Supreme Court revisits issue of delay in administrative proceedings

In Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, the Supreme Court of Canada (SCC) revisited the issue of delay in administrative proceedings and its impact on procedural fairness. The SCC last considered this question over 20 years ago, in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (Blencoe).

When does a delay become an abuse of process? Person checking watch in front of laptop.

Facts:

Peter Abrametz was a lawyer in Saskatchewan. The Law Society of Saskatchewan began disciplinary proceedings against him in 2012 but the proceeding was not concluded until 2018, when Abrametz was found guilty of four charges of conduct unbecoming a lawyer. Abrametz applied for a stay of the proceedings against him, arguing this delay amounted to an abuse of process, but the Law Society Hearing Committee denied this request. Abrametz was subsequently disbarred in 2019 as a result of the disciplinary proceedings.

The Court of Appeal for Saskatchewan allowed the appeal of the stay decision, concluding that there had been inordinate delay which resulted in significant prejudice to Abrametz. The Law Society appealed this decision to the SCC.

The Blencoe test:

In Blencoe, the SCC stated that delay in an administrative proceeding can constitute an abuse of process in two ways:

  • Where the delay threatens a hearing’s fairness by impairing a party’s ability to answer the complaint against them; or,
  • Where significant prejudice has come about due to inordinate delay.

The Court in Blencoe set out a three-step test for the second type of unfairness, where the fairness of the hearing itself is not impacted but the delay still results in significant prejudice to a party:

  1. The delay must be inordinate. What constitutes as an inordinate delay depends on the circumstances of the particular case, considering 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.
  2. The delay must have directly caused significant prejudice. Such prejudice could arise where the delay has caused significant psychological harm to a party or results in damage to their reputation, family life, work, or business opportunities.
  3. 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.

Affirmation of Blencoe in Abrametz:

The SCC in Abrametz affirmed the continued use of the Blencoe test for administrative delay and abuse of process. In applying this test here, the Court found that the delay in Abrametz’s disciplinary proceedings was not inordinate, given the complexity of the proceedings and the fact that Abrametz himself was the cause for a portion of the delay. The Court also found that the harm Abrametz claimed he experienced due to the delay did not amount to significant prejudice. The Court affirmed the Hearing Committee’s decision on Abrametz’s stay application and found the Court of Appeal erred in overturning that decision.

Additional guidance in Abrametz on the appropriate remedy for abuse of process:

In considering what is the appropriate remedy for such abuse of process, the Court in Abrametz noted that a stay of proceedings is the ultimate remedy, as it ends the proceeding without any determination on the complaint that gave rise to the proceeding. As such, a stay should be granted only in the clearest of cases, when the abuse falls at the high end of the spectrum of seriousness. When abuse of process is established but does not meet this high threshold, other remedies should be considered, such as a reduction in sanction or alteration of an award of costs.