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S.M. 2004, c. 21
Bill 26, 2nd Session, 38th Legislature
The Certified Management Accountants Act
|Table of Contents|
(Assented to June 10, 2004)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"board" means the Board of Directors of the society; (« conseil »)
"by-law" means a by-law of the society made under section 5; (« règlement administratif »)
"certificate of registration" means a certificate of the society which certifies that the individual named on it is entered on the register of members; (« certificat d'inscription »)
"court" means the Court of Queen's Bench; (« tribunal »)
"limited liability partnership" means a limited liability partnership within the meaning of The Partnership Act; (« société à responsabilité limitée »)
"member" means an individual who holds a certificate of registration, and in sections 5 and 14, and Parts 5 and 6 other than section 57, unless the context otherwise requires, includes a student; (« membre »)
"permit" means a document issued by the secretary under subsection 10(1) certifying that the corporation named in the document is authorized to provide professional services in the province for the period specified in the document; (« permis »)
"professional corporation" means a corporation holding a valid permit; (« cabinet de comptables à responsabilité limitée »)
"professional services" means public accounting services; (« services professionnels »)
"public representative" means a person who
(a) is not and has never been registered under this Act,
(b) is not a student, and
(c) is not a member of an accounting profession regulated by an Act; (« représentant du public »)
"register" means a register established under section 7; (« registre »)
"secretary" means the secretary or secretary-treasurer appointed under section 4; (« secrétaire »)
"society" means The Society of Management Accountants of Manitoba; (« Société »)
"student" means a person who is enrolled in a course of studies established or sponsored by the society; (« étudiant »)
"voting share", in relation to a corporation, means a share of its capital stock that entitles the holder to vote in any election of directors of the corporation; (« action avec droit de vote »)
"voting shareholder", in relation to a corporation, means a person who owns a voting share of the corporation or is a voting shareholder of another corporation that owns a voting share of the corporation. (« actionnaire avec droit de vote »)
SOCIETY OF MANAGEMENT ACCOUNTANTS
The Society of Management Accountants of Manitoba, incorporated by a private Act of the Legislature, is continued as a body corporate.
The society has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.
The membership of the society consists of the individuals whose names are on the register of members and who have paid the fees provided for in the by-laws.
The objects of the society are to
(a) promote and increase the professional knowledge, skill and proficiency of its members as accountants, auditors or financial strategic managers;
(b) regulate and govern the professional conduct and discipline of its members, students and professional corporations, consistent with the principle of self-regulation and the public interest;
(c) promote and foster in the public a greater awareness of the importance of public accounting; and
(d) generally advance the professional interests of its members.
A general meeting of the society shall be held at least once a year, and special general meetings of the society shall be held when the board considers it advisable. On receiving a written request signed by at least 5% of the members of the society entitled to vote, the board shall convene a special general meeting for the purpose specified in the request.
Notice of the time and place of each meeting referred to in subsection (5) must be given to the members in accordance with the by-laws.
There shall be a board of directors that is the governing body of the society.
The board shall manage and conduct the business affairs of the society and may exercise the powers of the society in the name of and on behalf of the society.
The board shall consist of not fewer than six and not more than 15 persons.
For a period of five years after the day on which this Act comes into force, at least 20% of the persons elected or appointed to the board must be public representatives. Beginning on the day that is five years after the day on which this Act comes into force, at least 30% of the persons elected or appointed to the board must be public representatives.
The board members shall be elected by the members, and their terms of office shall be determined, in accordance with the by-laws.
The board may fill any vacancy on the board by appointing a person who is qualified to be elected to the board for the unexpired term.
The board shall
(a) elect from its members a president, a vice-president and a second vice-president; and
(b) appoint a secretary and a treasurer, or a secretary-treasurer, who may or may not also be elected or appointed to the board.
