500 Complaints and Discipline Processes
501 Passing and approval of rules
The Council has from time to time passed bylaws governing professional conduct, and these bylaws have been designated as the rules of professional conduct. No such rule or any amendment thereto shall take effect until it has been approved at an annual general meeting of the Institute or at a general meeting of the Institute called to consider such rule amendment.
502 Compliance with rules
Members and students shall comply with such standards as are prescribed, and with the bylaws, rules of professional conduct and regulations of the Institute.
503 Release of information to complainant
The Chief Executive Officer or his or her representative shall, in writing, inform any person who has made a complaint against a member or student pursuant to Bylaw 510(2)(a), of the disposition of such complaint
(a) after the investigation by the Professional Conduct Committee; or
(b) where a charge has been laid by the Professional Conduct Committee, of the decision of the Discipline Committee in the matter;
(c) where a decision of the Discipline Committee has been appealed to the Council, of the decision of the Council in the matter: or
(d) after the Complaint Review Panel has reached a decision with respect to a request for review by a complainant.
504 Application to Professional Corporations
(1) If the conduct of a member through whom a professional corporation was practicing public accounting at the time the conduct occurred is the subject of an investigation or inquiry,
(a) any power that may be exercised under the Act and these Bylaws and Regulations in respect of the member may be exercised in respect of the professional corporation; and
(b) the corporation is jointly and severally liable with the member for all fines and/or costs the member is ordered to pay.
(2) Any restriction imposed on the practice of a member through whom a professional corporation is practising public accounting applies to the permit of the corporation in relation to its practice of public accounting through that member. [The next bylaw is Bylaw 510]
510 Professional Conduct Committee
(1) Composition
The Professional Conduct Committee shall consist of such members, including a chair and one or more deputy chairs, and such public representatives as are appointed by the Council.
(2) Committee powers
The Professional Conduct Committee shall be responsible for the initiation of the disciplinary work of the Institute and in the execution of its duties shall have power:
(a) to receive in writing from any person a complaint of professional misconduct, or of incompetence by or on the part of a member or student;
(b) to make such preliminary investigation and enquiry as it deems proper into any such complaint or into any act, omission, matter or thing which may constitute or involve professional misconduct or incompetence on the part of any member or student, or which may constitute or involve violations of the bylaws, rules of professional conduct or regulations of the Institute, or which may be or may have been derogatory to the reputation, dignity or honour of the Institute or the profession;
(c) to make a charge against any member or student in the committee's absolute discretion, subject to the provisions of Bylaw 581;
(d) to take whatever action it deems proper in connection with any charge or complaint including referring any such charge to the Discipline Committee;
(e) to determine the time and place of its meetings and the procedure thereat and from time to time to do and decide all such other matters as may be necessary for the work of the committee;
(f) to provide informal guidance and advice to members or students whether charged or not under these bylaws;
(3) Investigator
The Professional Conduct Committee, or the chair or any deputy chair acting on its behalf, may retain the services of any person on a fee basis or otherwise, whether or not a member, and authorize any such person
(a) to inquire into all matters which may be brought to his or her attention by the Professional Conduct Committee or its chair or any deputy chair, whether in the investigation of a complaint, or in the reinvestigation of a complaint, or in the reinvestigation of a member's practice pursuant to an order of the Discipline Committee; and
(b) to interview any member or student, including members or students who are not the subject of a complaint, and to examine any books, documents and working or other papers.
(4) Requiring attendance at meeting
The Professional Conduct Committee, or the chair or any deputy chair of the committee acting on its behalf, may by notice in writing addressed to any member or student, including members or students who are not the subject of a complaint, require the attendance of such member or student before it, and may require the production to it of any books, documents and working or other papers in the member's or student's possession, custody or control which may be required from time to time for the purpose of any investigation or enquiry under clause (2)(b), and the member or student shall comply with the requirements of such notice within a reasonable time.
(5) Membership Committee referral
Where any matter has been brought to its attention by the Membership Committee pursuant to Bylaw 358(6)(b), the Professional Conduct Committee shall inform the Membership Committee of the outcome of its investigation, including whether any charge under these bylaws was made against the member and of the final disposition of any such charge.
(6) Committee membership until decision reached
A member of the Professional Conduct Committee before whom any investigation or inquiry is proceeding pursuant to this bylaw, and whose appointment to the Professional Conduct Committee would otherwise expire before the disposition of such investigation or inquiry, shall continue to be a member of the Professional Conduct Committee for the purpose of such investigation or inquiry as stipulated by the chair, but only for the purpose of such investigation or inquiry and only until such time as the committee has reached a decision in respect of that investigation or inquiry.
