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Delay in Administrative Proceedings: 4 Key Take-Aways for Decision-Makers

Published:

July 18, 2022

Author(s):

• Marjorie Hickey, KC
• Jeremy Ryant, MC Alum

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The Supreme Court of Canada’s “Jordan” framework, introducing strict timelines for determining unreasonable delay in the context of criminal proceedings, gets frequent media play. In its July 8, 2022 decision in Law Society of Saskatchewan v. Abrametz, the Supreme Court of Canada turned its mind to the issue of delay in the context of administrative tribunal proceedings, particularly professional discipline cases, offering administrative decision-makers guidance to determine when delay in an administrative proceeding is enough to warrant discontinuance of the proceeding. Here are four key take-aways for administrative decision-makers:

Criminal Standard Doesn’t Apply. The strict timelines for determining unreasonable delay in criminal cases set out in R. v. Jordan don’t apply to administrative tribunal proceedings. Instead, the test for delay in the context of administrative tribunal proceedings is applied on a case-by-case basis, giving administrative decision-makers a bit more breathing room on the timeliness of proceedings compared to the criminal context. But while tribunals can take some comfort that the Court hasn’t imposed strict timelines on their processes as in criminal cases, timeliness remains important to the integrity of the overall administrative tribunal process.

“Inordinate” Delay is Contextual. When deciding whether a delay has become so “inordinate” that a proceeding can no longer continue – that is, it must be “stayed” – decision-makers should assess the overall context, 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.

“Significant Prejudice” Factors to Consider. To decide whether an inordinate delay has caused a person “significant prejudice”, decision- makers can look at factors like psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention – but this list isn’t closed. When assessing whether there has been significant prejudice, regulators should be open to other ways in which a person has suffered significant prejudice because of inordinate delay.

Consider Other Available Remedies. Perhaps one of the most significant take-aways from Abrametz is the Court’s reminder that a stay isn’t the only remedy if there has been an inordinate delay that has resulted in significant prejudice. A stay is the ultimate, and most extreme, remedy for an abuse of process. When there is inordinate delay and resulting prejudice, but going ahead with the case would result in less harm to the public interest than if the proceedings were permanently halted by a stay, decision-makers should look to their enabling legislation to see what other remedies, such as a reduced sanction or an award of costs, are available instead of a stay. It is only in the rarest of cases that going ahead with the proceeding would result in more harm to the public interest than if the proceedings were permanently halted. In all other cases, decision makers should stay open to the prospect of using other remedial tools in their statutory toolkit to address inordinate delays that cause a person significant prejudice.

It’s also worth noting that, although the Court upheld the Law Society Hearing Committee’s decision not to order a stay of proceedings, it was clear that the Law Society’s actions weren’t “above reproach”. The bar is rightly high for a proceeding to be stayed because of an abuse of process. But even if an abuse hasn’t occurred, regulators should always keep in mind that delays can have real and significant impacts on members of the profession and the public whom they serve.

A Stay of Proceedings

A “stay of proceedings” is an extreme remedy because, as the Court noted in Abrametz, it means “charges will not be dealt with, any complaint will go unheard and the public will not be protected”. A court or tribunal can order a stay where it determines there has been an abuse of process that has shocked the community’s sense of fairness and decency to a degree that the case can’t continue. In the world of professional regulation, a stay usually results in an indefinite “halt” to the disciplinary process, though there are some instance where a stay might be temporary. Described as the “ultimate remedy” for abuse of process, a stay should only be granted in the “clearest of cases” where the abuse “falls at the high end of the spectrum of seriousness”.

The Abrametz Case

On December 4, 2012, the Law Society of Saskatchewan commenced an audit investigation of the financial records of Mr. Abrametz, a Saskatchewan lawyer, due to apparent trust account irregularities. In 2013 and 2014, the Law Society served the lawyer with notices of intention to issue an interim suspension, but it was only October 2015 when it formally charged him. Between May and September 2017, the Hearing Committee heard the case.

The Stay Application. On July 13, 2018, Mr. Abrametz applied for a stay of proceedings on the basis the time the Law Society took to investigate and decide his case constituted an abuse of process. On September 18, 2018, the Law Society Hearing Committee heard his application, and on November 9, 2018 – approximately 71 months, or almost 6 years, after the start of the audit investigation – the Hearing Committee dismissed the stay application. It determined Mr. Abrametz made extensive efforts to conceal his actions, the case was complex, and a significant share of delay in the proceedings could be attributed to him due to unavailability of both he and his legal counsel (approximately 14.5 months). Consequently, the delay wasn’t inordinate in the circumstances. Moreover, any prejudice Mr. Abrametz might have experienced as a result of the delay wasn’t so significant that the public’s sense of fairness would be harmed, having regard to the Law Society’s mandate to protect the public.

The Court of Appeal. Mr. Abrametz appealed this decision to the Saskatchewan Court of Appeal. The Court of Appeal overturned the Hearing Committee’s decision, finding that there had been inordinate delay that resulted in significant prejudice to Mr. Abrametz to the degree that the public’s sense of decency and fairness would be affected.