The board may make by-laws
(a) fixing the number and terms of office of board members;
(b) governing the election of members to the board;
(c) respecting the calling and conduct of meetings of the society and of the board, and the performance of duties by the board;
(d) providing for the appointment, remuneration and expenses of officers and employees of the society and of members of the board, and prescribing their duties;
(e) establishing committees for carrying out the business and affairs of the board;
(f) prescribing a curriculum and course of studies for students;
(g) respecting academic standards, examination requirements and professional qualifications for membership in the society;
(h) prescribing the examination fees and tuition, if any, payable by candidates seeking admission to the society and by students;
(i) governing the registration of members, including
(i) the renewal, suspension, cancellation and reinstatement of membership, and
(ii) the imposition of limitations or conditions on membership;
(j) providing for classes of membership in the society, the restrictions and limitations on classes of members, and the qualifications required for such classes;
(k) respecting standards of practice for members;
(l) regulating and governing the duties, tasks, services and functions that may be performed by students, and the limitations, restrictions or conditions, if any, under which such duties, tasks, services and functions may be performed;
(m) respecting continuing education requirements for members;
(n) respecting fees to be paid by members, including annual fees to be paid by members;
(o) governing the provision of professional services by professional corporations, including by-laws
(i) respecting the application for and the issuance, expiry and renewal of permits, and providing for conditions that must be met before a permit may be issued or renewed,
(ii) respecting fees payable on application for a permit or renewal of a permit,
(iii) prescribing conditions or restrictions that may be imposed on permits,
(iv) respecting procedures for the issuance, renewal, suspension or cancellation of permits, or the imposition of restrictions on permits,
(v) respecting names by which professional corporations or partnerships referred to in section 9 may be known or under which they may provide professional services,
(vi) respecting notification of changes required under section 13;
(p) providing for the establishment of chapters of the society within Manitoba;
(q) providing for the affiliation of the society with any other body, corporate or unincorporated, having objects similar to those of the society;
(r) delegating to committees, officers, employees or agents of the board or the society any of the duties, powers or privileges of the board, or of an officer, other than
(i) the power to make, amend or repeal by-laws,
(ii) the duties of the secretary under subsection 7(1), and
(iii) the duties, powers and privileges of the vice-president or the board under Part 5;
(s) respecting the use of commercial advertising by members and professional corporations;
(t) respecting the use of professional liability insurance for members and professional corporations, including requiring members and professional corporations that practise in limited liability partnerships to maintain a minimum amount of liability insurance, as defined in Part III of The Partnership Act;
(u) respecting reviews by the society of the accounting practices of members and professional corporations;
(v) generally for the carrying out of the purposes of this Act.
By-laws are public documents and may be inspected by a member of the public at any time during the usual business hours of the society.
Subject to subsection (3), a by-law comes into force on the day it is passed by the board.
Where a by-law resolution is passed by the board, the board shall, at the next annual general meeting of the society, present it for confirmation by the members.
Where a by-law resolution presented to the members under subsection (2) is not confirmed by the members at the next annual general meeting of the society, the by-law ceases to have effect on the day after the date of the annual general meeting.
The secretary shall establish and maintain
(a) a register of members; and
(b) a register of corporations that have been issued permits.
An entry in the register of members under subsection (1) shall include
(a) the name and business address of the member;
(b) where applicable, the name and registered address of the professional corporation of the member;
(c) the standing of the member;
(d) where applicable, the disciplinary restrictions, limitations or conditions to which the member is subject; and
(e) any other information that the by-laws require to be kept in the register.
Upon entering a member's name in the register of members, the secretary shall issue the member a certificate of registration.
An entry in the register of corporations shall include
(a) the name and business address of the corporation;
(b) the names of the voting shareholders, the directors and the president of the corporation;
(c) any practice restrictions or other conditions imposed on the corporation's permit;
(d) a notation of each suspension or cancellation of the corporation's permit; and
(e) any other information that the by-laws require to be kept in the register.
Each register under subsection (1) is open to inspection by members of the public during the business hours of the society.
No person or organization other than the society may certify an individual as a certified management accountant or purport to give to an individual recognition or standing as a certified management accountant.
No person other than a member may use any of the following designations or abbreviated designations, a variation of any such designation or an equivalent in another language:
(a) "Registered Industrial Accountant", "Certified Management Accountant", or "Certified Management Accountant (Honourary)";
(b) "R.I.A.", "C.M.A.", "C.M.A. (Hons.)", "C.M.A. (Honourary)" or "c.m.a.".
A professional corporation may, through one or more members, provide professional services
(a) under its own name; or
(b) as a member of a general or limited liability partnership of professional corporations or of professional corporations and members, under a name approved by the secretary in accordance with the by-laws.
Subject to subsection (2), the secretary shall issue a permit or a renewal of a permit to a corporation if he or she is satisfied that
(a) the corporation is incorporated, formed by amalgamation or continued under The Corporations Act and is in good standing under that Act;
(b) the name of the corporation includes the words "certified management accountant" or "certified management accountants" or the initials "C.M.A.";
(c) each voting share of the corporation is legally and beneficially owned by a member or a professional corporation;
(d) each other share in the capital stock of the corporation is both legally and beneficially owned by a person who is
(i) a voting shareholder of the corporation,
(ii) a spouse, common-law partner or child, within the meaning of the Income Tax Act (Canada), of a voting shareholder of the corporation, or
(iii) a corporation each share of the capital stock of which is legally and beneficially owned by a person referred to in subclause (i) or (ii);
(e) each director of the corporation is a member;
(f) the president of the corporation is a member;
(g) each person through whom the corporation will be providing professional services is
(i) a member, or
(ii) an employee acting under the supervision of a member through whom the corporation will be providing professional services;
(h) the corporation has filed an application in the form prescribed by the board, and paid the fee prescribed by the board, for the permit or renewal of the permit; and
(i) all other requirements prescribed by the board for the issuance or renewal of the permit have been satisfied.
