Supreme Court Rejects “Jordan-izing” Administrative Proceedings and Confirms High Threshold for Stay of Proceedings in Administrative Context

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In Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, the Supreme Court of Canada (“SCC” or “the Court”) considered the issue of whether lengthy disciplinary proceedings against a Saskatchewan lawyer amounted to an abuse of process.

Background

This case arises out of disciplinary proceedings initiated by the Law Society of Saskatchewan (“Law Society”) against Peter Abrametz for conduct unbecoming of a lawyer relating to irregularities in Mr. Abrametz’s use of a trust account. The Law Society began its investigation in 2012, and issued notices to suspend Mr. Abrametz temporarily in February 2013 and November 2014 pending completion of the Law Society’s proceedings. A formal complaint with seven charges against Mr. Abrametz was issued by the Law Society in October 2015.

The disciplinary hearing took place on certain dates between May and September 2017, and a decision was rendered against Mr. Abrametz on January 10, 2018. Following an unsuccessful application for a stay of proceedings for delay in November 2018, the Law Society’s Hearing Committee disbarred Mr. Abrametz on January 20, 2019, without a right of readmission for nearly two years. In total, approximately 71 months elapsed from the investigation to the unsuccessful stay decision in November 2018, and the entire process from investigation to the penalty decision in January 2019 took 73 months.

On the question of delay, the Hearing Committee concluded that the delay (i.e., from the start of the Law Society’s investigation in 2012 to the penalty decision in January 2019) was neither inordinate nor unacceptable given the complexity of the case, the extent of the investigation and the delay attributed directly to Mr. Abrametz’s conduct. Moreover, the Hearing Committee found that any delay was not significant enough to impair the fairness of the proceedings in a way that would offend the public’s sense of fairness.

The Decision of the Court of Appeal for Saskatchewan

On appeal of the Hearing Committee’s decision, the Court of Appeal found that there had been inordinate delay that caused significant prejudice to Mr. Abrametz. The Court of Appeal held that this delay offended the public’s sense of decency and fairness, and brought the Law Society’s disciplinary process into disrepute. Accordingly, the Court of Appeal allowed Mr. Abrametz’s stay appeal.

Ultimately, the Court of Appeal found that there were significant periods of unexplained delay unjustified by the scale and complexity of the proceedings between when the Law Society began its investigation to the first day of the disciplinary hearing. In the 53 months between these two points in time, the Court of Appeal held that only 18 months were inherent to the process, 2.5 months were attributable to Mr. Abrametz, and 32.5 months were undue delay.

The Supreme Court of Canada’s Decision

In an 8-1 decision, the majority of the SCC overturned the Court of Appeal’s decision to grant a stay of proceedings and held that Mr. Abrametz did not satisfy the test for a finding of abuse of process as the delay was neither inordinate nor prejudicial to Mr. Abrametz. In dissent, Justice Côté disagreed with the majority’s approach and concluded that an abuse of process took place given what she found to be an inordinate delay.

Standard of Review: Correctness

The majority of the SCC held that correctness was the applicable standard of review for abuse of process claims in administrative law. In coming to this conclusion, the majority clarified that questions of procedural fairness and abuse of process in a statutory appeal context are reviewable on the appellate standards of review: correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law. On this basis, determining whether an abuse of process has taken place is a question of law and must be reviewed on a correctness standard.

The Court’s majority based its standard of review analysis on Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, in which it had held that appellate standards apply where a legislature has provided for statutory appeals of administrative decisions. Although Vavilov was decided in the context of a substantive review of an administrative body’s decision, the SCC majority noted that Vavilov was “categorical” that appellate standards apply whenever a statutory appeal of an administrative proceeding is available, including appeals based on the procedural (rather than substantive) aspects of administrative actions.

The majority acknowledged that prior SCC jurisprudence had set out that correctness applied to questions of procedural fairness but distinguished this jurisprudence as arising out of applications for judicial review and prerogative writs (i.e., orders directing tribunals to do or refrain from doing certain things), instead of statutory appeals of administrative processes – as was the case in the present appeal. Accordingly, the Court extended Vavilov’s application to the procedural realm in the narrow context of cases involving statutory appeals.

In dissent, Justice Côté agreed with the majority that the appropriate standard of review was correctness, but founded her analysis in the SCC’s prior case law on procedural fairness generally, irrespective of whether the review originated out of a judicial review, prerogative writs, or statutory appeals. Adopting a narrower interpretation of the statutory appeal avenue in Vavilov, Justice Côté maintained that Vavilov is limited to substantive reviews only.

Refusal to “Jordanize” Administrative Proceedings

In response to submissions by Mr. Abrametz and several interveners that inordinate delay should be recognized as prejudicial in and of itself and be modernized in light of the SCC’s decision in the criminal case of R v. Jordan, 2016 SCC 27, where the SCC created a presumptive ceiling beyond which delay is presumed to be unreasonable and leads to a stay of proceedings.

