Erdmann v. Complaints Inquiry Committee, 2016 ABCA 145
Areas of Law: Self-Regulating Professions; Unprofessional Conduct; Complaints, Costs
~Under s. 94(2) of the Regulated Accounting Profession Act, the normal rule is that when a chartered accountant is found guilty of unprofessional conduct, he or she is to pay the reasonable costs of the Institute on an indemnity basis~
BACKGROUND
The Appellant, Marie Erdmann, was a chartered accountant and the subject of three allegations of unprofessional conduct. The allegations claimed that she made false or misleading statements about a Mr. Waring, CA, a trustee in bankruptcy; that she attempted to threaten or intimidate him into withdrawing a complaint he made against her to the Institute of Chartered Accountants of Alberta; and that she breached an order of the Court of Queen's Bench restraining her from making any complaints to any regulatory body, public body, police force, government agency or any other body or organization whatsoever without first obtaining leave of the court on notice to the Institute. The Appellant had consulted Mr. Waring about filing a proposal in bankruptcy, but after he filed the proposal she decided she did not want to proceed with it. She asked him to withdraw it, but he replied that there was no provision in the statute allowing for withdrawal of a proposal once filed. At this point the Appellant sent faxes to the Superintendent of Bankruptcy and to "Alberta law courts" complaining that Mr. Waring had duped her and had her sign documents without really explaining them. In an unrelated discipline proceeding against the Appellant, the Institute had already obtained a Court of Queen's Bench order prohibiting her from making or threatening to make complaints without leave of the court obtained on notice to the Institute. She did not obtain such leave before filing the complaint against Mr. Waring. The Appellant applied in the Court of Queen's Bench to set aside the bankruptcy filing, repeating her allegations against Mr. Waring in the process. The application judge set aside the bankruptcy filing, but specifically rejected allegations of wrongdoing against Mr. Waring and his staff, and ordered the Appellant to pay Mr. Waring's costs. Mr. Waring filed the complaint of unprofessional conduct against the Appellant. She then sent an email to his lawyer saying the complaint related to confidential information he obtained while her trustee, and impliedly threatening action against him for breach of confidentiality unless he withdrew the complaint. The Institute's Discipline Tribunal found that the Complaints Committee had proven all allegations on a balance of probabilities, and ordered the Appellant to pay fines totalling $7,500 and 75% of the costs of investigating and hearing the matter, in the amount of $69,000. The Appellant appealed to the Institute's Appeal Tribunal. The Tribunal gave the Appellant the opportunity to provide testimony in the appeal, but she consistently refused to be put under unconditional oath and make herself available for cross-examination. In its written reasons, the Appeal Tribunal rejected all of the grounds of appeal, finding the Appellant to be a repeat offender exhibiting dishonesty and lack of remorse. It found the fines reasonable, and ordered her to pay the costs of the appeal.
APPELLATE DECISION
The appeal was dismissed. The Appellant brought the appeal on numerous grounds, including procedural incorrectness, failure to comply with governing legislation, breach of natural justice, res judicata, issue estoppel, insufficient or unreliable evidence, and conflict of interest. She also argued that she was not legally competent and that the costs awards were excessive. The Court of Appeal found that the Appeal Tribunal committed no reviewable error regarding the governing legislation and procedure. There was similarly no breach of natural justice. The specific allegations against the Appellant were served upon her, and a copy of the disclosure binder was mailed to her. It was returned "refused by sender". She also refused to provide the Discipline Tribunal with a current address to which the binder could be delivered, and she refused to pick it up. There was no merit to the other grounds of appeal the Appellant advanced. The Court of Appeal noted that under s. 94(2) of the Regulated Accounting Profession Act, the normal rule is that when a chartered accountant is found guilty of unprofessional conduct, he or she is to pay the reasonable costs of the Institute on an indemnity basis.
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Originally published by OnPoint Legal Research | Take Five
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