A business acquaintance recently shared an interesting story with us and he wanted to know if it was too late to try to get justice.
More than ten years ago, the accountant of his company, a CPA, essentially stole about $100,000.00 from the company. Luckily, he discovered the fraud, fired the accountant and then sued the accountant. Unfortunately, considering the time and expense of litigation, he was not able to recover the full amount with interest, but he agreed to a settlement to recover $85,000.00. Occasionally, he thinks about this and wonders if there is anything else he can do, because he feels as though the accountant was not held sufficiently accountable and escaped real justice.
If he was thinking of starting a new lawsuit, that would be futile. Prescription delays would long since have applied and, furthermore, as he has already sued and settled the initial lawsuit, he could not sue for the same claim twice.
However, there are other options. If the accountant was, at the time that he committed fraud, a member of a professional order in Quebec and this was within the context of his exercising his profession, it may very well be possible to make a complaint to the professional order to which the accountant belongs or belonged, to the effect that he violated the disciplinary rules or the code of ethics that applied to his profession. We cannot guess if such a complaint would be upheld on the basis of the facts that may be investigated. However, it is true that ethical or disciplinary violations for professionals in Quebec do not have a statute of limitations or a prescription period. Therefore, the complaints may be made, even years later. They may be investigated, prosecuted and punished.
If the fraud in question was serious enough and rose to the level of a criminal fraud under the Criminal Code of Canada, he could also make a complaint to the police to have the accountant investigated for Criminal Code infractions. Under the Criminal Code, summary conviction offenses (that is to say, lesser offenses, with lesser maximum punishments) may be prescribed six months after the commission of the offense. However, indictable offenses (that is to say, more serious offenses, with the possibility of more severe penalties, and, in some cases, a possibility of preliminary hearings and even jury trials) do not have an applicable limitation period. Therefore, indictable offenses may be prosecuted even many years after the events. The criminal acts may be investigated, and an accused may be tried and, if found guilty, punished. There is nothing, of course, to guarantee a conviction, particularly with the lapse of time, the fading memory of possible witnesses and the loss or destruction of possible evidence. Still, it may be worth filing a complaint with the police to see if an investigation of fraud might be worthwhile.
Neither of these two possibilities - a disciplinary complaint or a criminal complaint – will necessarily put more money into the pocket of the victim to compensate him for his loss. However, a victim may take some level of satisfaction by seeing that justice is eventually delivered, even many years after the fact. While we have a saying that is as follows, “Justice Delayed is Justice Denied,” at least in some areas of the law, legal remedies can be applied even many years after the facts. This may not seem like justice, but we need to remember that “justice” is an abstract concept. Our laws deal with rights, claims, obligations and remedies. Those are the only and best available substitutes for “justice.”
Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats inc.