BILL 32


Chartered Accountants Act 1998

WHEREAS the New Brunswick Institute of Chartered Accountants prays that it be enacted as hereinafter set forth;

THEREFORE, Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick enacts as follows:

1The New Brunswick Institute of Chartered Accountants is hereby continued as a body corporate and politic without share capital to be called "New Brunswick Institute of Chartered Accountants" in English and "Institut des comptables agréés du Nouveau-Brunswick" in French.

2In this Act, unless the context otherwise requires

"complaint" means an allegation that a member, former member, student, firm or professional corporation has committed professional misconduct, is incapacitated or unfit to practise;

"conduct" includes an act or omission;

"Council" means the Council of the Institute constituted under subsection 7(1);

"custodian" means a person or professional corporation appointed under section 28;

"fellow" means a fellow of the Institute;

"firm" means a partnership of two or more members carrying on the practice of public accounting;

"incapacitated member" means a member suffering from a physical or mental condition, emotional disturbance or excessive use of alcohol or drugs, of a nature and extent making it desirable in the interests of the public or the member that he not be permitted to remain a member of the Institute, or that restrictions be imposed upon his membership;

"Institute" means the New Brunswick Institute of Chartered Accountants;

"licence" means a valid and subsisting licence issued under the Act and "licensed" has a corresponding meaning;

"member" means a member of the Institute, but does not include an honorary member of the Institute, and "membership" has a corresponding meaning;

"member in good standing" means a member whose membership is not under suspension, and who is not in default of payment of any monies payable to the Institute;

"practice of a chartered accountant" means a member, a professional corporation which holds a licence, or a partnership who, in connection with his or its work generally or with regard to a particular professional engagement:

(a)uses any words, phrases or initials that represent, expressly or by necessary implication, that he or it is a chartered accountant, a fellow or a professional corporation which holds a licence; or

(b)in any way represents that he or it is a chartered accountant, a fellow or a professional corporation which holds a licence,

whether or not such member, professional corporation or partnership offers his or its professional services to the public, and "practice" has a corresponding meaning;

"prescribed" means prescribed by the By-Laws or a resolution under this Act;

"professional corporation" means a corporation which is registered in the Corporations Register and holds a licence under this Act;

"Rules of Professional Conduct" means rules adopted under subparagraph 8(2)(l)(iv);

"Secretary" means the person holding the office of Secretary under section 6;

"student" means a person who is registered under the By-Laws for training in a program of study;

"unfit member" means a member who has demonstrated a lack of knowledge, skill or judgment or disregard for the welfare of a client in his practice, of a nature and extent making it desirable in the interests of the public or the member that he not be permitted to remain a member of the Institute, or that restrictions be imposed upon his membership.

3The objects of the Institute are:

(a)to promote and increase the knowledge, skill and proficiency of members and students;

(b)to do all such matters and things as will advance and protect the Institute and its members in the profession of accountancy and auditing;

(c)to regulate the discipline and professional conduct of members and students;

(d)to do all such matters and things which give the public greater appreciation of the usefulness and competency of members in the practice of the profession of accountancy and auditing;

(e)to assist necessitous members and the surviving spouse, children or other dependent kindred of deceased members, and to act as treasurers and distributors of any benevolent fund, or funds, which may be contributed by members or others for these purposes, or any of them;

(f)to establish, provide or improve such educational and training facilities for persons desiring to become members as will enable them to acquire the necessary education and training to qualify for admission as members;

(g)to ensure that the high professional standards of members are maintained;

(h)to promote and foster adherence to generally accepted accounting principles and generally accepted auditing standards;

(i)to administer this Act, to perform such other duties, and to exercise such other powers, as are imposed or conferred on the Institute by or under any Act;

(j)to do all such other matters and things as may be necessary or incidental to the carrying out of the above objects; and

(k)such other objects relating to the practice of a chartered accountant as the Council considers advisable,

in order that the public interest may be served and protected.

4In addition to any other power conferred by this or any other Act, the Institute may do such things as it considers appropriate to advance the objects of the Institute and in particular, but not so as to limit the foregoing, the Institute may

(a)purchase, take in, lease, exchange, hire, construct and otherwise acquire and hold, sell, mortgage, hypothecate, lease out or otherwise deal with real or personal property;

(b)draw, make, accept, endorse, discount, execute, and issue promissory notes, bills of exchange, warrants and other negotiable and transferable instruments;

(c)engage such servants and employees and counsel as may from time to time be deemed expedient;

(d)expend the moneys of the Institute in the advancement of its objects and the interests of its members in such manner as may seem expedient;

(e)establish and maintain such offices and agencies as may be deemed expedient;

(f)invest and deal with any moneys and funds of the Institute which are not immediately required, in such manner as may seem expedient;

(g)improve, manage, develop, exchange, dispose of, turn to account or otherwise deal with the real or personal property of the Institute;

(h)borrow money for the use of the Institute on its credit, limit or increase the amount to be borrowed, issue bonds, debentures, debenture stock and other securities on the credit of the Institute, and pledge or sell such securities for such sums or at such prices as may be deemed expedient;

