In its 8-1 decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, the Supreme Court of Canada reaffirmed the high bar required to demonstrate an abuse of process resulting from delay in the administrative context. In doing so, it declined an invitation to align the administrative law jurisprudence with its more recent attempts to secure timely justice in the criminal law context. Thus, it confirmed that inordinate delay is not prejudicial in and of itself. More is required to prove an abuse of process. This case is also significant because it provides guidance on the standard of review, how to assess delay and the alternatives available to remedy inordinate delay.
Facts
This case centred around disciplinary proceedings against Peter Abrametz, a member of the Law Society of Saskatchewan (the "Law Society"). In 2012, the Law Society began an investigation of Mr. Abrametz's financial records as a result of apparent irregularities in the use of a trust account.
The investigation began in December 2012, and the disciplinary hearing was held between May and September of 2017. The Hearing Committee rendered a decision respecting Mr. Abrametz's conduct on January 10, 2018. However, Mr. Abrametz brought an application to stay the proceedings on July 13, 2018, which was heard along with the penalty hearing on September 18, 2018. The Hearing Committee rendered a decision on November 9, 2018, rejecting Mr. Abrametz's stay application and disbarring him without any chance for reapplication until January 2021.
In total, approximately 71 months had passed from the start of the investigation to the penalty decision being rendered.
Issues on Appeal
The primary issue on appeal revolved around the proper framework for the doctrine of abuse of process as it relates to administrative delay.
In its decision to overturn the findings of the Hearing Committee, the Saskatchewan Court of Appeal essentially set the stage for the Supreme Court of Canada to review the prevailing framework for delay in administrative proceedings set out in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 – Canada's leading case on the subject.1 This led the respondent and some interveners to suggest to the Supreme Court that the approach in Blencoe should be refined or modified in light of developments in the criminal law context.
Supreme Court of Canada's Decision
Writing for the majority, Rowe J. began by holding that appellate standards of review apply in the context of a statutory appeal, including when procedural questions are at issue. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and Bell Canada v. Canada (Attorney General), 2019 SCC 66, the court held, in the context of substantive review, that when a legislature provides a statutory appeal route from an administrative decision-maker to a court, appellate standards of review must apply. This reflects the new emphasis on legislative intent in determining the applicable standard of review. These principles now apply equally to issues of procedural fairness, at least in the context of a statutory appeal.2
The Supreme Court then turned to the issue of abuse of process as it relates to administrative delay and reaffirmed the approach adopted in Blencoe. It expressly declined the invitation to align administrative law jurisprudence with "contemporary approaches to delay" adopted in the criminal law context, namely in R. v. Jordan, 2016 SCC 27, which dealt with the constitutional right to be tried within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.3
In reaffirming Blencoe, Rowe J. noted that there are two ways in which delay can constitute an abuse of process: (1) when hearing fairness is at issue, such as when memories have faded or witnesses are unavailable; and (2) when significant prejudice has come about due to inordinate delay. The first category was not at issue in Abrametz.4
The Supreme Court then outlined the three-step test to determine whether the second category of delay amounts to an abuse of process and provided additional guidance in this respect:
1. First, the applicant must show that the delay has been inordinate. This is determined on an assessment of the overall context, including the nature and purpose of the proceedings, the length and causes of delay, and the complexity of the facts and issues in the case.
2. If the delay was inordinate, the applicant must show that the delay itself – rather than the mere fact they were being investigated or sanctioned – caused them significant prejudice.
3. Finally, when these two requirements are met, the court will consider whether the delay has amounted to an abuse of process, which occurs when the delay is manifestly unfair or in some other way brings the administration of justice into disrepute.5
Finally, the Supreme Court emphasized that, even when this three-step test is met, a stay of proceedings will not always be the appropriate remedy, Instead, various remedies exist, including a reduction of sanction and an award of costs. A stay of proceedings will only be justified in rare cases.
In this case, while the court noted that the delay "gives rise to serious concern", it concluded that the delay was not inordinate in the circumstances and that no significant prejudice had been identified in light of the Hearing Committee's findings of fact.6 In particular, it highlighted that: (1) Mr. Abrametz or his counsel were responsible for 14 ½ months of the delay; (2) Mr. Abrametz had sought to put the proceedings on hold pending a different matter before the Court of Queen's Bench; and (3) Mr. Abrametz had brought a complaint against the Law Society's disciplinary counsel.7 As a result, the Supreme Court found that the Court of Appeal erred in intervening, since there was no palpable and overriding error.
Key Takeaways
The Supreme Court's reasons on the standard of review implicitly leave open the possibility that reasonableness may be the appropriate standard of review with respect to procedural fairness in other contexts, consistent with the approach outlined in Vavilov. As Côté J. noted in dissent, this appears to be in tension with some of the court's previous decisions.
The Supreme Court's decision reaffirmed principles relating to delay in the administrative context. As a result, it will not lead to the adaptation that followed the release of the Jordan decision in 2016. This high bar will make it more difficult for an applicant to show an abuse of process arising from delay in an administrative proceeding.
The Supreme Court also made comments respecting the causes of delay, which included noting that delay can be waived explicitly and implicitly. Any parties subject to administrative proceedings may therefore need to take steps to avoid implicit waivers of delay.
Finally, in addition to highlighting alternative remedies, the Supreme Court noted that parties concerned about delay may have additional avenues to advance the proceedings, namely through internal tribunal procedures. The doctrine of abuse of process is not the only option available to the parties.
Case Information
Law Society of Saskatchewan v. Abrametz, 2022 SCC 29
Docket: 39340
Date of Decision: July 8, 2022
____________________________________
Footnotes
1. Abrametz v. Law Society of Saskatchewan, 2020 SKCA 81.
2. Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at paras. 26-30.
3. Ibid at paras. 45-48.
4. Ibid at paras. 38-42.
5. Ibid at para. 101.
6. Ibid at paras. 107-124.
7. Ibid at para. 109.
To view the original article click here
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.