(a) shall refuse to issue a permit to, or to renew the permit of, a corporation if the secretary is not satisfied by proper evidence that the corporation is eligible for the permit; and
(b) may refuse to issue a permit to, or to renew the permit of, a corporation if
(i) a permit issued to the corporation under this Act has been cancelled, or
(ii) a director, officer or shareholder of the corporation is or has been a director, officer or shareholder of a corporation whose permit under this Act has been cancelled.
If the secretary refuses to issue or renew a permit under subsection (2), the secretary shall inform the corporation in writing of that decision and the reasons for it.
A corporation that is refused a permit or renewal of a permit under subsection (2) may appeal the secretary's decision to the board, which may confirm or vary the decision of the secretary.
Unless it is cancelled, surrendered or under suspension, a permit is valid for the period specified in the permit.
A corporation whose name contains the words "certified management accountant" or "certified management accountants" or the initials "C.M.A." shall not carry on any business in the province unless it holds a valid permit.
A professional corporation shall not carry on any business or activity other than the provision of professional services authorized by the permit and the provision of other services directly associated with the provision of those services.
Subsections (1) and (2) shall not be construed so as to prohibit a professional corporation from investing its own funds in real property, other than for development purposes, or in stocks, mutual funds, debt obligations, insurance, term deposits or similar investments.
No act of a corporation, including a transfer of property to or by the corporation, is invalid merely because it contravenes subsection (1) or (2).
An agreement or proxy that vests in a person who is not a member the authority to exercise any voting right attached to a share of a professional corporation is void.
A unanimous shareholders' agreement within the meaning of subsection 140(2) of The Corporations Act in respect of a professional corporation is void unless each shareholder of the corporation is a member or a professional corporation.
Every professional corporation shall notify the secretary, within the time and in a form and manner prescribed by the board, of every change in the voting shareholders, the other shareholders, the directors or the president of the corporation.
This Act and the by-laws apply to a member despite any relationship he or she may have with a professional corporation.
The fiduciary and ethical obligations of a member, and the obligations of a member respecting confidentiality, to a person receiving professional services
(a) are not diminished by the fact that the services are provided on behalf of a corporation; and
(b) apply equally to a corporation on whose behalf the services are provided and to its directors, officers and shareholders.
The liability of a member for a professional liability claim is not affected by the fact that the member is providing professional services on behalf of a corporation.
A person is jointly and severally liable with a professional corporation, or a corporation acting in contravention of subsection 11(1), for all professional liability claims made against the corporation in respect of errors or omissions that were made or occurred while the person was a voting shareholder of the corporation.
If the conduct of a member through whom a professional corporation was providing professional services at the time the conduct occurred is the subject of an investigation or inquiry,
(a) any power that may be exercised in respect of the member may be exercised in respect of the corporation; and
(b) the corporation is jointly and severally liable with the member for all fines and costs the member is ordered to pay.
Any restriction imposed on the practice of a member through whom a professional corporation provides professional services applies to the permit of the corporation in relation to its provision of professional services through that member.
Subject to subsection (2) a professional corporation's permit may be cancelled or suspended by the board if
(a) the corporation ceases to meet any of the requirements set out or referred to in subsection 10(1);
(b) the corporation contravenes any provision of this Act or the by-laws of the society; or
(c) a member, in the course of providing professional services on behalf of the corporation, does or fails to do anything as a result of which he or she ceases to be a member in good standing.
A professional corporation's permit shall not be cancelled or suspended by reason only of the fact that
(a) one or more shares of the corporation have vested in
(i) an executor or administrator of the estate of an individual as a consequence of the death of the individual, or
(ii) a trustee in bankruptcy on the bankruptcy of the owner of the shares,
unless the corporation is not providing professional services through any other member or the shares continue to be vested in the executor, administrator or trustee for a period of 180 days or any longer period allowed by the board;
(b) the former spouse or common-law partner of a voting shareholder continues to own a share of the corporation after the end of their marriage or common-law relationship;
(c) a member's right to practise has been temporarily suspended, unless
(i) the member remains a director or officer of the corporation more than 14 days after the commencement of the suspension, or
(ii) the corporation is not providing professional services through any other member; or
(d) an individual has ceased to be a member, for any reason other than the death or bankruptcy of the individual, unless
(i) the individual remains a director or officer of the corporation more than 14 days after ceasing to be a member,
(ii) the individual remains a voting shareholder of the corporation for more than 90 days after ceasing to be a member, or for any longer period allowed by the board, or
(iii) the corporation is not providing professional services through any other member.
