Balancing Public and Private Interests

A classic example of where courts must balance the public interest in competent and ethical practice against the private interests of registrants is when registrants seek to stay a discipline order pending the outcome of their appeal.

In Cluney v. Association of Chartered Professional Accountants of Newfoundland and Labrador, 2023 NLSC 146 (CanLII), an accountant was disciplined for undisclosed matters. A sanction of a reprimand, monitoring, publication, a fine and costs was imposed. The registrant appealed and sought to stay the sanction until the appeal was determined. The Court refused.

The Court concluded that the registrant would not suffer irreparable harm if the sanction took effect immediately. There was no suspension or revocation so the registrant could continue to practise if they chose to do so. The Court said:

While it may be recognized that the publication ordered by the Tribunal could cause some reputational harm to Ms. Cluney, her circumstances do not lend themselves to supporting a stay based on this factor.  This is especially so given her decision to move from her practice as a public accountant. Instead, the potential for any harm can be remediated by requiring the CPANL to indicate, as part of its public and professional summary of the Tribunal Merits and Sanctions Decisions, that both decisions are currently under appeal by Ms. Cluney.

The Court also found that the balance of inconvenience favoured the regulator. The sanctions were not just for deterrence (which, arguably, could await the outcome of an appeal) but also included measures to ensure adequate services to clients. The Court said:

In the chartered public accountant context the loss of accountancy income and the reputational harm that would be incurred were inevitable consequences of the tribunal findings and were not exceptional circumstances that outweighed the public interest….

The Court reiterated previous cases which stated that granting a stay of a discipline order pending an appeal should only occur in exceptional circumstances.

 

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