|
|
Repealed on January 9, 2015 by 2014 cC-10.1 s75 SNL2009 CHAPTER P-35.1 PUBLIC ACCOUNTANTS ACT Amended: 2011 c4; 2012 c38 s12 CHAPTER P-35.1 AN ACT RESPECTING PUBLIC ACCOUNTANTS (Assented to
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows: Short title
1.
This Act may be cited as the Public Accountants Act. Definitions 2. In this Act (a) "board" means the Public Accountants Licensing Board continued under section 3 ; (b) "minister" means the minister appointed under the Executive Council Act to administer this Act; (c) "public accountant" means a person who, either alone or in partnership or through a corporation to which sections 13 to 20 apply, engages in public practice involving (i) the performance of services which include the auditing of accounts and the preparing, signing, delivering or issuing, of a financial, accounting or related statement, and (ii) issuing a written opinion, certificate, report or statement of the public accountant as to the correctness, fairness, completeness or reasonableness, or otherwise of a financial, accounting or related statement where, because of the circumstances, or of the signature, stationery or wording employed it is indicated that the person or partnership or corporation acts or purports to act in relation to the opinion, certificate, report or statement as an independent accountant or auditor, or as a person or partnership or corporation having or purporting to have expert knowledge in accounting or auditing matters, to the intent that the opinion, certificate, report or statement of the public accountant shall add to or detract from the credibility or acceptability of the financial, accounting or related statement in respect of which it is made, but does not include a person who engages only in bookkeeping or cost accounting or in the installation of bookkeeping, business or cost systems or who performs accounting or auditing functions exclusively in respect of a public authority or a commission, committee or emanation of one, including a Crown corporation;
(d)
"register" means the Register of Public Accountants of Newfoundland and (e) "registrar" means the registrar appointed under subsection 3 (4). Board incorporated 3. (1) The Public Accountants Licensing Board is continued as a corporation without share capital for the purposes of Part XXI of the Corporations Act . (2) The board shall consist of (a) 6 members elected in accordance with subsection (3); and (b) 3 members appointed under section 4 who are not members of a body referred to in subsection (3). (3) The members of the board referred to in paragraph (2)(a) shall be elected as follows:
(a)
2 persons, who are members of the Institute of Chartered Accountants of Newfoundland and
(b)
2 persons, who are members of the Certified General Accountants Association of Newfoundland and
(c)
2 persons, who are members of the Society of Management Accountants of Newfoundland and (4) The board shall elect from among the appointed members a chairperson and a registrar. (5) The chairperson, or an appointed member designated by him or her, shall chair the meetings of the board. (6) Where a person elected under subsection (3) holds office for a period of 9 consecutive years the person is not eligible for election as a member of the board until the expiration of 12 months from the end of the year in which he or she was last a member. (7) An elected member may resign his or her office by written notice to the board. (8) Where an elected member resigns, dies or becomes incapable of performing his or her duties, the institute, association or society of which he or she was a member shall appoint a replacement member to serve until the expiry of the term of that elected member. (9) Where the term of office of a member of the board expires and a successor has not been elected or appointed, the member may continue to hold office until a successor is elected or appointed but time served by that member under this subsection shall not be counted for the purpose of subsection (6). (10) Elected members shall serve without payment for their services, but their travel and other expenses associated with their duties as members may be paid by the board, in accordance with the by-laws. (11) The board may pay the registrar for performing his or her duties under this Act, in accordance with the by-laws. (12) Notwithstanding subsection (6), one of the members first appointed under paragraphs (3)(a), (b) and (c) shall be appointed for a term of 2 years. Appointment by minister 4. (1) The minister shall appoint as members of the board 3 persons who are not members of an organization referred to in subsection 3 (3) who are suitable to represent the public interest. (2) A person appointed under subsection (1) holds office for a term of 3 years and is eligible to be re-appointed. (3) Where a person appointed under subsection (1) holds office for a period of 9 consecutive years the person is not eligible for appointment as a member of the board until the expiration of 12 months from the end of the year in which he or she was last a member. (4) Where the term of an appointed member expires, he or she continues to be a member until re-appointed or replaced. (5) The board shall pay the expenses of a person appointed under this section in accordance with guidelines established by the Lieutenant-Governor in Council. (6) A person appointed under subsection (1) may resign his or her appointment by written notice to the minister and shall provide a copy to the chairperson of the board. (7) A person appointed under subsection (1) may be removed from office by the minister before the expiration of his or her term of office and no compensation shall be paid to him or her other than an amount owing under subsection (5). (8) Notwithstanding subsection (2), one of the members first appointed under subsection (1) shall be appointed for a term of one year. (9) Notwithstanding subsection (2), at least one half of the members next appointed or reappointed following the commencement of this subsection shall be appointed for a term of 2 years and the remainder for a term of 3 years and all subsequent appointments of members to the board shall be for a term of 3 years. Meetings 5. (1) A quorum of the board is 5 members, consisting of (a) at least one member elected under paragraph 