CPAA Complaints? We Offer Skilled Legal Representation for CPAs

Facing complaints of unprofessional conduct filed against you with the Chartered Professional Accountants of Alberta (the “CPAA”) is one of the most testing situations a chartered professional accountant can face. The outcome can have significant, career-altering consequences; your professional standing and reputation are at stake, and the disciplinary processes are complex, stressful and highly disruptive to your practice.

This article applies to CPA or CPA candidates going through a disciplinary process of the CPAA or expecting a prospective one. Here you can find a basic summary of essential legal and practical information to know about the CPAA disciplinary process.

While you are reading this, it is important to keep in mind that when undergoing a disciplinary process, it is highly recommended that you engage legal counsel that understands the factual, legal and procedural complexity of a case, who will also safeguard your rights throughout the process.

Contact Taylor Janis Workplace Law at our Edmonton or Calgary office today and secure a tailored legal plan.

The CPAA’s Statutory Disciplinary Powers

CPAA Disciplines Have Legally Binding Effects

The Chartered Professional Accountants Act (the “Act”), enacted in 2014, amalgamated various accounting professional organizations into the Chartered Professional Accountants of Alberta. The CPAA is a crown corporation, a professional organization and the regulatory body for chartered professional accountants in Alberta.

The Act conferred the CPAA with broad discretion and powers to regulate its registrants, which include the power to issue discipline orders that have legally binding effects and are enforceable by court order.

Also, it is worth knowing that CPAA registrants include not only full CPAA members (Chartered Professional Accountants, or “CPAs”) but also CPA candidates and other persons registered with the CPAA. Moreover, a former registrant’s unprofessional conduct occurred whilst they were registered with the CPAA may attract discipline.

The Broad Range of Discipline Measures

The CPAA has broad discretion in ordering disciplinary measures against its registrants if it determines that they have committed unprofessional conduct. The range of possible disciplinary measures is broad, and more than one disciplinary measure may be ordered at once, and their negative impact on a CPABC member’s career can be financial, practical, and reputational. Possible disciplinary measures against an individual registrant include the following:

1. A reprimand;
2. Temporary suspension of registration, or suspension pending specific conditions;
3. Cancellation of registration;
4. Imposition of conditions and/or restrictions on a registrant’s practice;
   • This can take the form of an “undertaking”, meaning the registrant undertakes, and hence becomes legally accountable, to adhere to certain restrictions or conditions.
5. Imposition of prohibition, conditions and/or restrictions on a member’s ability to supervise and train candidates.
6. Requiring the registrant to receive additional training and/or counselling;
7. Requiring the registrant to overcome substance addiction;
8. Recovering the costs of complying with an order;
9. Fines of up to $100,000 for each finding of unprofessional conduct; and
10. Other orders deemed appropriate in the circumstances.

The above-mentioned discipline measures are not an exhaustive list of possible consequences of being disciplined, however. This is because:

• The CPAA Discipline Tribunal retains the discretion to make other “tailored” orders deemed appropriate under the circumstances.
• As a regulatory tribunal, it can remain “seized” with an impugned matter, meaning it can impose further discipline if the initial discipline order was not complied with in a timely manner.

It is also noteworthy that the Tribunal can discipline accounting firms, too. The disciplinary measures may include all of the above, as well as mandating a firm to adopt certain quality control procedures and professional development policies, and to carry certain professional liability insurance.

The Financial, Career and Reputational Effects

A discipline order can result in direct financial and career setbacks for a CPAA registrant; it can also be highly disruptive to their professional and personal life, as well as result in severe long-term reputational harm.

A suspension or cancellation of registration, or any undertakings, restrictions or conditions placed upon a registrant, will be published and become publicly accessible on the CPAA website.

To protect public interests, CPAA may also publish discipline decisions that do not include such terms. And if appropriate, any discipline decision may be communicated to a registrant’s current and former clients or other professional organizations.

Consider Legal Representation

Given the legally binding effects of CPAA’s discipline powers, the gravity of the potential financial, career and reputational harm, you should tread carefully if you are under CPAA’s disciplinary scrutiny and engage with legal representation to minimize unnecessary risks.

