Undue Delay in Canadian Administrative Law: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29

This is the latest in my series of posts on the Supreme Court of Canada’s decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (see also here, here and here).

Undue delay in Canadian administrative law is an aspect of procedural fairness. A “corollary” to the duty to act fairly is “a power to assess allegedly abusive delay” (Abrametz, at para. 38). Given that the duty of fairness is enforceable both by administrative decision-makers (in the first instance) and by the courts (on appeal or judicial review), both administrative decision-makers and the courts have the power to respond to undue delay.

There are two forms of undue delay, which we might call “hearing unfairness delay” and “abuse of process delay”. On the one hand, delay might affect the fairness of a hearing because witnesses are unavailable, memories have faded, or evidence has been lost (Abrametz, at para. 41, citing Blencoe, at para. 102). On the other hand, delay might constitute an abuse of process where “the delay was unacceptable to the point of being so oppressive as to taint the proceedings” (Blencoe, at para. 121), which will occur where delay is “inordinate” and the delay has caused “significant” prejudice (Abrametz, at para. 42).

Abrametz was about abuse of process delay. The passage of time did not prevent A from mounting a full answer and defence to charges of professional misconduct. But the Court of Appeal found that there had been an abuse of process. Accordingly, it ordered a stay of proceedings, with the effect that A would not be disbarred as per the conclusion of the Hearing Committee of the Law Society.

“Inordinate” Delay

In determining whether delay is “inordinate”, one must look to a non-exhaustive list of contextual factors: (a) the nature and purpose of the proceedings, (b) the length and causes of the delay, and (c) the complexity of the facts and issues in the case.

The nature and purpose of the proceedings is to be assessed by reference to the mandate the decision-maker in question has been asked to discharge (at para. 52). Disciplinary proceedings are “sui generis” (at para. 54), designed to “protect the public, to regulate the profession and to preserve public confidence in the profession” (at para. 53). All sides have an interest in prompt disciplinary decision-making. From the professional’s point of view, pending proceedings might “overshadow” their work and personal life: “Anxiety and stress caused by the uncertainty of the outcome and the stigma attached to outstanding complaints are good reasons to investigate and prosecute in a timely way” (at para. 55). Complainants benefit from swift proceedings which allow them to “be heard and move on to put the matter behind them” (at para. 56). And, of course, the public’s “concerns” should be addressed on a “timely basis” (at para. 56).

In considering the length and causes of the delay, the “starting point” is when “the administrative decision maker’s obligations, as well as the interests of the public and the parties in a timely process are engaged” (at para. 58). The end point is the final decision (at para. 58). The formulation of the starting point is somewhat nebulous but seems to involve a formal step on the part of the disciplinary body. In this case, the clock began to tick when the Law Society conducted an audit (at para. 108), a relatively formal step in the process, although the Law Society had been interested in A’s affairs before then (at para. 6; see also 2020 SKCA 81, at para. 12). The Supreme Court also frankly acknowledged that “the requirements of procedural fairness sometimes slow the pace at which the proceedings progress” (at para. 65).

The duration of the delay from the starting point to the end must be considered “in context” (at para. 59). For example, parallel criminal proceedings (not an uncommon feature in disciplinary matters) can justify suspending disciplinary proceedings (at paras. 59-60). Other considerations include the contribution of the applicant to any delay: delay for which the applicant is responsible cannot be inordinate (at para. 62, citing Blencoe, at para. 125; Diaz-Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221, 39 B.C.L.R. (6th) 87, at para. 50; Camara v. Canada, 2015 FCA 43, 91 Admin. L.R. (5th) 13, at paras. 13-14); and delay which has been impliedly or expressly waived does not count (at para. 63). In addition, delay which is required to conduct a fair process is not inordinate: “there [will] be [no] unfairness if the delay is an inherent part of a fair process” (at para. 62). However, disciplinary bodies are obliged to be efficient in their use of resources and thus have “a duty to devote adequate resources to ensure the integrity of the process” (at para. 64, citing Hennig v. Institute of Chartered Accountants (Alta.), 2008 ABCA 241, 433 A.R. 221, at para. 31).