Instead of suspending or cancelling the permit of a professional corporation, the board may do one or more of the following:
(a) reprimand the corporation or one or more directors or voting shareholders of the corporation;
(b) impose restrictions on the permit;
(c) impose a fine on the corporation, payable to the society, in an amount not exceeding $10,000.
In this Part,
"conduct" includes an act or omission; (« conduite »)
"investigated member" means a member or a former member who is the subject of an investigation or whose conduct is the subject of a hearing held under this Part. (« membre faisant l'objet de l'enquête »)
Any person may make a complaint in writing to the secretary about the conduct of a member, and the complaint shall be dealt with in accordance with this Part.
If, after a member's registration is cancelled, suspended or not renewed under this Act,
(a) a complaint or a referral under clause 18(b) is made about the former member; and
(b) the complaint or referral relates to conduct occurring before the cancellation, suspension or non-renewal;
the complaint or referral may, notwithstanding the cancellation, suspension or non-renewal, be dealt with within two years after the date of the cancellation, suspension or non-renewal as if the former member's registration were still in effect.
The secretary shall refer to the vice-president
(a) a complaint made under section 17; and
(b) any other matter that the secretary considers appropriate.
On referral of a complaint or other matter to the vice-president, the vice-president may attempt to resolve it informally if he or she considers informal resolution to be appropriate.
If informal resolution of a complaint has been attempted and the complaint is not resolved to the complainant's satisfaction, the vice-president shall direct that an investigation into the conduct of the member be held and shall appoint an investigator to conduct the investigation. The vice-president may also direct an investigation and appoint an investigator in respect of any complaint or other matter that is referred to him or her, if the vice-president considers it appropriate to do so.
An investigator may engage legal counsel and employ any other experts that the investigator considers necessary.
An investigator appointed under subsection (1) may
(a) require the investigated member or any other member to produce to the investigator any records, documents and things in his or her possession or under his or her control that may be relevant to the investigation;
(b) require the investigated member or any other member to attend before the investigator to be interviewed; and
(c) direct an inspection or audit of the practice of the investigated member.
The society may apply to the court for an order
(a) directing any member to produce to the investigator any records, documents and things in his or her possession or under his or her control, if it is shown that the member failed to produce them when required to do so by the investigator; or
(b) directing any person to produce to the investigator any records, documents and things in his or her possession or under his or her control that are or may be relevant to the complaint being investigated.
The investigator may investigate any other matter related to the professional conduct or the skill in practice of the member that arises in the course of the investigation.
On concluding the investigation, the investigator shall report his or her findings to the vice-president.
DECISION OF VICE-PRESIDENT
The vice-president may, after a review or investigation,
(a) direct that the matter be referred, in whole or in part, to the discipline committee;
(b) direct that no further action be taken;
(c) accept the voluntary surrender of the member's certificate of registration;
(d) censure the member, if the vice-president has determined that no action other than censure is to be taken and the member has agreed to accept the censure;
(e) refer the matter to mediation if the vice-president determines that the complaint is strictly a matter of concern to the complainant and the member, and both parties agree to mediation;
(f) enter into an agreement with the member that provides for placing conditions on the member's certificate of registration; or
(g) take any other action that the vice-president considers appropriate in the circumstances and that is not inconsistent with this Act or the by-laws.
If a matter referred for mediation under clause (1)(e) cannot be resolved, it must be referred back to the vice-president, who may make any other decision under subsection (1) that he or she considers appropriate.
The vice-president shall give the member and the complainant a written notice setting out his or her decision and the reasons for the decision.
The vice-president is not required to hold a hearing or give any person an opportunity to appear or to make formal submissions before making a decision under this section.
The vice-president may order the member to pay all or part of the costs incurred by the society in
(a) monitoring compliance with conditions imposed on a member under clause (1)(f); and
(b) conducting the investigation.
The vice-president may publish the fact that a member has been censured, and publication may include the member's name and a description of the circumstances that led to the censure.
