Administrative law proceedings are unique in that they are argued before tribunals and boards, instead of in court. The process can vary depending on the body hearing the matter, making administrative hearings somewhat complex to manage. While these proceedings are managed independently, both the process and the outcome may be subject to judicial review in certain circumstances.
Just like a trial, administrative proceedings must be inherently fair to the participants. One way for a hearing to be unfair is if there is a lengthy and unnecessary delay. The Supreme Court of Canada will soon be considering a matter out of Saskatchewan to make a determination of whether a five-year investigation and hearing unfairly prejudiced the respondent in the matter. The decision could have implications for the timing of public law proceedings across the country.
Administrative Investigation and Hearing Lasts for Five Years
The Supreme Court of Canada has granted leave to appeal a Saskatchewan Court of Appeal case that revisits the legal edifice of undue delay in administrative proceedings. The case in question, Abrametz v Law Society of Saskatchewan, (Abrametz), centres on some of the core principles concerning delays in administrative proceedings, established in a turn of the millennium Supreme Court decision, Blencoe v British Columbia (Human Rights Commission) (Blencoe).
In 2012, the Law Society of Saskatchewan (LSS) launched an investigation into the accounts of Saskatchewan lawyer, Mr. Abrametz, as a result of irregularities, including suspected tax evasion. After several years of investigation, the LSS issued a decision in 2018, finding four counts of misconduct. The convictions were for breaches of the Law Society of Saskatchewan Rules as well as the Code of Professional Conduct. The lawyer subsequently applied for a stay of proceedings based on delay, which was dismissed. The LSS Hearing Committee held that the time that had passed between the onset of the audit investigation and the decision, 60 months in total, did not constitute an undue delay. In 2019, the LSS Hearing Committee ordered that Mr. Abrametz be disbarred, with no right to apply for readmission as a lawyer before January 1, 2021.
Although Mr. Abrametz identified five grounds of appeal, the Saskatchewan Court of Appeal granted an appeal based on his fourth ground, namely, that the LSS Hearing Committee erred in its decision, which dismissed Mr. Abrametz’s application to stay the proceedings as a result of undue delay, which according to him, constituted an “abuse of process or a breach of natural justice.”
Blencoe and Undue Delay Revisited
In Abrametz, the Court of Appeal considered two prime takeaways from the Supreme Court’s decision in Blencoe regarding fairness and abuse of process. With respect to fairness, Bastarache J. noted for the majority in Blencoe that where a delay in an administrative process impairs a party’s ability to answer the complaint due to the consequences of the passing of time, “the administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy.”
The other chief takeaway from Blencoe raised by the Court of Appeal is that an administrative delay may amount to an abuse of process under the following circumstances:
- The delay can be attributable to the administrative body;
- The delay is “so inordinate as to be clearly unacceptable;” and
- The delay caused actual prejudice to the respondent.
In Blencoe, the Supreme Court noted that determining whether a delay is unacceptable is a subjective consideration. A court must look at factors including “the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay, and other circumstances of the case.”
Court of Appeal Finds Undue Delay Predjudiced Respondent
In the case at hand, the Court concluded that there was an inordinate delay in the LSS proceedings against Mr. Abrametz, which constituted an abuse of process. Importantly, the Court determined that 32.5 months of the process amounted to undue delay, as this time was neither attributable to Mr. Abrametz nor inherent to the process itself. The delay was found to have caused significant prejudice to Mr. Abrametz, namely stigma and stress that contributed to his high blood pressure, and which was “a result of the lapse of time” in the process.
The Court of Appeal also found several errors on the part of the LSS Hearing Committee. First, the Committee erred as to whether the delay caused prejudice of sufficient magnitude to Mr. Abrametz by not considering the prejudice under the Blencoe criteria. Second, the Committee erred by discounting the fact that Mr. Abrametz had been forced to practice under intrusive conditions, among other errors.
In weighing competing interests, the Court underscored that the LSS’s findings in the matter justified disciplinary action. Nevertheless, Mr. Abrametz did suffer significant prejudice. The Court further noted that no client complaints were ever filed against the lawyer. He was not found to have misappropriated funds, and he practiced under significant restrictions for four years without incident. Finally, by the time the application was heard by the Committee, Mr. Abrametz had “paid a heavy price” for his misconduct, and the “public’s interest in enforcement had been well served.”
As such, the Court concluded that all of these factors led to a finding that the delay was inordinate and had caused prejudice against Mr. Abrametz.
This case highlights the importance of ensuring administrative procedures are handled in a timely manner, or risk causing predjudice. The Supreme Court may have to answer some lingering questions, such as, how long is too long in an administrative procedure, and whether a ceiling amount of time can be imposed.
Ottawa Administrative & Public Law Lawyers
At Tierney Stauffer LLP, our experienced administrative law lawyers will help you navigate your administrative law issues with precision before boards, agencies, and tribunals at the municipal, provincial, and federal level. Our lawyers have extensive experience representing individuals as well as corporate clients before various public law bodies on a wide range of administrative issues. To discuss your matter with a member of our team, contact Tierney Stauffer LLP in Ottawa at 1-888-799-8057 or contact us online to schedule a confidential consultation.