As for complexity, the time required will vary from case to case, depending on the nature of the wrongdoing. Some cases might involve “difficult and time-consuming investigations” whereas others, even with large volumes of documents, will be “routine” because they fall within the “expertise” of the decision-maker (at para. 66).

In the instant case, the lapse of time involved gave rise to “serious concern” (at para. 108; see also at para. 126). When considered in context, however, the delay was not inordinate:

The Hearing Committee found that the delay in preparing the report was reasonable. In so doing it had regard to the complexity of the case and the scale of the investigation: at paras. 357 and 364. Further it found that the delay was caused largely by Mr. Abrametz; it noted that 14 ½ months of delay were attributable to Mr. Abrametz or his counsel’s unavailability: para. 360. It also considered Mr. Abrametz’s application to put proceedings on hold pending a different matter before the Court of Queen’s Bench, as well as Mr. Abrametz’s complaint against Mr. Huber, the Law Society’s disciplinary counsel, as contributing to delay: paras. 360-61 (at para. 109).

There was no palpable and overriding error in the Hearing Committee’s analysis of the scale and complexity of the investigation and, so, “no basis” for appellate interference (at para. 116).

“Significant” Prejudice

To begin with, prejudice must be “significant” (at para. 67).

The Supreme Court offered several reasons in support of this requirement. To begin with, to permit stays of administrative proceedings on the basis of inordinate delay alone would be “tantamount to imposing a judicially created limitation period” (Blencoe, at para. 101). This seems to pre-suppose that a stay of proceedings is the only available remedy (which is not the case), but there was more. For one thing, delay can be beneficial to the applicant: “if the affected party is facing the penalty of disbarment, delay in the administrative process might be welcomed by the affected party, insofar as it enables him or her to continue practicing” (at para. 67). For another, the simple fact is that “an investigation or proceeding against an individual tends to disrupt his or her life” (at para. 68). Hence, therefore, the requirement that an applicant demonstrate not merely prejudice but “significant” prejudice.

Whether significant prejudice has been suffered is a question of fact. As such, the Supreme Court could not do much more than provide a list of examples: “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” (at para. 69). In addition, the prejudice must be attributable to the delay: there is a requirement of causation (at para. 72). Here, for example, the fact that the disciplinary proceedings were disclosed and publicized was not enough on its own to establish prejudice: A had to demonstrate that the disclosure caused “significant” prejudice (at para. 120).

Notice that the prejudice to be suffered is individual prejudice. The Supreme Court did not take the view that there are other forms of prejudice, to groups or to the public which might qualify. The Supreme Court did cite favourably to the decision in Financial and Consumer Services Commission v. Emond, 2020 NBCA 42, where the New Brunswick Court of Appeal granted a stay in part because of the Tribunal’s inability to constitute a French-language panel despite the constitutional protection of minority linguistic rights in the province. But there was also significant prejudice to E in that case. As such, the conclusion must be that prejudice to the public interest, or the community at large, is not sufficient to demonstrate an abuse of process.

In the instant case, neither the media attention, practice conditions imposed during the disciplinary proceedings nor the impact on A’s health and that of his employees and family amounted to significant prejudice. The Hearing Committee had rejected A’s prejudice argument, on grounds solidly based in the evidence. The Supreme Court’s treatment of the practice conditions point is illustrative:

