Law Society of Sask v Abrametz: Revisiting Delay in Administrative Proceedings

How long is too long to wait for an administrative procedure to run its course? Has the answer changed given increasing focus on improving access to justice in the court system? Or does the COVID-19 pandemic potentially call for a total rethink of existing administrative law rules?

The Supreme Court of Canada (“SCC”) will consider some of these questions in the upcoming case of Law Society of Saskatchewan v Peter Abrametz (39340). The Court has been asked to revisit the framework for administrative delay established in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe]. This comes after the Saskatchewan Court of Appeal (“SKCA”) arguably lowered the high threshold for finding that delay amounts to an abuse of process warranting a stay of proceedings.

The Test for Undue Delay

In Blencoe, the SCC held that a delay of more than 30 months between the filing of a human rights complaint and the scheduled hearing did not warrant a stay in favour of the respondent. The Court also confirmed that administrative proceedings are not covered by the right to be tried in a reasonable time under s 11(b) of the Canadian Charter of Rights and Freedoms.

Where delay does not impact the fairness of a hearing (e.g., through loss of evidence), it may still constitute an abuse of process in narrow circumstances. The delay must be attributable to the administrative body; be so inordinate to be clearly unacceptable; and have directly caused significant prejudice to the respondent (Blencoe, paras 115, 133). Whether delay is unacceptable requires considering contextual factors such as the nature of the case and its complexity, the purpose of the proceedings, and whether the respondent contributed to or waived the delay (Blencoe, para 122).

Prejudice may include significant psychological harm to a person or stigma attached to their reputation where this is sufficient to bring the administrative system into disrepute (Blencoe, para 115). However, prejudice must flow from the delay itself, and not simply the fact that a person is subject to an administrative process or sanction. In Blencoe, the Court suggested that the harm to the defendant was really the result of media coverage rather than the proceeding itself (Blencoe, para 133). Finally, even where prejudice is found, a stay will only be granted where the damage to the public interest in a fair process exceeds the public interest in enforcing the relevant legislation (Blencoe, para 120).

Since Blencoe was decided, court backlogs have received increasing public and judicial attention. In Hryniak v Mauldin, 2014 SCC 7, the SCC advocated for a culture shift in civil litigation through increased use of summary judgment procedures. More dramatically, in R v Jordan, 2016 SCC 27 [Jordan], the SCC created time ceilings in criminal proceedings beyond which delay is presumptively unreasonable under s 11(b) of the Charter. Jordan took direct aim at what the Court described as “a culture of complacency” toward delay in the criminal court system (Jordan, para 4). The question in Abrametz was whether these parallel developments should influence the interpretation and application of the Blencoe test.

Facts and Tribunal Decision

Peter Abrametz (“Mr. Abrametz”) was found guilty of four counts of misconduct related to improper use of funds by the Law Society of Saskatchewan (“LSS”). An audit investigation was triggered in 2012 by irregularities relating to a lawyer with whom Mr. Abrametz shared a trust account. In January 2013, the LSS prepared a Notice of Intention to Interim Suspend Mr. Abrametz. He signed an undertaking to practice under the supervision of an approved LSS member. A second Notice was issued in November 2014 after the auditor completed a final report. Around that time, Mr. Abrametz objected to the requested disclosure of various tax records, which resulted in bifurcated proceedings and a separate application for judicial review. In October 2015, the LSS issued a report recommending seven charges based on the initial Notices. Hearings were eventually held between May and September 2017.

In January 2018, the LSS Hearing Committee (“Committee”) found Mr. Abrametz guilty of four counts of misconduct in Law Society of Saskatchewan v Abrametz, 2018 SKLSS 8. Mr. Abrametz had issued trust account cheques to a fictitious person and falsified their signature in order to transfer funds to himself. He also improperly loaned money to clients without ensuring that they had a reasonable opportunity to obtain independent legal advice or waive the conflict of interest. The Committee found he breached his fiduciary duty by charging excessive fees and interest on loans or advances to clients. There was an appearance of undue influence because Mr. Abrametz was often the last resort for individuals who were waiting for insurance benefits to replace lost earnings. Some of these clients were homeless, had no bank account, or faced literacy challenges.

Following the decision, Mr. Abrametz applied for a stay of proceedings based on delay. The Committee dismissed his application in November 2018 (reported at the same citation as above). It determined that the over 60 months between the start of the investigation and the conduct decision was not inordinate given the complexity of the case, the size of the investigation, and the delay attributable to Mr. Abrametz’s conduct. Any prejudice experienced from the delay was not so significant that continuing the process would taint the proceedings, especially in light of the regulator’s duty to protect the public.

In January 2019, the Committee ordered that Mr. Abrametz be disbarred, with no right to apply for readmission before January 2021. Mr. Abrametz appealed the conviction, stay, and penalty decisions directly to the SKCA pursuant to s 56(1) of The Legal Profession Act, 1990, SS 1990-91, c L-10.1. The SKCA stayed his disbarment pending the appeal.

Saskatchewan Court of Appeal Decision

In Abrametz v Law Society of Saskatchewan, 2020 SKCA 81 [Abrametz], the court allowed the appeal in part. Justice Barrington-Foote, writing for a unanimous panel, found the Committee had erred in dismissing the stay application. He stayed the LSS proceedings and set aside the imposed penalty, but maintained the findings of professional misconduct. The SKCA was critical of the LSS, observing that “the facts in this case tell a troubling and disappointing story about a regulator that should, given its mandate, resources and composition, be a model to others” (Abrametz, para 5).