(7) Reconsideration of complaint
If, after the Professional Conduct Committee has considered a complaint and decided not to make a charge, new evidence of a material nature in support of the complaint is received, it shall reconsider the complaint and its action taken in respect of it, and shall take whatever new action, if any, it considers appropriate. [The next bylaw is Bylaw 530]
530 Discipline Committee
(1) Committee structure
The Discipline Committee shall consist of such members of the Institute, including a chair and one or more deputy chairs, and such public representatives as are appointed by the Council. It may sit and effectively hear and determine charges of professional misconduct and or incompetence in one or more panels consisting of a minimum of three members, provided that subject to the provisions of Bylaw 578, once a panel has begun to hear a charge or charges of professional misconduct and/or incompetence, that panel consisting of the same members shall continue to hear the charge or charges until the charges have been fully heard and determined and a decision has been made as to the sanctions, if any, to be imposed.
(2) Committee sanctions
After a hearing the Discipline Committee shall find the member or student guilty or not guilty of a charge. If the member or student is found guilty of a charge, the Discipline Committee may order one or more of the following, namely:
(a) that any such member or student shall be reprimanded by the chair of the panel;
(b) that any such member or student shall pay a fine to the Institute and, if such fine should not be paid within the time specified by the committee, that the member or student shall be dealt with under this bylaw in such manner, including suspension or expulsion, as the committee may determine;
(c) that any such member or student shall be suspended from any or all of his or her rights and privileges under the Act and the bylaws on such terms and conditions as the Discipline Committee may determine either for a time certain or until the committee shall further order;
(d) that any such member shall be expelled from membership in the Institute, or it may recommend to Council that any such member may be permitted to resign;
(e) that any such student shall be struck off the register of students, or it may recommend to Council that any such student may be permitted to resign;
(f) that any such member be required to satisfactorily complete such professional development courses or examinations, or engage an advisor or tutor, or such combination thereof as the Discipline Committee shall consider appropriate, and if such courses, tutoring or examinations are not satisfactorily completed within the time specified by the committee that the member shall be dealt with under this bylaw in such manner, including suspension or expulsion, as the committee may determine;
(g) that any such member be required to complete a period of supervised practice as prescribed by the Discipline Committee;
(h) that any such member be reinvestigated by the Professional Conduct Committee, or by any person retained on its behalf for that purpose, as to the member's professional standards of practice, or as to the member's professional conduct, or any other matter the Discipline Committee may determine, whether or not those standards of practice, or conduct, or matters have been the subject matter of a complaint;
(i) that any such member or student be disciplined in such other way as the Discipline Committee may determine;
(j) that notice of its final decision and/or order be given in accordance with the provisions of Bylaw 573.
(3) Power to provide informal guidance and advice
The Discipline Committee shall have power during or at the conclusion of a hearing to provide informal guidance and advice to members or students whether found guilty or not.
(4) Findings of other Provincial Institutes
Notwithstanding any other provisions of the bylaws or the Rules of Professional Conduct, if a member is charged under rule 201.1 as a result of being suspended or expelled or having a restriction placed on the member's right to practice through the disciplinary process of another Provincial Institute, a copy of the relevant decision and order, purporting to be certified by the Provincial Institute, shall be sufficient evidence of the facts and determinations certified therein.
(5) Reporting of decision
The Discipline Committee shall report:
(a) forthwith to the parties to the proceedings the disposition of every charge referred to it; and
(b) to the Council the disposition of every charge referred to it upon the decision of the committee becoming final under the bylaws.
[The next bylaw is Bylaw 540]
540 Right to appeal
Any member or student found guilty of any charge by the Discipline Committee may appeal against any finding or order under Bylaw 530 by filing a written appeal in accordance with the provisions of Bylaws 601 to 609.
[The next bylaw is Bylaw 550]
PRACTICE AND PROCEDURE BEFORE THE DISCIPLINE COMMITTEE
550 Service of documents: personal service - mail service - when received - if not received - relief
(1) All documents, including notices, charges, decisions, orders, and reasons, required to be served upon a member or student who is a party to a discipline proceeding, may be served:
(a) personally upon the member or student;
(b) by ordinary prepaid first-class mail addressed to the member or student at his or her last known mailing address according to Institute records, or such other address as stipulated by the member or student in writing;
(c) at the option of the member or student, personally or by mail upon his or her legal counsel retained to act in the discipline proceeding.
(2) All documents required to be served upon the Professional Conduct Committee in a discipline proceeding shall be served upon legal counsel for the Professional Conduct Committee.