Regarding the practice conditions, the Hearing Committee did not accept Mr. Abrametz’s submission that these caused him significant prejudice; the Hearing Committee did so based on the fact that Mr. Abrametz consented to the conditions, they were not overly restrictive of his practice and they were consistent with the Law Society’s mandate to protect the public. It also noted that most of the allegations against Mr. Abrametz were determined to be well founded. The Hearing Committee held that Mr. Abrametz had been unable to provide evidence that he suffered from the conditions in the five years before the disciplinary hearing. He had not argued that the practice conditions impacted his billings or his caseload or the time typically required by him to process his files. Thus, he had provided no evidence that the practice conditions significantly impacted the viability or profitability of his practice. The Court of Appeal took the view that neither Mr. Abrametz’s consent to the conditions nor the fact that he was found guilty of most of the charges were relevant. However, the court failed to address the core of the Hearing Committee’s analysis on this point, which turned on the lack of evidence of any prejudice resulting from the conditions. Mr. Abrametz was not suspended and he continued to practice until the hearing. Thus, the Court of Appeal failed to set out a proper basis for interfering with the finding that Mr. Abrametz did not suffer significant prejudice from the conditions on his practice (at paras. 121-122).

Remedies

The Supreme Court did not need to consider the appropriate remedy in this case, given its conclusions about the absence of inordinate delay and significant prejudice. Nonetheless, Rowe J discussed the “main remedies” for undue delay in his reasons (at para. 74). Remedies can be found on a “spectrum”, with a stay of proceedings — the “ultimate” remedy (at para. 83) — reserved for the most serious cases and “other remedies” available in less serious cases (at para. 76).

In cases where a stay is sought, a balancing act is required, “between the public interest in a fair administrative process untainted by abuse and the competing public interest in having the complaint decided on its merits” (at para. 84, emphasis original). The Supreme Court offered guidance about the balancing act:

A stay will be more difficult to obtain where the charges are more serious. For example, in Diaz-Rodriguez, a police officer faced disciplinary proceedings because he used a police baton to repeatedly strike a young man on the head. He also attempted, after the fact, to lay (apparently) unfounded charges, including assaulting a police officer; being intoxicated in a public place; and causing a disturbance: para. 72. The Court of Appeal concluded that in this context, the public interest in fairness in the administrative process did not outweigh the public interest in having the matter proceed to a resolution on its merits: para. 73 (see also: Robertson, at paras. 79-80; R. (J.) v. College of Psychologists (British Columbia) (1995), 33 Admin. L.R. 2(d) 174 (B.C.S.C.), at para. 10). The same was also true in Sazant, in which Dr. Sazant faced allegations of sexual misconduct against children. There was a strong public interest in having the case considered on the merits, despite the length of the delay: para. 248.

Even if rare, stays of proceedings are sometimes warranted. An example is MacBain where the charge against an investment dealer did not involve complex factual or legal issues, and he did not contribute to or waive the delay. As well, the Investment Dealers Association failed to provide an explanation for the delay (three years and eight months). When the Court of Appeal heard the case, almost seven years had passed since the commencement of the investigation. Moreover, the member was seriously affected, his business declined greatly, and his personal life was adversely impacted: para. 41 (at paras. 86-87).

Whether there is a complainant in a disciplinary proceeding is a neutral factor in considering whether a stay is appropriate (at para. 88).

Part of the balancing act in determining whether to order a stay involves considering whether there are other remedies which would “adequately protect the public’s interest in the proper administration of justice” (at para. 85). Other remedies, such as a reduction of sanction or an award of costs ensure “the public interest can be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse that he or she suffered” (at para. 90). A court seized of an undue delay application can use its discretion in relation to costs ” to set aside an order of costs against a party or to order costs against the administrative agency” (at para. 99). I would add that an applicant could also be awarded its costs on judicial review: see Canada (Transport) v. Air Transat A.T. Inc., 2019 FCA 286, at para. 172.

Here, again, however, the notion of a spectrum is valuable. Where a disciplinary body has determined that a professional’s licence should be revoked for misconduct, the sanction should be correspondingly high on the spectrum; a reduction in sanction will typically not be an appropriate response to inordinate delay and significant prejudice:

To convert a presumptive licence revocation into a lesser penalty requires a significant abuse of process, one at the high end of the spectrum. Moreover, under no circumstances should the adjustment of the penalty undermine the purposes of the disciplinary process, notably the protection of the public and its confidence in the administration of justice. For these reasons, a remedy that substitutes a licence revocation for a lesser penalty will generally be as difficult to receive as a stay. Both may equally undermine a professional body’s responsibility to regulate the profession (at para. 98). 

