Allen W. MacLeod, Donald A. MacLeod and D. & A. MacLeod Company Limited — April 15, 2008

Professional Conduct Decision

What is a professional conduct decision?

An investigation into a Licensed Insolvency Trustees (LIT)'s professional conduct is initiated when there is information to suggest that the LIT has not properly performed the duties of a trustee or there has been improper administration of an estate or lack of compliance with the Bankruptcy and Insolvency Act (BIA).

In some cases, the findings are sufficiently serious to support a recommendation for sanctions against the LIT's licence (cancel or suspend a LIT's licence (subsection 13.2(5) of the BIA) or impose conditions or limitations (subsection 14.01(1) of the BIA)).

The professional conduct decision is deemed to be a decision of a federal board, commission or tribunal and may be judicially reviewed by the federal court.

Ontario
Superior Court of Justice
in Bankruptcy and Insolvency

In the matter of the Superintendent of Bankruptcy

And in the matter of the alleged allegation of professional
misconduct as against Allen W. MacLeod, Donald A. MacLeod and D. & A. MacLeod Company Limited

Appearances
Julia Martin and Alden Christian for the Trustees
Garry Wetzel and Mark Taggart for the Superintendent of Bankruptcy

Endorsement

[1] Sylvie Laperrière, Senior Analyst, Professional Contract, Office of the Superintendent of Bankruptcy, has provided a report dated .

[2] In that report Ms. Laperrière, at paragraph 14, set out the alleged allegation of professional misconduct against the Trustees. These allegations are identified as A to L.

[3] Ms. Laperrière then breaks down each of the allegations and gives particulars, along with details of which document she is relying upon to support her allegations. She also identifies the attachments and page numbers that she is relying upon.

[4] The attachments are contained in four volumes of documents, and are voluminous.

[5] During preliminary meetings, counsel for the Superintendent of Bankruptcy, Mr. Wetzel, undertook to provide "will say" statements of the proposed witnesses to be called on behalf of the Superintendent of Bankruptcy.

[6] On , Mr. Wetzel provided five "will say" statements as follows:

  1. Barry Schur
  2. Jean-Louis Boucher
  3. Richard Hunter
  4. Sylvie Laperrière
  5. Dorothy Ann Deady

[7] Ms. Martin, on behalf of the Trustees, brings this motion to require counsel for the Superintendent of Bankruptcy to provide better and more detailed "will say" statements. Allen W. MacLeod filed an affidavit in support of their position that they cannot provide a proper answer or response unless they have more detailed "will say" statements from the proposed witnesses.

[8] At the hearing of the motion, Ms. Martin conceded the detailed report of Ms. Laperrière and the statement of Ms. Deady were accurate and sufficient.

[9] Ms. Martin relies upon the principles as set forth in R. v. Stinchombe [1991] 3 S.C.R. 326. The principles of Stinchombe have been applied in an administrative law text. See Todd Y. Sheriff et al. and Attorney General of Canada, 2006 FCA 139.

[10] In that case, it was a question of not disclosing a document, which is not the case here. What we are dealing with here is the respondent's ability to identify what document the Superintendent of Bankruptcy is relying upon to support the allegations of professional misconduct.

[11] Malone J.A., on behalf of the Court in Sheriff and Attorney General of Canada, refers to the high standard of disclosure in professional discipline cases. Commencing at paragraph 31 he states:

[31] In contrast, our Courts have repeatedly recognized a higher standard of procedure for professional discipline bodies when the right to continue in one's profession or employment is at stake (see Kane v. Board of Governors of University of British Columbia [1980] 1 S.C.R. 1105 at page 1113; Brown and Evans, Judicial Review of Administrative Action in Canada (Canvasback Publishing: Toronto, 1998) at pages 9–57 and 9–58). This higher standard of disclosure exists regardless of whether the provincial jurisdiction recognizes the application of section 7 of the Charter in these cases.

[32] The requirement for increased disclosure is justified by the significant consequences for the professional person's career and status in the community. Some Courts have noted that a finding of professional misconduct may be more serious than a criminal conviction (see Howe v. Institute of Chartered Accountants (1994), 19 O.R. (3d) 483 (C.A. per Laskin J.A. in dissent at pages 495–496); Emerson v. Law Society of Upper Canada (1983), 44 O.R. (2d) 729, at page 744).

[33] The scope of disclosure in professional hearings continues to be expanded by provincial courts, which have applied the Stinchombe principles in cases where the administrative body might terminate or restrict the right to practice or seriously impact on a professional reputation (see Hammami v. College of Physicians and Surgeons of British Columbia (1977), 47 Admin. L.R. (2d) 30 (B.C.S.C.) at paragraph 75; Milner v. Registered Nurses Association (British Columbia) (1997), 71 B.C.L.R. (3d) 372 (S.C.)). In Stinchombe, the Supreme Court of Canada held that there is a general duty on Crown prosecutors to disclose all evidence that may assist the accused, even if the prosecution did not plan to adduce it. While these principles originally only applied in the criminal law context, the similarities between a criminal prosecution and a disciplinary hearing are such that the objectives are, in my analysis, the same, i.e., the search for truth and finding the correct result.

[34] In this case, the Trustees face a suspension of their license and injury to their professional reputation. In order to fully understand the case against them and to ensure a fair disciplinary proceeding, the Trustees must have access to all relevant material which may assist them. This is consistent with the Superintendent's earlier ruling in this case that the SDA had a duty to disclose all documents unless they were "clearly irrelevant."

[12] On first reading of the "will say" statements relating to Schur, Boucher and Hunter, it would appear that they are inadequate. Each of these witnesses prepared detailed audit reports. They referred to a number of files. Their "will say" statements do not identify what documents or attachments they are relying upon.

[13] Mr. Wetzel, on behalf of the Superintendent of Bankruptcy, says the only documents these witnesses are relying upon are those referred to in Ms. Laperrière's report of . They will not be relying upon anything else and their evidence will be confined and restricted to those documents.

[14] Based upon that restriction regarding their evidence, I find the "will say" statements are adequate to provide proper notice and to allow the Trustees to know the case they must meet. For these reasons, I dismiss the motion for better and more detailed "will say" statements.

[15] Originally the hearing, pursuant to s. 14.02 (1) of the Bankruptcy and Insolvency Act, was scheduled to commence Monday, .

[16] Counsel for the Trustees requests this be adjourned to a later date. Considering all of the circumstances, I am prepared to set a new date for the hearing. After consulting counsel, the hearing will be adjourned to commence Monday,

Dated at Ottawa this .

The Honourable James B. Chadwick, Q.C.


This document has been reproduced as submitted by the delegate of the Superintendent of Bankruptcy.

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