(3) Documents served personally pursuant to this bylaw shall be deemed to have been received by the party served on the day of service, and any time periods running pursuant to the bylaws shall begin to run from and include the calendar day next following the day of service.
(4) Documents served by mail pursuant to this bylaw upon a member or student shall be deemed to have been received on the tenth calendar day after the day of mailing, and any time periods running pursuant to the bylaws shall begin to run from and include the calendar day next following the day of deemed receipt.
(5) A member or student served with documents pursuant to this bylaw is deemed to have received them in accordance herewith, unless he or she establishes to the satisfaction of the Discipline Committee that he or she did not, acting in good faith, through absence, accident, illness, or other cause beyond his or her control, receive a document until a later date, or at all.
(6) If a member or student establishes that he or she did not receive a document served pursuant to this bylaw, any consequences resulting from the failure of service shall be void, the member or student shall be restored as nearly as is possible to the position he or she was in immediately before the failed service, and the document shall be re-served. (7) Service of any document served pursuant to this bylaw may be proved by statement under oath, written or oral, of the person who made the service.
551 Notice of Hearing or Appeal
Any person charged or appealing to a panel of Council, as the case may be, shall be entitled to ten days notice of the time and place appointed for any formal hearing of the charge or appeal.
552 Hearing to be public
Any formal hearing or appeal shall be open to the public except where the Discipline Committee or the panel of Council, as the case may be, is of the opinion that
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing or appeal of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,
in which case the committee or the panel of Council, as the case may be, may hold the hearing or appeal concerning such matters in camera.
553 Giving directions
The Discipline Committee or the panel of Council, as the case may be, may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
554 Maintenance of order
The Discipline Committee or the panel of Council, as the case may be, may make such orders and give such directions as it considers necessary for the maintenance of order, and such orders or directions may be enforced in the manner provided in any applicable provision or statute for the time being in force.
555 Taking notice
The Discipline Committee or the panel of Council, as the case may be, may take notice of facts that may be judicially noticed, and any generally recognized scientific or technical facts, information, or opinions within its scientific or specialized knowledge.
556 Rulings of the chair
Unless otherwise specifically provided, the procedures at all formal hearings or appeals shall be determined by the ruling of the chair, whose decision shall be final, binding and conclusive.
557 Record of proceedings
The proceedings at any formal hearing or appeal shall be recorded in a manner that is adequate to enable a complete transcript of the proceedings to be produced if such a transcript is required for the purposes of an appeal, or any other bona fide purpose.
558 Absence from hearing or appeal
Any person charged or appealing shall attend at the time and place appointed for the hearing of the charge or appeal; and if the person charged or appealing does not attend at the formal hearing or appeal, the Discipline Committee or the panel of Council, as the case may be, may proceed in his or her absence and he or she will not be entitled to any further notice in the proceedings.
559 Adjournment of hearing
A formal hearing or hearing of any appeal may be adjourned at any time and from time to time and no further notice shall be required to be given to any party to the proceedings.
560 Right to counsel or agent
At any formal hearing of a charge, the person charged shall be entitled to be present and to be represented by legal counsel or other agent, to be present during the hearing, to question any witnesses, and to submit statements, evidence and argument; and at any appeal any person appealing shall be entitled to be represented by legal counsel or other agent, to be present during the hearing and submit argument.
561 Exclusion of agents
The Discipline Committee or the panel of Council, as the case may be, may exclude from a hearing anyone, other than a barrister and solicitor qualified to practise in Manitoba, appearing as an agent on behalf of a party or as an adviser to a witness if it finds that such person is not competent to properly represent or advise the party or the witness or does not understand and comply with the duties and responsibilities of an advocate or adviser.
562 Amendment of charge
(1) Any charge may be amended at the hearing with leave of the Discipline Committee, or the panel of Council as the case may be, either upon the consent of the parties to the proceedings or provided that notice of application for amendment setting out the proposed amendment was served upon the other party and the secretary of the Discipline Committee or the panel of Council, as the case may be at least five (5) days prior to the date appointed for the hearing.
(2) Where there is a variance between the wording of a charge and the evidence presented in support thereof, and where, in the opinion of the Discipline Committee, the member or student charged has not been prejudiced by lack of notice, the committee may direct an amendment of the charge so as to make it conform to the evidence and proceed with the hearing of the charge; but where, in the opinion of the Discipline Committee, the member or student charged may be prejudiced by such amendment, the committee may, if it is of the opinion that such prejudice can be removed by an adjournment, make such amendment and adjourn the hearing to a later date. (3) Where an amendment is made pursuant to this bylaw, a reference in the bylaws to a "charge" thereafter shall mean the charge as amended.