(i)sponsor programs of public relations and advertising;

(j)enter into co-operative arrangements with professional bodies in any jurisdiction;

(k)insure or underwrite its members, any class thereof, or professional corporations, reinsure its liability with respect to any such insurance contracts, and generally offer or operate insurance and pension schemes for the benefit of its members or any class thereof, its officers, servants and employees and for the protection of the public;

(l)require members to participate in such programs of professional development or continuing education as may be prescribed;

(m)to assist necessitous members and the surviving spouse, children, or other dependent kindred of deceased members, and to act as treasurers and distributors of any benevolent fund, or funds, which may be contributed by members or others for these purposes, or any of them; and

(n)do such things as are incidental or necessary to the exercise of these powers or the objects of the Institute.

5(1)The Council may admit as a member any person who satisfies the requirements prescribed by the By-Laws for membership in the Institute.

5(2)Notwithstanding any provision of this section, any person who is a member of the Institute on the coming into force of this Act is continued as a member of the Institute, subject to the provisions of this Act.

5(3)Where a member or student ceases to be a member or student for any reason, or where a professional corporation ceases to be licensed or registered for any reason, or where a firm ceases to exist for any reason, such person, professional corporation or firm remains subject to the jurisdiction of the Institute in respect of any complaint arising out of his or its conduct while a member, student, licensed or registered professional corporation or firm, and any reference in this Act or the By-Laws enacted hereunder to a member, student, professional corporation or firm shall include a former member, student, professional corporation or firm.

6(1)The officers of the Institute shall consist of a President, Vice-President, Secretary, Treasurer and such other officers as may be constituted by the By-Laws, and who shall be elected in the manner prescribed by the By-Laws.

6(2)One person may concurrently hold the offices of Secretary and Treasurer.

7(1)There shall be a Council of the Institute which shall consist of

(a)not less than six and not more than twenty members elected in the manner prescribed by the By-Laws;

(b)the officers of the Institute; and

(c)not more than three persons appointed by the Lieutenant-Governor in Council, who

(i)are not members of the Institute, but

(ii)whose names are on a panel of not less than two persons for each position to be filled, and who are nominated by the Council.

7(2)Members of Council appointed under paragraph (1)(c) shall be appointed for a term not exceeding three years.

7(3)The management of the affairs and business of the Institute is vested in Council.

8(1)The Council shall, subject to this Act, govern, control and administer the affairs of the Institute.

8(2)The Council may from time to time make By-Laws to carry out the objects of the Institute and may, without limiting the generality of the foregoing, from time to time pass By-Laws:

(a)respecting the powers, duties and qualifications of the officers, servants, and employees of the Institute;

(b)providing for the management of the Institute;

(c)providing for the division of members into classes including honorary and life members and prescribing the rights, privileges, obligations and duties of, and other matters pertaining to, the different classes of members;

(d)fixing the time and place for regular meetings of Council, determining by whom such meetings may be called, regulating the conduct of meetings of Council, providing for emergency meetings of Council, and regulating the notice required in respect of meetings of Council;

(e)providing for the holding of meetings of the Institute, and the conduct of such meetings;

(f)providing for the appointment of such committees as Council may deem expedient;

(g)respecting the composition, powers and duties of such committees as may be appointed by Council, and providing for the holding and conduct of meetings of such committees;

(h)prescribing the fees and allowances payable to members of Council and of such committees as may be appointed by Council, and providing for the payment of necessary expenses of the members of the Council and of such committees;

(i)respecting the publication of the rules and By-Laws of the Institute;

(j)providing that the membership of a member be revoked or suspended without notice or investigation upon contravention of any By-Law that requires the member to pay a fee or assessment, file a document or do any other act by a specified or ascertainable date, and providing for the reinstatement of any membership so suspended or revoked;

(k)providing for the regulation of professional corporations, and in particular, but not so as to limit the foregoing,

(i)the maintaining of a Corporations Register,

(ii)the filing of periodic returns by professional corporations,

(iii)the issuance and annual renewal of licences to professional corporations, and prescribing the timing, terms and conditions, and the proof thereof, upon which the issuance and renewal may be granted,

(iv)the revocation or suspension of a licence or registration of a professional corporation,

(v)the reinstatement of a licence or registration of a professional corporation, and

(vi)prescribing the name by which any professional corporation may be known;

(l)respecting the exercise of authority over complaints and the regulation of the conduct of members, students, professional corporations, and firms, including, but not so as to limit the foregoing:

(i)requiring a complainant to deposit a reasonable sum to cover the cost associated with a disciplinary matter,

(ii)allowing the retention of legal or other assistance in the investigation or determination of a disciplinary matter,

(iii)providing for the suspension of a member or the licence of a professional corporation pending the investigation or determination of a disciplinary matter,

(iv)adopting or enacting rules of professional conduct prescribing the standards of fitness, moral character and conduct of members, students, professional corporations and firms, and defining "professional misconduct" for the purposes of this Act,