Defending against an Allegation: A Question of Rules, Facts and Advocacy

The Sources of a CPA’s Obligations:

As a CPA or a CPA candidate in Alberta, your professional conduct and certain aspects of personal conduct are specifically regulated by a web of legislation, regulations and rules, including the Act and its accompanying regulation, the CPAA bylaws, as well as the CPAA Rules of Professional Conduct. You are also required, like everyone else, to observe the law at large at all times.

Under the Act, disciplinable unprofessional conduct encompasses a wide range of conduct, including but not limited to:

• Displaying a lack of competence when providing service;
• Contraventions of professional and practice standards;
• Failure to comply with CPAA investigatory procedures or disciplinary decisions;
• Contraventions of the Act, its accompanying regulations, CPAA bylaws or directives; and
• Conduct detrimental to public interests or the integrity of the accounting profession.

Hence, both actions and omissions inside and outside of a CPA’s professional life can potentially attract regulatory scrutiny.

For a CPA or CPA candidate, the CPAA Rules of Professional Conduct are perhaps the most direct and detailed source of guidelines that they should consult when dealing with their day-to-day business.

• Some of the rules pertain to broad professional and ethical principles, such as competence, independence, objectivity, integrity and due care, and maintaining the reputation of the profession
• There are also technical and practical rules such as those regarding client engagement, service-specific procedures, record keeping, practice management and management of trust accounts.

Defending against an Allegation Is a Matter of Rules, Facts and Advocacy

Being a CPA is demanding, and addressing an allegation of unprofessional conduct can be equally, if not more so.  In both cases, it requires far more than a literal interpretation and word-to-word adherence to the minimum standards presented in the “black letter rules”.

Legal advice is strongly recommended for the preparation of a strong defence when facing prospective CPAA discipline, for at least the following reasons:

• A CPAA registrant has an overarching duty to practice in accordance with the law at large, and the rules governing the accounting profession may interact with other statutes and the common law in profound ways.
  • For example, the duty of due care is closely connected to fiduciary duty, a common law concept, and whether it is sufficiently discharged can be best discerned with reference to case laws.
  • This entails that the adjudication of a regulatory action can be informed by other laws. A lawyer is best equipped with the knowledge and means to research applicable laws and prepare a sound defence accordingly.
• When CPAA exercises its “quasi-judicial” discretion in determining the outcome of an investigation or discipline hearing, a decision can only be made by applying the rules to the unique facts of a case, and ultimately, the facts need to be substantiated by evidence, including witness accounts.
  • Under the Act, the CPAA Discipline Tribunal has the power to determine the admissibility, relevance and weight of any evidence, and is not strictly bound by the rules of evidence as a court.
  • This imposes unique challenges on the registrant, as they need to strategically organize, present and highlight key evidence and address admissibility issues of problematic competing evidence that is irrelevant, unreliable or unduly prejudicial to them.
  • Witnesses may be subject to direct and cross-examination at the discipline tribunal, and witness examination is preferably done by an experienced lawyer.
• A CPA’s duties often have an ethical component, and exercising such duties can involve principled judgments. Corresponding to the legislative intent of the Act, CPAA decisions often need to take into account principled and public-interest considerations, which are not necessarily self-evident through mere interpretation of the rules or the observation of facts.
  • For instance, a CPA must act reasonably in preserving their objectivity and the credibility of the profession to serve public interests. However, “whether and when a remote risk becomes unacceptable” is a professional judgement based on what may or may not seem reasonable under the specific circumstances. A lawyer can highlight facts and issues that may otherwise be under-considered by the adjudicator through skillful advocacy, achieving a fair and favourable outcome.

You Should Have a Tailored Defence

When you are undergoing a disciplinary process, the factual and legal issues can be (and often are) complicated and intensely disputed, and except in the simplest cases, the decisions are rarely made with reference to the “black letter rules” alone.

Strategic planning, well-prepared evidence and skillful advocacy by experienced legal counsel can make the difference between an adverse or favourable outcome.

Every case is unique. When the risk of discipline arises, even if it is a seemingly remote one, you should consult a lawyer to discuss the case.

Taylor Janis is committed to providing tailored legal plans to each client’s needs. Contact us today to schedule a consultation.

