Venn, R. v. (2000), 52 O.R. (3d) 37 (C.A.)

  • Document:
  • Date: 2018

Her Majesty the Queen ex rel. Steeds v. Venn*

[Indexed as: R. ex rel. Steeds v. Venn]

52 O.R. (3d) 37

[2000] O.J. No. 4647

Docket No. C33992

Court of Appeal for Ontario

Labrosse, Weiler and Sharpe JJ.A.

December 11, 2000

 

* Application for leave to appeal to the Supreme Court of Canada dismissed August 30, 2001 (Gonthier, Major and LeBel JJ.).                   S.C.C. File No. 28408.       S.C.C. Bulletin, 2001, p. 1476.

 

Charter of Rights and Freedoms–Fundamental justice –Vagueness–Definition of “public accountant” in s. 1 of Public Accountancy Act and prohibition in s. 24(1)(b) of Act against practising as public accountant without licence when read in conjunction with s. 34 of Act not unconstitutionally vague–Canadian Charter of Rights and Freedoms, s. 7–Public Accountancy Act, R.S.O. 1990, c. P.37, ss. 1, 24(1)(b), 34.

Professions–Accountants–Defendant was Certified General Accountant–Defendant prepared financial statements and income tax returns for company–Statements were addressed to management and accompanying report stated that statements were for use within company–Defendant provided financial statements and income tax returns to purchaser of company’s shares –Defendant had actual knowledge that purchaser was relying on financial statements–Use of formulaic wording that reports were for internal use only did not alter that knowledge –Defendant guilty of practising public accountancy without licence contrary to s. 24(1)(b) of Public Accountancy Act with respect to preparation of financial reports–Defendant not guilty with respect to preparation of income tax returns –Preparation of income tax return and attached financial statement not meeting definition of practising as public accountant under Act–Public Accountancy Act, R.S.O. 1990, c. P.37, s. 24(1)(b).

Section 1 of the Public Accountancy Act defines a public accountant as a person who engages for reward in public practice, including the preparation of a financial statement on which it is indicated that such person acts as an independent accountant or a person having expert knowledge in accounting or auditing matters. Section 24(1)(b) of the Act prohibits the practice of public accountancy without a licence. Section 34 of the Act states that nothing in the Act precludes an individual from practising as an industrial or cost accountant or “from issuing statements, opinions, reports or certificates, in connection with such practice”. The defendant was a Certified General Accountant. He prepared income tax returns to which financial statements were attached for a company. The financial statements prepared by the defendant were addressed to management and the review engagement report attached to the financial statements stated that the financial statements were for use within the company.

An agreement was entered into to sell shares of the company. In the agreement, the vendor shareholders agreed to cause the company accountants to prepare a statement of the affairs of the business, including a financial statement and balance sheet. The defendant was consulted directly by the controller for the purchaser, who was responsible for ensuring due diligence, and provided him with tax returns and financial statements. The controller relied upon the tax returns and financial statement. The defendant was charged with practising as a public accountant without a licence, contrary to s. 24(1) (b) of the Act. He was convicted. His appeal was allowed and the conviction was quashed. The Crown appealed.

 

Held, the appeal should be allowed.

 

The defendant had actual knowledge that the representations in his report and financial statement would be used and relied upon by the purchaser. The use of formulaic wording that the reports were for internal use only did not alter the actual knowledge that the defendant had that the purchaser would be relying on his statement. It was irrelevant that the purchaser was knowledgeable and did not need protection. The law is not drafted for the knowledgeable purchaser. The defendant was not entitled to the benefit of the exemption in s. 34 of the Act in relation to these activities.

 

The defendant was not responsible for the preparation of the income tax returns. Revenue Canada does not require certification by the person who prepared the statement as to the accuracy of the financial statements attached to income tax returns. The preparation of an income tax return and the financial statement attached to the return does not contravene s. 1 of the Act. The representations contained in the tax return and the financial statements attached as schedules to the return are those of the taxpayer. The representations in this case were not those of the defendant. There was no suggestion that vis–vis the third party income tax department the defendant was performing any function independent of the taxpayer or indicating that he had expert knowledge in accounting or auditing. Consequently, preparation of an income tax return and the attachments that are part of the return would not meet the definition of practising as a public accountant under the Act.

