appears that Mr. Chenjelani was givensignificant latitude and assistance in attempting to salvage his candidacy. However, this still does not address the fact that his initialsuspension was not done in compliance with the Bylaws.

Later in the Decision, the Chambers judge went on to find that the CPA SK hadfollowed its internal processes: [41] The decisions made by the Registrar, the Registration Committee, and, ultimately, the Board were administrative in nature, andgoverned by internal policies and procedures which as I have noted were followed, and often exceeded. The applicant had these decisionsreviewed more than once, and finally by the Board.

Unlike the appellant in Feng, the applicant was provided notice of the decisions of theRegistration Committee, an opportunity to respond to those decisions, notification of the date and time the Board would convene toconsider his application, and notice of the reasons for the Board’s refusal to reverse the Registration Committee’s decisions. In myrespectful view, the procedural fairness accorded to this applicant more than complied with the requisite principles of natural justice. See:Feng at paras 69-72. (Emphasis added) [45] In making this statement, the Chambers judge was in error.

CPA SK did not comply with its Bylaws and this core issue has notbeen addressed in any of the previous proceedings in this matter. [46] Continued non-payment of fees is undoubtedly a valid reason for a candidate’s suspension. Regulatory Bylaw 33.1 states that aregistrant can be suspended if they have not complied with “a requirement specified in a Rule or a notice within the time specified in aRule or a notice”. Administrative Bylaw 130.1 sets out the provisions surrounding fees owed by candidates. By not paying his fees, Mr.Chenjelani was clearly in contravention of the Bylaws.

However, CPA SK did not follow its own procedures. To properly suspend acandidate for non-payment of their fees, the Registrar must recommend that the candidate be suspended to the Registration Committee,pursuant to Rule 333.1. The candidate must be notified of such a recommendation and of their right to provide submissions regarding thesuspension pursuant to Regulatory Bylaw 33.3 and Rule 333.2. Then, after hearing from the candidate, the Registration Committee is tomake a ruling on the suspension. Had this procedure been followed, it is entirely possible that Mr. Chenjelani would have nonethelessbeen suspended.

However, because this process was not followed, there is no way of knowing if this outcome would have been ordered.As it is, his suspension was made without him having had the benefit of explaining why it should not occur.

Baker emphasizes this point: [22] … [U]nderlying all these factors is the notion that the purpose of the participatory rights contained within the duty of proceduralfairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and itsstatutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidencefully and have them considered by the decision-maker. [47] Although CPA SK cited Akpan extensively to argue that non-compliance with a procedural rule is not always fatal to a decisionor does not necessarily equate to a breach of procedural fairness, the ultimate conclusion by this Court in that decision was that the non-compliance with the rules in that case did amount to a denial of procedural fairness.

I also note that, in that decision, the Chambers judgedid conclude that a procedural rule had been violated but found that it was not “a fundamental procedural error that seriously affected theoutcome” (Akpan v University of Saskatchewan Council, 2021 SKQB 21 at para 38). [48] In this case, the Chambers judge did not find that a procedural rule had been violated, when clearly it had.

In Akpan, there wasconsiderable discussion about the meaning of the words in the regulations at issue and about whether the words were mandatory ordirectory would mean that non-compliance with the regulations was, in fact, a denial of procedural fairness.

The following passage isillustrative of that point: [23] See, to the same effect, Merchant v Law Society of Saskatchewan, 2014 SKCA 56 at paras 110–112, [2014] 6 WWR 643; Canadav South Yukon Forest Corporation, 2012 FCA 165 at para 63, 431 NR 286; and United Food and Commercial Workers, Local 1400 vAffinity Credit Union, 2019 SKQB 236 at paras 13–20, 310 LAC (4th) 49. Sara Blake, Administrative Law in Canada, 6th ed (Toronto:LexisNexis, 2017) at 10, offers the following helpful comments on this issue: ¶2.16 Some prescribed procedures must be followed strictly while others are flexible.

Which procedural rules are mandatory? A rule may

be prescribed as something that “shall” be done or “may” be done.

Interpretation Acts state that “may” is to be construed as permissive while “shall” must be construed as imperative.

