In Abrametz v Law Society of Saskatchewan, 2022 SCC 29 (Abrametz), the Supreme Court of Canada allowed an appeal of the Saskatchewan Court of Appeal’s decision to dismiss a professional disciplinary proceeding for abuse of process. In doing so, the Supreme Court reaffirmed the law on delay in administrative proceedings: delay, without more, will not constitute an abuse of process, and a stay of proceedings will only be granted in the most significant of cases.
Background
Peter Abrametz, a lawyer, was the subject of a disciplinary proceeding before the Law Society of Saskatchewan (LSS). The process began with an audit investigation of Mr. Abrametz, which commenced in 2012 after a colleague of Mr. Abrametz’s reported irregularities in their shared trust account to the LSS.[1] On January 9, 2013, the Conduct Investigation Committee (CIC) began preparation of a Notice of Intention to Interim Suspend Mr. Abrametz on a total of five allegations.[2] Mr. Abrametz was out of the country at the time and was served upon his return on February 5, 2013.[3]
Mr. Abrametz’s hearing occurred on May 17-19, 2017, continued on August 9-10, 2017, and continued again on September 29, 2017.[4] The decision was rendered on January 10, 2018; the Hearing Committee found Mr. Abrametz guilty of four of the seven charges.[5]
The Hearing Committee Chair attempted to schedule the penalty hearing for February 2018 but was unable to do so as the result of conflicting schedules. On March 22, 2018, the penalty hearing was scheduled for June 5-6, 2018, and then it was rescheduled to August 3, 2018.
Mr. Abrametz served an application to dismiss the prosecution for delay, citing Section 11(b) of the Canadian Charter of Rights and Freedoms (the Charter); a loss of jurisdiction by failing to render the decision as soon as possible (under the now-repealed The Legal Profession Act, 1990[6]); and a breach of natural justice and procedural fairness resulting in an abuse of process.[7]
This stay application was heard on September 18, 2018, and a decision was issued on November 9, 2018, in which the Hearing Committee found it had not lost jurisdiction, that neither Section 7 nor Section 11 of the Charter was applicable, and the delay did not breach the principles of fairness or natural justice.[8]
Relevant framework governing delay
The leading case on inordinate delay in the context of procedural fairness and abuse of process is Blencoe v British Columbia (Human Rights Commission).[9] The Court in Blencoe established a strict approach to delay in administrative proceedings: delay alone will not warrant a stay of proceedings as abuse of process.[10]
The Appeal to the Saskatchewan Court of Appeal
Mr. Abrametz appealed the conviction and the penalty decision to the Saskatchewan Court of Appeal pursuant to Section 56(1) of the LPA, 1990. While Mr. Abrametz identified five grounds of appeal, the Court held that “this appeal turned principally on one of these grounds; that is, that the Hearing Committee erred in its November 9, 2018, decision [Stay Decision] by dismissing Mr. Abrametz’s application to stay the proceedings as a result of undue delay constituting an abuse of process.”[11]
The Court allowed the appeal in part: staying the LSS proceedings and setting aside the imposed penalty and costs awards, but maintaining the findings of professional misconduct.[12] The Court justified its ruling for two reasons. Firstly, the Court acknowledged that Blencoe sets a high threshold for invoking abuse of process for delay alone.[13] While the Court found that the facts of this case showed that Mr. Abrametz was guilty of a degree of wrongdoing, the conduct of the LSS told “a troubling and disappointing story about a regulator that should, given its mandate, resources and composition, be a model for others.”[14]
The second reason was what the Court referred to as “the insidious effects of delay in judicial and administrative proceedings.”[15] In its analysis, the Court referred to the commentary of Justice LeBel in Blencoe, dissenting-in-part, who referred to unnecessary delay as having “long been an enemy of a free and fair society” which “must be brought under control if we are to maintain an effective system of justice, worthy of the confidence of Canadians.”[16] The Court noted that this comment has been cited with approval by Appellate Courts across the country, as well as the Supreme Court of Canada.[17]
The Court goes on to highlight what it interprets as a shift in jurisprudence, “sounding the alarm on the need for timely justice in civil cases to protect the rule of law.”[18] Interestingly, the Court cites R v Jordan,[19] a criminal case which affirmed the right to trial in a reasonable timeframe and imposed a ceiling on criminal procedural delays. The Court holds that these cases demonstrate “an evolution in the Supreme Court’s understanding of the impact of, and need to address, delay in the administration of justice.”[20] The Court highlights that administrative bodies decide issues of great importance, and therefore poses the question: “why should less be required of administrative decision-makers than courts?”[21]