The definition of “public accountant” in s. 1 of the Act and the prohibition in s. 24(1)(b), read in conjunction with s. 34 of the Act, are not void for vagueness. Assuming, without deciding, that s. 7 of the Canadian Charter of Rights and Freedoms applies, the Act is sufficiently precise to avoid being attacked on grounds of vagueness.

 

R. ex rel. Bucknam v. Rayner (1982), 38 O.R. (2d) 336 (C.A.); R. ex rel. Doughty v. Manuel (1982), 38 O.R. (2d) 321 (C.A.), apld

 

Other cases referred to

Bloor Italian Gifts Ltd. v. Dixon (2000), 48 O.R. (3d) 760, 187 D.L.R. (4th) 64, 4 C.C.L.T. (3d) 73 (C.A.); Canada v. Lewis (1997), 36 O.R. (3d) 688, 155 D.L.R. (4th) 442, 121 C.C.C. (3d) 156 (C.A.) (sub nom. R. v. Lewis); Order of Chartered Accountants of Quebec v. Goulet, [1981] 1 S.C.R. 295, 126 D.L.R. (3d) 135, 38 N.R. 91, 61 C.C.C. (2d) 97; Pauz v. Gauvin, [1954] S.C.R. 15; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 114 N.S.R. (2d) 91, 93 D.L.R. (4th) 36, 139 N.R. 241, 313 A.P.R. 91, 10 C.R.R. (2d) 34, 74 C.C.C. (3d) 289, 43 C.P.R. (3d) 1, 15 C.R. (4th) 1

Statutes referred to

 

Canadian Charter of Rights and Freedoms, s. 7 Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1 Provincial Offences Act, R.S.O. 1990, c. P.33, as am. S.O. 1993, c. 31, s. 131 Public Accountancy Act, R.S.O. 1990, c. P.37, as am. S.O. 1998, c. 18, Sch. B, s. 12, ss. 1, 24(1)(b), 34

 

Authorities referred to

 

Legislature of Ontario Debates, 3rd session, 32nd Parliament, 32 Eliz. II, 1983 Ontario, Report of the Profession Organizations Committee, (Toronto: Ministry of the Attorney General, 1980), p. 133 Trebilcock, Critical Issues in the Design of Governance Regimes for the Professions (1989) 23 Gazette 349-353

 

APPEAL from a judgment quashing a conviction for practising as a public accountant without a licence.

 

Michael D. Lipton, Q.C., and Kevin J. Weber, for appellant. David E. Wires and Lori Mattis, for respondent.

 

The judgment of the court was delivered by WEILER J.A.:–

Introduction

 

[1]  The primary issue on this appeal is whether David Venn, a Certified General Accountant (C.G.A.), was practising as a public accountant without a licence to do so under the Public Accountancy Act, R.S.O. 1990, c. P.37 (“P.A.A.”). [See Note 1 at end of document] For the reasons that follow, I would allow the appeal, set aside Mr. Venn’s acquittal and reinstate his conviction.

Background

The legislation

[2]  Section 1 of the P.A.A. defines a public accountant as a person who engages for reward in public practice, including the preparation of a financial statement on which it is indicated that such person acts as an independent accountant or a person having expert knowledge in accounting or auditing matters.

 

[3]  Section 34 of the P.A.A. states that nothing in the Act precludes an individual from practising as an industrial or cost accountant or “. . . from issuing statements, opinions, reports or certificates, in connection with such practice”. Industrial or cost accountants are often referred to as management accountants.

