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<< back to all ArticlesTop Court Weighs in on Long Delay in Professional Disciplinary Hearings
Administrative decision-makers (including professional regulatory organizations) regularly decide issues that greatly impact the rights, privileges, and interests of the parties before them. Increased demand on professional regulators has often resulted in greater delay between the investigation of complaints, hearings, and written decisions by hearing tribunals. The Supreme Court of Canada, in Law Society of Saskatchewan v Abrametz, 2022 SCC 29, recently addressed the questions: how long is too long for the professional discipline process; what is the remedy when that threshold is reached; and when is a stay of proceedings (which results in a permanent “halting” of any further legal process) appropriate in the context of a professional disciplinary hearing?
Background
Mr. Abrametz was a practicing member of the Law Society of Saskatchewan for 49 years. In 2012, the Law Society commenced an audit investigation of Mr. Abrametz’s financial records due to apparent irregularities in the use of his trust account. While the investigation was ongoing, Mr. Abrametz was permitted to continue practicing, subject to specified conditions. In November 2014, the auditors completed their final report. Misconduct charges were laid against Mr. Abrametz in October 2015.
The Hearing Committee heard the matter from May to September 2017 and issued a decision finding Mr. Abrametz guilty of unprofessional conduct in January 2018. In January 2019, a decision on penalty was rendered. Mr. Abrametz sought a stay of proceedings on the basis of inordinate delay amounting to an abuse of process. The Hearing Committee dismissed Mr. Abrametz’s application for a stay, noting the complexity of the matter, Mr. Abrametz’s contributions to the delay, and the absence of evidence of significant prejudice as reasons for dismissing his application.
The Court of Appeal for Saskatchewan dismissed the appeal on the allegations of misconduct but allowed the appeal on the application for a stay. The Court of Appeal concluded that of the 53-month delay, 32 ½ months constituted undue delay causing significant prejudice to Mr. Abrametz, and resulting in an abuse of process.
The Supreme Court of Canada allowed the appeal by the Law Society and reinstated the decision of the Hearing Committee, finding the delay was not inordinate and that Mr. Abrametz had not adduced sufficient evidence of significant prejudice caused by the delay.
Inordinate Delay in Administrative Proceedings
The doctrine of abuse of process refers to the Court’s ability to stay proceedings where compelling an individual to stand trial would violate the fundamental principles of justice which underlie the community’s “sense of fair play and decency”. Hearing tribunals, as administrative decision-makers, have the power to review and assess abuse of process applications as part of their duty to ensure a fair hearing.
Inordinate delay can constitute an abuse of process in one of two ways. First, delay may impair the fairness of the hearing. Fairness can be compromised where, for example, the delay results in faded memories, essential witnesses are unavailable, or evidence has been lost. The second way in which delay can constitute an abuse of process, and the Court’s focus in this case, is where an individual suffers significant prejudice due to the delay.
The Test for Inordinate Delay Causing Prejudice
The Supreme Court of Canada reaffirmed the three-step test from Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, to determine whether delay that does not affect hearing fairness may nonetheless amount to an abuse of process:
- The delay must be inordinate
In determining whether delay is inordinate, 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 should be considered. If delay was caused by the party that complains of the delay, it cannot constitute an abuse of process. Further, delay can be waived if the applicant asks for a suspension of proceedings or does not object to a suspension of proceedings.
- The delay must have directly caused significant prejudice
The Court noted that evidence of prejudice could 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. The prejudice must be linked to the delay and not simply the fact of an investigation or hearing.
- The delay must amount to an abuse of process
If the delay is inordinate and there is significant prejudice, the decision maker will then assess if it is manifestly unfair to a party to proceed or if the proceedings otherwise bring the administration of justice into disrepute.
Imposing Specific Timelines
Mr. Abrametz advanced the argument that there should be timelines imposed for professional disciplinary proceedings. The Supreme Court of Canada rejected the notion that a similar approach should be adopted as in criminal cases (i.e. the Jordan framework for staying cases where there has been a specific period of delay). The Supreme Court of Canada noted that there is no Charter right to be tried within a reasonable time in administrative proceedings and, in this way, disciplinary hearings differ from criminal proceedings.
Standard of Review
The Supreme Court of Canada also confirmed the standard of review established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, applied to questions of procedural fairness and abuse of process in a statutory appeal. The standard of review is correctness for questions of law and palpable and overriding error for questions of fact and mixed fact and law.
Remedy for Inordinate Delay
The Court noted that there are a number of remedies, should the test for abuse of process be met. A stay of proceedings is the remedy for only the most severe forms of abuse of process where proceeding with a hearing would “shock the community’s sense of fairness and decency”. In determining whether a stay is warranted, the decision maker should ask: would going ahead with the proceedings result in more harm to the public interest than if the proceedings were permanently halted? If the answer is yes, then a stay of proceedings should be ordered.
In cases where that very high threshold is not met, there may be other available remedies:
- Mandamus– an order compelling an administrative decision-maker to carry out their duties, and in doing so, limit delay. The order may compel an expedited hearing.
- A reduction in sanction – though in no circumstances should such reduction undermine the purposes of the disciplinary process, notably the protection of the public and confidence in the administration of justice.
- A reduction in costs payable by the member
The Court noted that addressing delay is an obligation on all parties. The member cannot “wait in the weeds” with the hopes of obtaining a stay. As soon as delay becomes a concern, the member should seek to use all available procedures to move forward and raise the issue of delay on the record. Failure to do so may be considered in determining the relevant remedy.
Key Takeaways
- The standard of review from Vavilov applies to statutory appeals on issues of procedural fairness and abuse of process. Abuse of process is a question of law and is reviewed on the standard of correctness in a statutory appeal.
- Hearing tribunals have a duty to ensure proceedings are fair. This duty includes the power to consider and address allegations of inordinate delay and abuse of process.
- Inordinate delay may result in an abuse of process in two ways: first, if the fairness of the hearing is compromised (for example, if witnesses are unavailable, memories have faded, or evidence is lost); second, if there is significant prejudice from the inordinate delay.
- In determining whether there is an abuse of process on the second ground, it must be established that the delay is inordinate and that there has been significant prejudice. If both are established, then it must be determined if the delay is “manifestly unfair” to the member or otherwise brings the administration of justice into disrepute.
- The Supreme Court of Canada has rejected the notion that a similar approach to timelines should be adopted as in criminal cases (i.e. the Jordan framework for staying cases).
- A member facing disciplinary proceedings must take steps to address delay. If the member causes or contributes to the delay, there will be no prejudice. Similarly, a member cannot simply allow the delay to occur without taking any steps to address it. To allow a stay of proceedings on this basis would otherwise undermine the regulator’s duty to protect the public.
- A stay of proceedings will only result in the most severe cases. Other remedies are available where there has been delay, including an application to compel the proceedings to move along, a reduction in sanction and a reduction in the costs award against a member who is found guilty of unprofessional conduct.
- However, professional regulatory organizations must strive to ensure that proceedings are conducted in a timely manner. Inordinate delay can result in unfairness to members, be detrimental to complainants/patients and can undermine the integrity of the profession and the public’s confidence in self-regulation.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