The Supreme Court of Canada. The Law Society appealed this decision to the Supreme Court of Canada – and succeeded. Unlike the impact of the Jordan case on criminal proceedings, in Abrametz the Court didn’t make sweeping changes to the law governing delays in administrative tribunal proceedings. Instead, building on its 2000 decision in Blencoe v. British Columbia (Human Rights Commission), the Court provided additional guidance on determining when it might be appropriate to grant a stay and what other abuse of process remedies might be available for less extreme situations.

The Test for a Stay in an Administrative Proceeding

Clarifying that its ruling applies only to delays that don’t affect the fairness of a hearing (such as where a delay is so long that memories have faded, essential witnesses are unavailable or perhaps deceased, or evidence has been lost), the Supreme Court of Canada set out a three step test for courts and administrative tribunals to use when deciding whether a delay that doesn’t affect the fairness of a hearing amounts to an abuse of process:

The Delay Must be “Inordinate”.  First, the delay must be inordinate based on an assessment of the overall context, 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. The Court reminds us that “inordinate delay can be harmful to members of professional bodies, complainants and the public in general” and that “[g]iven their role to protect the public from harmful professional conduct, disciplinary bodies must ensure that the public’s concerns are addressed on a timely basis”. That said, not every delay is “inordinate” and the length and causes of the delay and the complexity of the case will always be relevant to determining whether a delay meets this high threshold. By way of example, the Court observed that (at para 59):

…In some circumstances, disciplinary bodies will proceed while the criminal proceeding are outstanding. In other circumstances, suspension of the disciplinary proceedings to await the conclusion of criminal proceedings can be justified. This can be consistent with procedural fairness and not constitute an abuse of process, even if the delay that results is lengthy.

Additionally, the cause of the delay will play a central role in determining if a long delay becomes so harmful that an abuse of process has occurred. The Court is clear that “if the delay was caused by the party who complains of that delay, it cannot amount to an abuse of process”.

The Court concluded the 71 month delay between the start of the auditor’s investigation and the Hearing Committee decision was long – but not inordinate. It found the Hearing Committee properly was correct to take into account: the complexity of the case; the scale of the investigation; and delay caused by the unavailability of Mr. Abrametz or his legal counsel, by a complaint Mr. Abrametz made against the Law Society’s disciplinary counsel, and Mr. Abrametz’s application to halt the disciplinary proceedings pending the outcome of a different case before the courts.

The Delay Itself Must Have Caused “Significant Prejudice”. Even when hearing fairness isn’t impacted, an abuse of process warranting a stay might occur if “significant prejudice” has come about due to “inordinate delay”. The Court provided guidance on what constitutes “significant prejudice”, issuing a reminder that the prejudice must be caused by the inordinate delay (at para. 68-69):

… It is the prejudice caused by inordinate delay that is relevant to the abuse of process analysis. That said, prejudice caused by the investigation of or proceedings against an individual can be exacerbated by inordinate delay. That is to be taken into account…Prejudice is a question of fact. Examples include significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention, especially given technological developments, the speed at which information can travel today and how easy it is to access.

The lawyer identified four types of prejudice he said the delay caused: media attention; practice conditions; impact on his health; and impact on his family and employees. The Hearing Committee concluded none of these, individually or cumulatively, amounted to significant prejudice caused by the delay. The Supreme Court agreed and, in particular, didn’t interfere with the Hearing Committee’s finding that “some degree of stress” doesn’t rise to the level of significant prejudice.

Final Abuse of Process Assessment & Remedies. When the first two stages of the test are met, the court or tribunal should conduct a final assessment of whether abuse of process is established. Abuse of process is established when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute.

Here, because Mr. Abrametz didn’t satisfy the first two stages of the test, there was no reason to consider this final stage. However, the Court took the opportunity to offer useful guidance on remedies for administrative decision-makers to consider when an abuse of process has occurred. The Court reiterated that a stay isn’t the only remedy for an inordinate delay resulting in significant prejudice. Because abuse of process can be viewed on a spectrum, a decision-maker need not grant a permanent stay when the inordinate delay and resulting prejudice is “not significant enough that proceeding in its wake would, in and of itself, shock the community’s sense of fairness and decency”. The Court provided specific guidance to courts and tribunals to make this determination (at para. 85):

When faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself: would going ahead with the proceeding result in more harm to the public interest than if the proceedings were permanently halted? If the answer is yes, then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed. In conducting this inquiry, the court or tribunal may have regard to whether other available remedies for abuse of process, short of a stay, would adequately protect the public’s interest in the proper administration of justice.

The Court offered two examples of such remedies: a reduction in sanction; and a costs award. These are, however, only two examples; decision-makers should always look to their enabling legislation when considering remedies and “should not hesitate to use such tools to combat inordinate delay amounting to an abuse of process”.

Please contact your McInnes Cooper lawyer or any member of our Regulation of Professions Team @ McInnes Cooper to discuss dealing with delays in administrative proceedings.

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