 

[4]  There are three accounting designations granted by associations recognized by provincial statute in Ontario. They are a Chartered Accountant or C.A., a Certified Management Accountant or C.M.A., [See Note 2 at end of document] and a Certified General Accountant or C.G.A. The requirements for certification as a C.G.A. are less restrictive than the licensing process required to become a C.A. under the P.A.A. See Canada v. Lewis (1997), 36 O.R. (3d) 688, 155 D.L.R. (4th) 442 (C.A.) at pp. 693-94 O.R. The effect of the P.A.A. is to create a professional monopoly in favour of chartered accountants. Statutes creating professional monopolies are to be strictly construed: Pauz v. Gauvin (1953), [1954] S.C.R. 15. The exemption in s. 34 enables a C.G.A. to practise in the manner specified, so long as the type of work that is done comes within the exemption contained in s. 34 of the P.A.A. The purpose of restricting the type of work a C.G.A. may do is to protect the public. Although an economic benefit may inure to those who hold one of the accounting licences I have described, economic benefit was not the reason the legislature conferred a licensing power on the various self-governing organizations. The granting of a licence does, however, give the holder an exclusive right to practise in a stated area in order to protect the public, who may not be capable of assessing the quality of the services required in a particular instance. See Report of the Profession Organizations Committee (Toronto: Ministry of the Attorney General, 1980) at p. 133; Legislature of Ontario Debates, 3rd session, 32nd Parliament, 32 Eliz. II, 1983; M.J. Trebilcock, Critical Issues in the Design of Governance Regimes for the Professions, (1989) 23 Gazette 349-353.

(b) Manuel and Rayner cases

 

[5]  The question of whether the appellant was practising as a public accountant without a licence requires consideration of R. ex rel. Doughty v. Manuel (1982), 38 O.R. (2d) 321 (C.A.) and a companion decision released at the same time, R. ex rel. Bucknam v. Rayner (1982), 38 O.R. (2d) 336 (C.A.). In Manuel, supra, a C.G.A. did bookkeeping and prepared financial statements for several businesses. There was no evidence that the services of the C.G.A. were used or intended for the use of persons outside of these businesses. Blair J.A. held that the exception relating to “cost accountants” in s. 34 of the P.A.A. related to “management accountants”, that is, persons whose scope of work was limited to the preparation of statements solely for the use of management and not for the use of other parties. Accordingly, he allowed the accused’s appeal from conviction for practising as a public accountant without a licence and entered an acquittal.

 

[6]  In Rayner, supra, decided concurrently with Manuel, a C.G.A. prepared financial statements not only for the management of the club for whom he was engaged but also for the use of the club’s members, and he handed out the statements to the members at a meeting. Blair J.A. held the C.G.A. was not practising as a management accountant but as a public accountant and, accordingly, he was in breach of the P.A.A.

 

[7]  In Manuel, supra, at p. 331, Blair J.A. foreshadowed the issue that has arisen in this appeal. He stated:

The evidence as to the use or intended use of the accountant’s statements is clear and uncomplicated in this case and the Rayner case. It is not difficult to envisage cases where it may not be. More searching questioning of clients might reveal that they used or intended to use such financial statements in the ordinary course of business in dealing with banks, creditors or others. Where such use was possible it would be difficult for accountants to establish that they did not know or ought not to have known that their statements would be used by third parties.

 

(Emphasis added) And at p. 332:

It should be emphasized that third party use is not the same as third party reliance, which the appellant maintained was the distinctive characteristic of public accountancy. Third party reliance is related to the function of the auditor who independently investigates and certifies accounts. But the use to be made of statements is a narrower concept and does not include the requirement of certification upon which reliance may be placed. Accountants preparing statements for use by management are exempt from the licensing requirement, but the disclosure or the reasonable prospect of disclosure of such statements to third parties for their use in dealing with management may disentitle the accountant to the exemption. I have used the words “may disentitle” advisedly so as not to preclude full consideration of this issue in future. However, my view is that if certified general accountants were to act outside the narrowly defined role of the management accountant, they would be trespassing in the field of public accounting for which they are not licensed.