The Appeal to the Supreme Court of Canada
The LSS appealed the decision in Abrametz CA to the Supreme Court of Canada, which released its reasons on July 8, 2022. In allowing the appeal, the 8-1 majority decision of the Supreme Court found that the Court of Appeal erred by failing to properly apply the standard of review.[22] There was no palpable and overriding error justifying the Court of Appeal’s decision to contradict the Hearing Committee’s findings or substitute its own views finding “significant prejudice to the member.”[23]
In short, the Supreme Court found that “[w]hile the actions of the Law Society were not above reproach, the delay was not inordinate. There was no abuse of process.”[24]
In coming to these findings, the Supreme Court reaffirmed its position in Blencoe: delay constitutes an abuse of process in one of two ways:
(1) hearing fairness is compromised where “delay impairs a party’s ability to answer the complaint against them”; or
(2) where there is no prejudice to hearing fairness, abuse of process may be found where there is “significant prejudice” resulting from “inordinate delay”.[25]
The Supreme Court reaffirmed a strict approach to awarding a stay of proceedings when an abuse of process is found, referring to a stay as “the ultimate remedy,” which should only be granted “in the clearest of cases.”[26] The Supreme Court further held that lower courts and tribunals should consider other remedies where this high bar is not met.[27] In other words:
“When faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself whether going ahead with the proceeding would result in more harm to the public interest than if the proceedings were permanently halted. If the answer is yes, then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed.”[28]
Of note is a strongly worded dissent from Justice Côté, in which Justice Côté criticizes the holding of the majority, arguing that inordinate delay constitutes an abuse of process on its own, and finds the delay “grossly exceeded the inherent time requirements of this case,” thereby constituting an abuse of process.[29] Conversely to the holding of the majority, Justice Côté argues for a “principled approach” evident in the existing jurisprudence, which allowed the Court of Appeal to come to its decision.[30]
Takeaways
The Saskatchewan Court of Appeal attempted to take Blencoe “a step forward”[31] in an effort to better serve all parties involved in the administrative decision-making process. However, the Supreme Court of Canada has returned the jurisprudence respecting delay in administrative proceedings to a high threshold for a prospective claimants to clear. Delay, in and of itself, will not constitute an abuse of process, and a stay of proceedings, as a remedy, will only be available in the clearest of cases.
Post-Abrametz, several questions remain unanswered. Is there any cap on the number of years an administrative proceeding will be permitted to run before fairness is compromised? If the delay in Abrametz was not inordinate, and the prejudice in Abrametz was not “significant”, how severe must these factors be to clear this high bar? The Supreme Court also appears to accept that, even where there is both inordinate delay and significant prejudice resulting therefrom, administrative tribunals need not find an abuse of process unless it was “manifestly unfair.”[32] This is despite, as Justice Côté states, the Court in Blencoe recognizing that inordinate delay, on its own, is a breach of the duty of fairness.
This decision will surely have impacts upon administrative tribunals, in particular professional disciplinary hearings, in which there is already a significant disparity in resources. Further, with such a strong majority holding, any divergence from a strict interpretation of Blencoe is unlikely in the near future.
For more information on this topic, please reach out to our national team Michael Sestito, Dina Awad, Alexandre Boileau, Melanie Power, Kate Millar or Katherine Martin.
[1] Abrametz v Law Society of Saskatchewan, 2020 SKCA 81 at para 12 [Abrametz CA].
[2] Ibid at para 13.
[3] Ibid at para 13.
[4] Ibid at para 42.
[5] Ibid at paras 44-50.
[6] SS 1990-91, c L-10.1 [LPA, 1990].
[7] Abrametz CA at para 52.
[8] Ibid at paras 55-56.
[9] 2000 SCC 44 [Blencoe].
[10] Ibid at para 101.
[11] Abrametz CA at para 69.
[12] Ibid at para 217.
[13] Ibid at para 4.
[14] Ibid at para 5.
[15] Ibid at para 6.
[16] Blencoe at para 140.
[17] Abrametz CA at para 7.
[18] Ibid at para 8, citing Hryniak v Mauldin, 2014 SCC 7.
[19] 2016 SCC 27.
[20] Abrametz CA at para 8.
[21] Ibid at para 9.
[22] Abrametz at para 1.
[23] Ibid.
[24] Ibid.
[25] Ibid at para 3.
[26] Ibid at para 6.
[27] Ibid at para 7
[28] Ibid atpara 6.
[29] Ibid at para 17.
[30] Ibid at para 15.
[31] Abrametz CA at para 10.
[32] Abrametzat para 4.
