The Manitoba Court of Appeal has ruled that a professional body may hear submissions on sentencing before a finding of misconduct of a professional member if the legislation and bylaws provide for it.
The determination of whether a separate hearing respecting the appropriate penalty must be held only after a finding of professional misconduct will be based on the legislation and bylaws of a given professional body, as well as the following non-exhaustive factors:
- the past practices of the regulator;
- any representations made or not made to the member or their counsel by the panel regarding sanctions and the timing as to submissions respecting sanctions;
- the nature of the allegations; and
- the severity of the penalty being considered.
Members should be cognizant that their right to be heard regarding sanctions may be limited if they have been put on notice that there will only be one combined hearing on the merits and sanctions. A member’s right to be heard with respect to sanctions may also be limited if the member was given the opportunity to make submissions on sanctions prior to a finding of guilt.
Likewise, regulators should consider the language of their governing legislation and their past practices in determining whether to hold separate sentencing hearings on penalty. Unless the governing legislation says otherwise, regulators will have to consider whether to hold a separate sentencing hearing in every case, taking into consideration the subjective factors of representations made by the panel regarding sentencing prior to a finding of guilt, the nature of the allegation and the severity of the penalty.
If a regulator does not intend to provide a member with the opportunity to make submissions as to sentencing by way of separate hearing, it must put the member on notice at the time of the initial hearing of the sanctions being considered and provide the member with a genuine opportunity to address the issue of the potential sentence.
Background
Asfaw v. Chartered Professional Accountants of Manitoba was an appeal to the Manitoba Court of Appeal from a decision of the Discipline Committee of the Chartered Professional Accountants of Manitoba. The Member was found guilty of professional misconduct for knowingly and falsely representing herself to the public as being eligible and qualified to provide reserved public accounting services when she was not eligible or qualified to do so, among other things.
Prior to the Panel’s finding of guilt, the Member had the opportunity to make submissions at two separate instances of the proceeding. The Panel ultimately imposed a suspension of one month or until her website was brought into compliance with The Chartered Professional Accountants Act, CCSM c C71 (the “Act”), whichever period is longer, the completion of an ethics course at the Member’s own cost and as selected by CPA Manitoba, a fine of $10,000, and a payment of $30,000 in costs.
The Appeal
The Member advanced two grounds of appeal:
- a breach of procedural fairness occurred when the Panel requested submissions regarding appropriate sanctions after the hearing of the matter, but before a finding of guilt; and
- the process chosen by the Panel resulted in an apprehension of bias.
Alleged Breach of Procedural Fairness
The Member argued that the high duty of procedural fairness owed to a member in a discipline proceedings before CPA Manitoba required the Panel to follow the same procedure as sentencing hearings in criminal law. In criminal law, submissions on sentencing are only heard after a finding of guilt.
The Court agreed that a high degree of procedural fairness is required in proceedings where a member has been alleged to have committed professional misconduct; however, the Court found that the Act and bylaws of CPA Manitoba “allows for a single hearing regarding both guilt and sanction” (Asfaw, para. 7). This is unlike s. 720(1) of the Criminal Code, which mandates that separate sentencing hearings be conducted after a finding of guilt in a criminal proceeding.
In interpreting CPA Manitoba’s obligations under the Act, the Court reviewed relevant provisions in the Act which speak to the discipline committee’s ability to determine its own practice and procedure subject to its bylaw, the Panel’s obligation to issue a written decision, and a members’ right to be given opportunity to make submissions subsequent to a finding of deemed professional misconduct.
Importantly, the Court maintained that there is no provision in the Act or bylaw that requires the Panel to hear sentencing submissions only after a finding of guilt. The Court stated that the Panel’s broad authority to determine its own procedures regarding sentencing is further confirmed under ss. 78 to 81 of the Act, which allow the Panel to “make an order against a party at the conclusion of a professional misconduct hearing that results in a finding of guilt” (Asfaw, para. 7).