 

(Emphasis added)

Facts

 

[8]  Mr. Venn, a C.G.A., prepared income tax returns to which financial statements were attached for a company called the Coach House for the years 1992, 1993 and 1994. After preparing the financial statement in 1992, he was prosecuted for practising without a licence and convicted following a trial in September 1993. At that trial, the company’s banker testified that the financial statement Mr. Venn had prepared for the company was given to the company’s banker in order to track the company’s progress. The financial statement was also used to determine whether the bank should give certain concessions to the company respecting repayment of a loan secured by a mortgage to the bank.

 

[9]  Mr. Venn prepared the 1993 and 1994 financial statements, but the statements and the review engagement report that accompanied them contained wording not on the 1992 statements. The 1993 and 1994 statements were instead specifically addressed to management. The review engagement report attached to the financial statements began with the words, “As your management accountant”. The report stated the accompanying financial statement was “For use within the company”. The report further said that the review of the statements undertaken, “. . . does not constitute an audit and an audit opinion is not expressed”.

 

[10]  On October 19, 1993, IPCF Properties Limited (“IPCF”) entered into an agreement to purchase shares of the Coach House with the closing date being October 31, 1994. Pursuant to a supplementary agreement dated October 14, 1994, IPCF agreed to purchase “all issued and outstanding stock of the Coach House North Motor Inn Inc. and certain related party accounts”. In both agreements, the vendor shareholders agreed to cause the Coach House “. . . accountants to prepare a statement of the affairs of the business as of the Closing Date, including a financial statement and balance sheet. . .”. The income tax payable by the Coach House to the closing date was also to be calculated so that it could be adjusted with the purchase price at the time of closing. IPCF agreed to reimburse the Coach House for one-half the accountant’s bill in connection with the preparation of the financial statements.

 

[11]  Mr. Dunlop, the controller for IPCF, was responsible for ensuring the due diligence respecting the Coach House. In October 1994 he met with Mr. Kim, one of the two principal shareholders of Coach House, and reviewed the books and records of the Coach House, including the income tax returns and financial statements. However, certain tax information and a financial statement for the stub period from July 1, 1994 to October 31, 1994 (the closing date of the sale) was missing. Mr. Kim and his partner told Mr. Dunlop that Mr. Venn was the person to talk to. On October 24, 1994, he called Mr. Venn, identified himself as the controller for the company that was purchasing the Coach House and asked him where the tax return and financial statement for the stub period were. Mr. Venn said he was preparing the statements. Mr. Dunlop told Mr. Venn that these documents were called for in the agreement of purchase and sale. Following two further conversations with Mr. Dunlop, Mr. Venn sent a facsimile copy of the statements to the lawyers for IPCF. After receiving the statements, Mr. Dunlop again contacted Mr. Venn regarding an item in the statements and received an explanation from him. IPCF relied upon the financial statement of October 31, 1994, as well as the 1993 Federal Tax Return and the 1994 Provincial Tax Return. IPCF did not avail themselves of Mr. Venn’s services after the sale of Coach House.

 

[12]  Mr. Venn was again charged with a single count involving three incidents of practising as a public accountant when he was not licensed as a public accountant under the P.A.A. contrary to s. 24(1)(b) of the P.A.A. He was convicted by Justice of the Peace P. Leclerc of the charge and fined $5,000. He appealed to Judge W.F. Fitzgerald, who allowed his appeal and quashed his conviction. The Crown ex rel. Steeds brought a motion for special leave to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended by S.O. 1993, c. 31, which was granted by Rosenberg J.A. The Decision at First Instance and on Appeal

 

[13]  The trial judge found that, “. . . Mr. Venn ought reasonably to have foreseen that Revenue Canada, Mr. Bruce Munro (the TD Bank representative) and Mr. Steven Dunlop of IPCF would rely on the financial statements and tax returns that he had prepared.” Mr. Venn knew the identity of the three parties and he dealt directly with Mr. Dunlop. Although the statements prepared by Mr. Venn were clearly directed to management via the review engagement reports, they:

. . . were intended for uses other than overseeing the management of the company (to wit: to assist in the sale of the Coach House to IPCF, to chart the progress of the Coach House by the bank, to determine whether concessions should be granted by the bank, to be used as part of tax returns filed with Revenue Canada and identifying himself as “the designated representative” of the Coach House “in matters pertaining to the Income Tax Act).

