Professional bodies can apply either punitive or remedial measures to addressing a member’s professional shortcomings. CGA Ontario’s regulatory framework provides for specific measures designed to provide a remedial alternative when considering a complaint.

A competence process is designed to be inherently remedial in nature. In the simplest of terms, the objective of regulatory competence processes is to focus on the underlying reasons that a professional person has failed to meet his or her professional standards, and to engage the person in a course of action(s) that will enhance his or her professional standards. For this reason, competence processes are an effective alternative to a punitive-based discipline process.

One may question whether or not a competence approach is a satisfactory alternative when dealing with a complaint made by a client about a member. Does a competence approach satisfy a complainant’s desire that is framed as “I want to see justice?” The imposition of a competence approach may or may not satisfy an individual complainant’s objective; however, what is important is that the professional organization’s response must be congruent with its obligation to protect the public interest, as well as to enhance the professional skills and knowledge of its members. A remedial response can meet that test in certain instances.

Although disciplinary sanctions may or may not be the desired response in all instances, the discipline process continues to play an integral role in a professional organization’s regulation of its members. It can also be argued that the majority of the public intellectually agree that competence measures that make a person a better trained and more informed professional are acceptable alternatives to the discipline route in appropriate circumstances.

The Association’s Professional Standards and Competence Committee deals with issues of competence in the first instance. The Committee will review information that comes to its attention that alleges that a member has failed to meet standards of professional competence pursuant to deficiencies in:

• the member’s knowledge, skill or judgment; or
• his or her attention to the interests of clients, the records, systems or procedures of his or her practice, and the deficiencies give rise to a reasonable apprehension that the quality of the service to clients or an employer may be adversely affected.

If the committee believes that these deficiencies are of a nature that require formal consideration by an adjudicative body, the matter will be referred to a CGA Ontario competence tribunal for a hearing.

The Association’s ByLaw outlines the mandate of CGA Ontario’s professional standards and competence committee (which reviews complaints dealing with competence), the competence tribunal, and articulates measures pertaining to the practice inspection program. The competence tribunal comprises two members of the Association, plus one non-member governor or one public representative. The tribunal may impose sanctions that include:

• educational courses
• new records, systems or procedures
• professional advice with respect to practice management
• restrict the member to specified areas of practice; and/or
• practice under supervision.

The effectiveness of the competence provisions are enhanced by providing linkage to the discipline processes for those instances where a member fails to comply with the decision of the tribunal.

The competence provisions assures members and the public that the Association’s interest are in harmony with its mission statement of ensuring its members merit the confidence and trust of all who rely upon their professional knowledge, skills, judgment and integrity, by regulating qualification, performance and discipline standards.

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The provisions of the ByLaw dealing with professional competence are:

Member Competence and Practice Inspection

(2) (a)The Association shall conduct an inspection of a member’s practice for the purpose of determining if the member is meeting standards of professional competence.

(b) The practice inspector has the powers of an investigator as necessary to perform a practice inspection.

(c) After each practice inspection, the Association shall review the results determined by the practice inspector and shall, where necessary:

(i) recommend practice improvements;

(ii) direct a follow-up practice inspection within a time to be specified;

(iii) direct that the member take professional development or training as necessary;

(iv) direct that the member practice only under the active supervision of another member approved by the Association;

(v) make a referral to the competence tribunal where the continuing actions of the member are substantially inconsistent with the objectives of the Association's practice inspection program.

Competence

4. (1) Where information comes to the attention of the Association that suggests a member fails to meet standards of professional competence pursuant to deficiencies in:

(a) the member’s knowledge, skill or judgment;

(b) the member’s attention to the interests of clients, the records, systems or procedures of the member’s practice, and where the deficiencies give rise to a reasonable apprehension that the quality of service to clients or an employer may be adversely affected, the matter shall be referred to the professional standards and competence committee and where the deficiencies give rise to a reasonable apprehension that the quality of service to clients or an employer may be adversely affected, the matter shall be referred to the professional standards and competence committee.

