The Decision of the Supreme Court of Canada in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29: Procedural Fairness, Undue Delay and Remedial Flexibility

As regular readers know, I was counsel for the Law Society of Saskatchewan (with Alyssa Tomkins and Charles Daoust) in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29. By a majority of 8-1, the Supreme Court of Canada (Rowe J for the majority, Côté J dissenting) allowed our appeal from the decision of the Court of Appeal for Saskatchewan: 2020 SKCA 81.

The case was about undue delay in administrative law. The Law Society had brought disciplinary proceedings against A for various acts of malpractice. The proceedings took several years to conclude. When A was found by a Hearing Committee to have engaged in conduct unbecoming a lawyer, he was disbarred with no right to reapply for membership in the Law Society for a period of two years. The Hearing Committee provided detailed reasons for rejecting A’s argument that the proceedings had been indelibly tainted by undue delay: 2018 SKLSS 8.

On appeal, the Court of Appeal held that the delay was undue, leading to an abuse of process, and consequently that the proceedings against A should be stayed (though it left the findings of misconduct untouched).

Whether the Court of Appeal was faithfully applying the standard for undue delay in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307, or had rather invigorated undue delay in administrative law by reference to the seminal criminal law decision in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631 is debatable. The Law Society took the view, both in its application for leave to appeal and on the merits, that the Court of Appeal had invigorated undue delay. A disagreed, seeing the Court of Appeal’s decision as an application of settled principle. All could agree, however, that the Court of Appeal decision was well-written, erudite and scholarly and provided a solid platform for the Supreme Court (assisted by the parties and a battery of interveners) to consider the law on undue delay.

Our argument on appeal had two principal foundations. First, the Court of Appeal had failed to give appropriate deference to Hearing Committee’s careful, considered analysis of A’s undue delay argument. Second, there was no basis for invigorating the law on undue delay, by analogy to Jordan or otherwise; indeed, doing so would likely create multiple problems in Canada’s administrative justice systems.

In the end, the majority of the Supreme Court sided with us on these two points.

First, as to deference, the appellate standards of review applied as this was a statutory appeal from the Hearing Committee to the Court of Appeal. Accordingly, questions of law — such as whether there had been undue delay — were subject to review on a correctness standard (at para. 30) but the Hearing Committee’s findings of fact and conclusions of mixed fact and law could only be interfered with for palpable and overriding error (at para. 29):

The Court of Appeal did not err in identifying the applicable standard of review: paras. 71-75. However, it failed to apply it properly. Deference should have been accorded to the Hearing Committee as to its findings of fact and of mixed fact and law. It was not. Instead, the Court of Appeal made its own findings of fact. With respect, this was not open to them (at para. 105).

We did not argue that the appellate standards of review applied, as Rowe J found. Rather, our position was that under the Supreme Court’s procedural fairness jurisprudence, a “margin of deference” was owed by the courts to the Hearing Committee. Rowe J’s analysis brought him to the same conclusion: it was “not open” to the Court of Appeal to substitute “its own findings of fact”.

Second, the Supreme Court rejected the invitation to invigorate the law on undue delay. Rowe J accepted that inordinate delay is “contrary to the interests of society” and “undermines a key purpose for which such decision-making authority was delegated — expeditious and efficient decision-making” (at para. 45). Nonetheless, any analogy with criminal law could not hold:

Jordan deals with the right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedom. No such Charter right applies to administrative proceedings. As such, there is no constitutional right outside the criminal context to be “tried” within a reasonable time. There are fundamental differences between criminal and administrative proceedings: Blencoe, at paras. 88-96. A human rights body’s investigation is aimed at determining what took place and seeks to settle the matter in a non-adversarial manner. The purpose of human rights proceedings is to eradicate discrimination, rather than to punish an offender: Blencoe, at paras. 94 and 126. Similar distinctions can be drawn between disciplinary and criminal matters. While the former are intended to regulate professional conduct within a limited private sphere of activity, the latter is intended to maintain public order and welfare for the broad public: R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, at p. 560 (at paras. 47-48).

To justify a remedy, therefore, delay must be “inordinate” and cause “significant prejudice”: if these criteria are satisfied, an abuse of process will be found when “the delay is manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute” (at para. 72). Only in such circumstances will a remedy be appropriate. At the remedial stage, it is necessary to address the “degree” of prejudice suffered: a “high” degree of prejudice is required to justify a stay of proceedings, whereas “lesser” prejudice will justify less dramatic remedies, such as reductions in sanctions and/or costs (at para. 90).

Accordingly, the high bar set out in Blencoe for granting remedies for abuse of process remains intact.

The Law Society had argued, in the alternative, that if Blencoe were to be revisited, for instance by lowering or removing the prejudice requirement, it would be appropriate to adopt a proportionality test, with courts and tribunals using a wide range of remedial measures to respond to varying types of delay and prejudice. Given the Supreme Court’s findings on these two points, it was not necessary for Rowe J to address remedy in detail.

In future posts, I hope to go into further detail on the Supreme Court’s decision in Abrametz (including Côté J’s dissent), specifically the standard of review for procedural fairness; the difficulties with an aggressive approach to undue delay in administrative law (with particular reference to professional discipline); and the scope (if any) for creative counsel to seek remedies for undue delay post Abrametz.

This content has been updated on August 23, 2022 at 17:29.