Abus de procédure causés par des délais indus : La Cour suprême du Canada maintient la ligne dure (article en anglais)

In the majority decision in Law Society of Saskatchewan v Abrametz ("Abrametz"), the Supreme Court of Canada ("SCC") provides key guidance on the legal principles for abuse of process caused by undue delay in administrative proceedings.^[1] The majority reaffirms the high threshold required to establish undue delay amounting to an abuse of process, holding that the existing three-stage test applies. The test requires that the delay: (1) was inordinate; (2) directly caused significant prejudice; and (3) was manifestly unfair or otherwise brought the administrative of justice into disrepute.

Abrametz overturns the Saskatchewan Court of Appeal's decision, which had arguably lowered the threshold for finding that delay by regulators in administrative proceedings amounts to an abuse of process. The majority's decision re-establishes a high threshold that delay amounts to an abuse of process rendering it more difficult for regulated individuals such as brokers, legal professionals or health professionals across the country to obtain a stay of proceedings on the basis of inordinate delay.

Background

Mr. Abrametz is a lawyer in Saskatchewan who became the subject of an audit investigation in 2012. The resulting investigation and prosecution was a long road. Six years later, in 2018, the Law Society Hearing Committee found Mr. Abrametz guilty of four counts of conduct unbecoming of a lawyer and he was disbarred. During the investigation, Mr. Abrametz was allowed to continue practicing, subject to certain conditions such as oversight.

Following the Hearing Committee's decision on conduct, Mr. Abrametz applied for a stay of proceedings based on delay. A stay of proceedings is viewed as the ultimate remedy for abuse of process in an administrative proceeding considering that the underlying charges will not be dealt with at all. The Committee ultimately dismissed Mr. Abrametz's application for a stay and at the same time issued its penalty decision ordering his disbarment. Mr. Abrametz appealed the underlying misconduct order, the stay decision and the penalty.

The Court of Appeal upheld the finding of professional misconduct but allowed Mr. Abrametz's appeal with respect to the administrative delay. The Court stayed the proceedings and set aside the penalty. In rendering its decision, the Court of Appeal set aside the findings of the Hearing Committee on the length and causes of the delay. The Court of Appeal held that there was a 53-month delay from the start of the investigation to the disciplinary hearing. While 18 months were attributable to the reasonable process of an investigation and 2.5 months were attributable to Mr. Abrametz himself, the Court of Appeal also set aside the Court of Appeal's findings on prejudice, finding that Mr. Abrametz had suffered from significant prejudice that was caused by delay. Mr. Abrametz had been monitored for high blood pressure and had been practicing under a cloud of suspicion, stress, and intrusive restrictions (i.e. supervision) for longer than necessary.

The Court of Appeal commented that its decision might be characterized as invigorating the principles applicable to abusive delay with concepts of access to justice. In doing so, the Court noted the "insidious effects of delay in judicial and administrative proceedings" and highlighted developments in civil cases and in the criminal context, including the Supreme Court decision in Jordan,^[2] regarding the need for timely justice in a free and fair society.

Supreme Court of Canada decision

The majority of the SCC allowed the Law Society's appeal, remitted the matter back to the Court of Appeal to address penalty, and reaffirmed the high bar for establishing abuse of process for undue delay previously established by the SCC in Blencoe.^[3] The majority ruled that the Court of Appeal erred in staying the proceedings and restored the Hearing Committee's findings that the administrative delay was not inordinate, that there was no significant prejudice and there was therefore no resulting abuse of process.

The majority confirmed that an administrative delay must meet a three-step test in order to amount to an abuse of process. First, the delay must be inordinate. Second, the delay must have directly caused significant prejudice, such as psychological harm, stigma, loss of opportunities or extended and intrusive media attention. Third, if the first two elements of the test are satisfied, the delay will amount to an abuse of process if it is manifestly unfair to the party or in some other way brings the administration of justice into disrepute.