The majority held that the approach in Jordan could not be transposed to the administrative law context. The Court held that, although administrative delays undermine one of the raisons d’être for delegated decision-making, there is no constitutional or Charter protected right to be “tried” – or to have an administrative process – within a reasonable time, unlike in the criminal trials with Section 11(b) of the Canadian Charter of Rights and Freedoms. Similarly, while the criminal context aims to maintain public order and welfare for the broad public, disciplinary proceedings aim to regulate professional conduct within a limited and narrow private sphere of activity. Therefore, the majority of the Court held that “Jordanizing” administrative proceedings would be unprincipled and theoretically unfounded, and would amount to imposing an artificial limitations period on administrative actions.

Abuse of Process in Administrative Proceedings

In finding that the delay was not an abuse of process, the majority generally followed the test it had set out in Blencoe v. British Columbia (Human Rights Commission), [2002] 2 SCR 307 to determine whether a delay amounts to an abuse of process even when it has not directly affected the fairness of the hearing. The majority summarized the three-step test as follows:

First, the delay must be inordinate. This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case; and Second, the delay must have caused significant prejudice. When these two requirements are met, courts or tribunals will proceed to a final assessment of whether the delay amounts to an abuse of process. Delay will amount to an abuse of process if it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute. (para.101)

In assessing the length and causes of the delay under the first step of the test, the majority cautioned that lengthy delays are not automatically inordinate, such as where the delay is caused by the responding party, is waived by the responding party through acquiescence or is inherent to a fair process.

In applying this three-step test, the majority found that:

  • Although the delay was long, it was not inordinate: While the process from the investigation to the unsuccessful stay decision took 71 months, this delay was not inordinate given, among other things, the complexity of the case, and the delay attributable to Mr. Abrametz.
  • There was no significant prejudice: the Court of Appeal had no basis for substituting its own view of the evidence: there were no palpable and overriding errors in the Hearing Committee’s analysis of the harms alleged by Mr. Abrametz (which related to media scrutiny, the practice conditions imposed on him and alleged impacts on his health, family and employees). The SCC majority accordingly deferred to the Hearing Committee’s decision that Mr. Abrametz had not succeeded in demonstrating the alleged harms (and, by extension, any significant prejudice from the delay).
  • Without having established inordinate delay and significant prejudice, the majority of the SCC held that it was unnecessary to consider either the third step of the abuse of process test, or any potential remedies.

In dissent, Justice Côté held that the majority’s test for abuse of process “invites complacency in administrative proceedings” as it imposes an unduly elevated standard for a stay of proceedings while also conflating the doctrine of abuse with the test for stays. Instead, Justice Côté would have recognized that inordinate delay, on its own, is a breach of the duty of fairness and amounts to an abuse of process.

Remedies for Abuse of Process

The SCC majority outlined three possible, but non-exhaustive, remedies for an abuse of process due to inordinate delay. The appropriateness of the remedies depends on the amount of prejudice suffered and the extent of the abuse of process:

  1. Stay of proceedings – Described as “the ultimate remedy for abuse of process”, the majority cautioned that stays “should be granted only in the ‘clearest of cases’, when the abuse falls at the high end of the spectrum of seriousness”. Ultimately, stays require balancing the public intertest in a fair administrative process untainted by abuse and the competing public interest in having the complaint decided on its merit. The ultimate question to be answered is whether continuing with the litigation would result in more harm to the public interest than if the proceedings were permanently halted.
  2. Reduced sanctions – In situations with less prejudice where a stay is not warranted, reducing the penalty imposed on a party may be an appropriate remedy so long as such reduction does not undermine the purpose of disciplinary proceedings (i.e., protecting the public interest and confidence in the administration of justice). To that end, the Court noted substituting a lesser penalty for a licence revocation requires a high threshold that makes it generally as difficult as receiving a stay.
  3. Costs – It remains within the discretion of a tribunal or reviewing court to either set aside an order for costs or to order costs against an administrative agency. This may even occur where inordinate delay does not amount to an abuse of process.

In discussing these remedies, the Court’s majority instructed parties to use all available procedures to move matters forward as soon as delay becomes a concern. This includes raising the issue of delay on the record and using any available recourse or procedures internal to a tribunal, and if required, seeking mandamus – an order requiring, among other things, a tribunal to expedite a hearing – rather than waiting for an abuse of process to take place.

Key Takeaways

  • The decision reinforces how the appellate standards of review from Vavilov may apply with respect to questions of delay and abuse of process, even in the context of a procedural review.
  • The decision reaffirms that abuse of process in administrative proceedings occurs when inordinate delay causing significant prejudice to a party exists and where such delay is manifestly unfair to that party or brings the administration of justice into disrepute.
  • In rejecting the proposition that inordinate delay is in and of itself an abuse of process, the SCC has highlighted the high bar for obtaining a stay of proceedings: a stay is only appropriate in the clearest of cases with the most serious instances of abuse that would result in more harm to the public interest should the offending administrative action continue.
  • Parties must play an active role in addressing delay before any issues amount to an abuse of process, and be mindful to use all available procedures to move matters forward (including seeking an order for expedited hearing through mandamus), as soon as delay becomes a concern.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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