Another way to put this point would be that the remedy must be proportionate to the abuse of process. The more inordinate the delay and the more significant the prejudice, the more plausible a stay or a reduction in sanction will be (even where the revocation of a licence has been ordered). But where the delay is not especially inordinate and/or the prejudice less significant, a stay is likely to be off the remedial table in favour of costs awards and perhaps reduction of sanction. In all instances, the remedy must be carefully tailored to the seriousness of the delay, even once the thresholds of “inordinate” delay and “significant” prejudice have been surmounted.

Commentary

First, the decision in Abrametz to maintain the high threshold for finding an abuse of process on the basis of undue delay is not especially surprising. The approach might seem parsimonious but already Canada is ahead of other jurisdictions in contemplating abuse of process as a breach of procedural fairness. One will scour textbooks from elsewhere in the common law world (largely) in vain for equivalents. Of course, courts can issue mandatory orders against tardy administrative decision-makers (see e.g. the Australian case of NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470), but granting remedies such as a stay of proceedings is unknown in Commonwealth jurisdictions (with perhaps a few first-instance exceptions such as the Irish case of Flynn v An Post [1987] IR 68).

Second, the Supreme Court expressly declined to “Jordanize” administrative delay by reference to its criminal law jurisprudence. There, it has imposed presumptive ceilings for provincial court and superior court proceedings, on the theory that delay presumptively causes prejudice. But here it recoiled from doing so.

On one level, its reluctance to do so was based on simple textualism, the absence of a Charter right to administrative proceedings being concluded within a reasonable time (at para. 47). More deeply, the relationship between the individual and the statue in a criminal proceeding is different from the relationship between a regulated professional and a disciplinary body. In the latter case, the professional’s ability to practice is a privilege and the professional has, moreover, signed up voluntarily to a code of conduct which, furthermore, is a code set by the professional’s peers. As Rowe J put it, disciplinary bodies “maintain discipline within a limited sphere of private activity” and accordingly “differ from criminal matters, which are of a public nature, intended to promote order and welfare within a public sphere of activity” (at para. 54).

In addition, whereas it is possible to meaningfully distinguish between less complex and more complex criminal matters, with the forum (provincial court versus superior court) functioning as a workable proxy, administrative proceedings are multifarious. The principles of undue delay, like the overwhelmingly context-sensitive contemporary principles of administrative law, cover everything from overworked visa officers, underfunded licensing officials and politically accountable ministers to sophisticated multi-member administrative tribunals composed of experienced adjudicators. Imposing fixed thresholds on this glorious variety of decision-makers, as in Jordan, would be an impossible task. So too would be identifying points beyond which delay would trigger a presumption of prejudice.

Lastly, while I would hardly argue that undue delay is never a problem in Canadian administrative law (with the difficulties in Ontario particularly prominent at the moment), the Supreme Court was reluctant to require systemic reform. There are two possibilities. Perhaps the justices doubted that delay is pervasive across the administrative justice system. Indeed, there was no evidence in the record in Abrametz about systemic delay, in the Law Society, in Saskatchewan, or otherwise. Alternatively, the justices might not have been comfortable with a judicial solution to problems of systemic delay, especially in view of the complexities of administrative justice.

Given the Supreme Court’s resoluteness in respect of “inordinate” delay and “significant” prejudice, it is difficult to avoid the inference that the justices were not persuaded, at least for the moment, that undue delay is a widespread phenomenon which merits a doctrinal response. In my next post on Abrametz, I will consider the responses that could be made to undue delay, where it arises.

This content has been updated on September 2, 2022 at 15:12.