Written by: Daniel McBain
Facts
The Law Society of Saskatchewan (“LSS”) began investigating potential disciplinary matters against Mr. Abrametz, a lawyer, in December 2012. Very shortly thereafter, Mr. Abrametz self-reported a failure to promptly deposit fees. In March 2013, Mr. Abrametz agreed to certain conditions being placed on his practice, including retaining an approved supervisor.
In September 2013, the LSS auditor requested information and documents from Mr. Abrametz related to potential tax evasion issues. Mr. Abrametz refused to cooperate despite repeated requests.
In October 2014, the auditor completed his report. In October 2015, the LSS issued a formal complaint against Mr. Abrametz based on the report, alleging misconduct involving issuing trust cheques to clients (including fictitious clients) which were then endorsed back to Mr. Abrametz, and improper loans to clients.
A simultaneous investigation by the LSS into the tax evasion issues gave rise to litigation respecting the investigatory powers of the LSS. In March 2016, Mr. Abrametz applied to stay the disciplinary proceedings pending resolution of the tax investigation, which was denied in August 2016.
The discipline hearing occurred over the course of May and August 2017. In January 2018, the LSS released its decision on the merits, finding Mr. Abrametz guilty of four charges.
In July 2018, Mr. Abrametz applied for a stay of proceedings, alleging that the delay in his disciplinary matter had resulted in an abuse of process. The application was heard in September 2018 alongside submissions on penalty. The LSS denied the application on November 9, 2018, and ordered Mr. Abrametz disbarred on January 20, 2019.
On appeal, among other things, Mr. Abrametz argued that the LSS erred in failing to stay the proceedings due to an abuse of process arising from the delay. The Court of Appeal agreed, as discussed in our earlier blog on this issue.
The two main issues before the Supreme Court of Canada were:
1. The test and remedies for abuse of process arising from administrative delay; and
2. Standard of review.
After setting out the law on these issues, the SCC went on to find that the Court of Appeal erred in failing to defer to the factual findings of the LSS and allowed the appeal.
SCC Decision
Abrametz clarifies the test and scope of remedies available for abuse of process arising from administrative delay. In doing so, the Court appears to lower the bar for a finding of abuse of process, while maintaining the high bar for obtaining a stay of proceedings.
The leading case in this area prior to Abrametz was Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44. Blencoe required an assessment of the following questions:
1. Whether the delay was inordinate;
2. Whether the delay caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected; and
3. Whether the harm to the public interest as a result of the delay exceeds the harm to the public interest in halting the proceedings.
In Abrametz, the SCC restated the test as follows (at para. 110):
1. First, the delay must be inordinate. This is determined on an assessment of the context overall, including 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. Second, the delay itself must have caused significant prejudice (prejudice is “significant” when it is “of such magnitude that the public’s sense of decency and fairness is affected” (para. 68)); and
3. When these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute.
In restating the test, the Court also made the following modifications and clarifications.
Delay
While the first element is largely restated, there are some helpful clarifications.
First, the delay is calculated from the start of the investigation until a decision (here, the stay decision) is rendered. The guiding principle is that the clock starts when the tribunal’s obligations begin. Because the LSS owes a duty of procedural fairness to those it investigates, which continues throughout the discipline process, that is when the clock started in this case. While the SCC does not say so explicitly, logic dictates that delay in rendering a penalty decision will count as well.
Second, the Court cites sexual misconduct allegations as an example of cases that may require lengthier investigations. This is a welcome clarification that should enable regulators to conduct such proceedings in a trauma-informed manner, which may result in some delay.
Prejudice
This element is also largely restated. However, the Court cites cases where disbarment might be ordered as an example of where delay may “be welcomed by the affected party” rather than cause prejudice, as it may enable the person to continue practicing (para. 67). It is arguable that cases involving potential loss of licensure could give rise to a greater level of stigma and prejudice for the practitioner – which a lengthy delay might then exacerbate. The Court’s reasoning instead suggests that prejudice will be more difficult to establish in such cases. This may also result in after-the-fact justifications for delay where practitioners make abuse of process applications after findings on the merits.
Abuse of Process
This element is substantially revised from Blencoe.
In Blencoe, the majority called for a balancing test and concluded that it could not be said that there was an abuse of process (Blencoe at para. 134). In Abrametz, although the Court rejected the suggestion that Jordan should apply in the administrative context, the Court proceeds to lower the standard for finding an abuse of process. It expressly adopts the standard found in the minority reasons in Blencoe, while preserving the high standard for a stay (para. 44). Instead of a balancing test, courts and tribunals must ask whether the delay has been “manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute” (para. 72).
This is a welcome clarification. Previously, Blencoe had been criticized for conflating the standard for a stay of proceedings with the standard for a finding of abuse of process.[1]
Remedies
The Court goes on to clarify the range of remedies available, including (but not limited to) internal tribunal remedies like expedited processes, as well as mandamus, stays, reductions in sanctions and costs, emphasizing that stays should issue only in the clearest of cases.
In addition to lowering the standard for a finding of abuse of process, the emphasis on the wide range of remedies will likely encourage courts and tribunals to more readily find that delay has resulted in an abuse of process.
Standard of Review
As in the court below, the SCC held that the question of whether there was an abuse of process is a question of law, for which the standard of review is correctness.
However, the Court treated all of the sub-issues as involving questions of fact or mixed fact and law (para. 104), including the attribution of periods of delay to different parties, reviewable on a standard of palpable and overriding error (paras. 109, 115-116). Similarly, prejudice “is a question of fact” (para. 69), and the overall issue of significant prejudice is reviewable on a standard of palpable and overriding error (para. 124)
We noted in our earlier blog that this decision could prove important for professional regulators with appeals clauses. The upshot of the decision is that such regulators are likely to receive significant deference in their analysis of the relevant factors. Unlike the Court of Appeal below, the SCC does not engage in the vigorous assessment of the evidence, instead confining itself to whether there was an evidentiary basis for the findings.
Further, the SCC diverges from the criminal context where certain sub-issues in delay cases are reviewable on the non-deferential standard of correctness.
In particular, when dealing with unreasonable delay in the criminal context, the question of who bears responsibility for delay results in some particularly fine parsing and questions of the allocation of delay (whether as defence delay, institutional delay, etc.) is reviewable on a standard of correctness.[2]
The Court in Abrametz does not engage in this fine parsing of the steps in the analysis, and only the ultimate decision is subject to a standard of correctness. The allocation of periods of delay as a question of law is totally absent from Abrametz and appears to be subsumed in the question of who bears responsibility – and therefore will be reviewed on a deferential standard.[3]
This means that decisions of tribunals with appeals clauses will receive significant deference on each of the relevant factors. Notwithstanding that the overall conclusion on abuse of process is a question of law, it will likely be difficult to overturn decisions addressing that question.
Takeaways
1. The bar for finding abuse of process resulting from delay is now lower, but any such finding will likely only result in remedies less drastic than a stay of proceedings. Stays will remain rare.
Administrative tribunals with appeals clauses will receive significant deference on their assessment of the relevant factors, though the overall question of whether there is an abuse of process is reviewable on a standard of correctness.
Footnotes
[1] E.g., Robertson v. British Columbia (Teachers Act, Commissioner), 2013 BCSC 1699 (rev’d but not on this point 2014 BCCA 331) at para. 120
[2] R. v. Virk, 2021 BCCA 58 at paras. 23-24
[3] The dissenting reasons of Cote J. note this particular divergence (paras. 182-185).