Delays in administrative proceedings: the Supreme Court holds the line
Delays in any proceedings, whether criminal, civil or administrative, have significant consequences for all the actors in a judicial system, and especially for the persons (natural and legal) involved in those proceedings.
Canadian law is clear as to what constitutes a “reasonable delay” in both civil1 and criminal2 proceedings. Since the Supreme Court’s 2016 decision in Jordan, which established strict time limits in criminal law for determining whether an accused is tried within a reasonable time, questions have arisen as to whether the same time limits apply to administrative proceedings, which can have very significant impacts on an individual’s life, particularly when administrative sanctions come into play.
Nevertheless, even after Jordan, administrative tribunals and reviewing courts have continued to follow the principles of the Supreme Court’s ruling in Blencoe,3 rendered in 2000. Blencoe sets out a set of criteria for determining whether a delay is so inordinate as to lead to a stay of proceedings before an administrative tribunal, and provides that only a small proportion of cases may be eligible for this remedy.
With the Abrametz4 decision, the Court has now expressly confirmed the validity of the Blencoe principles, while clarifying the analytical framework required to determine whether a delay is so inordinate as to constitute an abuse of process and give rise to a stay of proceedings.
I. The disciplinary proceedings against Mr. Abrametz
In December 2012 the Law Society of Saskatchewan (“Law Society commenced an audit investigation of Mr. Abrametz. The conduct alleged against Mr. Abrametz involved suspicious transactions. The investigation sought to determine whether those transactions had been undertaken for the purpose of tax evasion.
A hearing panel was appointed in October 2015. The panel found Mr. Abrametz guilty on four counts of conduct unbecoming an attorney. In its January 2019 decision the panel ordered that Mr. Abrametz be disbarred. After being convicted, Mr. Abrametz requested a stay of proceedings on the grounds that the time taken to complete and decide his case amounted to an abuse of process. The hearing panel denied that request on November 2018.
Mr. Abrametz appealed the decision to the Saskatchewan Court of Appeal, both on the professional conduct finding and on the stay of proceedings. The Court of Appeal determined that the delay of over 32 months, which it attributed to the Law Society, constituted an abuse of process warranting a stay of proceedings.
The Law Society appealed the decision to the Supreme Court, providing an opportunity to clarify the test for administrative delays.
II. The majority opinion of the Supreme Court
A. The abuse of process doctrine
The basis of the abuse of process doctrine is to prevent proceedings from being used in a manner that would be unfair to a party.5 It seeks to protect the integrity of the decision-making process.6 In the context of administrative law, this doctrine relates to procedural fairness, that is, the procedural obligations owed by an administrative agency. Abuse of process may arise, for example, from inordinate delay during the course of the proceedings.
B. Determining whether a delay is an abuse of process
First, while recognizing the need for administrative proceedings to be expeditious, the majority nonetheless rejects the possibility of imposing a Jordan-style approach under which inordinate delays would be presumed prejudicial.
Instead, the majority establishes a three-step analysis for determining whether a delay in an administrative proceeding constitutes an abuse of process:
1. The delay must be inordinate: the majority sets out three factors to be considered at this stage; (a) the nature and purpose of the proceedings; (b) the length and causes of the delay; (c) the complexity of the facts and issues in the case.7
a) The nature and purpose of the proceedings: administrative proceedings cover a wide array of matters that vary in complexity and importance. In disciplinary proceedings (as in this case), their purpose is the regulation of a professional activity to protect the public and maintain public confidence. A delay that would undermine that confidence would therefore be detrimental to members of professional bodies, complainants and the public.8
b) The length and causes of the delay: in determining the length of a delay, the starting point “should be when the administrative decision maker’s obligations, as well as the interests of the public and the parties in a timely process are engaged.”9 The end point is the moment at which the decision has been rendered and the proceedings are complete. The reasons for and the context of the delay must also be considered. Delays attributable to the party who complains of that delay cannot be counted in the analysis of an abuse of process, nor can a delay that was implicitly or explicitly waived.10
c) The complexity of the facts and issues in the case: the more complex a case is, the longer it may take to reach a decision. For example, allegations of sexual misconduct can result in both lengthy and complex investigations. The majority therefore emphasizes the importance of the complexity of the case when analyzing the delay. That said, an administrative body cannot justify an inordinate delay solely due to a large volume of documents.11
2. The delay must have caused a significant prejudice: the passage of time alone is not sufficient to find a delay unreasonable in administrative law. Only where the delay is to the detriment of the affected party will a court find abuse of process.12 The focus is on the prejudice caused by the inordinate delay, not the prejudice caused by the proceedings. The majority does state, however, that the prejudice caused to a person by the investigation or proceedings may be exacerbated by inordinate delay.13
3. The court or tribunal must conduct a final assessment to determine whether an abuse of process has been established: when the first two conditions have been met, the court must consider whether “the delay is manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute.”14 The majority does not, however, specify in which cases a delay will be considered manifestly unfair or disruptive of the administration of justice, leaving the door open for debate.
