Oct 27, 2020

While excessive delay applications in the criminal process succeed with some frequency, that is not the case in regulatory law. Likely this reflects the courts’ recognition that regulatory proceedings are intended to protect the public from harm. This hesitancy is supported by the decision of the Supreme Court of Canada in Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307, http://canlii.ca/t/525t which held that not only must the delay be inordinate, it must also offend the community’s sense of fairness.

In Financial and Consumer Services Commission v Emond et al., 2020 NBCA 42, http://canlii.ca/t/j8bl4, there had been a delay of ten years. At the six year mark the Court determined that the delay had not been excessive, in part because most of it had been generated by one of the individual respondents. However, the subsequent four year delay was another matter. A full year of the delay was caused by the tribunal’s inability to find a French-speaking tribunal member. Additional delay was caused by the tribunal’s erroneous self-initiated concern about its own loss of jurisdiction. The Court said:

While there was and likely remains public interest in having the allegations determined on the merits, that interest is now outweighed by the offence caused to the community’s sense of fairness in allowing the prejudice to be perpetuated because the Tribunal was unable to, for almost a year, constitute a panel of French-speaking members to hear the matter and because the Tribunal itself again raised an issue and determined it in a manner this Court finds to be in error.

Delays caused by a tribunal will weigh heavily in such cases of extensive delay.