On July 8, 2022, the Supreme Court of Canada issued its decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (“Abrametz”). This decision clarifies when extended delays in proceedings before administrative decision-makers will amount to an “abuse of process”, and what remedies will be appropriate where there has been abuse. Abrametz presented the Court with an opportunity to revisit this issue for the first time in 22 years, in light of significant developments in administrative law and the Court’s strict approach to delay in criminal proceedings, as set out in R. v. Jordan, 2016 SCC 27 (“Jordan”).
Background
In 2012, the Law Society of Saskatchewan (“LSS”) began an audit investigation into the financial records of lawyer Peter Abrametz. Six years later, in 2018, the LSS found Mr. Abrametz guilty of four charges of conduct unbecoming a lawyer. In 2019, the LSS issued its penalty decision: it disbarred Mr. Abrametz without a right to apply for readmission for almost two years.
In 2018, between the LSS’s two decisions, Mr. Abrametz applied for a stay of proceedings, arguing that the LSS’s extended delay in investigating and deciding his case constituted an abuse of process. In extensive reasons, the LSS’s Hearing Committee dismissed his application. The Hearing Committee considered the complexity of the case and that Mr. Abrametz was responsible for a significant portion of the delay in the proceedings. The Hearing Committee concluded the delay was not inordinate. It also concluded that the effect of the delay on Mr. Abrametz was not so significant that the public interest would be harmed by continuing with the proceedings.
Mr. Abrametz appealed to the Court of Appeal for Saskatchewan. The Court of Appeal allowed his appeal and granted Mr. Abrametz a stay of proceedings. In doing so, it referred to significant periods of the investigation that it considered could not be justified and concluded that the delay was inordinate.
Supreme Court of Canada Sets Out Three-Part Test for Abuse of Process due to Inordinate Delay
The LSS appealed the Court of Appeal’s decision to the Supreme Court of Canada. In an 8:1 split, the majority of the Court allowed the LSS’s appeal and restored the Hearing Committee’s decision.
Justice Rowe, who wrote the majority’s reasons, set out a three-part test for whether there has been an abuse of process due to inordinate delay. This test was derived from the majority’s decision in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”), where the Court previously considered these issues.
First, the applicant must demonstrate that the delay was “inordinate”. The fact that a process has taken a long time does not necessarily mean the delay has been inordinate. The length of time must be assessed on the circumstances of each case. Factors to consider include (a) the nature and purpose of the proceedings; (b) the length and causes of the delay; and (c) the complexity of the facts and issues in the case.
Second, the applicant must prove that the inordinate delay has caused the applicant “significant prejudice”. Justice Rowe noted that every investigation or proceeding against a person tends to disrupt the person’s life and cause some prejudice; however, the only relevant prejudice in the analysis is prejudice caused specifically by the delay itself. Whether there has been prejudice also depends on the facts of each case. It may take the form of social stigma, disruption to family life, psychological harm, loss of work, and harmful media attention.
Third, when the first two requirements are met, the court or tribunal will conduct a final assessment of whether there has been an abuse of process. There is an abuse of process if the delay is “manifestly unfair” to the applicant or in some other way brings the administration of justice into disrepute.
For Mr. Abrametz’s case, Justice Rowe concluded the Court of Appeal had failed to give deference to the Hearing Committee’s conclusions that the complexity of the case, the scale of the investigation, and Mr. Abrametz’s responsibility for some of the delay meant the delay was not inordinate and that Mr. Abrametz had failed to demonstrate he suffered significant prejudice. The Court of Appeal simply reweighed the evidence before the Hearing Committee, which it was not permitted to do.
Court Rejects “Jordanizing” Delay in Administrative Proceedings
Mr. Abrametz argued that the Court should “Jordanize” the framework for delay in administrative law proceedings. In Jordan, the Court imposed strict timelines for criminal prosecutions, requiring courts to order a stay of proceedings on most prosecutions that exceed these timelines. Jordan famously referred to a “culture of complacency” that had arisen in the criminal justice system.
Mr. Abrametz did not argue that the Court should adopt the same strict timelines as in Jordan, but he sought to have the Court recognize inordinate delay as causing prejudice in itself, without requiring that the applicant prove separately that the delay caused prejudice.
The majority of the Court rejected this position. Justice Rowe noted that “there are important reasons why Jordan does not apply to administrative proceedings.” Namely, Jordan concerns the right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms and there is no such constitutional right for administrative proceedings. Administrative and criminal proceedings serve different societal purposes.
Remedies for Abuse of Process
Again, for Mr. Abrametz’s case, the majority agreed with the Hearing Committee that there had been no abuse of process. However, Justice Rowe addressed the issue of the appropriate remedy where an abuse of process is found to have occurred.
Justice Rowe affirmed the high standard for a stay that had been set out in Blencoe. He reviewed several lesser remedies which may be appropriate for an abuse of process, short of granting a stay. These include:
- Mandamus: An order requiring the tribunal to do its duties, such as through an expedited hearing. An order for mandamus can be obtained even before an abuse of process exists.
- Reducing the sanction or penalty. Justice Rowe noted that this may not be appropriate where the presumptive penalty is licence revocation, as this may undermine the purpose of the disciplinary process (i.e., the protection of the public).
- A court faced with an application for review of administrative delay may set aside an order for costs against a party or order costs against the administrative agency.
Justice Rowe described a stay of proceedings as the “ultimate remedy for abuse of process” that should only be granted in the “clearest of cases”. The court or tribunal will balance the public interests in (1) ensuring tribunals follow fair procedures on one hand, and (2) the resolution of administrative proceedings on their merits on the other hand. A stay will not be appropriate if a lesser remedy would suffice and will be more difficult to obtain if the charges are more serious.
Conclusion
Justice Côté wrote a lone dissent. She considered that inordinate delay, where found, must be sanctioned by the courts through some form of remedy. She considered that the majority’s approach was so onerous that it invited complacency in administrative proceedings. She agreed with the Court of Appeal that the delay in Mr. Abrametz’s case was plainly abusive, and she would have dismissed the LSS’s appeal.
However, the majority’s reasons confirm that not all delays are “inordinate” and that each case must be assessed on its particular circumstances. Even where there is inordinate delay, there is a high threshold to establish that an abuse of process has occurred due to that delay, and even where there has been an abuse of process due to delay, a stay of proceedings will be awarded only in the clearest of cases. Administrative tribunals therefore continue to have much greater flexibility in assessing delays than in the criminal justice system.
If you require more information or further assistance, please contact David McKnight and Menka Sull.
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