(v)prescribing the creation, size, quorum, authority, and procedures of a Complaints Enquiry Committee, including the authority of the Complaints Enquiry Committee to investigate a complaint, to dismiss a complaint, to refer a complaint to a hearing, to issue an admonition, to seek an interim order of suspension and to make a determination and recommendation as to penalty,

(vi)prescribing the creation, size, quorum, authority, and procedures of a Discipline Tribunal, including establishing rules for the admission of evidence, issuing interim suspensions, levying of sanctions, the publication of its decisions and/or orders and all other things necessary to provide a full and proper hearing in accordance with law and the rules of natural justice,

(vii)prescribing the creation, size, quorum, authority, and procedures of an Appeal Tribunal, including the right to appeal and cross-appeal from the decision of the Discipline Tribunal, the authority of the Appeal Tribunal to order a trial de novo or to substitute its own decision for that of the Discipline Tribunal, the levying of sanctions, the publication of its decisions and/or orders, and all others things necessary to provide a full and proper hearing in accordance with law and the rules of natural justice, and

(viii)assessing costs, including solicitor-client costs, against a current or former member, student, professional corporation, firm or complainant;

(m)regulating, controlling and prohibiting the use of terms, letters and designations by members and professional corporations;

(n)prescribing the books, records and accounts to be kept by members and professional corporations with respect to trust funds, and providing for the production, inspection and examination of such books, records and accounts;

(o)prescribing the seal of the Institute;

(p)providing for the execution of documents by the Institute;

(q)respecting professional liability insurance, including

(i)the power to make a minimum amount of such insurance compulsory on members or specified classes thereof, and on professional corporations,

(ii)the power to require members and professional corporations to obtain insurance coverage through a designated carrier, and

(iii)the power to vary premiums and deductibles amongst different classes of members, and within classes of members, and between members and professional corporations;

(r)respecting conditions under which a member may resign his membership, including the requirement that a resignation be approved by Council before becoming effective;

(s)respecting the removal from membership, suspension, or rehabilitation of persons who

(i)make an assignment in bankruptcy, are declared a bankrupt by a court of competent jurisdiction, or take the benefit of any statutory provision for insolvent debtors,

(ii)are declared by a court of competent jurisdiction to be a mentally incompetent person or to be incapable of managing their affairs pursuant to legislation for the time being in force,

(iii)are certified by the proper authorities to be suffering from a mental disorder of a nature or degree so as to require hospitalization, and have been admitted to a psychiatric facility and continue therein as a patient, or

(iv)who conduct themselves, whether through mental infirmity arising from disease, age or otherwise, in a manner unbecoming a member or student,

and respecting the conditions under which any membership so revoked or suspended may be reinstated;

(t)respecting the banking and financial dealings of the Institute;

(u)governing the application of moneys forming the funds of the Institute;

(v)fixing the fiscal year of the Institute;

(w)prescribing the number of, the terms of office of, qualifications required of and conditions to be satisfied by members of Council referred to in paragraph 7(1)(a);

(x)prescribing the number of members of Council referred to in paragraph 7(1)(c);

(y)providing for the receipt, management and investment of contributions, donations or bequests from members or others;

(z)prescribing standards of competence and proficiency of members, students and professional corporations;

(aa)providing for the refund of fees paid to the Institute, and for the exemption of members or classes of members from the payment of fees to the Institute;

(bb)defining activities which constitute a conflict of interest;

(cc)prescribing procedures for periodic review of the qualifications of members, and prescribing the circumstances in which members are required to take refresher training programs and other courses of training or to participate in programs of professional development or continuing education;

(dd)regulating advertising by members;

(ee)establishing specialties of practice and prohibiting a member or professional corporation from holding out that he is entitled to engage in a specialty of practice as established by By-law, unless such person is registered in a specialty register;

(ff)prescribing terms and conditions of registration and of maintaining registration in a specialty register;

(gg)designating specialty names, initials or abbreviations that may be used by a member or a professional corporation, who is registered in a specialty register;

(hh)providing for the division of the Province into electoral districts and prescribing the number of members of Council to be elected from each district;

(ii)defining the phrases "Provincial Institute" and "practising unit" for the purposes of this Act;

(jj)respecting inspection of the practice of any current or former member, firm, or professional corporation engaged in the practice of or acting as a Chartered Accountant in the Province, the procedures to be employed in conducting such inspections and any other matters deemed by Council to be prerequisite to approval of any office for training of students or for the purpose of maintaining professional standards, including, but not so as to limit the foregoing:

(i)retaining the service of any persons to conduct the inspection,

(ii)authorizing any persons to conduct the inspection,

(iii)requiring any current or former member or student, any professional corporation or any current or former officer, director, agent or employee of such corporation to produce any working papers, files, books, documents, records, notes or other information in his or its possession, custody or control which is requested in connection with any such inspection, and providing for an ex parte application to the Court of Queen's Bench to procure the production of any such document or information,