Was the delay unacceptable?

The SKCA limited its analysis to the 53 months between the start of the investigation and the beginning of the conduct hearings. Of this period, the court found that only 2.5 months were attributable to Mr. Abrametz and 18 months were inherent to the process, leaving 32.5 months of undue delay. The Committee erred in concluding that the investigation was particularly complex or that Mr. Abrametz had been uncooperative beyond the tax records issue. Much of the court’s reasons focused on the lack of explanation provided for delays and the limited time that LSS staff actually spent on the file. Justice Barrington-Foote concluded the delay “so grossly exceeded the inherent requirements of this case as to be ‘clearly unacceptable’ within the meaning of Blencoe” (Abrametz, para 197).

Did the delay cause prejudice?

The SKCA found that Mr. Abrametz suffered significant prejudice as a result of the delay. In its stay decision, the Committee accepted that Mr. Abrametz had experienced “some degree of stress” from the allegations and investigation, apparently leading to high blood pressure. In the court’s view, this prejudice was worsened because it “lasted far longer than it would have” had there been no delay (Abrametz, para 200).

The Committee also erred by discounting the impact of practicing under intrusive supervision requirements, since the benefits of these conditions to the public were only relevant to the final weighing analysis. Similarly, it was not appropriate for the Committee to consider that the misconduct charges were later substantiated. Instead, the fact that the misconduct allegations were posted on the LSS website apparently supported a finding of greater prejudice. The court suggested that “[d]elay has taken on a new meaning in the online age” (Abrametz, para 213).

Did the public interest support issuing a stay?

In balancing the competing harms to the public interest, the court noted that while the allegations clearly justified disciplinary action, the prejudice to the practitioner was also serious. Mr. Abrametz did not misappropriate funds, no clients had filed complaints, and he had practiced for years under significant restrictions without other concerns arising. Justice Barrington-Foote concluded this was a case where “the delay would bring the LSS disciplinary process into disrepute” and “the public’s sense of decency and fairness would be offended” (Abrametz, para 215).

Issues on Appeal

In its application for leave to appeal, the LSS argued that the SKCA “supercharged” Blencoe in light of parallel developments in criminal and civil procedure. Indeed, Justice Barrington-Foote framed his decision with discussions of recent legal trends including Jordan, access to justice, the digital era, and “the insidious effects of delay in judicial and administrative proceedings” (Abrametz, para 6). He characterized his application of Blencoe as “invigorating the principles which animated that decision” (Abrametz, para 212). These themes clearly influenced the court’s application of the undue delay framework to Mr. Abrametz’s case.

Blencoe also requires proving prejudice caused by delay rather than some other factor. Admittedly, this causation test is elusive and difficult to meet. In the criminal context, the SCC has now clearly stated that prejudice will be presumed beyond a certain point. The SKCA similarly appeared to accept that the mere length of delay may cause prejudice by worsening the harm experienced from a charge or complaint. This arguably lowers the bar for finding sufficient prejudice, even if the exact threshold remains fact-specific.

The LSS suggests the SKCA’s approach will have several adverse impacts. Regulators may feel pressured to rush proceedings; forego use of less onerous conditions (such as supervised practice) in favour of immediate sanctions; and decline to wait for the conclusion of parallel criminal or civil matters. In contrast, Mr. Abrametz will likely argue that Blencoe set an impossibly high standard and that revisiting it is warranted.

The Resource Problem

It seems unlikely that the SCC will go the way of Jordan by imposing numerical time ceilings in a realm as diverse as administrative law. The COVID-19 pandemic demonstrates that even bright-line procedural rules must be able to accommodate unexpected circumstances. At the same time, it is an open question whether courts will continue to tolerate resource excuses in the administrative sphere.

Outside of abuse of process, an administrative decision-maker’s duty of procedural fairness is determined with reference to the contextual factors from Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker]. This includes respect for “the choices of procedure made by the agency itself” (Baker, para 27). The LSS suggests that when Baker is added to Blencoe, some deference should be afforded to its internal decisions on how best to handle investigations. However, this factor has also been criticized for building “institutional constraints” into the question of whether a process is fair. To the extent that access to justice is a resource distribution problem, this may provide governments with an excuse to limit procedural protections on the basis of alleged resource scarcity.

Similarly, the extremely high bar for finding undue delay has not provided much of a constraint on government actors, despite the Supreme Court’s warning that “[l]ack of resources cannot…justify inordinate delay where it is found to exist” (Blencoe, para 135). Ontario’s tribunals provide a good example. Recently, the province has been criticized for failing to appoint new adjudicators (or appointing unqualified members) to bodies such as the Human Rights Tribunal. This has contributed to years-long delays, an ombudsman investigation, and a court challenge. Whether courts can meaningfully address any of these issues through the doctrine of undue delay remains unclear. For its part, the LSS suggests that courts should more actively consider “creative” remedies other than a stay of proceedings, such as costs awards, orders for speedy resolution, and reductions in penalty. These issues will be front and centre when the SCC hears Abrametz.