Serving Documents, Technically

Technical arguments do not usually succeed in professional regulation unless there is some actual unfairness. Two recent cases confirm this principle.

In Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee) v Barry, 2016 ABCA 354, the main issue was whether the notice of hearing in a discipline matter was served in accordance with the legislation. The provision permitted service by courier. The practitioner argued that XpressPost did not meet the requirements of the provision. The Court disagreed, saying that this was a type of courier service. Even if it were not, the Court said the fact that the practitioner actually received the notice of hearing meant that any non-compliance with the provision was inconsequential.

In Nobody v Ontario Civilian Police Commission, 2016 ONSC 7261, a complainant filed an appeal electronically upon the Ontario Civilian Police Commission. There was a 30-day time period to file the appeal. The appeal was filed on the last day of the time limit and was received by the Commission on the same day. However, the legislation deemed electronic documents to be filed the day after it was sent, which was after the 30-day time limit. The Commission dismissed the appeal as being late. The Divisional Court said:

The decision of the Commission is undoubtedly unfortunate. To deprive a citizen of his or her statutory right of appeal where he has actually served his notice of appeal within the statutory time limit on the basis of a deeming provision is, if not unfair, certainly undesirable. That is particularly so in a legislated police complaints system intended to be transparent and accessible, in order to promote public confidence in police and policing. However, in my view, in addition to being unfortunate the decision is wrong in law….

Deeming provisions like this are intended to be of benefit to a party serving a document. They provide certainty to the serving party. They are not intended to be traps for the unwary.

Regulators should generally take a purposeful and beneficial view of technical requirements.

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