The Supreme Court of Canada just released a decision of critical importance to professional regulators addressing when delay in administrative proceedings constitutes an abuse of process justifying a stay of proceedings: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

There are two types of delay applications that a party may make:

1. Where there has been unfairness in the hearing due to, for example, missing witnesses, destroyed evidence, or fading memories. 
2. Where there is no hearing unfairness, but it is alleged that the delay constitutes an abuse of process.

Abrametz addresses the second type of delay application. A hearing committee of the Law Society of Saskatchewan found that Abrametz had engaged in conduct deserving of sanction. The hearing committee ordered that Abrametz be disbarred (that is, his registration as a lawyer would be cancelled). Abrametz applied to the hearing committee for a stay of proceedings based on the amount of delay in the case. The hearing committee refused the application. Abrametz appealed to the Saskatchewan Court of Appeal, which allowed the appeal. The Court of Appeal found that of the 53-month time period in issue, 32 ½ months were attributable to delay by the Law Society. The Court of Appeal concluded that this amount of delay was inordinate and had caused serious prejudice to Abrametz. The Court found there was an abuse of process and ordered a stay of proceedings overturning the disbarment.

The Saskatchewan Court of Appeal's decision caused grave concern to regulators. The decision was widely viewed as dramatically "lowering the bar" to obtain a stay of proceedings based on delay. The decision was also viewed as providing virtually no deference to the decisions of hearing committees. Many commentators concluded that if the decision of the Court of Appeal was not reversed, there would be a dramatic increase in the number of stay applications made to regulators based on delay in the professional discipline process. This was a concern since stays of proceedings have a negative impact on the public interest because the conduct in question goes unaddressed. In Abrametz's case, the stay permitted him to continue to practice even though a committee of his peers had concluded that he engaged in misconduct that meant he should not be part of the legal profession.

The Law Society of Saskatchewan obtained leave to appeal to the Supreme Court of Canada. At the appeal, the Attorney Generals for four provinces intervened. In addition, ten regulators from across Canada and one other organization were granted leave to intervene by the Supreme Court of Canada. One of the intervenors was the Law Society of Alberta, and Field Law's James Casey, KC and Katrina Haymond, KC had the privilege of representing them at the appeal.

The Supreme Court of Canada allowed the appeal and reversed the Saskatchewan Court of Appeal's decision. The Court stated that where delay has not affected the fairness of a hearing, the test to determine if the delay amounts to an abuse of process has three steps:

1. The delay must be inordinate in the overall context, including: 
   • the nature and purpose of the proceeding; 
   • the length and cause of the delay; and 
   • the complexity of the facts and issues in the case.
2. The delay itself must have caused significant prejudice. 
3. If the first two elements are met, then the tribunal or court must conduct a final assessment of whether an abuse of process is established. There is an abuse of process when the delay is manifestly unfair to the party or, in some other way, brings the administration of justice into disrepute. Stays of proceeding are to be ordered only in the "clearest of cases" due to the negative impact on the public interest of permanently halting disciplinary proceedings. 

The Court concluded that the time for calculating the period of delay starts when a regulator's obligations are engaged. The Court stated that the end point is the conclusion of proceedings, including the issuance of the tribunal's decision. The Court clarified that the principles that apply to criminal law cases of delay in R. v. Jordan have no applicability to administrative law proceedings. 

The Court addressed the obligations on an investigated person who is concerned about delay. The expectation is that as soon as delay becomes a concern, the investigated person should use all available procedures to move matters forward. This can include raising concerns about delay with the regulator or tribunal. If the investigated person does not act in a timely way, it can affect the remedies that are considered appropriate. An investigated person may be taken to have waived delay either expressly or impliedly. 

The Court emphasized that in addition to a stay of proceedings, several less drastic remedies are available to address an abuse of process: 

• an application to the regulator to expedite the hearing process; 
• an application to the Courts for an order of mandamus requiring the regulator to fulfill their statutory responsibilities; 
• a reduction in the sanction that would otherwise be ordered; 
• not awarding costs against an investigated person even though they were found to have committed unprofessional conduct; and
• Courts ordering costs against the regulator. 