 

[14]  The trial judge concluded that Mr. Venn should have been more diligent than he was and that the work done by him was work for which a licence was required. He either knew or was wilfully blind to the fact that the statements would be used for reasons other than those identified on the statements, that is, for management’s internal use only. Accordingly, he could not avail himself of the exemption as set out in s. 34 of the P.A.A. The trial judge convicted Mr. Venn of practising as a public accountant without a licence.

 

[15]  On appeal, Fitzgerald J. observed that no issue was taken with the findings of fact made by the trial judge. He also indicated that it was his understanding that in Manuel, supra, the use of the financial statements was only for management purposes and, as a result, Mr. Manuel was acquitted of the charge of practising as a public accountant. In Rayner, the financial statements were prepared, not for management use only, but for the members of a club. Consequently, the accountant could not claim the exemption in s. 34 of the legislation. Applying the law in Manuel and Rayner, supra, to the present case, he noted that the evidence from the representative of Revenue Canada was that Revenue Canada interprets the certification on an income tax return as being the representation of the management of the corporation. He held that filing an income tax return had nothing to do with practising as a public accountant. With respect to the statements given to the TD Bank, he held that “. . . there was no evidence that these statement[s] had been prepared for the bank, or even prepared for use by the bank.” Similarly, with respect to the use of the statements by IPCF, he held:

Again, there was no evidence that these statements had been prepared for anyone other than the Coach House. The statements were prepared for internal use only. The use of the Coach House statements by the purchaser was in accordance with the agreement entered into between the parties on the sale. Any use made by the purchaser, or Mr. Dunlop on behalf of the purchaser, was a business decision made by the purchaser.

He further held:

. . . even if Mr. Venn were aware that the statements he had prepared, or was preparing for the Coach House, would come to the attention of the bank and, or the purchaser, the nature of the statements had not been changed, nor had the relationship between Mr. Venn and the Coach House changed.

 

[16]  Fitzgerald J. found that Mr. Venn was not purporting to act as an “independent accountant or auditor”. In his concluding remarks, he held that Mr. Venn’s knowledge that persons outside management would use the statement “does not change the nature of the statements nor the practice in which Mr. Venn was engaged”. In the result, he reversed the trial judge and entered an acquittal.

 

Analysis

 

[17]  The appellant submits that, inasmuch as Mr. Venn had actual knowledge that the statements he was preparing would not be used solely by management, Fitzgerald J. did not properly apply the decisions of this court in Manuel and Rayner, supra. Mr. Venn, the respondent, submits that the Court of Appeal specifically left open the issue. He submits that when regard is had to all of the circumstances, Fitzgerald J. did not err in his conclusion that: . . . even if Mr. Venn were aware that the statements he had prepared, or was preparing for the Coach House, would come to the attention of the bank and, or the purchaser, the nature of the statements had not been changed, nor had the relationship between Mr. Venn and the Coach House changed.

 

[18]  In the opinion of Fitzgerald J., Mr. Venn was not purporting to act as an “independent accountant or auditor”. I disagree. Mr. Venn had actual knowledge that the representations in his report and stub financial statement would be used and relied upon by the purchaser. The use of formulaic wording that the 1993 and 1994 reports were for internal use only, does not alter the actual knowledge that Mr. Venn had that the purchaser would be relying on his statement. The simple use of this formula is not determinative of responsibility. See Order of Chartered Accountants of Quebec v. Goulet, [1981] 1 S.C.R. 295 at p. 300, 126 D.L.R. (3d) 135 at p. 140. The facts reveal that Mr. Venn was consulted directly by the third party purchaser. He was fully aware that the purchaser would receive a copy of the stub financial statement he prepared and knew that the purchaser would be using and relying on his report and stub financial statement in conducting its due diligence as to the financial health of the company. As it happens, the purchaser in this case was knowledgeable and did not need protection. That will not always be the case. It is not helpful to look at the transaction after the fact and say that because the buyer did not need protection Mr. Venn should have been allowed to draft the stub financial statement. The law is not drafted for the knowledgeable purchaser. Accordingly, Mr. Venn is not entitled to the benefit of the exemption in s. 34 of the P.A.A. in relation to these activities.

