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Requirement on Regulator to Follow Policies

Tsimidis v. Certified General Accountants of Ontario, 2014 ONSC 4236, concluded that the Certified General Accountants of Ontario (“CGA Ontario”) acted unfairly when withdrawing an applicant from a program of professional studies.

An applicant enrolled in the CGA Ontario program to become a Certified General Accountant. CGA Ontario has a policy prohibiting exam takers from having in their possession any study notes during an exam. While taking an exam, the applicant put his study notes face-­down on the corner of his desk. When this was discovered by the exam invigilator, a report was made to CGA Ontario. Several weeks later, the applicant was withdrawn from the program. The applicant wrote to the CGA Ontario Appeals Committee, explaining that he did not cheat and the incident was an innocent mistake. His appeal was denied, with no reasons given for the denial.

On judicial review to the Court of Queen’s Bench, the Court concluded that among other things, CGA Ontario breached its duty of procedural fairness by failing to follow its own policy, which required the student to be given an opportunity to respond to the allegations and to have an in­-person meeting with the Vice­ President of Student Services. The matter was sent back to the Appeals Committee for rehearing in accordance with proper process.

Comment: Tsimidis demonstrates that when a professional regulator makes a decision that will impact an individual’s career prospects and thus their livelihood, the regulator owes a duty of procedural fairness to the individual. At a minimum, this will require the regulator to follow its own policies and procedures. Depending on the particular context of the proceedings, more requirements may apply as well.