Clark v. Institute of Chartered Accountants of
Alberta (Complaints Inquiry Committee), 2015 ABCA 271, concluding that an appeal of
disciplinary findings to the Court of Appeal should not be restored
after it was deemed abandoned for significant delay.
Mr. Clark was found guilty of unprofessional conduct by the
Institute of Chartered Accountants of Alberta (the
"Institute") after he invested in a Ponzi scheme and
facilitated the investment of others. He appealed the finding of
professional sanctions and costs to the Appeal Tribunal of the
Chartered Professional Accountants of Alberta ("CPAA"),
formerly the Institute. The Appeal Tribunal affirmed the findings
and Mr. Clark further appealed to the Court of Appeal of
Nine months after the appeal was filed Mr. Clark had still not
filed written argument with the Court of Appeal. As a result the
Registrar of the Court of Appeal struck his appeal and ordered that
the appeal would be deemed abandoned if Mr. Clark did not bring an
application to restore it within six months. Mr. Clark failed to
bring such an application within the time period, and the appeal
was deemed abandoned in March 2015. By July 2015, the CPAA began to
take steps against Mr. Clark to enforce the fines and costs orders
(which had remained unpaid through the appeal processes). Mr. Clark
resisted the enforcement steps of the CPAA, eventually filing an
application to restore the appeal in August 2015.
The Court of Appeal noted that the decision to restore an appeal
which has been deemed abandoned is discretionary, and will include
consideration of factors such as: whether there is a reasonable and
sufficient explanation for the delay; whether there is an intention
to proceed with the appeal; whether the appeal has merit; and
whether the delay will unduly prejudice the respondent (here, the
In these circumstances the Court concluded that none of the
factors weighed in favour of restoring the appeal. There was no
reasonable excuse for the delay (a delay which was characterized as
"significant"). While Mr. Clark indicated an intention to
proceed with the appeal, he took no concrete steps to do so.
Further, the merits of the appeal were minimal.
Finally, the comments of the Court with respect to prejudice to
the CPAA are most noteworthy. The Court concluded that the CPAA
approached the litigation in a fair and reasonable way, and
didn't take steps to pursue the costs and fines awarded against
Mr. Clark until he had exhausted his route of appeal. It only took
steps to enforce once the appeal had been deemed abandoned. This
involved an expenditure of time and legal fees on the CPAA's
behalf, and the CPAA is entitled to finality in the proceedings
against it. Restoring the appeal would require the CPAA to revisit
previous steps in the litigation, causing it significant prejudice.
As such, the application of Mr. Clark to restore his appeal was
Comment: Clark demonstrates
that courts are prepared to extend fairness to regulators as well
as their members to protect each from prejudice in appropriate
cases, so long as the party acted reasonably and fairly. Regulators
are entitled to finality in their decisions, and requiring a
regulator to respond to an appeal which has been deemed abandoned
will cause prejudice to the regulator.
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