Can a professional regulatory body extend the time for conducting a hearing after the deadline has already expired?
This issue was recently considered by the Alberta Court of Appeal in Mema v Chartered Professional Accountants of Alberta (Complaints Inquiry Committee), 2022 ABCA 4 (Mema).
The jurisdiction to extend following an expiration depends entirely on a careful read of the professional regulatory body’s home statute.
Background
Victor Mema, a chartered professional accountant under the Chartered Professional Accountants Act, SA 2014, c C-10.2 (CPAA), was the subject of four complaints of professional misconduct, including two complaints in Alberta. The Chartered Professional Accountants of Alberta (CPA Alberta) investigated the Alberta complaints and directed that one proceed to a hearing.
On a preliminary application, Mr. Mema argued that both the Alberta complaints were statute barred and should be stayed. The Discipline Tribunal declined to stay its proceedings and Mr. Mema appealed.
The Alberta Complaints are note statute barred
On appeal, Mr. Mema argued that Section 82(2) of the CPAA effectively creates a limitation period, such that:
failing which the complaint is statute barred. The Court disagreed.
The First Alberta Complaint – Extension granted after expiry of the 120-day period
Section 82(2) of the CPAA states: “[a] discipline tribunal must commence a hearing within 120 days after an allegation of unprofessional conduct is referred to the discipline tribunal roster chair or within such other time as the chair permits.”
The wording is disjunctive: it expresses two distinct and separate statements.
Namely, a hearing must be commenced (a) within 120 days from referral of a complaint to the discipline tribunal roster chair; or (b)within such other time as the chair permits. In other words, the provision is not mandatory: the chair has discretion to grant an extension.
In terms of timing, Section 82(2) does not specify when such an extension must be granted.
The Court reasoned that, if the legislature had intended for an extension to be granted only if it was within the 120-day period, it could have expressly said so. There is no presumption that silence means an extension must be granted before expiry. Indeed, case law indicates that if the legislature intends to create a limitation period, it should do so expressly.
Consequently, the Court held that the roster chair had the discretion to grant an extension after expiry of the 120-day period.
The Second Alberta Complaint – Notice of Hearing issued after expiry of the 120-day period
When this matter was before the Court, a notice of hearing had yet to be issued in the second Alberta complaint. Filed May 25, 2018, the original 120-day period expired on September 22, 2018—well before this Appeal was heard.
Mr. Mema argued that a notice of hearing commencement given later than the timeline provision would have impacted CPA Alberta’s capacity to proceed. He proposed that, as no notice of hearing had been issued prior to expiry of the 120-day period, CPA Alberta no longer had jurisdiction to hear the second Alberta complaint. The Court was not persuaded.
Applying the canons of construction, the Court determined that Section 82(2) does not deprive the tribunal of jurisdiction if a notice of hearing is issued after expiry of the 120-day period. While a regulated member must be notified in sufficient time to be able to adequately prepare for the hearing, the same goes to procedure and not jurisdiction.
In any event, the Court found no breach of procedural fairness on the record. In keeping with the interpretation above, the Court held that CPA Alberta was in compliance with Section 82(2) of the CPAA and retained jurisdiction to conduct a hearing into the second Alberta complaint. In other words, a notice of hearing could be issued after expiry of the 120-day period.
Key takeaways for professionals and professional regulatory bodies
Professionals should be careful not to rely on supposed “time limits” in the context of a discipline proceedings.
Unlike the court system with clear limitation rules in place, any procedural “time limits” must be read in context of the governing statute.
On the other hand, regulators should exercise caution where the same sort of discretionary power is not present in the plain and ordinary language used in the governing statute.
At the end of the day, any procedural limits placed on the timing of a disciplinary hearing are only as effective (or ineffective) as the language used.
For more information about professional negligence actions in Alberta or Canada, please contact Mike Sestito, Katherine Martin or another member of Dentons’ professional Liability group.