(iv)establishing committees to conduct or supervise practice inspections, or both, and prescribing the procedures to be followed in conducting the inspections and reporting the results thereof and recommendations therefrom to Council,

(v)prescribing the time of a further inspection of any person's practice as a Chartered Accountant,

(vi)assessing and levying costs of any inspection, and,

(vii)prescribing the terms and conditions under which a member, firm or professional corporation shall be exempt from inspection;

(kk)respecting the qualifications required of and the conditions to be satisfied by persons, and other matters prerequisite to the admission of such persons as students;

(ll)prescribing periods of service for students;

(mm)respecting the curriculum of studies to be pursued by students, the supervision of such studies and examinations in such studies;

(nn)respecting the examination of applicants for membership including

(i)the subjects upon which such applicants shall be examined,

(ii)the appointment of examiners to conduct such examinations,

(iii)the standards to be attained by applicants on such examinations,

(iv)all matters relating to the conduct of such examinations, and

(v)the times and places for holding such examinations;

(oo)respecting the approval of offices of members or of professional corporations which hold a licence in public practice for the training of students, and prescribing the number of students who may be employed by any such approved office;

(pp)respecting the re-admission or re-instatement of a member or student who has resigned, or whose membership has been revoked or suspended, for any reason;

(qq)providing for fellowships in the Institute, and prescribing the qualifications, appointments, privileges and obligations of fellows;

(rr)respecting the qualifications required of and the conditions to be satisfied by applicants for membership, and other matters prerequisite to the recommendation of Council on such applications, including the designation of courses of study, acceptable degrees and degree granting institutions; and

(ss)respecting such other matters as Council deems fit.

8(3)Subject to subsection (4), any By-Law made under subsection (2) shall have effect until the end of the next annual meeting of the Institute, unless before such time the By-Law is confirmed by resolution of the members of the Institute.

8(4)If a resolution to confirm a By-Law made under subsection (2) is defeated, the By-Law immediately ceases to have effect.

9The Council may by resolution fix:

(a)fees payable to the Institute, including fees on practice inspections, on the admission of students, on courses of study and examinations given by the Institute, on the admission of members and on an annual basis, by annual assessment or otherwise, including fees which vary from different classes and within classes of members;

(b)fees payable to the Institute by professional corporations on application for registration and on the issuance or renewal of licenses;

(c)the times for payment of fees or assessments payable to the Institute; and

(d)penalties, including the suspension or revocation of membership, for late payment of fees or assessments.

10(1)The Council shall appoint such committees as are provided for by this Act and the By-Laws.

10(2)The Council may delegate any of its powers or duties under this Act or the By-Laws with the exception of

(a)the power to make By-Laws or rules of professional conduct; and

(b)the powers under section 9

to a committee appointed under subsection (1), or to an individual.

11The Institute shall have power to make contracts for the purposes of the Institute, and to sue for the collection of fees, subscriptions, dues and assessments, and all moneys of whatever kind that may become due to the Institute at any time, whether before, at or after the passing of this Act.

12The Institute may assess the members for any extraordinary expense that may be deemed necessary to further the interests of the Institute, in the manner prescribed by the By-laws.

13No member of the Institute shall be liable for the debts of the Institute.

14(1)Proper accounting records shall be kept by the Treasurer of the sums received and expended by the Institute, and of the manner in respect of which such receipts and expenditures take place, and of the property, credits and liabilities of the Institute.

14(2)Subject to any reasonable restriction which may be imposed by By-Law, such accounts shall be open to inspection by the members.

14(3)The financial statements of the Institute shall, at least once in each year, be audited by such qualified auditors as may be appointed pursuant to the By-Laws, who shall report to the members thereon in the manner prescribed by the By-Laws.

15(1)No portion of the income and property of the Institute shall be paid or transferred directly or indirectly, by way of dividend, bonus, or otherwise by way of profit to its members.

15(2)Nothing in this section shall prevent the payment in good faith of remuneration to

(a)officers, servants or employees of the Institute;

(b)members; or

(c)other persons

in return for services performed for, or rendered to the Institute.

16(1)There shall be at least one meeting of the Institute in each year, at such time and place as Council may determine in accordance with the By-Laws.

16(2)Subject to subsection (3), at any meeting of the Institute, members may be represented by proxy.

16(3)No proxy shall be exercised by any person who is not a member.

17The Institute may affiliate with any institute or association having the same or similar objects.

18If any person ceases for any cause whatsoever to be a member of the Institute, he shall not, nor shall his representative, have any interest in or claim against the funds and property of the Institute, except as may be provided by By-Law.

19A member shall be styled and known as a "chartered accountant" or "comptable agréé", and may use after his name

(a)the initials "C.A.", "CA", "c.a." or "ca"; or

(b)if he is a fellow, the initials "F.C.A." "FCA", "f.c.a." or "fca", signifying "Fellow of the Chartered Accountants".

