Published In: Administrative Law Newsletter – 18.Sep.18 September 18, 2018

Case Summary: The Applicant, Chartered Professional Accountants of British Columbia (“CPABC”), unsuccessfully sought leave to appeal a decision of the British Columbia Supreme Court. The Supreme Court had allowed a statutory appeal from a discipline decision made by the CPABC against the Respondent, Mr. Vuong Nguyen.

Administrative law – Decisions reviewed – Chartered Professional Accountants Disciplinary Committee – Judicial review – Appeals – Correctness – Accountants – Disciplinary proceedings – Procedural fairness

Nguyen v. Chartered Professional Accountants of British Columbia, [2018] B.C.J. No. 1428, 2018 BCCA 299, British Columbia Court of Appeal, July 17, 2018, J.E.D. Savage J.A. (In Chambers)

Mr. Vuong Nguyen (“Mr. Nguyen”), the Respondent, is a qualified and certified chartered accountant. He was disciplined by a tribunal of the Discipline Committee (the “Tribunal”) of the Appellant, the Chartered Professional Accountants of British Columbia (the “CPABC”).

Mr. Nguyen operated SG & Associates Tax and Accounting Services (“SG&A”) until he sold the business in 2005 to an unlicensed accountant, Mr. Vincent Nguyen (“Vincent”). Mr. Nguyen opened a new business in the same building later. In early 2014, Mr. Nguyen applied for a new license to operate as a chartered accountant under the name of Nguyen & Co. (“N&C”).

In September 2014, SG&A (owned by Vincent) was asked to prepare financial statements for a school. Vincent realized that a Review Engagement Record (“RER”) was required from a certified accounting firm and SG&A did not meet this requirement. Vincent signed the RER himself.

In January 2015, SG&A’s business was transferred back to Mr. Nguyen and he proceeded to perform accounting work for SG&A’s clients. The CPABC became aware of the improper RER and investigated Mr. Nguyen. At the disciplinary hearing, the Tribunal found Mr. Nguyen guilty of professional misconduct because he knew, or ought to have known, that the RER was false or misleading.

Mr. Nguyen appealed the Tribunal’s decision to the Court and argued the Tribunal had (a) reversed the onus of proof, (b) found him guilty of conduct outside the scope of the complaint, and (c) made factual findings without any supporting evidence and ignoring relevant evidence. The Court agreed with all three grounds of appeal and set aside the findings. The CPABC sought leave to appeal the Court’s decision.

The Court of Appeal set out the legal test and leading cases regarding applications for leave to appeal from statutory appeals. The Court had to consider:

(1) whether the proposed appeal raised a question of general importance;

(2) whether the appeal was limited to questions of law involving the application of statutory provisions, a statutory interpretation of particular importance to the applicant, or interpretation of standard wording which appears in many statutes;

(3) whether there was a marked difference of opinions in the decisions below and sufficient merit in the issue put forward;

(4) whether there is some prospect of the appeal succeeding on its merits;

(5) whether there is any clear benefit to be derived from the appeal; and,

(6) whether the issue on appeal has been considered by a number of appellate bodies.

The Court of Appeal then considered these criteria by grouping them into three main categories.

First, the Court of Appeal considered whether the appeal raised an issue of general importance. The Court of Appeal held that the matter was not of general importance. It largely concerned a highly fact-specific review of procedural fairness concerns.

Second, the Court of Appeal considered the questions of law raised in the appeal. The appeal did not concern the interpretation of any statutory provision of general application. The appeal did not raise any issues where differing decisions existed and required clarification.

Third, the Court of Appeal considered the merits of the appeal. The Court of Appeal held that the Court below provided detailed reasons comparing the Tribunal’s findings to the evidence before the Tribunal, and concluded the Tribunal did not deal fairly with the evidence before it. The Court of Appeal did not see any substantial questions to be argued regarding the evidence presented before the Tribunal and the inferences drawn from that evidence.

The Court of Appeal refused the CPABC’s application for leave to appeal.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at smarcinkow@harpergrey.com.