The Court found that other jurisdictions had confirmed that members’ “procedural right to be heard in administrative proceedings does not necessarily amount to a right to have separate hearings on liability and sanction” (Asfaw, para. 8). Instead, regulators must consider in each case whether it is fair to the member that sentencing not be addressed by way of separate submissions only following a finding of guilt. The Court relied on the oft-cited factors from Baker v. Canada (Minister of Citizenship and Immigration) 1999 CanLII 699 (SCC), [1999] 2 SCR 817 (the landmark case in administrative law that provided five factors that are now used as guidelines by judges when reviewing whether an administrative procedure was fair in the circumstances before them) in describing the following non-exhaustive factors that are to be used in determined whether a separate sentencing hearing is required:
- the nature of the decision being made and the process followed in making it;
- the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
- the importance of the decision to the individual or individuals affected;
- the legitimate expectations of the person challenging the decision; and
- the choices of procedure made by the agency itself, particularly when the agency has expertise in determining what procedures are appropriate in the circumstances.
The Court held that the Member knew at the time of the hearing what the possible and requested sanctions were. The Court examined the record of the proceeding and identified that the Member had two opportunities to make submissions on sentencing prior to the finding of guilt. The Member, however, “chose not to take advantage of either opportunity” (Asfaw, para. 9).
The case law cited in Asfaw suggests that as long as the member has had a “genuine” opportunity to make submissions on sanctions prior to the finding of guilt (Therrien (Re), 2001 SCC 35 at paras. 89-90.) and was put “on notice” as to the nature of the sentence that is being contemplated (Johal v. Funeral Services, 2012 ONCA 785 at para. 9), there is likely no need for a separate hearing respecting sentencing.
Reasonable Apprehension of Bias
The Court stated that holding the discipline phase and sentencing phase of a proceeding without further submissions did not give rise to a reasonable apprehension of bias. As discussed in the prior ground of appeal, the Court. explained that the practice and procedure taken by the Panel was in compliance with the Act and bylaws and supported by the jurisprudence. Furthermore, the Court noted that a review of the record “demonstrates that the panel considered liability before sanctions” (Asfaw, para. 10).
The appeal was dismissed.
Discussion and key takeaways
Although the Manitoba Court of Appeal ruled that a two-hearing model was not needed in the circumstances, this was not a blanket statement by any means (Asfaw, para. 8). Courts have recognized that there are cases suggesting that the separation of the discipline hearing and penalty hearing is warranted in some circumstances, such as when “the allegations of professional misconduct are substantial in nature and the penal consequences severe” (The New Brunswick Real Estate Association v. Moore, 2007 NBCA 64 (“Moore” at para. 21). Further, it may simply be “impossible or impractical” in some instances to argue penalty when a decision on the merits of the allegation have not been made (Moore at para. 2).
Consider, for example, discipline hearings involving multiple serious allegations against the member. If the member is found guilty of some but not all the allegations, the member cannot make submissions on sanctions “until such time as liability is determined, the severity of culpability is established and the specific offence on which liability has been found to exist is known” (Moore at para. 2).
In determining whether a panel should adopt the two-hearing model in a given circumstance, a review of legislation the first step. However, the Baker factors should inform parties whether the “fact pattern requires a different conclusion than that suggested by the statutory construction” in the governing legislation (Best Import Auto Ltd. v. Motor Dealer Council of British Columbia, 2018 BCSC 834 at para. 50).
The parties involved in a discipline proceeding should always:
- review the professional body’s enabling statute and bylaws to determine whether the regulator can hear sentencing submissions prior to a finding of guilt. If the regulator is permitted to do so, counsel should be prepared to provide the panel with its submission on sentencing before any finding of guilt is made;
- consider whether the legislature identifies whether a procedure must be followed or whether it remains silent on a procedural issue;
- consider in each case whether the panel is obliged, based on principles of procedural fairness, to provide a separate sentencing hearing only after a finding of guilt has been made. If a panel determines that no such separate hearing is required and that no such separate hearing will be held, it must put the member on notice of the potential sanctions being considered and provide the member with a genuine opportunity to address the issue of sentencing;
- clearly raise any concern that a separate sentencing hearing is required by the Panel and place it on the record. However, if the Panel appears to be proceeding on the basis of a single hearing, it is likely prudent for the parties to make submissions as to penalty when given the opportunity to do so even before the finding of misconduct; and
- be careful not to equate procedural elements of the criminal law with the practice and procedure of professional discipline hearings. While a disciplinary panel may be informed by criminal law sentencing principles, the panel is not obligated to follow criminal procedure when sanctioning a member (Young v. College of Physicians and Surgeons (Saskatchewan), 2005 SKCA 118 at para. 19).
For more information, contact one of our Regulated Professionals team members, including Helga Van Iderstine, K.C. (Manitoba), Sharon Au (Alberta) and Lynsey Gaudin (British Columbia).
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.