20Except as provided in this Act, no person other than

(a)a member in good standing;

(b)a professional corporation which holds a licence; or

(c)a partnership in which

(i)at least one partner is a member in good standing or a professional corporation which holds a licence,

(ii)all partners resident within the Province are members in good standing or are professional corporations which hold a licence, and

(iii)all partners not resident within the Province are members of another Provincial Institute, or are corporations which are authorized to engage in the practice of, or act as, a chartered accountant by another Provincial Institute,

shall

(d)use the names "chartered accountant", "comptable agréé" or any abbreviation of those words alone or in any combination with any other words;

(e)use the initials "C.A.", "CA", "c.a.", "ca", "F.C.A.", "FCA", "f.c.a.", "fca", "A.C.A.", "ACA", "a.c.a." or "aca" either alone or in combination with any other word, letter, symbol, initial or abbreviation;

(f)use any words, phrases or initials that represent, expressly or by necessary implication, that he or it is a chartered accountant, a fellow or a professional corporation which holds a licence;

(g)use any title, name, description, abbreviation, initials or symbol representing the names "chartered accountant" or "comptable agréé", or the letters "C.A.", "CA," "c.a.", "ca", "F.C.A.", "FCA", "f.c.a.", "fca", "A.C.A.", "ACA", "a.c.a.", "aca"; or

(h)in any way represent that he or it is a chartered accountant, a fellow or a professional corporation which holds a licence.

21(1)A person who knowingly furnishes false information in any application under this Act or the By-Laws, or in any statement or return required to be furnished under this Act or the By-Laws, commits an offence.

21(2)Subject to subsection (3), no person shall carry on the practice of chartered accountancy in New Brunswick under any name or title containing the words "professional corporation" or "corporation professionnelle" or the abbreviations "P.C." or "C.P.", and every person who does so commits an offence.

21(3)A person

(a)duly incorporated as a professional corporation which holds a licence; or

(b)who is expressly authorized by statute,

may trade or carry on business in New Brunswick under any name or title containing the words "professional corporation" or "corporation professionnelle" or the abbreviations "P.C." or "C.P.".

22Unless otherwise permitted under this Act, no member, student or professional corporation shall engage in the practice of a chartered accountant directly or indirectly with a member or student whose membership has been suspended or revoked, or with a professional corporation whose licence has been suspended or revoked, and every person who does so commits an offence.

23The Court of Queen's Bench of New Brunswick, on application by the Institute by way of Notice of Application, may grant an injunction enjoining any person from doing any act that contravenes this Act, notwithstanding any penalty that may be provided by this Act or the By-Laws in respect of such contravention.

24(1)A person who commits an offence is liable on summary conviction to a fine not exceeding five thousand dollars, or to imprisonment for a period not exceeding six months, or both.

24(2)The Council may institute, or authorize any person to institute, proceedings under this section.

24(3)No prosecution for an offence under this Act or the By-Laws shall be commenced after two years from the time when the offence is alleged to have been committed.

24(4)Nothing in this Act applies to or prevents

(a)the carrying on of the practice of a certified general accountant by a person authorized to carry on such practice by the Certified General Accountants Act; or

(b)the carrying on of the practice of a registered industrial and cost accountant or a certified management accountant by a person authorized to carry on such practice under the provisions of The Certified Management Accountants Act, 1995.

DISCIPLINE

25(1)Upon the application of

(a)any party to a proceeding before the Discipline Tribunal or the Appeal Tribunal;

(b)the Chairman of the Discipline Tribunal or the Appeal Tribunal; or

(c)counsel for the Institute,

and on payment of the fees prescribed by the Rules of Court, a Clerk of the Court of Queen's Bench of New Brunswick may issue a Summons to Witness for the purpose of procuring the attendance and evidence of witnesses before the Discipline Tribunal or the Appeal Tribunal.

25(2)Any party to a proceeding before the Discipline Tribunal or the Appeal Tribunal, the Chairman of the Discipline Tribunal or the Appeal Tribunal, or counsel for the Institute may apply to the Court of Queen's Bench of New Brunswick for an order for the examination of a witness outside of New Brunswick, and the Rules of Court apply to any such application.

25(3)A witness may be examined under oath on all matters relevant to the investigation or hearing before the Discipline Tribunal or Appeal Tribunal and shall not be excused from answering any question on the ground that the answer might tend to

(a)incriminate him;

(b)subject him to punishment under this Act; or

(c)establish his liability

(i)to a civil proceeding at the instance of the Crown or of any other person, or

(ii)to prosecution under any Act,

but if the answer so given tends to incriminate him, subject him to punishment or establish his liability, it shall not be used or received against him in any civil proceedings or in any proceedings under any other Act, except in a prosecution for perjury or for the giving of contradictory evidence.

25(4)In any proceedings under this Act, a member, student, firm, or professional corporation may not refuse to give evidence or produce any books, papers or documents on the grounds of professional privilege.

26(1)Proceedings for civil contempt of court may be brought against a witness

(a)who fails

(i)to attend before the Discipline Tribunal or Appeal Tribunal in compliance with a Summons to Witness, or

(ii)to produce books, records, notes or other documents or things in compliance with a Summons to Witness to produce them; or

(b)who refuses to be sworn or make a solemn affirmation or to answer any question that he is directed to answer by the Discipline Tribunal or Appeal Tribunal.