VOLUNTARY SURRENDER OF REGISTRATION
If the vice-president accepts the voluntary surrender of a member's certificate of registration under clause 22(1)(c), the vice-president may recommend to the board that, should the member later seek reinstatement,
(a) the member comply with specified conditions prior to his or her reinstatement; and
(b) upon reinstatement, the member be subject to conditions.
APPEAL BY COMPLAINANT
When the vice-president makes a decision under subsection 22(1), except clause 22(1)(e), the complainant may appeal the decision to the board.
An appeal is to be made by mailing a written notice of appeal, including reasons for the appeal, to the secretary within 30 days after the date the complainant is notified of the decision of the vice-president under subsection 22(3).
On an appeal under this section, the board shall do one or more of the following:
(a) make any decision that in its opinion ought to have been made by the vice-president;
(b) quash, vary or confirm the decision of the vice-president;
(c) refer the matter back to the vice-president for further consideration in accordance with any direction that the board may make.
The board shall give the member and the complainant a written notice setting out its decision and the reasons for the decision.
The board is not required to hold a hearing or to afford to any person an opportunity to appear or to make oral submissions before making a decision under this section, but the board shall give the investigated member and the complainant an opportunity to make written submissions.
SUSPENSION OF REGISTRATION PENDING DECISION
Notwithstanding anything in this Act, the vice-president may, when there is a question that a member's conduct exposes or is likely to expose the public to serious risk, direct the secretary to suspend the member's certificate of registration or place conditions on his or her practice pending the outcome of proceedings under this Part.
On receiving a direction under subsection (1), the secretary shall promptly serve a notice of the suspension or the conditions of practice on the member and, where appropriate, the member's employer.
A member whose certificate of registration is suspended or has conditions of practice placed on it under subsection 26(1) may, by notice in writing to the secretary, appeal the suspension or imposition of conditions to the board.
The board shall hold a hearing within 30 days after receiving a notice of appeal from the secretary.
The society and the member may appear and be represented by counsel at a hearing before the board, and the board may have counsel to assist it.
On an appeal under this section, the board shall decide whether the suspension or conditions of practice are to be quashed, varied or confirmed and may make an order as to any costs that may arise from its decision.
The member may, by filing an application with the court and serving a copy on the secretary, apply for an order of the court staying a decision of the vice-president to suspend the member's certificate of registration or to place conditions under subsection 26(1) pending the outcome of proceedings under this Part.
Notwithstanding any other action he or she may have taken, with the exception of a censure, the vice-president may at any time refer the conduct or complaint that was the subject of the investigation to the discipline committee.
Notwithstanding any other provision of this Act, the vice-president may disclose to a law enforcement authority any information respecting possible criminal activity on the part of a member that is obtained during an investigation into the member's conduct.
The board shall appoint a discipline committee consisting of
(a) a member who is to be the chair; and
(b) other members, former members, public representatives and other persons appointed from time to time.
At least 1/3 of the persons appointed to the discipline committee must be public representatives.
Within 30 days after a matter is referred to the discipline committee, the chair shall select a panel from among the members of the discipline committee to hold a hearing.
A panel is to be composed of at least three members, one of whom must be a public representative.
No person may be selected for a panel who has taken part in the review or investigation of what is to be the subject matter of the panel's hearing.
If a hearing has begun and a member of the panel is unable to continue to sit as a member, the panel may complete the hearing if at least three members remain and one of them is a public representative.
When a panel is selected, it shall hold a hearing.
The hearing must begin within 120 days after the date on which the matter is referred to the discipline committee, unless the investigated member consents in writing to a later date.
At least 30 days before the date of the hearing, the secretary shall serve a notice of hearing on the investigated member and the complainant, stating the date, time and place of the hearing and identifying in general terms the complaint or matter about which the hearing will be held.
The secretary may issue a public notice of the hearing in any manner he or she considers appropriate, but the notice must not include the name of the investigated member.
The society and the investigated member may appear and be represented by counsel at a hearing, and the panel may have counsel to assist it.
The chair of the panel may adjourn a hearing from time to time.
The oral evidence given at a hearing must be recorded.
Before the day of the hearing, the investigated member must be given an opportunity to examine any written or documentary evidence that will be produced and any report the contents of which will be given in evidence at the hearing.
If the member intends to rely on any written or documentary evidence or any report at the hearing, he or she shall provide a copy of that evidence or report to the society before the day of the hearing.
If either the member or the society intends to call an expert as a witness at the hearing and there is no report from the expert, a summary of the expert's intended evidence, including his or her findings, opinions and conclusions, must be provided to the other party before the day of the hearing.
If the summary is not provided in accordance with subsection (3), the expert may testify at the hearing only with the leave of the panel.