(2) The professional standards and competence committee shall, after receiving a complaint that suggests that a member fails to meet the standards of professional competence, and after inviting submissions in writing from the complainant, where applicable, and the person under investigation, and after providing the complainant’s information to the person under investigation and the information from the person under investigation to the complainant, as appropriate:

(a) identify the failure as an apparent failure to meet the standards of professional competence that are generally accepted by the profession and that apply to accounting, financial reporting, and audit, review and compilation engagements;

(b) attempt at its discretion, to arrive at a resolution of the complaint that is agreeable to all parties;

(c) upon notice to all parties, present the facts of the complaint and a proposed agreed resolution thereof, if such may occur, to a competence tribunal of one member, in a summary manner, for ratification after a 30-day waiting period. During the said 30-day waiting period, any party may withdraw from the proposed resolution of the complaint;

(d) where the professional standards and competence committee is unable to arrive at a mutually agreed upon resolution of the complaint, or agreement to a resolution is withdrawn as aforesaid, or if resolution by agreement is not desirable, refer the matter to a competence tribunal of three members;

(e) in cases where the professional standards and competence committee determines that the complaint did not disclose a failure to meet the standards of professional competence, advise the complainant by registered mail and the person under investigation that the matter has been reviewed and closed.

(3) (a) On determining that a complaint is to be closed without pursuing a resolution or a referral to a tribunal, the professional standards and competence committee may provide guidance and advice to a member, student, firm or professional corporation. The guidance and advice shall be construed as remedial in nature.

(b) If the professional standards and competence committee determines that a complaint is to be closed without pursuing a resolution or a referral to the competence tribunal, the committee shall advise the complainant and the person under investigation of its decision.

(4) In the course of any review, investigation or proceedings under the By-Laws, where the complaint is settled by agreement of the complainant and the member under investigation, or for any other reason, and the complainant withdraws the complaint, the review, investigation or proceedings shall continue at the discretion of the professional standards and competence committee.

(5) Where the complainant is dissatisfied with the decision of the professional standards and competence committee to close a complaint without resolution or without a referral to the competence tribunal, the complainant may:

(a) make a written request, sent by registered mail to the professional standards and competence committee, within 30 days of the date of the committee’s notice to the complainant that the complaint has been closed; and

(b) outline the specific issues that the complainant seeks to have reviewed.

(6) Upon receipt of a written request for a review of the professional standards and competence committee’s decision to close a complaint without pursuing a resolution or a referral to the competence tribunal, the committee shall forward the request to the president.

(7) (a) Upon receipt of such a request by a complainant, the president shall appoint an independent reviewer to perform an independent review of the closed complaint.

(b The independent reviewer shall:

(i) consider any written application, including the material before the professional standards and competence committee, made by a complainant that has been sent within the stipulated limitation period;

(ii) obtain such technical or other assistance as necessary to properly fulfill his or her responsibilities;

(iii) refer the complaint to the professional standards and competence committee for reconsideration, where the independent reviewer determines that the committee was not in receipt of all information and documents that are now available to the independent reviewer and where the documents and information were not in the possession of the complainant and could not reasonably have been in the possession of the complainant prior to the disposition of the complaint by the committee, where the independent reviewer suspects a lack of independence on the part of any member of the committee who participated in the decision to close the complaint, or any other reason that is appropriate in the circumstances, and, in that event, advise the complainant and the person under investigation of the reasons for doing so;

(iv) in the event that the independent reviewer does not refer the complaint to the professional standards and competence committee for reconsideration, the independent reviewer shall advise the complainant and the person under investigation of that decision, and shall provide reasons for that decision;

(v) receive the written reasons of the professional standards and competence committee after its reconsideration of the complaint.

(c) The independent reviewer shall make a report to the board annually.

(d) The professional standards and competence committee shall:

(i) receive any referral from the independent reviewer and give consideration to all information; and

(ii) make a decision and provide written reasons for the committee’s decision to the independent reviewer, the complainant and the person under investigation.

(e) The decision of the professional standards and competence committee is final.

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Appointment of an Investigator

(8) (a) In order to assist it in determining whether there may have been a failure to meet the standards of professional competence, the professional standards and competence committee may appoint an investigator to investigate any complaint and to report the results to the committee.

(b) An investigator may:

(i) investigate any other matter related to member competency that comes to the attention of the investigator in the course of the investigation, whether or not connected with the complaint under investigation;

(ii) require the person under investigation to provide information and answers to questions that relate to all matters under investigation;

(iii) upon reasonable notice, enter the business premises of the person under investigation during reasonable business hours or at such other time as may be agreed to by the person under investigation;

(iv) require the production of and examine any documents, files, records, storage devices or receptacles or other information that relates to matters under investigation;

(v) make copies of, or remove, for making copies, any item referred to in the preceding paragraph; where the item is removed a receipt shall be given;

(vi) return the items borrowed for purposes of copying with reasonable dispatch, giving recognition to the volume and complexity associated with the copying.