3 (3)(a); (b) at least one member elected under paragraph 3 (3)(b); (c) at least one member elected under paragraph 3 (3)(c); and (d) an appointed member. (2) Except where prohibited in the by-laws, a member may, where all the members consent, participate in a meeting of the board by means of the telephone or other telecommunication device that permits all persons participating in the meeting to communicate with each other. (3) Where a quorum under subsection (1) exists, a majority of that number is sufficient to make a decision, and in the event of a tie the chairperson of the meeting shall cast the deciding vote. (4) In the absence of the chairperson, the members of the board in attendance at a meeting may appoint another member to chair that meeting. (5) The board shall appoint annually an auditor to audit the accounts of the board and report on the financial statement prepared by the board. (6) The board may in its by-laws provide for voting at a meeting of the board by mail or electronic means. Fees 6. (1) In prescribing the fees payable under this Act, the board shall, so far as it is practicable, ensure that the amount of fees is sufficient to enable it to discharge its duties under this Act. (2) All money received by the board shall be applied by it to its duties under this Act. By-laws 7. (1) The board may make by-laws not inconsistent with this Act respecting (a) the holding and procedure of its meetings; (b) the appointment of committees and the duties and responsibilities of those committees; (c) the election of members of the board under subsection 3 (3) and setting the terms of office; (d) the payment of travel and other expenses of elected members of the board; (e) the employment and remuneration of staff and consultants; (f) a code of ethics which shall include (i) a definition of "professional misconduct" and "conduct unbecoming" for the purpose of paragraph 22(c), (ii) provisions respecting conflict of interest, and (iii) rules respecting methods of advertising; (g) [Rep. by 2011 c4 s2] (h) the participation of members at a meeting of the board by telephone or other telecommunications device under section 5 ; and (i) voting by members by mail or electronic means. (2) A by-law may be made, amended or repealed at a meeting of the board provided that 30 days notice, in writing, of the making, amendment or repeal of the by-law and of the meeting are given to members of the board. (3) The board shall have its by-laws available for inspection by the public on reasonable notice and at reasonable hours. Annual report 8. (1) The board shall prepare and submit to the minister not later than 6 months after the end of its financial year (a) a report on the activities of the board in the previous year; and (b) the board's audited financial statements for the previous financial year. (2) The minister shall table a copy of the annual report and the audited financial statement in the House of Assembly within 15 days of receiving it if the house is sitting and if the house is not sitting within 15 days after it next begins to sit. (3) Where the board fails to comply with subsection (1), the board is guilty of an offence and on summary conviction may be fined $1,000. Licensure 9. (1) A person who (a) has met the requirement for licensure that may be prescribed by the board; and (b) pays the licensing fee set by the board, is entitled to be licensed as a public accountant. (2) As a condition of being issued a licence, a person shall provide proof that he or she has obtained professional liability insurance coverage in a form and amount satisfactory to the board. Register 10. (1) The registrar shall keep a register in which shall be entered the names of all persons licensed under this Act. (2) The register shall be open to inspection by a member of the public during normal business hours at the office of the board. Titles which public accountants may use 11. (1) The board, upon issuing a licence to practise as a public accountant, shall assign to the licensee the titles or identifying words or abbreviations which the licensee may attach to his or her name when practising or in private employment. (2) A person practising as a public accountant shall not use or advertise distinguishing titles of identifying words or abbreviations other than those assigned to him or her by the board. Date of licence 12. (1) A licence issued or renewed under this Act shall state the date on which it is granted or renewed. (2) A licence granted or renewed under this Act expires on December 31 following the date of its issue. (3) Notwithstanding subsection (2), a licence-holder has 31 days to the end of January following, to renew his or her licence and pay the fee, and during that period he or she shall be considered still to be licensed. (4) A person holding a licence under this Act who wishes to have the licence renewed shall apply to the board and shall pay the prescribed fee. (5) A person holding a licence under this Act who has applied to the board under this section shall be entitled to have the licence renewed, but nothing in this subsection prejudices or affects the right of the board to revoke a licence under this Act. Definitions 13. In sections 14 to 20 (a) "non-voting share" means an issued share of a professional corporation that is not a voting share; and (b) "voting share" means an issued share of a professional corporation with the right to vote at a meeting of shareholders attached to it. Professional corporation 14. (1) One or more public accountants may incorporate a corporation to provide the services of a public accountant. (2) The corporation shall be incorporated under the Corporations Act . (3) The name of the corporation shall meet the requirements of subsection 17(1) of the Corporations Act . (4) A corporation shall not provide the services of a public accountant unless it is registered and certified under this Act. Corporate register 15. (1) The registrar shall maintain a register of professional corporations in which shall be entered the names of those corporations permitted under this Act to provide the services of a public accountant. (2) The board shall direct the registrar to register a professional corporation that establishes that (a) all the voting shares of the corporation are beneficially owned by and registered in the