Delays in Administrative Proceedings: Law Society of Saskatchewan v. Peter V. Abrametz

The facilitation of access to justice is an important goal for administrative bodies including tribunals and regulators. However, too often, cases can take several months and, in some cases, years to conclude. Depending on the circumstances of the case, a party may be able to argue that the excessive delay in the process constituted an abuse of process.

In the administrative law context, state-caused delays can warrant a remedy, including a stay of the proceedings, subject to various contextual factors. Those contextual factors include the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case.¹

In Law Society of Saskatchewan v. Peter V. Abrametz², the Supreme Court of Canada will revisit the Blencoe principles regarding state-caused delays and may modify the test in light of its recent access to justice decisions in R v. Jordan³ and Hryniak v. Mauldin.⁴

Facts

Mr. Peter V. Abrametz was subject to disciplinary proceedings by the Law Society of Saskatchewan (“the LSS”) for alleged breaches of the Law Society of Saskatchewan Rules and the Code of Professional Conduct that was in effect at the time. Those proceedings were initiated in December 2012 by his self-reporting and an audit investigation, which culminated in a hearing in May 2017. In 2018, a Hearing Committee found Mr. Abrametz guilty of four counts of conduct unbecoming a lawyer. In 2019, as a penalty, the LSS ordered that Mr. Abrametz be disbarred.

Mr. Abrametz appealed those decisions, including his disbarment, to the Court of Appeal for Saskatchewan pursuant to section 56(1) of The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.

The Court of Appeal decision

The Court of Appeal allowed Mr. Abrametz’s appeal in part. Specifically, the Court stayed the LSS proceedings and set aside the penalty of disbarment. However, the Court maintained the findings of professional misconduct.

The Court referred to the following principles from Blencoe to determine whether delay will constitute an abuse of process⁵:

1. The period of delay must be so inordinate as to be clearly unacceptable (at paras 115 and 121). Whether a delay is inordinate turns on contextual factors, including “the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay, and other circumstances of the case” (at para 122).
2. The party claiming abuse of process must show that the inordinate delay “directly caused [them] a significant prejudice” that is related to the delay itself (at para 115, emphasis added). In order for there to be abuse of process, “the delay must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected” (at para 133).
3. The analysis requires a weighing of competing interests. “In order to find an abuse of process, the court must be satisfied that ‘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’” (at para 120).
4. A stay is not the only remedy available in administrative law proceedings. However, where a respondent asks for a stay, they will bear a heavy burden (at para 117). A finding of abuse of process is available only in the “clearest of cases” (at para 120).

In allowing the appeal in part, the Court of Appeal made the following findings with respect to delay:

• That 32.5 months out of the 53-month period under consideration constituted “undue delay” by the LSS because it “grossly exceeded the inherent requirements” of the case as to be “clearly unacceptable” within the meaning of the test in Blencoe. The Hearing Committee’s failure to reach that conclusion was the result of palpable and overriding errors as well as its failure to correctly apply the law to the facts.⁶
• The undue delay resulted in significant personal prejudice to Mr. Abrametz of such magnitude that the public’s sense of decency and fairness would be affected. The Court commented that the investigation and charges, including particulars of the investigation contained in interim decisions, were publicly disclosed on the LSS website, and that Mr. Abrametz practiced under a “cloud of suspicion” for over 4 years.⁷ The Court further noted that Mr. Abrametz suffered from stress and high blood pressure directly attributed to the delay.⁸ Lastly, Mr. Abrametz was also forced to practice under “intrusive conditions” during the period of the delay.⁹
• There was an abuse of process. The harm in continuing the proceeding exceeded the harm to the public interest if the proceedings were terminated. The Court distinguished the caselaw relied upon by the LSS in justifying the continuation of the proceedings and noted that none of Mr. Abrametz’s clients complained to the LSS nor testified at the conduct hearing.¹⁰ The Court found that Mr. Abrametz was entitled to have his investigation concluded and hearing held within a reasonable time.¹¹
• A stay was the appropriate remedy. The delay would bring the LSS disciplinary process into disrepute. It was the “clearest of cases”¹².

Arguments at the Supreme Court of Canada

The Supreme Court of Canada (“the SCC”) hearing took place on November 8, 2021¹³. The LSS made the following arguments against upholding the Court of Appeal’s decision:

• The Court of Appeal failed to exercise deference to the LSS Hearing Committee with respect to their findings of fact.¹⁴
• The Court of Appeal erred in finding that there had been inordinate delay despite the proceeding’s complexity; the delay attributable to Mr. Abrametz; and the delay he acquiesced to and waived.¹⁵
• The Court of Appeal erred in finding “significant personal prejudice” when the evidence submitted on behalf of Mr. Abrametz was weak.¹⁶
• The Court of Appeal also erred in awarding a stay while neglecting any consideration of the public interest and the seriousness of Mr. Abrametz’s misconduct.¹⁷

The LSS further argued that the Court of Appeal ignored the SCC’s caution against applying constitutional law concepts to an administrative process.

In response, Mr. Abrametez asserted that no deference should be afforded to the LSS since issues relating to procedural fairness are to be assessed under a correctness standard.¹⁸ He further argued that the Court of Appeal’s decision simply applied the Blencoe test to a very different and more egregious factual scenario.¹⁹ In terms of the remedy, Mr. Abrametz argued that a stay was the only reasonable remedy in light of the inordinate delay by the LSS, which was inherently prejudicial and brings the administration of justice into disrepute.²⁰

The SCC reserved judgment and a decision is expected later this year.

Takeaway

Given the over twenty years since Blencoe, the SCC’s decision in Abrametz will offer much needed guidance to administrative bodies on the issue of delay, especially in light of the SCC’s earlier decisions in Jordan and Hryniak. Although some administrative bodies do a better job of minimizing delays and facilitating access to justice for their participants, others will certainly need to re-adjust their processes depending on the outcome of this case. The decision could also potentially encourage governments to enact legislative change and streamline cumbersome processes in order to minimize the risk of undue delay.

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Billeh Hamud is Legal Counsel with the Social Security Tribunal of Canada and is a Member-at-Large of the CBA Administrative Law section.