Oct 15, 2020

Staying Discipline Orders During an Appeal

Abrametz v The Law Society of Saskatchewan, 2019 SKCA 21 (CanLII)

The question of whether a discipline order is stayed (or halted) when there is an appeal to court depends on the applicable statute. In Abrametz v The Law Society of Saskatchewan, 2019 SKCA 21, <http://canlii.ca/t/hxp2j> the legislation provided that the disbarment of the practitioner took effect immediately unless the court ordered a stay. Mr. Abrametz was disbarred for conduct related to his management of trust accounts. Mr. Abrametz requested a stay of the order until the appeal was heard, with conditions of ongoing supervision. The Law Society opposed the request and argued that the Court had no jurisdiction to impose conditions (it could only impose a stay or not).

The Court granted a stay and found that the authority to impose a stay included the authority to impose terms and conditions.

The usual three-part test applied to the motion: (1) whether the appeal raised serious issues; (2) whether the practitioner would suffer irreparable harm if the stay was not granted; and (3) whether the balance of convenience favoured granting a stay. Mr. Abrametz raised some arguable issues. The Court indicated that common sense indicated that he would suffer irreparable harm by way of significant economic hardship in having to close his practice and then rebuild it up again if he was successful on the appeal. In addition, his clients would experience delays and additional costs in having to locate another lawyer mid-way through their cases. The Court considered the public interest in commencing the sanction now that a finding was made and maintaining public confidence in the profession. However, those considerations were outweighed by the harm to the practitioner on the facts of this case. On this balance of convenience assessment, the Court was particularly influenced by the fact that the public would be protected by the supervision terms and conditions. They were similar to those imposed on the practitioner for the almost six years while the investigation and hearing took place. Also, the hearing of the appeal was scheduled on an extremely timely basis.

The Court indicated that stay decisions would depend very much on the facts of the case.