 

[19]  Mr. Venn also prepared a corporate income tax return for the stub period. Mr. Caldwell, a large-file case manager who had been with Revenue Canada for 27 years, testified that the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, requires a tax return to be filed in the form prescribed. The form indicates that included in the return are attachments which are, in essence, financial statements. Parliament has not specified that corporations filing an income tax return (including the attachments) must have any special qualifications nor that they be employed by the corporation. The certification page on the return must be signed by an officer of the corporation and Revenue Canada interprets that certification as being the representation of management of the corporation as to the accuracy of the information filed. Revenue Canada does not require certification as to the accuracy of the financial statements attached to the returns by the person who prepared the statements. The preparation of an income tax return and the financial statement attached to the return does not, in my opinion, contravene s. 1 of the P.A.A. The person who signs the income tax return is not Mr. Venn but the taxpayer or, in the case of a corporation, the person having signing authority on behalf of the corporation. The representations contained in the tax return and financial statements attached as schedules to the return are those of the taxpayer. The representations are not those of Mr. Venn. There is no suggestion that vis–vis the third party income tax department Mr. Venn is performing any function independent of the taxpayer or indicating that he has expert knowledge in accounting or auditing. Consequently, preparation of an income tax return and the attachments that are part of the return would not meet the definition of practising as a public accountant under the P.A.A.

 

[20]  My reason for not holding Mr. Venn responsible respecting preparation of the income tax returns accords with the purpose of the legislature in enacting legislation concerning self-governing licensing bodies. As discussed earlier, that purpose is to serve the public interest. In the case of an income tax return and its attachments, that concern does not appear to exist.

 

[21]  The financial statements given to the Bank are the remaining group of documents in issue. Mr. Venn was aware that these financial statements were being given to the Bank. At Mr. Venn’s earlier trial on a charge of practising public accounting in September 1993, the bank manager testified that the financial statements of the Coach House were being used to track the progress of the company and to determine whether concessions should be granted on the mortgage to the Coach House. In the case before us, evidence was led at trial that there was direct contact between the Bank and Mr. Venn respecting the financial statements he prepared for the Coach House. The appellant therefore submits that Mr. Venn had actual knowledge that he was no longer performing only internal services for the company. According to the appellant, the giving of the financial statements to the Bank constituted a representation by Mr. Venn to the Bank as to the company’s financial position based on the information given to him. As a result, Mr. Venn would no longer come within the exemption in s. 34 because he would be purporting to act as a person expert in accounting matters. I agree with the appellant’s submission.

 

[22]  In accepting the appellant’s submission, I note that the financial statements typically had appended to them a review engagement report. This report merely indicated that the financial statements had been prepared without audit. There was nothing in the review engagement reports that accompanied the financial statements or in the other documentation given to the Bank that was introduced in evidence, to the effect that the information in the financial statements constituted the representations of the officers of the Coach House. Nor, in the documentation before the court, did the officers of the Coach House accept responsibility for the fairness, accuracy and completeness of the financial information supplied. Unlike the situation with income tax returns, there was no evidence that the person giving the financial information to the Bank certified that the representations contained in the financial statements were his representations. [See Note 3 at end of document]

 

[23]  Accordingly, I would also allow the appeal on this basis.

 

(a)  Autrefois convict

 

[24]  An ancillary issue in this appeal is whether Mr. Venn’s conviction from an earlier prosecution can found the plea of autrefois convict.