C. Possible remedies for abuse of process
If a court finds abuse of process after concluding the three-step analysis, several remedies are possible. The majority indicates that remedies must be examined on a spectrum of seriousness.15 A stay of proceedings, which permanently terminates a proceeding, is the “ultimate” remedy.16 The majority provides a non-exhaustive list of other available remedies:
- Stay of proceedings: stays should be granted only in the “clearest of cases,” where the abuse is of extreme seriousness.17 The decision to order a stay of proceedings or not involves a balancing of two public interests: (1) the public interest that an administrative proceeding be fair and free from abuse; and (2) the public interest that complaints be considered on their merits.18 In other words, before declaring a final stay of proceedings, one must decide whether continuing the proceedings would be more detrimental to the public interest than stopping them.
- Internal tribunal procedures: although not a remedy per se, a party may use the internal procedures of an administrative tribunal to expedite a process. The majority encourages parties to avail themselves of such procedures or at least to have their concerns about delays recorded.19
- Mandamus: affected parties may seek an order of mandamus to compel administrative decision makers to perform their duties in a timely manner. Such an order may also be sought to remedy an established abuse of process.20
- Reduction in sanction: abuse of process may be considered as a factor in determining the appropriate sanction. If the sanction is a lifetime revocation of a licence to practise, the threshold for reducing the sanction is particularly high.21 In any case, the adjustment of the sanction must not compromise the objectives of the disciplinary process.22
- Costs: a reviewing court may set aside an order for costs or order costs against the administrative body.23
D. Application to the facts
The majority asserts that the delay incurred in the Abrametz proceedings was long, but not inordinate.
On the issue of prejudice, the majority finds no significant prejudice to Mr. Abrametz. Mr. Abrametz raised four types of prejudice caused by the delay: media attention, the conditions affecting his practice, the impact on his health and the psychological impact on himself and his family. Since the hearing panel found that none of these claims amounted to significant prejudice caused by the delay, the majority is of the view that there is no palpable and overriding error that would call the panel’s findings into question.
Abrametz confirms the applicable framework for the assessment of delay in administrative proceedings. The majority confirmed that such an analysis must be based on case law stemming from Blencoe and not on the more recent decisions of the Supreme Court in criminal24 and civil25 matters.
The authors would like to thank Raphael Uzan and Inès Khalfi, law students, for their assistance in drafting this article.
1 Hryniak v. Mauldin, 2014 SCC 7.
2 R v. Jordan, 2016 SCC 27.
3 Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44.
4 Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.
5 Ibid., para. 35.
6 Ibid., para. 36.
7 Ibid., para. 51.
8 Ibid., para. 55.
9 Ibid., para. 58.
10 Ibid., paras. 62-63.
11 Ibid., para. 66.
12 Ibid., para. 67.
13 Ibid., para. 68.
14 Ibid., para. 72.
15 Ibid., para. 76.
16 Ibid., para. 74.
17 Ibid., para. 83.
18 Ibid., para. 84.
19 Ibid., para. 78.
20 Ibid., paras. 80-82.
21 Ibid., para. 96.
22 Ibid., paras. 97-98.
23 Ibid., para. 99.
24 Jordan, supra.
25 Hryniak, supra.