name of one or more public accountants and there is no restriction on the right of each public accountant to exercise his or her vote as he or she wishes to; (b) the non-voting shares are owned by a natural person; (c) all the directors of the corporation are public accountants, and there is no agreement restricting the powers of the directors to manage the business and affairs of the corporation in relation to the provision of services of public accountants; (d) all of the persons who will be providing the services of public accountants as employees of or on behalf of the corporation are public accountants; (e) the articles of the corporation restrict it to providing the services of a public accountant and related matters; (f) the corporation is in good standing under the Corporations Act ; and (g) the corporation has complied with other requirements for registration in the regulations made under section 40 . (3) The corporate register shall be published in accordance with section 10 and a copy of the register shall be available for inspection under that section. (4) The board may enter into a reciprocal agreement with a board, association or other body having responsibility for the certification of public accountants in another jurisdiction for the registration of corporations from that jurisdiction in the register. (5) Notwithstanding subsection (2), the voting shares of a professional corporation may be held by (a) an executor or administrator of the estate of a deceased public accountant to discharge the duties of that position; or (b) a trustee in bankruptcy to discharge his or her duties as trustee in respect of the corporation or a public accountant, for no longer than 180 days, or a longer period where the registrar permits. Annual certificate 16. (1) A professional corporation may apply for a certificate to provide the services of a public accountant in the province and the board shall certify the corporation where (a) the professional corporation is registered under this Act; (b) the application is accompanied by a fee which may be established by the board; and (c) the professional corporation continues to meet the requirements for registration set out in section 15 and other requirements for being certified which may be set out in this Act and the regulations made under section 40 . (2) The holder of a certificate issued under this section is entitled to recover from a person, in a court of the province having jurisdiction to order payment from the person, reasonable charges for the provision of professional services by the certificate holder. (3) A certificate issued under this section expires on January 15 following the day upon which it comes into force. Revocation of certificate 17. A certificate issued under section 16 may be revoked by the board where (a) the professional corporation ceases to meet a requirement for registration and certification under this Act; (b) the professional corporation contravenes this Act or the regulations; or (c) a public accountant is disciplined under sections 22 to 39 in respect of professional services performed by him or her as an employee of or on behalf of the professional corporation. Effect of incorporation 18. (1) A public accountant who provides professional services to or through a professional corporation is, notwithstanding his or her relationship to the professional corporation or the relationship between the recipient of those services and the professional corporation, subject to (a) the application of this Act as if he or she were providing services as an individual public accountant; and (b) the same duties and responsibilities in connection with his or her dealings with recipients of the services of the professional corporation as if he or she were providing services directly to those recipients. (2) The relationship between a professional corporation and a person receiving services from or through the corporation is subject to the laws relating to the confidential and ethical relationship between a public accountant and his or her client. (3) All rights and obligations pertaining to communications made to, or information received by, public accountants apply to the shareholders, directors, officers and employees of a professional corporation. Liability of member 19. (1) Notwithstanding a provision to the contrary in the Corporations Act , a public accountant who provides services as a public accountant through or on behalf of a professional corporation is liable to a person in relation to those services to the same extent and in the same manner as if the public accountant provided those services as an individual and that liability is not affected because of the public accountant's relationship to the professional corporation as a shareholder, director, officer, employee or in another capacity. (2) A public accountant is jointly and individually liable with a professional corporation for all claims made against the corporation in connection with the provision of services by the public accountant. (3) In this section "public accountant" includes a person formerly licensed under this Act or a predecessor Act as a public accountant. Misconduct of a professional corporation 20. (1) A public accountant is liable to be disciplined under sections 22 to 39 for the actions or conduct of a professional corporation while the public accountant was a shareholder, director, officer or employee of the professional corporation. (2) A public accountant shall not be liable to discipline under subsection (1) where the public accountant proves that he or she did not know and could not reasonably have known about the relevant actions or conduct of the professional corporation. (3) A power of inspection, investigation or inquiry that may be exercised in respect of a public accountant under section 26 may be exercised in respect of a professional corporation or its records in connection with an inquiry under subsection (1). (4) A professional corporation is jointly and individually liable with the public accountant for all fines and costs the public accountant is ordered to pay in connection with an inquiry under subsection (1). (5) In this section, "public accountant" includes a person formerly licensed under this Act or a predecessor Act as a public accountant. Limited liability partnerships 