Clark v. Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee), 2015 ABCA 271, concluding that an appeal of disciplinary findings to the Court of Appeal should not be restored after it was deemed abandoned for significant delay.
Mr. Clark was found guilty of unprofessional conduct by the Institute of Chartered Accountants of Alberta (the "Institute") after he invested in a Ponzi scheme and facilitated the investment of others. He appealed the finding of professional sanctions and costs to the Appeal Tribunal of the Chartered Professional Accountants of Alberta ("CPAA"), formerly the Institute. The Appeal Tribunal affirmed the findings and Mr. Clark further appealed to the Court of Appeal of Alberta.
Nine months after the appeal was filed Mr. Clark had still not filed written argument with the Court of Appeal. As a result the Registrar of the Court of Appeal struck his appeal and ordered that the appeal would be deemed abandoned if Mr. Clark did not bring an application to restore it within six months. Mr. Clark failed to bring such an application within the time period, and the appeal was deemed abandoned in March 2015. By July 2015, the CPAA began to take steps against Mr. Clark to enforce the fines and costs orders (which had remained unpaid through the appeal processes). Mr. Clark resisted the enforcement steps of the CPAA, eventually filing an application to restore the appeal in August 2015.
The Court of Appeal noted that the decision to restore an appeal which has been deemed abandoned is discretionary, and will include consideration of factors such as: whether there is a reasonable and sufficient explanation for the delay; whether there is an intention to proceed with the appeal; whether the appeal has merit; and whether the delay will unduly prejudice the respondent (here, the CPAA).
In these circumstances the Court concluded that none of the factors weighed in favour of restoring the appeal. There was no reasonable excuse for the delay (a delay which was characterized as "significant"). While Mr. Clark indicated an intention to proceed with the appeal, he took no concrete steps to do so. Further, the merits of the appeal were minimal.
Finally, the comments of the Court with respect to prejudice to the CPAA are most noteworthy. The Court concluded that the CPAA approached the litigation in a fair and reasonable way, and didn't take steps to pursue the costs and fines awarded against Mr. Clark until he had exhausted his route of appeal. It only took steps to enforce once the appeal had been deemed abandoned. This involved an expenditure of time and legal fees on the CPAA's behalf, and the CPAA is entitled to finality in the proceedings against it. Restoring the appeal would require the CPAA to revisit previous steps in the litigation, causing it significant prejudice. As such, the application of Mr. Clark to restore his appeal was denied.
Comment: Clark demonstrates that courts are prepared to extend fairness to regulators as well as their members to protect each from prejudice in appropriate cases, so long as the party acted reasonably and fairly. Regulators are entitled to finality in their decisions, and requiring a regulator to respond to an appeal which has been deemed abandoned will cause prejudice to the regulator.
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