(c) The investigator shall complete the investigation within a reasonable time for the scope and circumstances of the investigation and shall prepare and submit a report to the professional standards and competence committee at the completion of the investigation.

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Proposed Resolution of a Complaint

(9) Where the professional standards and competence committee presents a proposed agreed resolution of a complaint to the competence tribunal, the tribunal shall only accept or reject the proposed resolution; it shall not vary it. Provided the competence tribunal ratifies the proposed resolution of the complaint, this ratification shall be the final disposition of the complaint. Where the tribunal refuses to accept the proposed resolution, it may grant the professional standards and competence committee an opportunity to return before it within 30 days or such other reasonable time as shall be stipulated by the tribunal, with an amended proposed agreed resolution. Where the competence tribunal refuses to ratify a proposed resolution and does not grant the professional standards and competence committee an opportunity to return before it with an amended proposed agreed resolution, a tribunal panel of three members shall be appointed to conduct a formal hearing pursuant to Paragraph 5 herein.

Extraordinary Remedies

(10) (a) If in the course of its review of a complaint that come before it, the professional standards and competence committee receives evidence that discloses likely immediate and serious harm to the public or a third party, it shall cause the complaint to be summarily investigated and on receipt of the investigation report, it shall submit that summary investigation report to the president.

(b) Where the president, on reviewing the summary investigation report submitted by the professional standards and competence committee, believes that immediate suspension of a member is required in the public interest, the president may impose a temporary suspension on the member effective immediately and for a period of time to be specified. A temporary suspension imposed by the president is subject to confirmation by the board at its next meeting.

(c) The member may apply to the president to stay the immediate suspension. The member shall provide evidence in support of the application and shall provide ten days notice to the professional standards and competence committee of the application.

(d) Where the president, after receiving the summary investigation report of the professional standards and competence committee, imposes a suspension, the president shall inform the member of the investigation and the decision to impose the suspension by registered mail.

(e) At the conclusion of the period of suspension imposed by the president and confirmed by the board, the president, with the subsequent approval of the board, may impose an additional period or periods of suspension where there is a continuing public interest in doing so. The president shall provide the member and the professional standards and competence committee with the opportunity to present submissions prior to making a decision as to whether to impose any additional periods of suspension.

(f) The professional standards and competence committee shall complete the investigation in accordance with paragraph 4(2) of this Article.

(g) Where the president is unable to act, the executive vice-president shall act in the president's place.

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The Competence Tribunal

5(1) Hearings of the competence tribunal shall be held in camera.

(2) Parties to the proceedings are the professional standards and competence committee, the member who is the subject of the hearing, and any other person added as a party by the competence tribunal.

(3) Paragraphs 12 to16 of Article 9 herein apply to a competence tribunal hearing mutatis mutandis.

(4) Where the competence tribunal determines that the member is failing or has failed to meet standards of professional competence necessary to serve the interests of the public or an employer, the tribunal shall make one or more of the following orders:

(a) suspend the member until the satisfactory completion of specified educational courses;

(b) require the member to institute new records, systems or procedures in his or her practice;

(c) require the member to obtain professional advice with respect to the management of his or her practice;

(d) require the commencement of a hearing before the professional conduct tribunal in accordance with Paragraph 12 of this Article;

(e) restrict the member to specified areas of practice;

(f) require the member to practise only under the active supervision of another member approved by the Association;

(g) any other order the competence tribunal considers appropriate.

(5) Where a member fails to comply with any order under this section, the matter may be brought back before the competence tribunal for any order it considers appropriate. The hearing at that stage shall be in public and shall be conducted in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, Chapter S22, as amended and the procedures governing a hearing before the professional conduct tribunal. At that stage such order may include any sanctions available to the professional conduct tribunal, as set out in Paragraph 18(1) of this Article.

(6) Where, as a result of a decision of the competence tribunal, the member’s ability to practise is restricted in any manner, the terms of the restriction shall be made public.

(7) Any appeal of an order of the competence tribunal is to the appeal tribunal in accordance with the provisions of Paragraph 22 mutatis mutandis.

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