563 More than one member or student charged
If more than one member or student is involved in any charge or if there is more than one charge, the formal hearing or appeal may proceed as to each charge or as to each member or student separately or together as the chair may from time to time determine.
564 Administering oaths
The Discipline Committee or the panel of Council, as the case may be, may administer oaths and affirmations for the purpose of any of its proceedings and may require evidence before it to be given under oath or affirmation.
565 Admission of evidence
To the extent permitted by any applicable provision or statute for the time being in force, the Discipline Committee or the panel of Council, as the case may be, may admit as evidence, whether or not given or proven under oath or affirmation or admissible as evidence in a court, any oral testimony and any document or other thing relevant to the subject matter of the proceedings and may act on such evidence, but may exclude anything unduly repetitious.
566 Admission of documents
The Discipline Committee or the panel of Council, as the case may be, may admit a copy of a document or other thing as evidence where it is satisfied as to the authenticity thereof.
567 Permitting photocopies
The Discipline Committee or the panel of Council, as the case may be, may grant leave to the person producing or to the person entitled to a document that has been filed in evidence, to cause, or to itself cause, such document to be photocopied, and may authorize the photocopy to be filed in evidence in the place of the document filed and release the document filed, or may furnish to the person producing it or the person entitled to it a certified photocopy of the document filed.
568 Summoning of witnesses
(1) The Discipline Committee or the panel of Council, as the case may be, may require any person, including the person charged, by summons, notice or subpoena issued pursuant to The Evidence Act of Manitoba, RSM E150 or other provision or statute for the time being in force, to give evidence on oath or affirmation at the formal hearing or appeal and to produce in evidence at such hearing or appeal documents and things specified in the summons, notice or subpoena provided that such evidence, documents and things are admissible and relevant to the subject matter of the proceedings.
(2) The summons, notice or subpoena has the same effect as a notice or subpoena in a court proceeding requiring a witness to attend at a hearing or produce documents and shall be served in the same way.
569 Witness' counsel
In any formal hearing or appeal before the Discipline Committee or the panel of Council, as the case may be
(a) a witness may be advised by his or her counsel or agent as to his or her rights, but such counsel or agent may take no other part in such hearing or appeal without leave of the body holding such hearing or appeal; and
(b) where such hearing or appeal is in camera, a counsel or agent for a witness shall not be entitled to be present except when that witness is giving evidence.
570 Limiting of cross-examination
The Discipline Committee or the panel of Council, as the case may be, may reasonably limit further cross-examination of a witness where it is satisfied that the cross-examination of the witness has been sufficient to disclose fully and fairly the facts in relation to which he or she has given evidence.
571 Proof of prior conviction, discharge or suspension
The Discipline Committee or the panel of Council, as the case may be, may accept the following as conclusive proof of the facts certified:
(a) in the case of a convicted person, the certificate of conviction purporting to be signed by the officer having custody of the records of the court at which the offender was convicted;
(b) in the case of a person who has pleaded or been found guilty of a criminal offence but has been discharged absolutely or upon the conditions prescribed in a probation order, a certified copy of the original information purporting to be signed by the official having custody thereof with the endorsement of the discharge thereon;
(c) in the case of a person who has been found guilty of a different charge of professional misconduct or incompetence by the Discipline Committee, or by a panel of Council, or by a Court of competent jurisdiction as the case may be, a copy certified as to its accuracy by the Chief Executive Officer of the Institute, of the Order of the Discipline Committee, or of the panel of Council, as the case may be, outlining the finding of misconduct or incompetence, or where applicable, a true or certified copy of any Order or Judgment of a Court of competent jurisdiction, outlining the finding of misconduct or incompetence.
572 Final decision, order and reasons to be written
The Discipline Committee or the panel of Council, as the case may be, shall give its final decisions and/or orders and reasons in writing, and shall serve copies thereof on the parties to the proceedings.
573 Notice of decisions and orders: disclosure of name - publication
(1) Notice of any decision and/or order made by the Discipline Committee or the panel of Council, as the case may be, may be given in such form and manner as the committee or the Council may from time to time determine.
(2) Notice of suspension or expulsion of a member shall be given to all members of the Institute after a period of fifteen (15) days from the date of the making of the order.
(3) Notice of expulsion of a member shall be given to the public by publication in a newspaper distributed in the geographic area of the member's current or former practice employment and/or residence, or in such other manner as the Discipline Committee or the panel of Council may determine to be appropriate.