The panel may investigate and hear any other matter concerning the conduct of the investigated member that arises in the course of its proceedings. In that event, the panel shall declare its intention to investigate the further matter and permit the member sufficient opportunity to prepare a response.
A hearing shall be open to the public unless the panel is satisfied that
(a) matters involving public security may be disclosed;
(b) financial, personal or other matters may be disclosed at the hearing that are of such a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that meetings be open to the public;
(c) a person involved in a criminal proceeding or a civil suit or proceeding may be prejudiced; or
(d) the safety of a person may be jeopardized.
If the panel is satisfied that the hearing is required to be closed, it may make an order that the public be excluded from the hearing or any part of it, and it may make other orders it considers necessary to prevent the public disclosure of matters disclosed at the hearing, including orders banning the publication or broadcasting of those matters.
No order shall be made under subsection (2) that prevents the publication of anything that is contained in the register and available to the public.
The panel may make an order that the public be excluded from the part of a hearing dealing with a motion for an order under subsection (2).
The panel may make any order necessary to prevent the public disclosure of matters disclosed in the submissions relating to any motion described in subsection (4), including prohibiting the publication or broadcasting of those matters.
The panel shall ensure that any order it makes under this section and its reasons are made available to the public in writing.
The panel may reconsider an order made under subsection (2) at the request of any person or on its own motion.
Evidence may be given at a hearing of a panel either orally or by affidavit or both, but a member's registration cannot be suspended or cancelled on affidavit evidence alone.
At a hearing, the oral evidence of witnesses must be taken on oath or affirmation, and the parties shall have the right to cross-examine witnesses and call evidence in defence and reply.
For the purpose of an investigation or hearing under this Act, the secretary and the chair of the panel have the power to administer oaths and affirmations.
Any person, including the investigated member, who in the opinion of the panel has knowledge of the complaint or matter being heard is a compellable witness in any proceeding before the panel.
The attendance of witnesses before the panel and the production of records may be enforced by a notice issued by the secretary requiring the witness to attend and stating the date, time and place at which the witness is to attend and the records, if any, that the witness is required to produce.
On the written request of the member or his or her counsel or agent, the secretary shall provide any notices that the member requires for the attendance of witnesses or the production of records.
A witness, other than the member, who has been served with a notice to attend or a notice for production of records under this section is entitled to be paid the same fees in the same manner as a witness in an action in the court.
Proceedings for civil contempt of court may be brought against a witness
(a) who fails to attend before the panel in compliance with a notice to attend;
(b) who fails to produce any records in compliance with a notice to produce them; or
(c) who refuses to be sworn or to affirm or to answer any question he or she is directed to answer by the panel.
If the witness referred to in subsection (5) is the investigated member, the failure or refusal to attend may be held to be professional misconduct.
The panel, on proof of service on the investigated member of the notice of hearing, may
(a) proceed with the hearing in the absence of the member or his or her agent; and
(b) act, decide or report on the matter being heard in the same way as if the member were in attendance.
DECISION OF PANEL
If, at the conclusion of a hearing, the panel finds that the member
(a) is guilty of professional misconduct;
(b) has contravened this Act or the by-laws of the society;
(c) has been found guilty of an offence that is relevant to the member's suitability to practise;
(d) has displayed a lack of knowledge or lack of skill or judgment in the practice of public accounting;
(e) has demonstrated an incapacity or unfitness to practise public accounting;
(f) is suffering from an ailment that might, if the member continues to practise, constitute a danger to the public; or
(g) is guilty of conduct unbecoming a member;
it shall deal with the member in accordance with this Act.
If the panel makes any of the findings described in section 40, it may make one or more of the following orders:
(a) reprimand the member;
(b) suspend the member's certificate of registration for a stated period;
(c) suspend the member's certificate of registration until he or she has completed a specified course of studies or supervised practical experience, or both, to the satisfaction of any person or committee that the panel may determine;
(d) accept, in place of the suspension of the certificate of registration, the member's undertaking to limit his or her practice;
(e) impose conditions on the member's entitlement to practise, including conditions that he or she
(i) practise under supervision,
(ii) permit periodic inspections of his or her practice by a person authorized by the panel to carry out inspections,
(iii) permit periodic audits of records,
(iv) report to the secretary on specified matters,
(v) not engage in sole practice;
(f) require the member to satisfy any person or committee that the panel may determine that a condition or addiction can be or has been overcome, and suspend the member's certificate of registration until the person or committee is satisfied;
(g) require the member to take counselling or treatment;
(h) waive or reduce money to be paid to the member, or repay money paid to the member that, in the opinion of the panel, was unjustified for any reason;
(i) cancel the member's certificate of registration.
