In Chartered Professional Accountants of Alberta (Complaints Inquiry Committee) v Mathison, 2024 ABCA 33 (Strekaf, Antonio JJA) the majority of the Alberta Court of Appeal overturned the discipline imposed on a chartered professional accountant by a discipline appeal body, and reinstated the discipline imposed by the CPAA.
This case also has a lengthy dissent by Wakeling JA, where he concludes that the key witness of the CPAA had been partial (biased) and that all of the findings of unprofessional conduct by the accountant should be overturned.
This case is important because there are only a handful of professional regulation decisions at the Court of Appeal level, and because I am betting this one will be accepted on appeal to the Supreme Court of Canada.
Facts
The following were the facts summarized by the majority of the ABCA:
- The appellant, Darrell Mathison, is a chartered professional accountant
- Mathison had been CFO of Canada Pump and Power
- The CPAA found he had received money for several months from his employer that he knew he was not entitled to receive, paid money to a third party supplier he was a shareholder of when he had been explicitly told by the CEO not to, and paid himself a bonus that he knew he was not entitled to
- A complaint of unprofessional conduct was made against Mr. Mathison to his regulatory body, the Chartered Professional Accountants of Alberta
- The CPAA found him guilty of unprofessional conduct. They suspended his license for 2 years, imposed a fine of $15,000, and required him to pay 100% of the costs of investigation and hearing
- The complaint inquiry committee appealed, seeking cancellation of his registration, and he cross-appealed, seeking that the penalty imposed by the CPAA be vacated
- The appeal tribunal increased his penalty, cancelling (revoking) his license as an accountant altogether
- Mr. Mathison appealed again, this time to the Court of Appeal, which is the one we are summarizing today
Analysis / Conclusion
The majority of the Court of Appeal first went through the factual findings on the allegations and found no reviewable error on any of the findings of fact made by the CPAA or its appeal body. It dismissed this ground of appeal.
The Court of Appeal then considered whether the sanctions imposed by the CPAA and its appeal body were appropriate.
The CPAA had noted that Mr. Mathison’s conduct did not involve the same level of intent as cases of fraud and embezzlement that resulted in license cancellation (revocation), and so they chose a 2 year suspension penalty. The appeal body then found that there was the same level of intent, and imposed a cancellation. The majority of the Court of Appeal found it was open to the CPAA to find there was less intent than some cancellation cases, and went on to find that since the CPAA only found Mr. Mathison “knew or ought to have known” that some of his conduct was improper, as opposed to specifically finding he outright “knew” it was improper, the appeal body erred in describing this as “the intentional and wrongful taking of a client or employer’s money.”
The majority of the Court of Appeal found that the professional discipline originally imposed by the CPAA, of a 2 year suspension, had been reasonable in the circumstances and should not have been overturned by the appeal body. It therefore reinstated the decision of the CPAA and imposed a 2 year license suspension penalty instead of a cancellation (revocation).
Wakeling, J.A. (Dissent)
Wakeling, JA, of the Alberta Court of Appeal issued a lengthy dissent. A dissent is always significant, but a dissent in the employment context by Wakeling, JA should especially not be ignored.
Wakeling starts out his reasons with a fairly blatant signal that he would like to Canada’s top court, the Supreme Court of Canada, to hear this matter and overturn the majority reasons:
[92] This is an important professional regulatory case of interest to all Canadians. It brings into question the standards a professional regulator must adhere to before it deprives a regulated member of the right to practice a profession and earn a livelihood and the appropriate response of a professional regulator that has good cause to believe a complainant is weaponizing the professional regulator’s complaint process.
The Dissent concluded that this was a civil dispute between Mr. Mathison and the CEO of his former employer. Mr. Mathison’s former employer terminated his employment, purportedly for cause. The CEO was hostile to Mr. Mathison and the dissent found that the CPAA ought to have assessed the impact this had on his evidence. The dissent was of the view that the misconduct complaint was likely collaterally motivated to prevent a wrongful dismissal complaint by Mr. Mathison, and his evidence was therefore partial and suspect.
The Dissent concluded that the CPAA had treated the phrasing “knew or ought to have known” in one of the charges against Mr. Mathison, and “knew” as bearing the same standard of blameworthiness, which the dissent found was inappropriate – if someone “knew” they were not supposed to take something and took it, this would be far worse than if someone “knew or ought to have known”.
The Dissent also concluded that some of the facts found by the CPAA surrounding the alleged improper taking of money were not reasonable because it was not at all clear whether Mr. Mathison “knew or ought to have known” that he was not entitled to certain money.
The Dissent concluded that the case could not have stood against Mr. Mathison without the evidence of the CEO, and relying solely on the evidence of a partial witness was an overriding error that rendered the decision of the CPAA and the appeal tribunal unreasonable.
My Take
This decision is interesting to me, and the difference in the majority and dissenting judgments illustrates how critical the weighing of evidence can be to the outcome of a decision.
I am excited to see if the Supreme Court of Canada takes this one on.
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