The Disciplinary Procedures Are Worth Knowing

The Complaint & Review Processes

The Act has broad policy goals in protecting public interests and the integrity of the profession, as well as promoting and enhancing the competence of chartered professional accountants. Hence, the conduct of CPAA registrants and members (both inside and outside of their professional lives) is held to a very high standard, and any person (including a legal person) can bring a complaint, even if they do not have a direct interest in the impugned matter.

Notably, a complaint is not the only way to trigger a disciplinary process: the CPAA can initiate a complaint and subsequent disciplinary procedures over questionable conduct of a registrant that the CPAA has become aware of through practice review or other sources.

Once a complaint has been received by the CPAA, unless the impugned matter is outside of its jurisdiction, the Complaint Inquiry Committee (the “CIC”) Secretary is statutorily bound to review the complaint and notify the registrants concerned to provide a written response within 30 days. At this stage, the registrant subjected to the complaint, or another registrant involved with the conduct under review, can be required to be interviewed, provide answers under oath, and/or produce records, information and other forms of evidence. Non-compliance with these requests may result in court orders against the registrant.

The conclusion and details of the review must be reported to the CIC Chair. The Minister of Justice will also be notified if the complaint raises reasonable and probable concerns of a criminal matter.

The Duties to Cooperate under an Investigation.

Once the CIC Chair has been notified, an investigator will be appointed to initiate an investigation, unless it is concluded that the matter is too minor, not unprofessional conduct or outside the purview of CPAA.

The registrant under investigation or another registrant involved with the conduct under investigation are compellable to cooperate in the same ways as during the review stage. Depending on the conclusion of the investigation, the CIC may decide to take no further action, to give recommendations and guidance to the investigated registrant, or to refer the matter to the Discipline Tribunal.

The Hearing at the Discipline Tribunal Is Quasi-Judicial

A discipline hearing will normally be held within 120 days of the matter being referred to the Discipline Tribunal. The hearing is understood to be a “quasi-judicial” one, as the proceedings are bound by certain rules and procedures, will involve submissions of each party’s evidence and legal and factual positions, and witnesses may be called and examined. Crucially, a hearing notice must be published on the CPAA website, and the proceedings are presumed to be open to the public.

Given the nature of the proceeding and the seriousness of the direct and reputational consequences, both a complainant and the registrant have a statutory right to counsel at a Discipline Tribunal hearing.

You Should Not Enter into a Voluntary Resolution Carelessly

At any time before a matter is referred to the Discipline Tribunal, the registrant may have opportunities to voluntarily communicate with the complainant to resolve the complaint through a voluntary settlement or mediation.

Moreover, at any time before the Discipline Tribunal starts to hear evidence, the investigated registrant can attempt to enter into a sanction agreement by admitting to certain alleged unprofessional conduct and agreeing to sanctions against them. However, it is important to note that a sanction agreement requires an admission of wrongdoing. It is also considered equivalent to a discipline decision and subject to the same publication requirements. Moreover, it cannot be internally appealed to the Appeal Tribunal.

Engage Legal Representation as Early as Possible

The disciplinary process of CPAA does sound like a ladder of escalation, and you might assume that legal representation is only warranted after the risk of discipline starts to materially manifest. However, for the following reasons, we strongly recommend that you seek legal representation as early as possible:

• The disciplinary process can be intensely disruptive to both your accounting practice and your personal life, and it is highly stressful and could become more costly as it drags on.
  • It is highly preferable to have early legal help in preparing a strong response and resolving the matter at the initial stages.
  • Skilled counsel can also assist you in dealing with various deadlines and streamlining the process where possible, thus minimizing the disruption.
• During an investigation, you need to candidly respond and disclose information as requested, but also be vigilant not to inadvertently jeopardize your case or have your rights abrogated.
• The presumptive open-to-the-public nature of the hearings means secondary reputational harm may occur if you are not well-prepared for the proceeding or not well-informed of the rules and procedures.
• A voluntary resolution should be approached carefully, strategically and with legal advice.
  • An experienced lawyer can help you strategically propose what is reasonable to the complainant, the regulator, and, most importantly, yourself, based on a comprehensive review of all relevant legal and factual factors.

At Taylor Janis, we are not only strategic legal advocates but also practical problem solvers. Where possible and reasonable, we always strive to streamline the process and reach a favourable resolution early.

