Oct 27, 2020

“Invigorated” Undue Delay Scrutiny

Abrametz v Law Society of Saskatchewan, 2020 SKCA 81 (CanLII)

Given the strict judicial scrutiny of delays in criminal cases, regulators have been wondering whether those principles would creep into the professional discipline arena. Saskatchewan’s highest court has said yes in Abrametz v Law Society of Saskatchewan, 2020 SKCA 81, http://canlii.ca/t/j8jf3. In that case the lawyer had been the subject of extensive, and hotly contested, investigation into his trust accounts. While there had been no misappropriation of funds, the lawyer was found to have disregarded the rules in a dishonest way, possibly to conceal income from the tax authorities. He also was found to have made loans to clients without full disclosure and charging excessive fees for the loans.

The Court engaged in a technical analysis as to when deference will be accorded to the decisions of a disciplinary tribunal. In applying the Vavilov[1] principles, the Court held that the standard of review on the interpretation of regulatory rules and codes of conduct (similar to the by-laws enacted by many regulators) should be reviewed according to the correctness standard where there is a statutory right of appeal. The previous deference given to regulators in the interpretation of their own regulatory rules no longer applies. Similarly, on the issue of whether a delay was excessive and amounts to an abuse of process, the Court said that this was a procedural fairness issue which should also be reviewed on a correctness standard. No deference should be afforded to the views of the discipline tribunal hearing the case.

On the issue of whether the delay was excessive, the Court discussed the criteria established by in the Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, http://canlii.ca/t/525t case:

For a court to intervene on this ground, it must be satisfied that there has been both inordinate delay caused by the administrative entity, and prejudice of a certain order attributable to that delay. The following principles identified in Blencoe reflect these requirements:

1. The period of delay must be so inordinate as to be clearly unacceptable (at paras 115 and 121). Whether a delay is inordinate turns on contextual 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” (at para 122).

2. The party claiming abuse of process must show that the inordinate delay “directly caused [them] a significant prejudice” that is related to the delay itself (at para 115, emphasis added). In order for there to be abuse of process, “the delay must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected” (at para 133).

3. The analysis requires a weighing of competing interests. “In order to find an abuse of process, the court must be satisfied that ‘the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted’” (at para 120).

4. A stay is not the only remedy available in administrative law proceedings. However, where a respondent asks for a stay, they will bear a heavy burden (at para 117). A finding of abuse of process is available only in the “clearest of cases” (at para 120).

The Court conducted a detailed analysis of the 53-month delay from the initiation of the investigation and the commencement of the hearing (having found that the length of time to conduct the hearing itself was reasonable). It found that 18 of those months as being attributable to the reasonable process of investigation, screening and hearing preparation for a case of this nature. It attributed 2½ months of the delay to the practitioner. The remaining 32½ months was attributable to undue delay. This analysis relied heavily on the evidence provided by the regulator as to the steps taken in the investigation and screening of the concerns.

The Court found that the practitioner had experienced significant prejudice caused by the delay including practising under a cloud of suspicion, stress that took the form of a medical condition, and practising under intrusive restrictions (e.g., supervision) far longer than necessary.

In balancing the competing harms to the public interest, the Court noted that the allegations were serious, relating to honesty and trustworthiness, worthy of substantial disciplinary action. However, the Court found that prejudice to the practitioner was serious and that the practitioner had practised for years under significant restrictions without other concerns arising. The Court concluded:

It is my view, taking account of all of these contextual factors, that the undue delay in this case was inordinate, and caused actual prejudice of such a magnitude that the public’s sense of decency and fairness would be offended. In these circumstances, the delay would bring the LSS disciplinary process into disrepute. This was the clearest of cases.

For these reasons, there was an abuse of process.

If the Court’s “invigoration” of the principles of Blencoe is adopted by the courts of other provinces, one can expect more frequent and, possibly, more successful challenges based on abuse of process for undue delay in disciplinary matters.

[1] In the case of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, http://canlii.ca/t/j46kb the Supreme Court of Canada established a new approach to reviewing decisions by administrative tribunals. Lower courts are now applying those principles to various types of decisions by administrative tribunals.