(4) Any notice given under this bylaw shall disclose the name of the person disciplined.
(5) When through the Institute's disciplinary process,
(a) a member is suspended or expelled from membership, or
(b) a member's right to practice is restricted, the Chief Executive Officer or his or her representative shall promptly inform all other Provincial Institutes of this action.
(6) Such further or other notice of any decision and/or order may be given or published in such a way and at such times as the Discipline Committee or the panel of Council, as the case may be, may determine.
574 Consent to the release of information
All members and students, by their applications for membership or registration, or by their applications for readmission to membership or reregistration as a student, or by their continuance of membership or registration, shall consent and be deemed to have consented to any notice, publication or release of information under these bylaws.
575 Filing of decision or order with Court
The Discipline Committee or the panel of Council, as the case may be, may file a certified copy of its decision and/or order in the office of the Registrar of the Court of Queen's Bench for Manitoba and, if such decision and/or order is for payment of money, it may be enforced in the manner provided under any applicable provision or statute for the time being in force as if the decision and/or order were a judgment of the Court of Queen's Bench.
576 Stay of proceedings
Upon the giving of any notice of appeal or of any notice of proceeding in a court by way of review or appeal, as the case may be, the terms of any order, and the operation of these bylaws as to notice and publication, shall be stayed pending disposition of any such appeal or final appeal or proceeding, unless otherwise ordered by the Council or a court, as the case may be, in accordance with any provision or statute for the time being in force.
577 Members of panel not to have information extraneous to hearing: legal advice
The members of the Discipline Committee or the panel of Council, as the case may be, who form a panel to conduct the formal hearing of a charge or charges or appeal shall not have taken part prior to such formal hearing or appeal in any investigation or consideration of the subject matter of such formal hearing or appeal and shall not communicate about the subject matter of such formal hearing or appeal with any person or with any party, or his or her representative, except as members of the panel.
578 Conditions governing participation in hearing and for hearing to proceed
No member of the Discipline Committee or the panel of Council, as the case may be, shall take part in a formal hearing or appeal or participate in any decision in respect thereof, except as a member of the panel formed to conduct the formal hearing or appeal, and only members of the panel who have heard all of the evidence and submissions of the parties may be present and participate in the deliberations. All members of the panel must be present and participate at any formal hearing or appeal; but in the event any member of a panel, whether a member of the Institute or a public representative, is unable to be present or participate because of death, illness or other cause, and provided there continues to be a quorum of the panel, the remaining members of the panel shall continue to hear the evidence and the submissions and to reach a decision. A panel may not proceed without a quorum except with the consent of the parties to the proceedings.
579 Committee membership until hearing concluded
A member of a panel of the Discipline Committee or the panel of Council before which a formal hearing or appeal is proceeding, whose appointment to the committee or the panel of Council would otherwise expire before the formal hearing or appeal is concluded and a decision rendered, shall continue to be a member of the committee or panel of Council until such time as the formal hearing or appeal is concluded and the decision rendered.
580 Use of evidence in other proceedings
A witness at a formal hearing or appeal shall be deemed to have objected to answer any question asked him or her upon the ground that the answer may tend to incriminate him or her or may tend to establish his or her liability to civil proceedings at the instance of the Crown, or of any person, and no answer given by a witness at a formal hearing or appeal shall be used or be receivable in evidence against the witness in any trial or other proceeding against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence.
581 Complaint Review Panel
(1) A complainant who is not satisfied with a decision of the Professional Conduct Committee may request a review of that decision by the Complaint Review Panel.
(2) The Complaint Review Panel will be comprised of three (3) members, one of whom shall be a public representative and two of whom shall be members of the Institute. The Chair of the Complaint Review Panel shall be a member.
(3) The request for review must be made to the Chief Executive Officer within 30 days of the notification to the complainant of the decision of the Professional Conduct Committee. The request for review must be written and must state the basis on which the request is made.
(4) The Complaint Review Panel will review the request and may:
(a) make any decision that in its opinion ought to have been made by the Professional Conduct Committee;
(b) quash, vary or confirm the decision of the Professional Conduct Committee; or
(c) refer the matter back to the Professional Conduct Committee for further consideration in accordance with any direction that the Complaint Review Panel may make.
(5) The Complaint Review Panel will provide written notice of its decision and the reasons for its decision to the member or student and complainant.
(6) The Complaint Review Panel is not required to hold a hearing or give any person an opportunity to appear before it or to make oral submissions to it during its review of the matter, but it shall give the member or student and complainant an opportunity to make a written submission.
[The next bylaw is Bylaw 601]
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