Your rights to fairness are engaged throughout all stages of the process. The next section of this article delves deeper into how legal counsel can be crucial for safeguarding your rights. Please read on to know more.

You Should Know and Defend Your Rights

You should know and be ready to defend your rights when you are undergoing a CPAA disciplinary process, and your rights are rooted in administrative law, common law, and even the Constitution. The exact procedures designed to protect (and sometimes may affect) these rights can be found in the Chartered Professional Accountants Act, its accompanying regulations, as well as the CPAA bylaws.

What Rights Do I have?

“Have my rights as a respondent CPAA registrant been infringed?” can be a nuanced question. A lawyer often needs to do in-depth factual and legal analysis to identify concerns and cite legal authorities to protect a right. This is because rights and infringements can manifest in an infinite number of ways, and the rules and procedures designed to protect your rights are complex and necessarily so.

With this said, however, your rights can be put into three broad categories:

• The right to an unbiased decision maker. This means the decision maker’s actions should not give an objective bystander, observing the circumstances, a reasonable apprehension of bias.
  • Reasonable apprehension of bias is a high legal threshold; it is not “any apprehension of bias”. Hence, a claim against a biased decision maker must be supported by strong evidence and legal arguments.
• The right to procedural fairness:
  • This, in the simplest terms, means you have a right to know the case against you and are given the appropriate procedures to defend your case.
  • The regulatory regime and the larger legal system recognize the importance of this right, and there are extensive legal mechanisms to protect it. But your exact procedural entitlements vary depending on the factual and legal circumstances.
  • Moreover, an appropriately chosen procedure can be conducted inappropriately and unfairly.
• The right to substantive fairness:
  • This means a decision must meet certain standards in both its determination of factual and legal questions.
  • The Chartered Professional Accountants Act provides that a final CPAA disciplinary decision determined by the CPAA appeal tribunal can be subjected to the Alberta Court of Appeal’s appellate review, where the court will review the decision by the factual standard of “no palpable and overriding errors” and the legal standard of “correctness”.
  • The courts will take into consideration how the decision was made and the reasoning provided by the decision makers; However, this is not an opportunity to re-argue your case or submit additional evidence related to the alleged conduct.

The Importance of Early Legal Representation for Safeguarding Your Rights

Your rights are engaged at all stages of a disciplinary process. The most preferable way to safeguard your rights is to have legal representation throughout the process, as they will stay vigilant and spot and object to potential issues as they arise.

It is a monumental task to have a decision overturned, and the damage of an adverse decision begins to take effect very quickly once it has been made. This is because:

• As discussed above, whether it is at the Appeal Tribunal or the Court, the threshold for a successful appeal is high.
• Moreover, courts are required to pay a degree of deference to a regulatory body’s decisions out of respect for the legislators’ intent.
• An appeal does not necessarily halt the enforcement of a discipline order.
  • Damage may be taking place in the background as you navigate through the lengthy, stressful, and complex appeal process.
• Even if an appeal is successful, the remedy might be that the case is sent back to CPAA to be decided again, rather than quashed outright.

Taken together, this means that once you are under the disciplinary scrutiny of the CPAA, you should consider retaining a lawyer to safeguard your rights every step of the way. This is not only to uphold a fair process, but also to minimize the chance of an unfair adverse outcome.

Seek Legal Representation at Your Earliest Opportunity

CPAA disciplinary decisions have legally binding effects, and they can result in direct financial and career setbacks as well as profound reputational damages. The disciplinary procedures involved are complex, stressful and disruptive to your practice and personal life. The proceedings often involve intense legal and factual disputes. Moreover, once the process starts, your rights to procedural and substantive fairness are immediately engaged. Once it is made, it becomes a monumental task to have a decision overturned.

When facing the challenges of going through a disciplinary process, a seasoned lawyer can be a great asset as they can leverage their training, knowledge and experience to streamline the procedures, strategically defend your case, safeguard your rights and minimize unnecessary risks and disruptions to your career. It is highly preferable to retain a good lawyer sooner or later, as this increases the chance of achieving a favourable outcome at an early stage of the disciplinary process. A good lawyer is also a problem solver who understands your needs and can strategically identify reasonable resolutions without going through unnecessary proceedings or abandoning a defendable case.

