Delay is ok? The Supreme Court of Canada’s ruling on delay and abuse of process in administrative proceedings

Administrative proceedings can be complex, difficult to manage and often last multiple years. Recently, in the case of Law Society of Saskatchewan v Abrametz[1], the Supreme Court of Canada (the “SCC”) rejected an expansion of the use of a stay of proceedings as a remedy in cases of abuse of process in administrative proceedings. This article outlines the test for finding abuse of process, and potential remedies identified by the SCC that may be relevant in cases of an abuse of process in administrative proceedings.

Background

Mr. Abrametz was a member of the Law Society of Saskatchewan (the “Law Society”).  In 2012, he was subject to an audit investigation due to trust account irregularities. In February 2013, Mr. Abrametz was served with a notice of intention to interim suspend (the “Notice”), but was allowed to continue to practice via the Law Society, subject to certain conditions.

In October 2014, the auditor appointed to review Mr. Abrametz submitted a final trust report to the Law Society.  One year later, in October 2015, the Law Society issued a formal complaint against Mr. Abrametz containing seven (7) charges, and a Hearing Committee was appointed.

Following this, Mr. Abrametz and the Law Society entered into litigation regarding the scope of the Law Society’s investigatory powers, as Mr. Abrametz’s tax situation gave rise to a simultaneous investigation.  Accordingly, Mr. Abrametz applied to the Hearing Committee for an interim stay of proceedings until the resolution of the tax investigation. This was rejected by the Hearing Committee in August 2016.

Mr. Abrametz’s disciplinary matter was heard over multiple dates in May, August and September 2017, with a conduct decision rendered in January 2018. Mr. Abrametz was found guilty on four (4) charges. In total, just under  five (5) years had passed from the time of Notice to the Hearing Committee’s decision.

In July 2018, Mr. Abrametz applied for a stay of proceedings claiming that the amount of time the Law Society took to investigate and decide his case constituted an abuse of process. Mr. Abrametz’s application was dismissed, and in January 2019, Mr. Abrametz was disbarred without a right to apply for re-admission until 2021.

Law Society’s Hearing Committee decision

In the Law Society’s reasons for rejecting the stay, it was held that a significant share of the delay could be attributed to Mr. Abrametz’s conduct, due to his unavailability, or, the unavailability of his counsel. The Hearing Committee also noted that Mr. Abrametz brought a temporary stay of proceedings in April 2016. Further, the Committee held that the delay was not inordinate or unacceptable as the case was complex, and any prejudice faced by Mr. Abrametz was not so significant as to harm the public’s sense of fairness.

Court of Appeal decision

On appeal, Mr. Abrametz challenged the conduct, penalty and stay decisions. The Saskatchewan Court of Appeal (“SKCA”) relied on the case of Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”), which set a high threshold for finding an abuse of process where the fairness of the hearing itself had not been compromised.

However, the SKCA nonetheless concluded Mr. Abrametz was entitled to a stay. The Court held there was inordinate delay, as there were significant periods of delay on behalf of the Law Society that were not adequately explained or justified by the scale or complexity of the proceedings. The Court also determined that this delay resulted in significant prejudice to Mr. Abrametz; overall, the process would affect the public’s sense of decency and fairness, thus bringing the Law Society’s disciplinary process into disrepute.

Abuse of process

In considering the Law Society’s appeal from the SKCA decision, the SCC relied on Blencoe to explain the two (2) ways in which a delay can constitute an abuse of process:

“The first concerns hearing fairness. The fairness of a hearing can be compromised where delay impairs a party’s ability to answer the complaint against them, such as when memories have faded, essential witnesses are unavailable or evidence has been lost”[2]

“This is not what is in issue in this appeal. Rather, the Court is concerned with a second category of abuse of process. Even when there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due to inordinate delay”[3]

To determine whether delay amounts to an abuse of process, three (3) aspects must be satisfied:

1. The delay must be inordinate;
2. The delay must have caused significant prejudice; and
3. If these two requirements are met, a Court will then proceed to a final assessment of whether the delay amounts to an abuse of process. This would be met if the delay “is manifestly unfair to a party or in some other way brings the administration of justice into disrepute.”[4]

Supreme Court of Canada decision

In responding to the Law Society’s appeal before the SCC, Mr. Abrametz argued that administrative proceedings should have principles similar to those found in R v Jordan, 2016 SCC 27 (“Jordan”). In Jordan, it was held that individuals have a right to be tried for criminal charges within a reasonable time, and a stay will be ordered by the Court if they are not.[5]

Mr. Abrametz argued that, as in Jordan, the Court should recognize inordinate delay as prejudicial in and of itself. The SCC did not accept Mr. Abrametz’s argument, stating that the principle found in Jordan was based on s 11(b) of the Charter of Rights and Freedoms, which gives a constitutional right to be tried within a reasonable time, and that no such right existed for administrative proceedings.[6]

Rather, the SCC reviewed and upheld the test found in Blencoe, while offering further insights into the context of the test.

