The Supreme Court maintains that there is no ceiling to delay in administrative proceedings

On July 8, 2022, the Supreme Court of Canada released its decision in Law Society of Saskatchewan v. Abrametz. The Court reaffirmed the tests for determining when delay in an administrative proceeding amounts to an abuse of process and for when a stay of proceedings should be granted. Additionally, the Supreme Court resisted the call to carry over the right to be tried within a reasonable time in criminal proceedings to the administrative context.

Facts

In December 2012, the Law Society of Saskatchewan (Law Society) initiated an audit into lawyer Peter Abrametz's financial records. 53 months after the start of the audit, the Law Society's Hearing Committee (Hearing Committee) held a multi-day disciplinary hearing (Conduct Hearing). The Hearing Committee found Mr. Abrametz guilty of four counts of conduct unbecoming of a lawyer (Conduct Decision). Mr. Abrametz then applied to the Hearing Committee for a permanent stay of the proceedings. He argued that the Law Society's prosecution against him was inordinately delayed, resulting in an abuse of process. The Hearing Committee heard this application concurrently with submissions on Mr. Abrametz's disciplinary sentencing. The Hearing Committee ultimately dismissed Mr. Abrametz's stay application (Stay Decision) and disbarred Mr. Abrametz without a right to apply for readmission to the Law Society until January 1, 2021.

Mr. Abrametz appealed the Conduct Decision, the Stay Decision, and his disbarment. The Saskatchewan Court of Appeal overturned the Stay Decision, determining that the delay in both the investigation and the Conduct Hearing was an abuse of process. The Court of Appeal concluded that of the entire 53 month period in issue, only 18 months were inherent to the process, and only 2.5 months were attributable to Mr. Abrametz. Thus, the Court of Appeal found that the remaining 32.5 months were undue delay.

Issues

1. What is the test for delay amounting to an abuse of process in the administrative context?
2. What is the appropriate standard of review for determinations of procedural fairness and abuse of process in a statutory appeal?
3. Should administrative delay be in-line with the test for delay in the criminal context?

Discussion

In an 8-1 decision, the Supreme Court overturned the Court of Appeal's decision to stay the proceedings due to inordinate delay. In doing so, the Supreme Court held that the Law Society's prosecution of Mr. Abrametz was not inordinately delayed and thus was not an abuse of process.

1. The Blencoe test still determines whether administrative delay amounts to an abuse of process
   
   The Supreme Court restated that to determine whether undue delay amounts to an abuse of process in the administrative context, the test first established in Blencoe v. British Columbia (Human Rights Commission) continues to apply.
   
   Blencoe sets out the following three step test to determine whether delay amounts to an abuse of process:
   
   
   1. Delay must be inordinate. Simply having a process take considerable time does not, in itself, amount to an inordinate delay. One must consider the time in light of the circumstances of the case. In determining if there is inordinate delay, a court or tribunal should consider the following non-exhaustive contextual factors:
      
      (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.
      
      
   2. The delay itself must have caused significant prejudice. An abuse of process will only arise where there is detriment to an individual and the individual is not responsible for the delay.
      
      
   3. When the first two requirements are met, a court or tribunal should conduct a final assessment of whether there was an abuse of process. An abuse of process will exist when the delay is manifestly unfair to a party to the proceedings or, in some other way, brings the administration of justice into disrepute.
      
      The Supreme Court determined that even though the test for delay arising from an abuse of process can lead to a stay of proceedings, a stay is just one of multiple remedies available.
      
      Given that a stay is a final remedy, the Supreme Court explained that decision makers should only grant stays "in the 'clearest of cases', when the abuse falls at the high end of the spectrum of seriousness". Decision makers must strike a balance between the competing public interests in a fair administrative process untainted by abuse, and having the complaint decided on its merits. Ultimately, decision makers should grant remedies other than a stay if such remedies can adequately protect the public’s interest in the proper administration of justice. Thus, a high threshold applies to granting a stay of proceedings even when the applicant meets the Blencoe test.
      
      
2. Appellate standards of review apply where a statutory appeal mechanism exists
   
   The Supreme Court clarified the applicable standard of review for determinations of procedural fairness and abuse of process in a statutory appeal. The Supreme Court held that when a legislature provides for a statutory appeal from an administrative decision maker to a court, appellate standards of review apply. Thus, appellate standards of review apply where procedural fairness questions are dealt with through a statutory appeal mechanism.
   
   Because Mr. Abrametz's case was a statutory appeal under The Legal Profession Act, 1990, the applicable standards of review were: (1) correctness for questions of law; and (2) palpable and overriding error for both questions of fact and questions mixed fact and law.
   
   While the Court of Appeal did not err in identifying the applicable standard of review, the Supreme Court held that it did not apply the standard of review properly. The Court of Appeal should have given deference to the Hearing Committee's findings on whether there had been inordinate delay and whether such delay caused significant prejudice, as those are questions of fact. However, the Court of Appeal failed to do so, and instead substituted its own findings that the inordinate delay caused Mr. Abrametz significant prejudice.
   
   
3. The Supreme Court refused to "Jordanize" delay in the administrative context
   
   The Supreme Court dismissed the argument that delay in administrative proceedings should follow the test for delay set out in R. v. Jordan. In Jordan, the Supreme Court considered the right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms (Charter). The majority of the Supreme Court instituted a framework that provides for a ceiling beyond which delay in criminal proceedings is presumptively unreasonable.
   
   Mr. Abrametz and certain interveners argued that the Supreme Court should revisit the test from Blencoe to bring it into conformity with contemporary approaches to delay, as embodied in Jordan. In other words, Mr. Abrametz sought to have the Supreme Court recognize inordinate delay as intrinsically prejudicial.
   
   The Supreme Court refused to harmonize the rules for delay in the criminal and administrative contexts. The Supreme Court maintained that, unlike in criminal proceedings, no Charter rights apply to administrative proceedings. Consequently, there is no constitutional right to be "tried" within a reasonable time in administrative proceedings.
   
   Although the Supreme Court agreed that inordinate delay is contrary to the public interest in administrative proceedings, that was insufficient to import the Jordan framework to the administrative context. In arriving at this conclusion, the Supreme Court highlighted that there are important differences between criminal and administrative proceedings. For instance, while disciplinary matters are intended to regulate professional conduct within a limited private sphere of activity, criminal matters maintain public order and welfare for the broader public.

Takeaway

In the administrative context, inordinate delay is not intrinsically prejudicial as there is no constitutional right to the completion of administrative proceedings within a reasonable time. Consequently, courts will not automatically deem administrative proceedings that are inordinately long to be an abuse of process, and they will not automatically stay such proceedings.

Rather, the Supreme Court has made it clear that undue delay in administrative proceedings will not amount to an abuse of process unless it meets the test set out in Blencoe. Further, a stay of proceedings will only result in the clearest of cases, where the prejudice flowing from the delay would otherwise undermine the public perception of the administration of justice.

Sometimes the requirements of procedural fairness slow the pace at which proceedings progress. The circumstances of each case will dictate whether the resulting delays are justified.

If you have experienced delay in an administrative proceeding and need advice on your available remedies or are currently experiencing delay and want to know what your legal options are to address it, reach out to a member of our litigation group. BD&P is here to assist you in administrative law matters.