Contact Taylor Janis Workplace Law at our Edmonton or Calgary office today to schedule an initial consultation to discuss your case. We always offer tailored legal service plans, as we appreciate that every case is different, and so are the needs of each client.

Frequently Asked Questions

Can I Resign from CPAA to Avoid a Discipline Hearing?

Voluntary resignation is an option, exercisable once a sanction agreement has been reached or upon the finding of unprofessional conduct by a tribunal. This is not an option to be taken lightly and does not necessarily preclude discipline. CPAA has the discretion to accept or reject a voluntary resignation, and even if the voluntary resignation is accepted, the CPAA may continue the proceedings (which may ultimately result in disciplines), publish the finding of unprofessional conduct and resignation, as well as place conditions on reinstatement. If you are considering this option, consult a lawyer first.

How Long Does the CPAA Complaint and Discipline Process Typically Take?

This will depend on the strength, gravity, relevance, as well as the legal and factual complexity of the matter. A complaint may be dismissed after the initial review relatively quickly, but once it reaches the investigation or hearing stage, it may take a few months or even a year before it is finally resolved. If you would like to minimize the length of the disruption of a disciplinary process, you should retain a lawyer who can assist you in streamlining the process or reaching an expedited resolution alternative to a full hearing, where reasonable.

Can a Complainant Appeal a Discipline Tribunal’s Decision?

A complainant cannot appeal a decision made by the Discipline Tribunal. Only the CPAA complaints inquiry committee can internally appeal a Discipline Tribunal’s decision to the Appeal Tribunal or further appeal it at the Court of Appeal. However, a complainant is not precluded from applying to a court for a judicial review, which is a process that shares some similarities with an appeal but has different review standards. Neither an appeal nor a judicial review is a rehearing of the evidence related to the conduct, and the only issues related to jurisdiction and the substantive and procedural fairness will be heard. These proceedings often involve highly technical legal arguments, and you should retain a lawyer if you are expecting one.

Are CPAA Disciplinary Hearings Open to the Public?

Both discipline hearings and the CPAA Discipline Tribunal and hearings at the Appeal Tribunal are presumed to be open to the public, meaning that unless there are specific, legally justifiable reasons, the proceedings are open to the public. Also, notices of the hearings are always posted on the CPAA website, even if they are closed to the public. This means your submission and conduct at the proceedings can be the subject of public scrutiny.

Can Evidence from CPAA Disciplinary Proceedings Be Used in Other Legal Proceedings?

This depends on the procedure and the nature of the evidence. Mediation between a registrant and a complainant is confidential; that is to say, all communication arising from the mediation process cannot be used as evidence in any future proceedings. Other proceedings are not confidential, however, meaning evidence arising from each proceeding may be used in a future one if they are otherwise admissible under relevant evidence rules. Moreover, the CPAA can forward relevant information, which it has obtained through a complaint review, investigation, sanction agreement or a hearing, to the Minister of Justice if there are reasonable and probable grounds to believe the registrant has committed a crime. Hence, you should be extra cautious with your conduct during a proceeding and seek legal advice once a disciplinary procedure kicks into gear.

Conclusion

If the CPAA has received a complaint against you as a CPA or CPA candidate, it is strongly recommended that you engage legal representation early. This helps you stay well-informed and prepared to handle any potential disciplinary proceedings. A skilled lawyer can assist you in navigating the complex procedures, planning an effective response, and affirming your rights. The legal and factual issues involved in a disciplinary process are often complicated and intensely disputed by the parties, so defending a position requires both legal and practical expertise. A lawyer who understands your needs can also identify opportunities for reasonable resolutions at an early stage. Hence, early engagement with legal representation is often key to minimizing the chance of an adverse outcome.

A tailored legal plan always starts with an initial consultation. Please contact Taylor Janis Workplace Law today to schedule one.

References:

• Chartered Professional Accountants Act, SA 2014, c C-10.2
• Chartered Professional Accountants Regulation, Alta Reg 84/2015
• CPAA Rules of Professional Conduct with Guidance
• CPAA Bylaws
• CPA Alberta Annual Report 2022-2023

Resources for Readers:

• Disciplinary decisions published by the CPAA under the Act.
• Legacy disciplinary decisions (CMA, CGA & CA)
• CPAA complaints portal

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