Proving Standards of Practice

When an allegation is made that a practitioner failed to meet the standard of practice of the profession, the evidence often consists of both published documents and expert witnesses. The inter-relation of these two types of evidence is often an issue, as it was in Wall v. Chartered Professional Accountants of Ontario, 2021 ONSC 6440 (CanLII), https://canlii.ca/t/jjj5h. In that case the practitioner was alleged to have failed to comply with auditing standards. There was a formal published document specifying the expectations on the practitioner when conducting this type of audit. The practitioner had not complied with the expectations in that document. The practitioner’s main defence was that the published standard should not prevail over the common practice of what was actually done by practitioners in the real world.

The Court found that the tribunal had a reasonable basis for accepting the regulator’s expert evidence that the published standard reflected the generally accepted standard of practice in the profession. In addition, the Court found as reasonable the rejection of the defence expert on the point as their evidence did not establish a common practice; their evidence on the point was “speculative”. The defence expert’s evidence did not establish a responsible body of professional opinion contrary to the published standard.

Based on this case, it appears that in many contested standard of practice cases there will continue to be a mixture of published documents and expert opinions that inter-relate with each other. Hearing panels will need to consider how any experts treat the published standard document and whether the expert opinions establish that a different accepted standard of practice exists.

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