SCC to Revisit the Issue of Delay in Administrative Proceedings
Perspectives for the Professions
June 2021 - 5 min read
“Justice delayed is not always justice denied.” (Abrametz at para 171)
For over twenty years, the Supreme Court of Canada’s decision in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, has been the leading case on delay in administrative proceedings. The SCC will have an opportunity to revisit the Blencoe decision when it hears the Law Society of Saskatchewan’s appeal of the Saskatchewan Court of Appeal’s decision in Abrametz v Law Society of Saskatchewan, 2020 SKCA 81. It is anticipated the appeal will be heard in November 2021.
In Blencoe, the SCC set a very high bar for a respondent seeking a stay of administrative proceedings based on undue delay, requiring “proof of significant prejudice which results from an unacceptable delay” (para 101). In cases where hearing fairness has not been compromised, the SCC held “the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process” (para 115). In determining whether the unacceptable delay has resulted in an abuse of process warranting a stay, the question is whether “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (para 120). The SCC also clarified in Blencoe that the constitutional right to be tried within a reasonable time (s. 11(b) of the Charter) applies only in the criminal context and not to administrative law proceedings.
In recent years, the SCC squarely addressed the need for timely justice in civil cases in Hryniak v Mauldin, 2014 SCC 7. The SCC also attempted to address the “culture of complacency” in criminal proceedings in R v Jordan, 2016 SCC 27. In Jordan, the SCC held that there is a presumptive ceiling of eighteen months for the time that a criminal trial must conclude in provincial court and a presumptive ceiling of thirty months for matters in superior courts. The timelines are calculated starting from the date the accused is charged. If a matter takes longer, the delay is presumed to be unreasonable and the Crown must justify the delay on the basis of exceptional circumstances. In calculating whether the delay has reached the presumptive ceiling, the delay attributable to or waived by the defence does not count.
In light of these decisions, it was only a matter of time before the question of delay in administrative proceedings came back into the spotlight. In the Abrametz decision, the Saskatchewan Court of Appeal held that inordinate delay in the Law Society of Saskatchewan’s disciplinary proceedings against a lawyer constituted an abuse of process, and the proceedings should have been stayed.
The Law Society of Saskatchewan began investigating Abrametz’s financial records in 2012. By January 2013, the Law Society had identified five specific allegations against Abrametz, relating to payments made by Abrametz to a fictitious person and loans made by Abrametz to clients. In February 2013, the Law Society served a Notice of Intention to Interim Suspend on Abrametz, setting out the allegations. Abrametz was not suspended but entered an undertaking to practice under supervision.
Thirty-two months later, in October 2015, the Law Society issued formal charges against Abrametz, which for the most part directly or indirectly related to the allegations set out in the earlier Notice of Intention to Interim Suspend. The formal charges issued in October 2015 did not deal with the question of whether Abrametz had used his firm trust account and his clients as part of a tax avoidance scheme, a matter the Law Society continued to investigate. Abrametz applied, unsuccessfully, for the hearing to be adjourned until the Law Society had completed its investigation into the tax issues. The hearing proceeded, and a conduct decision was issued in January 2018.
Before a penalty hearing could be held, Abrametz applied to stay the proceedings due to delay. Abrametz’s delay application did not focus on evidentiary issues impacting hearing fairness but on the personal prejudice he had experienced due to the delay. The Hearing Committee of the Law Society dismissed Abrametz’s application. Abrametz appealed the Hearing Committee’s findings of unprofessional conduct and the Hearing Committee’s decision to dismiss his application to stay the proceedings due to delay.
On appeal, the Saskatchewan Court of Appeal upheld the findings of unprofessional conduct but stayed the proceedings as a result of undue delay constituting an abuse of process. The Court considered the 53-month period from December 2012 until the conclusion of the hearing in May 2017, of which it concluded 32½ months did constitute undue delay. The Court found this “so grossly exceeded the inherent requirements of the case as to be ‘clearly unacceptable’ within the meaning of Blencoe” (para 197). Further, the Court placed significant emphasis on the fact Abrametz had “practiced under a cloud of suspicion” for more than four years and had suffered from stress (including high blood pressure) that lasted much longer than it would have if not for the undue delay (paras 199-200). The Court also noted that Abrametz’s “consent” to enter an undertaking to practice under conditions was not a real choice, as the only alternative was to not practice law at all (para 202), and rejected the suggestion that the end justifies the means where, after a lengthy delay, charges are in fact proven (para 203). The Court also emphasized the SCC’s statement in Blencoe that “[l]ack of resources cannot ... justify inordinate delay where it is found to exist” (para 186).
In the end, the Saskatchewan Court of Appeal found Abrametz had demonstrated there was an inordinate delay that resulted in “very significant personal prejudice” to Abrametz such that the damage to the public interest if the proceedings continued would be greater than the harm to the public interest if the proceedings were halted.
Although the Saskatchewan Court of Appeal said its decision was consistent with Blencoe, the Abrametz decision appears to have been heavily influenced by the SCC’s more recent decisions in Hryniak and, in particular, Jordan. Indeed, the Court acknowledged that its decision might be seen as an incremental step forward from Blencoe “that is necessary to enable Blencoe to better serve its remedial purpose for the benefit of both those caught up in the machinery of the administrative state and, ultimately, administrative decision-makers themselves” (para 10).
In February 2021, the SCC granted the Law Society of Saskatchewan leave to appeal the decision in Abrametz. Given the importance of the issues raised in Abrametz and the potential impact of the decision, several professional regulatory bodies are seeking to participate as interveners.
While we wait to see how the SCC will decide the Abrametz case, professional regulatory bodies should be prepared for their disciplinary timelines to come under increased scrutiny. Regulators should assess the timeliness of their conduct proceedings at all stages, ensure that adequate resources are allocated, and identify complaints that should be prioritized due to potential concerns about undue delay. If you have any questions or concerns, please contact Katrina Haymond, Kimberly Precht or any member of our Professional Regulatory Group.