26(2)Proceedings and penalties in cases referred to in subsection (1) shall be the same as in civil cases in the Court of Queen's Bench of New Brunswick.

26(3)If the witness referred to in subsection (1) is a member or student, the Chairman of the Discipline Tribunal or Appeal Tribunal may make a complaint and the failure or refusal may be held to be professional misconduct.

APPEAL

27(1)Any party to a proceeding before the Appeal Tribunal may appeal from the decision of the Appeal Tribunal to the Court of Queen's Bench of New Brunswick by giving notice of appeal within thirty days of the service of the decision of the Appeal Tribunal.

27(2)The notice of appeal shall be served upon the Secretary, the Clerk of the Court of Queen's Bench and upon any other party to the proceedings before the Appeal Tribunal.

27(3)The record on appeal shall consist of a copy of the transcript of the proceedings and the evidence before the Appeal Tribunal, certified by the Chairman of the Appeal Tribunal as being the record made of the proceedings and the evidence.

27(4)The Court of Queen's Bench may make such order as to costs as may be just.

27(5)The Rules of Court governing appeals from the Court of Queen's Bench of New Brunswick to the Court of Appeal of New Brunswick in civil matters which are not inconsistent with this Act, shall apply mutatis mutandis to appeals under this section.

CUSTODIAN

28(1)Where

(a)a member dies, disappears, leaves the Province, resigns from the Institute or otherwise ceases to be a member of the Institute;

(b)a member is suspended from membership in the Institute;

(c)the registration of a professional corporation has been revoked, or the licence of a professional corporation has been suspended;

(d)a member becomes mentally incapacitated;

(e)a member becomes ill or for some other reason is unable to conduct the practice of a chartered accountant;

(f)a member is improperly absent from his practice, or has neglected his practice for an extended period of time; or

(g)other good cause exists,

and adequate provision has not been made for the protection of his or its clients' interests, the Court of Queen's Bench of New Brunswick or a judge thereof, upon the application of the Institute either ex parte or upon such notice as the Court or a judge may require, may by order appoint the Institute, a member or professional corporation which holds a licence, as custodian to take possession of any or all property relating to the practice of the member, former member or professional corporation or any position of trust in his or its possession or under his or its control, and to conserve, protect and properly dispose of such property and, if necessary, to manage or wind up the practice of the member, former member or professional corporation.

28(2)The Court or a judge thereof may, in an order made under subsection (1) or in a subsequent order made upon the application of the Institute or the custodian, either ex parte or on such notice as the Court or a judge thereof may require,

(a)authorize the custodian to employ such professional assistance as he requires to carry out his duties;

(b)direct any sheriff within the Province to seize and remove and place in the possession of the custodian all property referred to in subsection (1);

(c)where there are reasonable grounds for believing that property referred to in subsection (1) may be found thereupon or therein, authorize any sheriff to enter upon any premises or in to any safety deposit box or other receptacle;

(d)direct any bank or other depository of property referred to in subsection (1) to deal with, hold, pay over or dispose of such property to the custodian in such manner as the Court or a judge thereof considers proper;

(e)give directions to the custodian as to the disposition of the property in his hands or any part thereof;

(f)make such provision for the remuneration, disbursements and indemnification of a custodian out of the property in his hands or otherwise as the Court or a judge thereof may specify;

(g)make provision for the discharge of a custodian upon completion of the responsibilities imposed upon him by any order made under this section; and

(h)give such further directions as the Court or a judge thereof considers are required in the circumstances.

28(3)Where property has been placed in the possession of a custodian under this section, the Secretary and such other persons as the Institute may designate, shall examine the property, after which the custodian shall, by such means as he considers proper, inform clients of the member, former member, or professional corporation, or such other persons as he considers necessary,

(a)that the property is in the possession of the custodian and that an examination thereof indicates that the client or other person appears to have an interest therein; and

(b)that the client or other person may apply to the custodian for delivery of the property in which he appears to have an interest, or for leave to make copies of any documents or papers relating to transactions or dealings he had with the member or former member.

28(4)A custodian may deliver any property in his possession to any person who he is satisfied is entitled to it.

28(5)Where adverse claims are made against a custodian by two or more persons in respect of any property in his possession, he may apply to the Court for relief by way of interpleader.

28(6)Delivery of property by a custodian pursuant to subsection (4), shall not be determinative of proprietary rights in such property.

28(7)The Court or a judge thereof, upon the application of the Institute made either ex parte or on such notice as the Court or a judge thereof requires, may remove a custodian from office, and if deemed expedient, appoint another custodian in his place, and may include in such order such further directions as the Court or a judge thereof considers are required in the circumstances.

