A long – but not inordinate – delay may give rise to serious concern, but is not an abuse of process: Law Society of Saskatchewan v Abrametz, 2022 SCC 29
The Supreme Court of Canada’s recent decision in Law Society of Saskatchewan v Abrametz clarifies the standard of review applicable to questions of procedural fairness and abuse of process, as it relates to inordinate delay, in statutory appeals of administrative decisions. The decision reframes the test from the Supreme Court’s decision in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 to determine whether a delay in administrative proceedings constitutes an abuse of process.
The appeal in Abrametz arose from disciplinary proceedings pursued by the Law Society of Saskatchewan (“LSS”) against Mr. Abrametz. In 2012, the LSS began an audit investigation into Abrametz due to irregularities in the use of a trust account. Abrametz continued to practice under conditions, by consent, while the investigation was ongoing. In October 2014, the auditor submitted a final report to the LSS and, in October 2015, the LSS issued a formal complaint containing seven charges against Abrametz and appointed a Hearing Committee. The Hearing Committee heard the matter in 2017 and Abrametz was found guilty of four of the charges in January 2018.
In July 2018, Abrametz applied for a stay of proceedings on the basis that the time taken by the LSS to investigate and decide his case constituted an abuse of process. The application was heard in September 2018, at the same time submissions on remedy were heard. The stay application was dismissed in November and the final penalty decision was rendered in January 2019, wherein Abrametz was disbarred without a right to reapply for admission for two years.
The Stay Decision
In denying Abrametz’s application for a stay of proceedings, the LSS Hearing Committee found that the delay in the proceedings was neither inordinate nor unacceptable given the complexity of the case, the extent of the investigation, and the delay attributed directly to Abrametz’s conduct, due to his unavailability (or the unavailability of his counsel) and his concealment of his actions. The Hearing Committee further determined that any prejudice that Abrametz may have experienced as a result of the delay was not so significant that the continuation of the process would be so unfair to him that the public’s sense of fairness would be harmed.
Abrametz successfully appealed to the Court of Appeal of Saskatchewan, which granted a stay of proceedings. The Court of Appeal concluded that there had been an inordinate delay which resulted in significant prejudice to Abrametz, such that the public’s sense of decency and fairness would be affected.
Supreme Court Decision
By an 8-1 majority, the Supreme Court allowed the appeal and set aside the stay of proceedings. The majority took this opportunity to clarify the applicable standard of review and to address, once again, the doctrine of abuse of process as it relates to inordinate delay in the administrative context.
- The appropriate standard of review is correctness
First, the Supreme Court, citing Canada (Minister of Immigration, Refugees and Citizenship) v Vavilov, 2019 SCC 65, confirmed that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply. Therefore, when questions of procedural fairness are put forward through a statutory appeal mechanism, they are subject to appellate standards of review.
As this was a statutory appeal pursuant to The Legal Profession Act, 1990, appellate standards of review applied. In turn, as to whether there has been an abuse of process is a question of law, the applicable standard of review was correctness. The Supreme Court held that the Court of Appeal had selected the appropriate standard but, as outlined below, failed to apply the standard correctly.
- The delay was not an abuse of process
Second, the Supreme Court found that the delay in this case was not an abuse of process. The Supreme Court took this opportunity to restate (and slightly reframe) the three-step test established in Blencoe to determine whether the delay constituted an abuse of process:
- First, the delay must be inordinate. This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case; and
- Second, the delay itself must have caused significant prejudice;
- When these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute.
The Supreme Court held that, even when an abuse of process is found, a stay is not necessarily the appropriate remedy. Rather, various remedies are available, including a reduction of sanctions or a variation of an award of costs, including awarding costs against the administrative agency.
A stay in proceedings should only be granted in the “clearest of circumstances”. In determining whether to grant a stay, the Supreme Court stated that the court or tribunal must ask itself: “would going ahead with the proceeding result in more harm to the public interest than if the proceedings were permanently halted?” If the answer is no, the application for a stay should be dismissed.
Applying this test to the facts of this case, the Supreme Court held that the Court of Appeal erred by substituting its own views with respect to findings of fact; deference should have been accorded to the Hearing Committee’s findings of fact and mixed fact and law.
The Supreme Court found no proper basis to set aside the Hearing Committee’s findings that the delay was not inordinate. In considering this part of the test, the Supreme Court looked at the actual time period of delay – starting with when the administrative decision maker’s obligations, as well as the interests of the public and the parties, are engaged and ending when the proceeding is completed and a decision is rendered. The actual time period in this case was 71 months, starting when the audit began in 2012 and ending when the stay decision was rendered in 2018. While the delay was significant, it was not inordinate, given the complexity of the case, the scale of the investigation and the delay that was directly attributable to Abrametz’s conduct.
Further, Abrametz failed to show that he suffered significant prejudice caused by the delay. The Hearing Committee found that the media attention Abrametz received was due to the hearing itself, rather than the delay, and the practice conditions were not prejudicial, given that Abrametz had consented to the practice conditions imposed on him in the interim and the conditions did not significantly impact the viability of his practice.
Given that Abrametz failed to establish the first two parts of the test, the Supreme Court did not consider what remedy may have been appropriate for the delay.
While no abuse of process was found in this case, the Supreme Court issued a caution to the LSS, noting its actions “were not above reproach” – as the body entrusted with the regulation of the profession and, by extension, an aspect of the rule of law, the LSS “should be keenly aware of the importance of justice being done in a timely way; it should make every effort to safeguard procedural fairness.”
Administrative bodies across Atlantic Canada should keep this caution in mind and ensure they are making reasonable efforts to move proceedings along in an efficient manner, while protecting other aspects of procedural fairness. A failure to do so can result not only in the overturning of a decision but could result in cost awards against the administrative body if the delay is inordinate and prejudicial.
Although, the key findings in Abrametz were based on the particular facts before the Hearing Committee, the findings should likewise serve as a cautionary tale for administrative bodies:
- First, the reasons for the delays in the proceedings in Abrametz were (relatively) well documented in the evidence and the Hearing Committee was therefore able to determine the delay was reasonable in the circumstances. Without this documentation, the LSS may have struggled to justify the fairly long delay between when the audit of Abrametz first commenced and when the decision was rendered.
- Second, while Abrametz failed to provide sufficient evidence that he suffered any prejudice caused by the delay in the proceedings, the Supreme Court noted other circumstances which could support a finding of prejudice. These examples include harm to the individual’s reputation, disruption to personal life, and loss of work or business opportunities which are caused by the delay in the proceedings. This is particularly important for professional associations to keep in mind as delays can have grave impacts on a professional’s ability to practise, particularly when interim measures are imposed.
The Abrametz decision provides some clarity on when a delay in an administrative proceeding may constitute an abuse of process and justify granting a stay of proceedings. Administrative bodies should be aware of this test to ensure they are taking steps to safeguard procedural fairness. Similarly, parties to administrative proceedings should be aware of this test to ensure they are taking appropriate steps to help move proceedings forward and to understand when a long delay may become inordinate.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.
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