Bias by Association

When is a panel member disqualified from hearing a matter because a colleague is affiliated with the practitioner facing discipline? This issue arose in Institute of Chartered Accountants of Newfoundland and Labrador v. Cole, 2017 CanLII 20403 (NL SCTD). The panel was hearing two complaints against a practitioner. The complainant in one matter was a colleague from the same large accounting firm as a panel member. The panel (as opposed to the panel member only) decided to disqualify itself from the one complaint – but not both. The Court upheld the tribunal’s decision. It concluded that the panel properly disqualified itself from hearing the first complaint because of the connection. The Court also concluded that the panel member was not disqualified on the second complaint simply because she was now aware that her colleague had made a complaint against the practitioner. This would not create a reasonable apprehension of bias.

The case also provides guidance on transitioning pending cases when the enabling legislation is replaced by a new statute.

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