28(8)A professional corporation, member, former member, or the personal representative of a deceased member or former member, in respect of whom an order has been made under this section may, after giving notice to the Institute and to the custodian, apply to the Court or a judge thereof at any time for an order varying or setting aside any order made under this section and directing the custodian to place all or part of the property referred to in subsection (1) back into his or its possession upon such terms and conditions as the Court or judge may order.

28(9)The Court or a judge thereof shall make such order as to service of any notice required or order made under this section as he considers appropriate in the circumstances.

28(10)For the purposes of this section, "Court" means The Court of Queen's Bench of New Brunswick.

PROFESSIONAL CORPORATIONS

29The words "chartered accountant" or "comptable agréé", or a reference to a person authorized to carry on the practice of a chartered accountant, whether or not referred to as a member of the Institute, when used in

(a)any Act of the Legislature or any regulation, rule, order or By-Law made thereunder, whether before, at or after the coming into force of this Act; or

(b)any public document,

shall be read as including a professional corporation which holds a licence, unless the context of such Act, regulation, rule, order, By-Law or document indicates a contrary intention.

30The Council shall keep a register called the Corporations Register.

31(1)The Council may issue a licence to any corporation which

(a)submits to the Secretary an application in the form prescribed by the by-laws;

(b)pays the prescribed fees;

(c)satisfies the Secretary that it is a corporation limited by shares and is in good standing under the Business Corporations Act;

(d)satisfies the Secretary that its articles of incorporation contain no restrictions on the business which the corporation may carry on which prevent the corporation from carrying out the objects contained in Schedule A;

(e)satisfies the Secretary that the name of the corporation is in accordance with the by-laws and contains the words "professional corporation", or "corporation professionnelle", or the abbreviations "P.C." or "C.P.";

(f)satisfies the Council that the legal and beneficial ownership of the majority of the issued shares of the corporation are vested in one or more members and that all of the directors of the corporation are members in good standing; and

(g)satisfies the Council that the persons who will carry on the practice of a chartered accountant on behalf of the corporation are members.

31(2)For the purposes of paragraph (1)(g), the practice of a chartered accountant shall not be deemed to be carried on

(a)by clerks, secretaries, bookkeepers and other assistants employed by the professional corporation to perform services which are not usually and ordinarily considered by law, custom and practice to be services which may be performed only by a member, or

(b)by students employed by the professional corporation to do anything in the course of service if it is done under the direction or supervision of a member.

31(3)A licence issued under subsection (1) is valid for the period stated on it.

31(4)A licence issued under subsection (1) may be revoked, or its renewal withheld, by Council where any of the conditions specified in subsection (1) no longer exist.

31(5)When Council issues a licence to a professional corporation, the Secretary shall enter the name of the corporation in the Corporations Register.

31(6)Where a professional corporation ceases to fulfil any condition specified in subsection (1) by reason only of

(a)the death of a member;

(b)a member ceasing to be a member; or

(c)the suspension of a member,

who is a shareholder or a director of the professional corporation, the professional corporation has a period of 90 days from the date of the death, cessation of membership, or suspension, as the case may be, in which to fulfil the condition failing which the licence is automatically terminated effective upon the expiration of the 90 day period, without the necessity of an order of Council.

32The relationship of a member or student to a professional corporation, whether as a shareholder, director, officer or employee, does not affect, modify or diminish the application to him of the provisions of this Act, the By-Laws or the Rules of Professional Conduct.

33(1)Notwithstanding anything to the contrary in the Business Corporations Act, every person who is a shareholder of a professional corporation

(a)during the time that it is the holder of a licence; or

(b)during the time that it practices or acts in contravention of this Act or the By-Laws,

is liable to the same extent and in the same manner as if the shareholders of the corporation were, during that time, carrying on the business of the corporation as a partnership or, when there is only one shareholder, as an individual practising or acting as a chartered accountant.

33(2)The liability of a person in carrying on the practice of, or acting as, a chartered accountant is not affected by the fact that the practice of, or acting as, a chartered accountant is carried on or done by the person as an employee, and on behalf, of a professional corporation.

34(1)Nothing contained in this Act shall affect, modify or limit any law or rule applicable to the fiduciary, confidential and ethical relationships between a chartered accountant and a person receiving the professional services of such chartered accountant.

34(2)The relationship between a professional corporation carrying on the practice of, or acting as, a chartered accountant and a person receiving the professional services of the corporation is subject to all applicable laws and rules relating to the fiduciary, confidential and ethical relationships between a chartered accountant and his client.

34(3)All rights and obligations pertaining to communications made to, or information received by, a chartered accountant or his advice thereon, apply to the shareholders, directors, officers and employees of a professional corporation.

35No shareholder of a professional corporation which holds a licence shall enter into a voting trust agreement, proxy or any other type of agreement vesting in a person who is not a member, the authority to exercise the voting right attached to any or all of his shares, and every shareholder who does so commits an offence.

36A professional corporation may sue for fees for services performed on its behalf and in its name by a person in his capacity as a member, if the services were performed during the time that the corporation was the holder of a licence.

