Discipline Tribunal Decisions (Since January 1, 2008)
The following are summaries of the decisions of the Discipline Tribunal since January 1, 2008. The complete decisions are maintained at the offices of the Institute. Summaries of decisions of the Discipline Tribunal prior to December 31, 2007 are available on the Members Only section of the Institute's website.
#1 D. STUART MACDONALD
Hearing:June 15, 2009
Panel: Alison M. Morse, FCA (Chair); Ron Rozen, CA; and Susan Burns
Summary: The Professional Conduct Enquiry Committee (“PCEC”) issued a Statement of Complaint dated March 20, 2009 alleging that the Member had violated Bylaw 650, which requires a member to “cooperate with practice review officers and the Committee and (...) answer requests of the practice review officer for information relevant to the practice review of a member or licensed firm, and permit a practice review officer to examine and to take copies of books, documents and working papers, including client files (…)”. The PCEC also alleged that the Member had breached Rules 105 and 201.1 of the Rules of Professional Conduct, which require a member “to cooperate with practice review officers and (…) with Professional Conduct Enquiry Committee investigations” and to “act at all times in a manner which will maintain the good reputation of the profession and its ability to serve the public interest”.
The Member was notified that a practice review would be conducted on a particular date in 2007. Two questionnaires were sent for the Member to complete in advance of the practice review and he was notified that he should prepare a client list for review on that date. Practice review officers visited his office to undertake this scheduled practice review but the questionnaires were not returned and no client files were made available. Another appointment was scheduled but on the day before that meeting was to take place, the Member advised that he would be unable to attend. Although he promised to complete and send in the questionnaires, this did not occur. Another practice review officer attended at the Member’s office on a later date but the Member was unable to produce the selected files, instead bringing files from an earlier period. Although the Member said he would retrieve the requested files from his home office, this did not occur, nor did he drop off the files at the Institute office, as he promised to do on two later occasions. The Director of Practice Review and Licensing then formally requested the files by registered mail; the files were never produced.
Subsequently, a contract investigator for the PCEC spoke with the Member and sent emails to him in advance of the PCEC’s meeting at which his conduct was to be considered. He promised to provide written submissions but did not do so. The PCEC issued a Determination and Recommendation, which was subsequently agreed to in writing by the Member. One of its conditions was that the Member would immediately provide the requested files; they were never produced. Therefore, a Statement of Complaint was referred to the Discipline Tribunal.
Decision:The Panel decided that Bylaw 650 and Rule 105 had been breached. The Member had failed utterly to cooperate with the practice review officers or to permit practice review officers to examine and to take copies of the relevant records. Although the Member testified that there were mitigating personal circumstances relating to the relocation of his office and related storage concerns, the Panel did not consider these circumstances to be sufficient to explain his unwillingness or inability to comply with the requests of the practice review officers. The Panel likewise found Rule 201.1 had been breached. The Member’s past behaviour and earlier practice reviews and service to the Institute were insufficient to mitigate his conduct. Rule 201.1 was considered clear: Members ‘shall’ and ‘at all times’ act in a manner which will maintain the good reputation of the profession and its ability to serve the public interest. Given the two-year period during which the requested files had not been forthcoming, the Member was unable to demonstrate that he was conducting his practice as a professional chartered accountant and thus serving the public interest.
Penalty:The Panel unanimously ordered that:
- his membership in the Institute be cancelled and his certificate be returned to the Institute;
- the Panel’s decision be delivered to the Council, the Member, the Chair of the PCEC, and the Chair of the Practice Review and Licensing Committee and a summary of the decision be published on the Institute’s web site. In addition, a notice be published in the Vancouver Sun to the effect that the Member had been expelled from membership in the Institute and that his certificate be surrendered; and
- the Member pay allowable costs in the amount of $10,871.
For the Member: In Person
For the Institute: George E. H. Cadman, QC and Heather Craig
Counsel to the Panel: T. Murray Rankin, QC
Note: The Member appealed the Panel’s decision and order to the Supreme Court of British Columbia. The appeal was heard on November 10, 2009 and on November 27, 2009, the Supreme Court dismissed the Member’s appeal with costs payable to the Institute. The Member sought leave to appeal this decision to the Court of Appeal, which was granted. On November 5, 2010, the Court of Appeal dismissed his appeal with costs payable to the Institute.