Writing for the majority, Justice Rowe addressed four key issues:

1. Rejection of criminal law standard of undue delay: The SCC rejected calls to "Jordanize" the test for abusive delay in administrative proceedings, noting there are fundamental differences between criminal and administrative proceedings. (In Jordan, the SCC recognized that, in the criminal law context, inordinate delay is prejudicial in and of itself after specific timeframes.)
2. Waiver of delay: The SCC noted that delay can be explicitly or implicitly waived by the regulated individual. For example, delay can be waived if the individual did not object to a suspension of proceedings while other investigations proceeded and acts in a way that suggests they acquiesced to such delay.
3. Appropriate remedies arising from undue delay: The SCC held that a stay of proceedings should only be granted in the clearest of cases, given that halting proceedings may result in harm to the public. The SCC emphasized there is remedial flexibility in dealing with abusive delay. Several other remedies are available, such as a reduction in sanction or costs award.

In cases where the delay does not meet the threshold for a stay, but still caused significant prejudice, the public interest can be properly served by continuing the proceedings while offering some form of compensation to the regulated individual. The SCC clarified that under no circumstances should any adjustment of a penalty "undermine the purposes of the disciplinary process" in terms of protecting the public or maintaining confidence in the administration of justice. 

4. Standard of Review: The SCC took the opportunity to clarify the standard of review applicable to questions of procedural fairness and abuse of process in the context of a statutory appeal. The SCC held that appellate standards of review are to be applied where the legislature allows parties to appeal from an administrative decision maker, like the Law Society, to a court. As a result, the standard of review for questions of law is correctness and the standard of review for fact and of mixed fact and law is palpable and overriding error.

The SCC found that while the Court of Appeal identified the applicable standard of review, it failed to properly apply it because the Court of Appeal failed to show deference to the Hearing Committee as to its findings of fact and of mixed fact and law. The SCC explained that the Court of Appeal substituted its own findings of fact with respect to the complexity of the investigation and delay because it disagreed with the weight assigned to the underlying evidence, which is incorrect. An error is palpable if it is plainly seen and if all the evidence does not need to be reconsidered to identify it, and it is overriding if it has affected the result.

When the majority applied the standard of palpable and overriding error to the evidence, it held that there was no basis for the Court of Appeal to set aside the Hearing Committee's findings. The majority found the delay was neither inordinate nor unacceptable given the complexity of the matter, the extent of the investigation and the delay attributed to Mr. Abrametz's conduct. Any prejudice that Mr. Abrametz may have experienced as a result of the delay was not so significant that continuation of the process would be so unfair to him that the public's sense of fairness would be harmed, having regard to the Law Society's mandate to protect the public.

In dissent, Justice Coté agreed with the Court of Appeal's analysis and criticized the majority's test for abuse of process as onerous, inviting complacency in administrative proceedings. Justice Coté found the majority conflated the doctrine of abuse of process with the test for a stay of proceedings, noting that the latter is only one of the remedies available to compensate the applicant for the abuse they have suffered. Justice Coté explained that the test for abuse of process is flexible and simply requires the court to determine whether the impugned conduct undermines adjudicative fairness or the integrity of the justice system. Once demonstrated, the next step in the analysis is for the court to determine the appropriate remedy in the circumstance, which could be a stay of proceedings. Conversely, the test for a stay of proceedings is only met in the clearest of cases, where the applicant satisfies specific, stringent requirements. For these reasons, Justice Coté found the Court of Appeal correctly sanctioned the abuse of process by ordering that the penalty for professional misconduct, but not the convictions, be set aside.

Significance of the decision

On the issue of standard of review, the majority provided clarification that the Housen^[4] framework applies to all aspects of a statutory appeal. Notwithstanding that delay falls under the umbrella of procedural fairness, deference will be accorded to findings of fact and mixed fact and law made by decision-makers in relation to the procedure followed.

The decision reaffirms Blencoe, and the bar remains very high for any stay applications for administrative delay. Abrametz confirms that for the purposes of assessing delay, the timing for analysis begins at the investigative stage and continues until a decision is rendered. With respect to making findings of abuse of process, the administrative decision maker or court will take into consideration the role of waiver and acquiescence, as well as the remedial flexibility that exists. Consequently, regulated members will need to actively resist delay and regulators will need to ensure that there are not long periods of unexplained delay and that adequate resources are devoted to investigations/prosecutions. 

Should you have any specific questions about this article or would like to discuss it further, you can contact the authors.

Disclaimer: Alyssa Tomkins was counsel for the Appellant, Law Society of Saskatchewan and the article does not reflect the views of the Law Society of Saskatchewan.