Public Protection Outweighs Irreparable Harm to the Practitioner

Courts are frequently tasked with deciding whether a discipline sanction should commence even though an appeal or judicial review is pending. Even where a court concludes that the appeal or judicial review application is not frivolous and that continuing the sanction in the meantime will cause irreparable harm to the practitioner, it can still decline to stay the discipline order.

In Kirby v. Association of Chartered Professional Accountants of Newfoundland and Labrador, 2021 NLSC 159 (CanLII), an accountant was found by the discipline tribunal to have engaged in serious misconduct requiring revocation. The Court noted that the inability to practise and the publication of the finding would cause irreparable harm to the practitioner. However, the Court found that the public interest outweighed the individual harm:

I am not satisfied that the Applicant has demonstrated that his case is exceptional. The loss of accountancy income and the reputational harm that he will incur are the inevitable consequences of the findings of the Tribunal. There is nothing in the circumstances of his case that distinguishes it from the case of any other professional who appeals from a decision revoking their right to practice. Unlike the circumstance in Shea v. The Law Society, public protection is very much a concern in this case. If a stay is granted, then the Applicant will continue to provide chartered accountancy services to a public that will be unaware that a tribunal of the association governing his profession has found him guilty of unprofessional conduct and imposed the most severe sanction against him. The Applicant’s private interest in avoiding reputational or financial harm does not outweigh the public interest.

The Court put significant weight on the fact that the enabling legislation did not automatically stay the discipline sanction when an appeal was taken.

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