However, the courts sometimes construe “shall” or “must” as being not mandatory and some doubt the usefulness of the traditional distinction between rules that are mandatory, which must be followed, and those which are directory and may be waived. ¶2.17 The procedural choices in a specific case should reflect the statutory purposes of the proceeding and of the procedural requirement and should ensure that each party has a fair opportunity to be heard consistent with the significance of the effect of the decision on that party.

If non-compliance with a procedural rule is likely to cause prejudice to a party’s right to be heard and if important interests of the party are at stake, compliance with the rule may be mandatory. Prejudice must be proven with evidence as it cannot be assumed simply from proof of non-compliance with the rule. Conversely, the public interest and statutory purposes should not be defeated by overly strict adherence to procedural rules.

Common sense should be applied. (Footnotes omitted in original) [ 49 ] In applying this logic, this Court held that the wording in the regulations at issue in that decision were imperative. From my reading of the Bylaws and Rules governing this appeal, I would adopt the same

interpretation. [ 50 ] CPA SK submits that even if this Court finds that there was non-compliance with the Bylaws, the decision of the Board remains reasonable and should nevertheless be upheld. In particular, it argues that had the procedure been followed, the outcome would have been the same because Mr. Chenjelani had no intention of paying his fees. It is possible that if the Registrar had properly notified Mr. Chenjelani of the recommendation to the Registration Committee to suspend him and of his right to make submissions, he may have remained silent. However, this is speculation.

Moreover, where procedural unfairness has occurred in the decision-making process, the reasonableness of the decision of the tribunal in question is irrelevant: see Dunsmuir at para 108 ; Baker at para 26 ; and Vavilov at paras 23 and 136 . [ 51 ] Further, while his conduct regarding the notices of his suspension by CPAWSB indicates that Mr. Chenjelani had no intention of paying his fees regardless of the consequences, in those notices, Mr. Chenjelani was never presented with an opportunity to explain himself or the financial difficulties that he was purportedly facing at that time.

Within the notices from CPAWSB, he was only told that he had to pay the dues or he would be suspended. He was never notified of any appeal process or recommendation process under which he could provide submissions regarding his inability to pay his dues and comply with the Rules. Had the proper procedures been followed, Mr. Chenjelani may have provided submissions to the Registration Committee and explained why he was unable to pay his fees at that time and, perhaps, the suspension may not have occurred in the first place.

However, this too is speculation. [ 52 ] The trouble with all of this is that it is unknown what would have occurred had the correct procedure been followed or, more pointedly, had the decision-making process been fair. Similarly, in Akpan , this Court stated: [37] … Given that any record that does exist is essential for purposes of the sanctions process, I conclude that the obligation imposed by s.

VIII.3 [of the Regulations on Student Academic Misconduct ] is mandatory, as a failure to comply with that provision results in prejudice to the right to a fair hearing, in circumstances where important interests are at stake. That non-compliance constituted a material breach of the duty of fairness. [ 53 ] I am not opining on whether Mr. Chenjelani’s suspension was an inappropriate consequence of his breach of the Rules, only that such a consequence should be imposed in compliance with the mandated procedural requirements of the Bylaws.

Therefore, his suspension is something that should have been contemplated by the Registration Committee in consideration of his submissions, if he had chosen to make them. V. REMEDY [ 54 ] As a breach of procedural fairness has beeen found, the appropriate remedy is to set aside the decision of the Chambers judge and the Board and to remit this matter to the Registrar of CPA SK for redetermination of the issue: South East Cornerstone School Division No. 209 v Oberg , 2021 SKCA 28 at para 139 , 457 DLR (4th) 224, citing Dunsmuir at para 108 . See also: Baker at para 77 ; and Akpan at paras 52–53 . Although Mr.

Chenjelani requested that this Court reinstate him upon payment of his fees, such a remedy would not be appropriate in this case. [ 55 ] I would set aside both the Decision and the decision of the Board cancelling Mr. Chenjelani’s registration, and would remit the issue of Mr. Chenjelani’s suspension to the Registrar. If the Registrar makes a recommendation to suspend Mr. Chenjelani, he must be afforded the opportunity to provide submissions to the Registration Committee before it decides on the matter in compliance with the Regulatory Bylaws. VI. COSTS [ 56 ] Mr.

Chenjelani shall have his costs of the appeal, which I would fix at $1,000. “Whitmore J.A.” Whitmore J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.