Barry v. Institute of Chartered Accountants (Alta.), (2016) 616 A.R. 224

• Judge: Wakeling, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 30, 2016
• Citations: (2016), 616 A.R. 224;2016 ABCA 89

Barry v. Chartered Accountants (2016), 616 A.R. 224; 672 W.A.C. 224 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. AP.005

Wayne Michael Barry (applicant) v. Complaints Inquiry Committee of the Institute of Chartered Accountants of Alberta (respondent)

(1503-0202-AC; 2016 ABCA 89)

Indexed As: Barry v. Institute of Chartered Accountants (Alta.)

Alberta Court of Appeal

Wakeling, J.A.

April 1, 2016.

Summary:

Barry appealed a decision of the discipline tribunal of the Institute of Chartered Accountants of Alberta. An appeal tribunal dismissed the appeal. Barry appealed. Barry failed to file the appeal record in a timely fashion and the appeal was struck. Barry applied to restore the appeal.

The Alberta Court of Appeal, per Wakeling, J.A., allowed the application.

Practice - Topic 8907

Appeals - Procedure - Restoring inactive appeal to general list - Barry appealed a decision of the discipline tribunal of the Institute of Chartered Accountants of Alberta - On June 23, 2015, an appeal tribunal dismissed the appeal - On July 22, 2015, Barry filed and served a notice of appeal - On October 20, 2015, Barry's counsel (Stephens) contacted the appeal tribunal's secretary and inquired about the status of the record of proceedings - Stephens had wrongly assumed that service of Barry's notice of appeal had caused the appeal tribunal secretary to commence preparation of the record of proceedings - The appeal tribunal secretary promptly prepared the record of proceedings and delivered it to Stephens on November 16, 2015 - The record was not in a format suitable for filing as part of the appeal record - When neither Transcript Management Services or a private court reporting service was able to convert the record of proceedings into a suitable format before the deadline for filing the appeal record, Stephens' office decided to produce the appeal record itself - On November 24, 2015, the Registrar struck Barry's appeal for failure to file the appeal record in the prescribed period - Stephens' office subsequently presented the court registry with the proposed appeal record - On January 19, 2015, the registry informed Stephens' office that the proposed record was in proper form - On February 8, 2015, Barry applied to restore his appeal - The Alberta Court of Appeal, per Wakeling, J.A., allowed the application where (1) there was never any doubt about Barry's intention to prosecute his appeal; (2) the appeal was not frivolous; (3) Barry's explanation for failing to file the appeal record on time was consistent with an abiding intention to prosecute the appeal; (4) Barry was now in a position to immediately file the appeal record and his factum; and (5) the appeal's restoration would not jeopardize the Institute's legitimate interests - Its ability to defend the impugned order was not impaired - The passage of time affected neither the record nor the merits of the impugned decision - Public confidence in the integrity of the Institute's discipline process was not diminished by a restoration order.

Practice - Topic 9054

Appeals - Record on appeal - Filing of - [See Practice - Topic 8907 ].

Cases Noticed:

Taylor v. 1103919 Alberta Ltd. et al. (2015), 602 A.R. 105; 647 W.A.C. 105; 2015 ABCA 201, refd to. [para. 25, footnote 6],

Settlement Lenders Inc. et al. v. Blicharz, [2016] A.R. Uned. 15; 2016 ABCA 33, refd to. [para. 25, footnote 6].

Prochazka v. Maintenance Enforcement Program, [2014] A.R. Uned. 450; 2014 ABCA 448, refd to. [para. 25, footnote 6].

Gould v. Gould, [2014] A.R. Uned. 71; 2014 ABCA 144, refd to. [para. 25, footnote 6].

Garry et al. v. Canada (Minister of Justice) et al. (2007), 429 A.R. 292; 421 W.A.C. 292; 2007 ABCA 234, refd to. [para. 25, footnote 6].

Phillips v. 707739 Alberta Ltd. et al. (2001), 286 A.R. 367; 253 W.A.C. 367; 2001 ABCA 219, refd to. [para. 25, footnote 6].

Boychuk v. Edmonton Police Service et al., [2014] 8 W.W.R. 250; 575 A.R. 103; 612 W.A.C. 103; 2014 ABCA 163, refd to. [para. 27, footnote 8].

Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP et al. (2011), 520 A.R. 190; 2011 ABQB 630, refd to. [para. 27, footnote 8].

R. v. Vallentgoed (D.J.C.) (2015), 602 A.R. 90; 647 W.A.C. 90; 2015 ABCA 202, refd to. [para. 27, footnote 9].

R. v. Govenlock (G.W.) (2015), 599 A.R. 316; 643 W.A.C. 316; 27 Alta. L.R.(6th) 180; 2015 ABCA 122, refd to. [para. 27, footnote 9].

R. v. Jensen (C.K.), [2015] 5 W.W.R. 655; 588 A.R. 234; 626 W.A.C. 234; 2014 ABCA 435, refd to. [para. 27, footnote 9].

R. v. McNaughton (S.D.) (2010), 487 A.R. 130; 495 W.A.C. 130; 2010 ABCA 97, refd to. [para. 27, footnote 9].

R. v. Hanna (K.D.) (1991), 3 B.C.A.C. 57; 7 W.A.C. 57 (C.A.), refd to. [para. 27, footnote 9].

Counsel:

R.C. Stephens, for the applicant;

N.J. Forster, for the respondent.

This application was heard on March 30, 2016, by Wakeling, J.A., of the Alberta Court of Appeal, who filed the following reasons for decision at Edmonton, Alberta, on April 1, 2016.