To assist the panel in making an order under this section, the panel may be advised of any censure or order previously issued to the member and the circumstances under which it was issued.
The panel may make any ancillary order that is appropriate or required in connection with an order made under subsection (1) or may make any other order that it considers appropriate in the circumstances, including an order that
(a) a further or new investigation be held into any matter; or
(b) a panel be convened to hear a complaint without an investigation.
A member who is directed by the board to surrender his or her certificate or a permit issued to a corporation of which he or she is a director or officer shall without delay deliver the certificate or permit to the secretary.
If the panel imposes conditions on a member's entitlement to practise public accounting under clause (1)(e), it may also order the member to pay all or any part of the costs incurred by the society in monitoring compliance with those conditions.
If the board is satisfied that a member has contravened an order made under subsection (1), it may, without a further hearing, cancel the member's certificate of registration.
If a member's certificate of registration is suspended or cancelled by an order made under subsection (1), the member shall not practise during the period of the suspension or cancellation.
The panel may, in addition to or instead of dealing with the member's conduct in accordance with section 41, order that the member pay to the society, within the time set by the order,
(a) all or part of the costs of the investigation, hearing and panel;
(b) a fine not exceeding $10,000.; or
(c) both the costs under clause (a) and the fine under clause (b).
The costs referred to in subsection (1) may include, but are not limited to,
(a) all disbursements incurred by the society, including
(i) fees and expenses of any experts, investigators and auditors whose reports or attendances were reasonably necessary for the investigation or hearing,
(ii) fees, travel costs and reasonable expenses of any witnesses required to appear at the hearing,
(iii) fees for retaining a reporter and preparing transcripts of the proceedings, and
(iv) costs of service of documents, long distance telephone and facsimile charges, courier delivery charges and similar miscellaneous expenses;
(b) payments made to members of the panel; and
(c) costs incurred by the society in providing counsel for the society and the panel, whether or not counsel is employed by the society.
If the member is ordered to pay a fine or costs or both under subsection (1), or costs under subsection 41(5), and fails to pay within the time ordered, the secretary may immediately suspend the member's certificate of registration until payment is made.
The society may file an order under subsection (1) in the court, and on filing, the order may be enforced in the same manner as a judgment of the court.
Within 90 days after the completion of a hearing, the panel shall make a written decision on the matter consisting of the reasons for its decision and a statement of any order made by it.
The panel shall forward to the secretary
(a) the decision; and
(b) any record of the proceedings and all exhibits and documents.
On receiving the decision and record, the secretary shall serve a copy on the member and the complainant.
The member may examine the record of the proceedings before the panel, and is entitled to receive, on payment of the cost of providing it, a transcript of the oral evidence given before the panel.
Notwithstanding that any proceeding or part of a proceeding under this Part may have been held in private, the society may, after the expiration of any appeal period, publish the circumstances relevant to the findings and any order of the panel. If the panel makes an order against the member under section 41 or 42, the society may also publish the member's name.
APPEAL TO COURT OF APPEAL
A member in respect of whom a finding or order is made by the panel under section 40, 41 or 42 may appeal the finding or order to The Court of Appeal.
An appeal must be commenced by
(a) filing a notice of appeal; and
(b) giving a copy of the notice of appeal to the secretary;
within 30 days after the date on which the decision of the panel is served on the member.
An appeal must be founded on the record of the hearing before the panel and the decision of the panel.
On hearing the appeal, The Court of Appeal may
(a) make any finding or order that in its opinion ought to have been made;
(b) quash, vary or confirm the decision of the panel or any part of it; or
(c) refer the matter back to the panel for further consideration in accordance with any direction of the Court.
The decision and any order of the panel remains in effect pending an appeal unless The Court of Appeal, on application, stays the decision and any order pending the appeal.
The board may, on application by a person whose certificate of registration has been cancelled, direct the secretary to reinstate the person's name in the register, subject to any conditions that the board may impose, and may order the person to pay any costs arising from the imposition of such conditions.
The society may appoint one or more inspectors for the purposes of this Act and the by-laws.
An inspector may review the practice of a member or professional corporation, or both, and shall report his or her findings to the secretary on the conclusion of each inspection.
For the purpose of enforcing and administering this Act and the by-laws, an inspector may at any reasonable time, and when requested, upon presentation of an identification card issued by the society,
(a) without a warrant, enter the office of a member or professional corporation and make any inspections that are reasonably required to determine compliance with this Act and the by-laws;
(b) require the production by the member or professional corporation of any record that the inspector reasonably considers necessary for the purpose of enforcing this Act and the by-laws;
(c) inspect and, upon giving a receipt, remove records or things relevant to the inspection for the purpose of making copies or extracts; and
(d) remove substances and things for examination or test purposes upon giving a receipt.