37The provisions of this Act, the By-Laws, and the Rules of Professional Conduct which are applicable to members apply with all necessary modifications to a professional corporation which holds a licence, unless otherwise expressly provided by this Act, the By-Laws, or the Rules of Professional Conduct.

38(1)If a complaint is received concerning the conduct of a professional corporation, an investigation or inquiry into the conduct of such corporation may be made according to the same procedure, mutatis mutandis, as a disciplinary matter involving a member.

38(2)Subject to subsection (3), Council has the same jurisdiction to make an order with respect to a professional corporation in a matter referred to in subsection (1) as it has to make upon a finding that a member is guilty of professional misconduct or is an incapacitated or unfit member, mutatis mutandis.

38(3)References in any provision of this Act, or the By-Laws:

(a)to the suspension of a member shall, in the case of a professional corporation, be deemed a reference to the suspension of the licence of the corporation; and

(b)to revocation of the membership of a member shall, in the case of a professional corporation, be deemed a reference to revocation of the registration of the professional corporation.

GENERAL

39(1)When this Act, or the By-Laws require that a notice, order or other document be served on any person, the notice, order or other document is sufficiently given or served

(a)if served personally on that person;

(b)if sent to him by mail addressed to his last known address as it appears on the records of the Institute;

(c)if sent to him by courier and delivered at his last known address as it appears on the records of the Institute; or

(d)if personal service, or service by mail or courier, is not reasonably possible, then by publishing the document at least twice, and not more than a week apart, in a local newspaper circulating in the area of his last known address as it appears on the records of the Institute.

39(2)If service is made by letter, service shall be deemed to be made on the fifth day after the notice, order or other document is mailed, and proof that the notice, order or other document was addressed and posted in accordance with paragraph (1)(b) is proof of service.

39(3)If service is made by courier, service shall be deemed to be made on the third day after the notice, order or other document is delivered, and proof that the notice, order or other document was addressed and delivered in accordance with paragraph (1)(c) is proof of service.

40A certificate purporting to be signed by the Secretary and stating that a named person was or was not, on a specified day or during a specified period

(a)a member, student, or professional corporation; or

(b)an officer of the Institute, a member of Council or of a committee established under this Act, or the By-Laws,

shall be admitted as prima facie proof of the facts stated in it without proof of the Secretary's appointment or signature.

41No action lies against

(a)a custodian, a member of a committee established by or under this Act or the By-Laws, a member of Council, the Institute or any person acting on the instructions of any of them; or

(b)any member, officer or employee of the Institute

for anything done or omitted to be done by him or it in good faith and in purporting to act under this Act or the By-Laws.

42No action for defamation may be founded on a communication that consists of or pertains to the conduct of a member, student, or professional corporation if the communication is published to or by

(a)the Institute;

(b)a member of Council, or of a committee established under this Act or the By-Laws;

(c)a member, officer or employee of the Institute; or

(d)a person acting on the instructions of any person or entity referred to in paragraphs (a) to (c),

in good faith in the course of any proceeding or in carrying out any responsibility under this Act or the By-Laws.

43A fine ordered to be paid by a member is a debt due to the Institute and may be recovered by the Institute by civil action for debt.

44This Act may be cited as the "Chartered Accountants Act".

TRANSITIONAL

45Nothing in this Act shall affect the powers and duties, tenure of office or terms of remuneration of any officer of the Institute, or any committee appointed before the commencement of this Act, or anything done or suffered, or any right, title or interest acquired before the commencement of this Act, or any legal proceedings or remedy in respect of any such thing, right, title or interest.

46Until repealed, altered or amended pursuant to this Act, any By-Law, regulation or rule made or fees prescribed and in force at the commencement of this Act, shall continue in force and have effect as if made under this Act.

47Notwithstanding the generality of sections 45 and 46, all disciplinary proceedings in progress on the day this Act comes into force, shall be continued and disposed of under the Chartered Accountants' Act 1986, S.N.B. 1986, c.87.

48All complaints concerning matters of discipline, incapacity or unfitness to practise received after this Act comes into force shall be dealt with under this Act notwithstanding when the subject matter of the complaint arose.

49The Chartered Accountants' Act 1986, S.N.B. 1986, c.87 is repealed.

50This Act or any provision of it comes into force on a day or days to be fixed by proclamation.

SCHEDULE A

The objects for which the Corporation is established are

(a)to engage in every phase and aspect of rendering the same accounting and auditing services to the public that a member of the New Brunswick Institute of Chartered Accountants is authorized to render;

(b)to purchase, or otherwise acquire and to own, mortgage, pledge, sell, assign, transfer or otherwise dispose of, and to invest in, deal in or with, real or personal property necessary for the rendering of such professional services;

(c)to contract debts and borrow money, issue and sell or pledge bonds, debentures, notes and other evidences of indebtedness and execute such mortgages, transfers of corporate property and other instruments to secure the payment of corporate indebtedness as required; and

(d)to enter into partnership, consolidate or merge with or purchase the assets of another corporation or individual rendering the same professional services.


Last Modified: 10:04am , January 26, 1998