First, in considering whether a delay is inordinate, the SCC stated that a process taking a considerable amount of time does not in itself amount to inordinate delay.[7] In considering whether a delay is inordinate, the Court or tribunal must consider the following factors:

1. The nature of the proceedings. With disciplinary proceedings being unique, or sui generis, disciplinary bodies have a duty to deal with complaints on a timely basis, especially because members have livelihoods and reputations that are affected by the proceedings.[8]
2. The length and causes of the delay. Some delay may be justified in certain contexts, such as when a parallel criminal investigation is ongoing and it would be improper for a disciplinary investigation to occur at the same time. Further, it is relevant at this stage to consider whether delay has been caused by the party who complains of the delay, or the delay has been waived by that party either implicitly or explicitly. If either of these occur, the delay will not be considered an abuse of process.[9]
3. The complexity of the facts and issues in the case. In this respect, the SCC indicated that a large number of documents does not necessarily entail complexity.[10]

Regarding the second step, prejudice, the SCC held that there must be detriment to an individual, and outlined a non-exhaustive list of potential prejudice that may include “significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention.”[11] The determination of prejudice is a question of fact.

In following the final step of the test in Blencoe, if the first two (2) stages of the test are met, the Court or tribunal is to conduct a final assessment of potential abuse of process, and consider whether the delay is manifestly unfair to a party in some way that brings the administration of justice into disrepute.

Remedies

Notably, the SCC considered and outlined a variety of potential remedies for abuse of process. The Court wrote that “the doctrine of abuse of process is broad; it can usefully be appreciated on a spectrum.”[12] To this end, the SCC listed a non-exhaustive spectrum of remedies available for abuse of process, including:

1. Internal tribunal procedures for dealing with delay;[13]
2. Mandamus – compelling an administrative decision maker to carry out their duties and therefore limit delay;[14]
3. Reduction in sanctions or penalties by a disciplinary tribunal;[15]
4. Setting aside costs against a party or orders for costs against the administrative agency;[16] and
5. A stay of proceedings, which the SCC found to be “the ultimate remedy for abuse of process”, which is only to be granted in the clearest of cases, when the abuse falls at the high end of the spectrum of seriousness.[17]

The threshold for granting alternative remedies is lower than that required for a stay; while significant prejudice is required to establish an abuse of process, the alternative remedies ordered may vary according to the degree of prejudice.[18]

Decision

In applying the above-noted principles to the case, the SCC overturned the decision of the SKCA, determining that the lower court had no basis to set aside the Hearing Committee’s findings that the delay was not inordinate, and that there was no significant prejudice to Mr. Abrametz. The Law Society’s appeal was allowed and the SKCA’s decision was set aside.

Takeaways

Most notably, the SCC in Abrametz reaffirmed and added context to the Blencoe test for abuse of process in administrative proceedings. Individuals should be wary not to contribute to any delay in administrative proceedings nor to take actions (or lack thereof) that may be construed as expressly or implicitly waiving or acquiescing to a delay in the proceedings. Issues regarding delay should be raised as soon as it becomes a concern.[19]

The alternative remedies identified by the SCC recognizes the Courts’ and tribunals’ ability to grant remedies beyond the “ultimate remedy” of a stay of proceedings. However, the SCC did not indicate any “sliding scale” nor requisite degree of prejudice for these alternative remedies.  A scale or pattern may emerge in subsequent case law or decisions.

It can be difficult to deal with administrative proceedings and the ultimate decisions of the tribunal. Miller Thomson LLP has experienced advocates that are available to help you with all your administrative and litigation needs. If you have any questions about the Abrametz decision or any other matter, please contact a member of our Commercial Litigation team.

[1] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 [Abrametz].

[2] Abrametz at para 41, citing Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe] at para 102.

[3] Abrametz at para 42, citing Blencoe at paras 122 and 132.

[4] Abrametz at 43, citing Behn v Moulton Contracting Ltd, 2013 SCC 26 at paras 40-41.

[5] See R v Jordan, 2016 SCC 27.

[6] Abrametz at para 47.

[7] Abrametz at para 50.

[8] Abrametz at para 52-56.

[9] Abrametz at para 59, 61-63.

[10] Abrametz at para 66.

[11] Abrametz at para 69.

[12] Abrametz at para 76.

[13] Abrametz at para 78.

[14] Abrametz at para 80.

[15] Abrametz at paras 92-98.

[16] Abrametz at para 99.

[17] Abrametz at para 83.

[18] Abrametz at para 90.

[19] Abrametz at para 219.