In many cases, the receipt of a complaint will "start the clock running" to calculate the period of delay. In the Abrametz investigation, there was no complaint from the public. Therefore, the Court chose the commencement of the Law Society's audit of Abrametz's financial records as the starting point for calculating the period of delay and the issuance of the hearing committee's decision on the stay application as the end point. This was a period of 71 months. The Court stated that this amount of delay gave rise to serious concern, but in all the circumstances, the delay was not inordinate.

In assessing whether there was inordinate delay the hearing committee had to consider: 

• the complexity of the proceedings; 
• whether part of the delay was the fault of Abrametz rather than the Law Society; and 
• whether the delay caused serious prejudice to Abrametz due to media attention, restrictions on his practice during the investigation, and a negative impact on his health, family, practice, and employees. 

The Supreme Court held that the hearing committee's conclusion on these issues were findings of fact or mixed fact and law and should be given deference by the Courts. The Supreme Court held that the Court of Appeal erred in substituting its own findings on these matters in the absence of palpable and overriding error.

Takeaways

Here are the three key takeaways for professional regulators from the Abrametz decision.

1. The Abrametz decision is a significant and positive precedent for regulators.

Regulators can "breathe a sigh of relief" that the problematic precedent of the Saskatchewan Court of Appeal decision has been overturned. In addition, the Supreme Court made several significant rulings:

• The Court reaffirmed that stays of proceedings should only be ordered in the clearest of cases due to the negative impact on the public interest of permanently halting discipline processes.
• The Court emphasized that a range of less drastic other remedies are available to a tribunal or Court where delay constitutes an abuse of process.
• The Court clarified the expectation on investigated persons. As soon as delay becomes a concern, an investigated person is expected to use all available procedures to move matters forward, including registering their concern with the regulator or tribunal. This obligation will allow regulators to take practical steps to address the issue where there has been undue delay. 
• The Court held that an investigated person can waive the delay either expressly or implicitly. The recognition that there can be delay through acquiescence will assist in defending against the "waiting in the weeds" strategy used by some investigated persons who don't complain about delay until it is too late for the regulator to address, and then they apply to stop the discipline process or apply to overturn negative findings against them. 
• Importantly, the Supreme Court held that the findings of hearing committees on issues such as whether there was inordinate delay and whether the investigated person suffered significant prejudice are entitled to deference by the Courts.

2. Despite the positive decision in Abrametz, there is no reason for professional regulators to be complacent about delay.

Delay in professional discipline processes remains a significant and challenging issue for most regulators. In some cases, delay can arise due to a lack of resources for the discipline process. However, the Supreme Court cautioned that inadequate regulatory resources cannot excuse inordinate delay in any case and that administrative tribunals have a duty to devote sufficient resources to ensure the integrity of the process. The Court reaffirmed the importance of ensuring timely and fair discipline investigations and hearings. Regulators must continue focusing on avoiding undue delay. As stated by the Supreme Court: "Given 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." 

The Supreme Court also confirmed that the time for calculating the period of delay extends to the time when a tribunal's decision is issued, which is a later period than selected in many previous cases and will increase the calculation of the amount of delay. This means that regulators need to continue to focus on ensuring that their tribunals issue their decisions within a reasonable time after the end of a hearing.

3. Regulators should expect a significant increase in the number of cases where investigated persons raise concerns about delay.

This increase is expected based on three factors. 

1. The Supreme Court's decision in Abrametz will make delay one of the "hottest" administrative law issues in the coming years giving issues of delay a high profile among defence counsel. 
2. The Supreme Court confirmed that investigated persons concerned about delay are to raise their concerns with the regulator or tribunal at the earliest possible opportunity. 
3. The Supreme Court ruled that even where delay does not justify a stay of proceedings, the delay may justify a reduction in the sanction or not awarding costs against an investigated person. Expect more delay issues to be raised in the sanction phase of hearings. As a result, regulators should consider providing some training to their tribunals on the legal principles concerning delay.

The Supreme Court of Canada's decision in Abrametz will reverberate for many years in the world of professional discipline as regulators and tribunals grapple with its implications. If your regulatory organization is involved in a case where delay of proceedings may be an issue, please contact James Casey, KC, Katrina Haymond, KC, or any member of our Professional Regulatory Group.