Deference on Questions of Procedural Fairness after Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, An Overview

In this and the following post, I will address the implications of Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 for the standard of review on procedural fairness matters (see my overview of the case here). I will suggest that the implications are potentially profound, as Abrametz suggests that procedural fairness issues should be addressed within the framework for judicial review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653. Even if the reasoning in Abrametz is confined to statutory appeals, it nonetheless presages a future in which deference is frequently accorded on questions of procedural fairness, at least where an administrative decision-maker has provided reasons for the procedural decision in issue.

Abrametz came to the Supreme Court of Canada by way of a statutory appeal to the Court of Appeal for Saskatchewan from a decision of a Hearing Committee of the Law Society of Saskatchewan.

The ultimate issue at the Supreme Court was whether there had been undue delay in the Law Society’s prosecution of A for professional misconduct. In Canadian administrative law, undue delay is an aspect of procedural fairness: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307, at paras. 100, 105-107. Accordingly, the Supreme Court had to address the standard of review on procedural fairness questions in the context of a statutory appeal.

Our submission for the Law Society was much more concise than our internal discussions about standard of review. My colleagues and I kicked the issue from one end of Ottawa to the other before eventually settling on the following:

Generally speaking, the Blencoe analysis has been treated as part of the law of procedural fairness. Courts have nevertheless consistently afforded deference to administrative decision-makers on their application of the Blencoe principles. There is also consistent jurisprudence to the effect that original findings of fact by administrative decision -makers or adjudicators are subject to significant deference, including within the context of the procedural fairness analysis. This is particularly so here, as this Court has been clear that Law Society disciplinary panels have specialized experience… Here, the Hearing Committee was composed of expert, experienced benchers. It was seized of the matter from early 2016 to early 2018. It heard live evidence over five (5) days, including from Mr. Abrametz. It reached detailed, reasoned conclusions on each of the Blencoe principles. The Hearing Committee conducted a detailed analysis of Mr. Abrametz’s Blencoe argument, explaining why there had been no undue delay on the part of the Law Society (Appellant’s Factum, at paras. 24-25, footnotes omitted).

We essentially argued that no standard of review analysis was necessary. Inherent in the Supreme Court’s own procedural fairness jurisprudence (despite the occasional references to a correctness standard) is the proposition that a “margin of deference” should be accorded to expert decision-makers who have given reasons and/or made findings of fact on procedural issues: Mission Institution v. Khela, 2014 SCC 24 at para. 89; see also Bibeault v. McCaffrey, [1984] 1 SCR 176. The same idea can be found in the abundant jurisprudence on undue delay, with significant (perhaps overwhelming) support for the proposition that an administrative decision-maker’s analysis of an undue delay claim is entitled to deference: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727 at para. 237, Nova Scotia Construction Safety Association v. Nova Scotia Human Rights Commission, 2006 NSCA 63 at para. 62; A.D.M. v. Canadian Institute of Actuaries, 2008 ABQB 522 at para. 27; see also Hennig v. Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee), 2008 ABCA 241 at para. 12.

Here, I should point out that undue delay is heavily fact-specific. Whenever an administrative decision-maker is asked to address an undue delay claim, its analysis will turn on its findings of fact. Indeed, as was the case with the Hearing Committee here, the findings of fact compel legal conclusions, in this instance that A could not make out inordinate delay or demonstrate prejudice. Justice Rowe was quite right to observe at the hearing that “fact” is a “slippery” concept in these circumstances, as findings of fact bleed into conclusions of law. In such circumstances it is difficult to avoid deferring to the front-line decision-maker who has had access to the full cast of characters involved in the matter.

There were pragmatic, precedential and principled reasons for our position.

From a pragmatic point of view, we were concerned that the Supreme Court might defer to the Court of Appeal’s factual analysis. In the Supreme Court’s case law on the appellate standards of review in private law cases can be found the proposition that factual analysis by an intermediate appellate court is entitled to deference from the Supreme Court: see e.g. Salomon v. Matte‑Thompson, 2019 SCC 14, [2019] 1 SCR 729, at para. 34. To apply this proposition in Abrametz would have been a departure from the conventional approach to public law appeals recently reaffirmed in Northern Regional Health Authority v. Horrocks, 2021 SCC 42. But Horrocks was on reserve at the time we composed our written submissions and, conscious that the Supreme Court might have taken Horrocks as an opportunity to chart a new course, we did not want to risk opening the door for the Supreme Court to dismiss the appeal due to the absence of a clear error in the Court of Appeal’s factual analysis.

For the same reason, we were reluctant to argue that abuse of process is an issue of substance subject to appellate review for palpable and overriding error rather than correctness. In addition, this has been a minority view in the jurisprudence (see Willcock JA’s dissent in Robertson v. British Columbia (Teachers Act, Commissioner), 2014 BCCA 331), even though an argument can be made that placing undue delay on the substance side of the process/substance divide would help to make sense of the case law (see the intervention of the Law Society of Alberta).

In terms of precedent, we were conscious that in Vavilov, the Supreme Court had — we thought! — expressly excluded procedural fairness from the scope of its new framework for judicial review of administrative action. Justice Côté explained this point well in her dissent in Abrametz:

With respect, the mere reference to Vavilov — a judgment that was rendered in a different context and that excluded procedural fairness review from its purview — does not suffice to oust Khela and other directly applicable precedents. Indeed, in Vavilov, at para. 23, this Court expressly excluded issues of procedural fairness from the framework developed in that case — and rightly so. The central “conceptual basis” for the presumption of reasonableness review in the Vavilov framework is “respect for the legislature’s institutional design choice to delegate certain matters to non-judicial decision makers through statute” (para. 26). Moreover, “the consideration of expertise is folded into the new starting point . . ., namely the presumption of reasonableness review” (para. 58). Neither of these considerations applies where procedural fairness is in issue (at para. 164).

As I discuss in detail below, I do not agree with Justice Côté’s analysis of the standard of review for procedural fairness questions in Abrametz but her understanding of Vavilov reflects mine. We certainly did not want to risk losing time and credibility by arguing that Vavilov should be applied to procedural fairness questions (although several interveners made skilful submissions to this effect).

Lastly, there was a principled basis for our position, although we did not articulate it in our written or oral submissions. Incorporating procedural fairness into the Vavilov framework would create an unhelpful bifurcation between procedural fairness in judicial review cases and procedural fairness in appeals. Depending on the avenue by which a matter gets to court — judicial review or appeal — a different set of standards would apply to the same questions, which would run contrary to the Vavilovian goals of simplicity and consensus. And applying the appellate standards of review to procedural fairness questions will require future courts to draw distinctions between questions of law (subject to correctness review) and questions of fact and mixed fact and law (subject to review for palpable and overriding error), distinctions which have not heretofore been made in procedural fairness cases.

In the next post, I will explain why this is now ancient history.

This content has been updated on August 26, 2022 at 00:13.