A copy of a record made under clause (1)(c) and certified to be a true copy by the inspector is, in the absence of evidence to the contrary, admissible in evidence in any proceeding or prosecution as proof of the original record and its contents.
When a justice is satisfied by information under oath that there are reasonable grounds for believing that it is necessary for an inspector to enter a building, vehicle or other place for the enforcement of this Act and the by-laws and
(a) a reasonable, unsuccessful effort to effect entry without the use of force has been made; or
(b) there are reasonable grounds for believing that entry would be denied without a warrant;
the justice may at any time, and if necessary upon application without notice, issue an order authorizing the inspector and such other persons as may be named in the order, with such peace officers as are required to assist, to enter the building, vehicle or other place and to take such action as an inspector may take under subsection (1).
No person shall obstruct an inspector or withhold from an inspector or conceal or destroy any records, documents, substances or things relevant to an inspection.
SERVICE OF DOCUMENTS
A notice, order or other document under this Act is sufficiently given or served if it is
(a) delivered personally; or
(b) sent by registered mail, or by another service that provides the sender with proof of delivery, to the intended recipient at that person's last address appearing in the records of the society.
A notice, order or other document sent by registered mail is deemed to be given or served five days after the day it was sent.
A person who contravenes a provision of this Act is guilty of an offence and is liable on summary conviction
(a) for a first offence, to a fine of not more than $6,000.; and
(b) for a second or subsequent offence, to a fine of not more than $30,000.
If a corporation commits an offence under this Act, a director, officer or employee of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence, whether or not the corporation has been prosecuted or convicted, and is liable, on summary conviction, to a penalty prescribed in subsection (1).
A prosecution under this Act may be commenced within two years after the commission of the alleged offence, but not afterwards.
Any person may be a prosecutor or complainant in the prosecution of an offence under this Act, and the government may pay to the prosecutor a portion of any fine recovered, in an amount that it considers appropriate, toward the costs of the prosecution.
When the society is the prosecutor of an offence under this Act, it may apply for a stay of proceedings in the prosecution, and the court shall grant the stay.
In any prosecution under this Act it is sufficient to prove that the accused has committed on one occasion any of the acts prohibited by this Act.
PROTECTION FROM LIABILITY
No action lies against the society, the board, the secretary, a person conducting an investigation, an inspector, a member of a committee or board established under this Act or the by-laws, or any employee, officer or person acting on the instructions of any of them for anything done by the person in good faith in the performance or intended exercise of any duty or power under this Act or the by-laws or for any neglect or default in the performance or exercise in good faith of such a duty or power.
LIMITATION PERIOD FOR MEMBERS
No member is liable in any action for negligence or malpractice by reason of professional services requested or rendered, unless the action is commenced within two years after the date when, in the matter complained of, those professional services terminated.
The court, on application by the society, may grant an injunction enjoining any person from doing any act that contravenes Part 3 or Part 4, notwithstanding any penalty that may be provided by this Act in respect of that contravention.
LIMITED LIABILITY PARTNERSHIPS
For the purposes of clause 69(1)(b) of The Partnership Act, members and professional corporations are authorized to form limited liability partnerships to practise public accounting as certified management accountants.
Definition of "former Act"58(1)In this section , "former Act" means The Society of Management Accountants of Manitoba Incorporation Act, R.S.M. 1990, c. 184.
An individual who is a member of the society under the former Act on the day this Act comes into force is deemed to be registered as a member under this Act.
The members and officers of the council under the former Act are deemed to be members and officers of the board under this Act, elected or appointed for the same period and holding the same offices.
A complaint made after this Act comes into force that relates to conduct that occurred in whole or in part before this Act came into force shall be dealt with under this Act.
CONSEQUENTIAL AMENDMENTS, REPEAL AND COMING INTO FORCE
Subsection 184(5) of The Municipal Act is amended by striking out "The Society of Management Accountants of Manitoba Incorporation Act" and substituting "The Certified Management Accountants Act".
Subsection 17(2) of The Regional Waste Management Authorities Act is amended by striking out "The Society of Management Accountants of Manitoba Incorporation Act" and substituting "The Certified Management Accountants Act".
The Society of Management Accountants of Manitoba Incorporation Act, R.S.M. 1990, c. 184, is repealed.
This Act may be referred to as chapter C46.1 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day fixed by proclamation.