The provincial government has passed legislation permitting certain professions to self-regulate. This allows for a regulatory body to be established which creates bylaws, policies, rules guiding the profession and its members. This all falls under the broader category of law called administrative law, which includes the legality of administrative decision-making and procedural fairness.
Professional regulatory bodies, in support of their established standards and rules, and to ensure protection of the public, have processes to conduct investigations and initiate and implement disciplinary actions in cases where members have allegedly committed acts of professional misconduct. Such was the case in a disciplinary process that began in 2012 by the Saskatchewan Law Society against one of its members. This resulted in a 2018 decision of the Hearing Committee for the Law Society that found Mr. Abrametz guilty of professional misconduct on four counts. This was followed in 2019 by sanction ruling that Mr. Abrametz be disbarred without the right to apply for readmission for approximately two years. The facts of this initial case, while interesting themselves, are legally overshadowed by the significant events that followed the Law Society's ruling and that eventually led to a recent Supreme Court of Canada ruling in July of 2022.
As part of the proceedings, Mr. Abrametz applied for a stay based on the delays in the discipline process. He argued that the inordinate delay was procedurally unfair and amounted to an abuse of process. The Law Society Investigation Committee argued the length of time the process took, based on the complexity and scale of the investigation, the avoidance tactics employed, and unavailability of the lawyer himself for over a year, justified any delays. The Hearing Committee dismissed the member's application. The member then appealed directly to the Saskatchewan Court of Appeal on this issue. The Court of Appeal ultimately granted a stay of the Hearing Committee's decision. The Court of Appeal considered the delay was inordinate and had resulted in a public prejudice against the appellant and, in essence, an abuse of process.
The Law Society appealed this decision to the Supreme Court of Canada. The Supreme Court overturned the Court of Appeal ruling in an 8-1 decision. It considered the standard of review in statutory appeals concerning abuse of process and fairness, and the issue of delay in administrative tribunals. The decision indicates that while the Court of Appeal correctly determined the standard of review, it had not properly applied it. The Supreme Court found that deference should be given to the Hearing Committee on certain findings, such as those made regarding the complexity of the investigation or the external factors causing delays. The decision reinforced the notion that the factual findings of the tribunal or initial disciplinary body carry significant weight even in matters of procedural fairness. It also concluded there was no real prejudice established to the member.
The Supreme Court stressed the need for promptness and efficiency in administrative proceedings and warned against inordinate delays but clearly recognized that the context of those delays and the factors causing them must be strongly considered. In essence, timeliness counts towards fairness but the lack of it, in and of itself, does not dictate abuse of process. The Supreme Court clearly recognized the role of the Hearing Committee of the Law Society was to weigh and assess the evidence and that an appeal court cannot interfere with factual conclusions only on the basis that it disagrees with the weight assigned to the evidence.
In recognizing the need for reasoned expediency in legal undertakings the Supreme Court remarked on issues of delay referencing R. v Jordan, which focused on addressing delays in criminal justice proceedings. While timeliness is clearly desired, the Court found fundamental differences in its application in criminal compared to administrative proceedings. Jordan deals directly with an individual's right to a timely hearing under the Canadian Charter of Rights and Freedom. There is no comparable right in administrative proceedings and hence, the Court rejected the adoption of Jordan principles for delay in this context.
This Supreme Court ruling has helped clarify standards for review for statutory appeals and has clearly brought additional understanding to the meaning of delay as it relates to procedural fairness and abuse of process in administrative law. For all those involved in the workings of administrative proceedings, the findings are well worth exploring and understanding.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