[25]  The basis on which I have upheld Mr. Venn’s conviction is not related to acts for which he was already convicted. Specifically, I have upheld his conviction of practising as a public accountant without a licence because he prepared the stub financial statement for the period from June 30, 1994 and October 31, 1994 relating to the sale of the Coach House to IPCF. The information relating to the respondent’s previous conviction relates to acts that occurred during the six-month period ending January 25, 1993.

 

(b) Vagueness of s. 1

 

[26]  The other issue with which I must deal is the question of whether the P.A.A. and, specifically, the definition of “public accountant” in s. 1 and the prohibition in s. 24(1) (b), are void for vagueness when read in conjunction with s. 34 of the P.A.A. I would agree with the observation of Justice of the Peace Leclerc and other judges that the P.A.A. is not one of the most clearly drafted pieces of legislation and clarification by the legislature would be welcome. However, assuming, without deciding, that s. 7 of the Canadian Charter of Rights and Freedoms applies, in my view, the statute is sufficiently precise to avoid being attacked on grounds of vagueness: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at pp. 638-40, 114 N.S.R. (2d) 91.

 

[27]  The appeal as to vagueness is also dismissed.

 

Conclusion

 

[28]  For the reasons I have given, I would allow the appeal from the acquittal of Mr. Venn, set aside the acquittal and restore his conviction.

Appeal allowed.

Public Accountancy Act

Revised Statutes of Ontario, 1990, Chapter P.37

AMENDED BY: 1998, C. 18, SCHED. B, S. 12.

 

1.  In this Act,

“Council” means The Public Accountants Council for the Province of Ontario; (“Conseil”)

“prescribed” means prescribed by the regulations made by the Council under this Act; (“prescrit”)

“public accountant” means a person who either alone or in partnership engages for reward in public practice involving,

(a)  the performance of services which include causing to be prepared, signed, delivered or issued any financial, accounting or related statement, or

(b)  the issue of any written opinion, report or certificate concerning any such statement, where, by reason of the circumstances or of the signature, stationery or wording employed, it is indicated that such person or partnership acts or purports to act in relation to such statement, opinion, report or certificate as an independent accountant or auditor or as a person or partnership having or purporting to have expert knowledge in accounting or auditing matters, but does not include a person who engages only in bookkeeping or cost accounting or in the installation of bookkeeping, business or cost systems or who performs accounting or auditing functions exclusively in respect of,

(c)  any public authority or any commission, committee or emanation thereof, including a Crown company,

(d)  any bank, loan or trust company,

(e)  any transportation company incorporated by Act of the Parliament of Canada, or

(f)  any other publicly-owned or publicly-controlled public utility organization; (“comptable public”) “qualifying body” means The Institute of Chartered Accountants of Ontario. (“corporation professionelle”)

. . . . .

24(1) Subject to the provisions of this section, no person who is not licensed under this Act shall, within Ontario,

. . . . .

(b) practise as a public accountant;

. . . . .

34 Nothing in this Act precludes a registered member of the Society of Management Accountants of Ontario, or any other person, from practising as an industrial accountant, cost accountant or cost consultant, from designating himself or herself as such or from issuing statements, opinions, reports or certificates in connection with such practice.

. . . . .

 

Notes

Note 1:  For ease of reference, the text of the relevant sections of the P.A.A. is included at the end of this judgment.

Note 2:  Not relevant to this appeal.

Note 3:  I note that in Bloor Italian Gifts Ltd. v. Dixon (2000), 48 O.R. (3d) 760, 187 D.L.R. (4th) 64 (C.A.), MacPherson J.A. dealt with a letter of engagment report that had been prepared by a C.A. The engagement letters contained the following limitation on liability [at p. 771 O.R.]:

 

Although we will prepare or assist in preparing your financial statements, the statements will be your

representations and you must accept responsibility for the fairness of such representations.

 

(Emphasis added)