21. Two or more persons licensed under this Act to practice as public accountants are eligible, as required by section 56 of the Partnership Act , to apply to be registered under that Act as a limited liability partnership. Definitions 22. In this section and sections 24, 25, 26 and 27, (a) "allegation" means a written document alleging that a person has engaged in conduct deserving of sanction; (b) "complainant" means a person making an allegation described in section 24; (c) "conduct deserving of sanction" includes (i) professional misconduct, (ii) professional incompetence, (iii) conduct unbecoming a public accountant, (iv) incapacity or unfitness to practise as a public accountant, and (v) acting in breach of this Act, the regulations or the code of ethics made under section 7; and (d) "respondent" means a public accountant or former public accountant, a corporation to which sections 13 to 20 apply or a former corporation against whom an allegation is made. Rep. by 2011 c4 s3 23. [Rep. by 2011 c4 s3] Allegation 24. (1) An allegation shall be in writing and signed by the complainant or his or her solicitor, and filed with the registrar. (2) The registrar may on his or her own motion make an allegation and file it, and the allegation has the same effect as an allegation referred to in subsection (1). (3) Where the registrar has been informed that a respondent has been convicted of an offence under the provisions of the Criminal Code or a similar penal statute of another country or has been suspended by a licensing body for public accountants in another province or territory of Canada or another territory or country for reason of professional misconduct, conduct unbecoming a public accountant, or professional incompetence, the information shall be dealt with by the chairperson as an allegation. (4) For the purpose of subsection (3), a certified copy of the record of a conviction or findings made or the action taken by an external regulatory body constitutes proof, in the absence of evidence to the contrary, of the conviction or findings made or the action taken by that body, without proof of the signature of the convicting justice or person purporting to have signed on behalf of that body. Certified general accountants
25.
(1) Where an allegation filed under section 24 relates to a respondent who is a member of the Certified General Accountants Association of Newfoundland and (2) Sections 30 to 45 of the Certified General Accountants Act, 2008 apply, with the necessary changes, to an allegation referred to the registrar of the association under subsection (1) as if it was an allegation filed under section 29 of that Act. (3) In subsection (1), "member" includes a corporation to which sections 18 to 25 of the Certified General Accountants Act, 2008 apply, and a former corporation. Certified management accountants
26.
(1) Where an allegation filed under section 24 relates to a respondent who is a member of the Society of Certified Management Accountants of Newfoundland and (2) Sections 28 to 43 of the Certified Management Accountants Act apply, with the necessary changes, to an allegation referred to the registrar of the society under subsection (1) as if it was an allegation filed under section 27 of that Act. (3) In subsection (1), "member" includes a corporation to which sections 16 to 23 of the Certified Management Accountants Act apply, and a former corporation. Chartered accountants
27.
(1) Where an allegation filed under section 24 relates to a respondent who is a member of the Institute of Chartered Accountants of Newfoundland and (2) Sections 30 to 45 of the Chartered Accountants Act, 2008 apply, with the necessary changes, to an allegation referred to the registrar of the institute under subsection (1) as if it was an allegation filed under section 29 of that Act.
(3)
Where an allegation relates to a registered public accountant, he or she is considered to be a respondent for the purpose of sections 30 to 45 of the Chartered Accountants Act, 2008. (4) In subsection (1), "member" includes a corporation to which sections 18 to 25 of the Chartered Accountants Act, 2008 apply, and a former corporation. Rep. by 2011 c4 s4 28. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 29. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 30. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 31. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 32. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 33. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 34. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 35. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 36. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 37. [Rep. by 2011 c4 s4] Rep. by 2011 c4 s4 38. [Rep. by 2011 c4 s4] Action prohibited 39. An action for damages shall not lie against the board or the individual members of the board, the registrar, or an officer or employee of the board for (a) an act or failure to act, or a proceeding initiated or carried out in good faith under this Act, or carrying out their duties or obligations as an officer, employee or member under this Act; or (b) for a decision made in good faith under this Act. Regulations 40. (1) The board, with the approval of the minister, may make regulations (a) prescribing conditions for the licensing of a person to practise as a public accountant and for the renewal of licences; (b) providing for the issuance of provisional licences; (c) approving schools and programs of public accountancy; (d) respecting the incorporation of companies under sections 13 to 20 ; (e) respecting eligibility of public accountants to form limited liability partnerships; (f) [Rep. by 2011 c4 s6] (g) [Rep. by 2011 c4 s6] (h) [Rep. by 2011 c4 s6] (2) [Rep. by 2011 c4 s6] Practice prohibited 41. (1) A person who is not licensed under this Act shall not (a) take or use the name or title of "public accountant"; (b) practise as a public accountant; or (c) wilfully pretend to be licensed as a public accountant. (2) A person who contravenes this section is guilty of an offence and is liable on summary conviction to a fine not exceeding $5,000. RSNL1990 cP-35 Rep. 42. The Public Accountancy Act is repealed. Commencement 43. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. (In force - Jun. 10/11) ©Queen's Printer |