Remedies for Delay after Law Society of Saskatchewan v. Abrametz, 2022 SCC 29

This is the last in my series of posts on the Supreme Court of Canada’s decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (see also here, here, here and here).

Before discussing the available remedies for administrative delay in the wake of Abrametz, it is appropriate to note the dissenting reasons of Côté J. These have a particular and a general aspect. I do not have much to say about the particular aspect of her reasons, not least because I am hardly an impartial observer. She found that the Court of Appeal’s analysis was “meticulous” (at para. 194): but like the majority, I disagree that the Hearing Committee’s analysis of key issues was “brief” or otherwise problematic (at para. 191); I am also unpersuaded that the delay was “blatantly excessive” (at para. 192) given the scale of the alleged wrongdoing and the difficulty of analyzing A’s records. In short, although the particular aspect of Côté J’s dissent rewards careful reading, I respectfully think the majority’s reasons are more persuasive on delay and prejudice (though, as noted, I probably had a natural predisposition to believe this).

The general aspect of Côté J’s reasons requires detailed discussion. She took the view that the majority wrongly elevated the threshold for a finding of abuse of process:

Under the majority’s approach, even inordinate delay that directly causes significant prejudice is not per se abusive, as the last step of its test indicates. Not only is this proposition doctrinally flawed, but it results in an unduly elevated standard that is disproportionate to the remedies available for abusive delay, which range from a mere declaration to a stay of proceedings. Simply put, the majority’s test is so onerous that it invites complacency in administrative proceedings (at para. 136).

In particular, she wrote, the majority reasons “conflate the doctrine of abuse of process with the test for stays of proceedings, which are only a subset of the remedies that courts may order to sanction abusive conduct” (at para. 142). Courts have, in her view, “wide discretion to grant remedies for abusive conduct that account for the circumstances of each case” (at para. 156), guided by the proportionality principle (at para. 157).

There is no doubt that there is force to Côté J’s criticism. It would have been open to the majority to lower or eliminate the prejudice requirement but, as a quid pro quo, to introduce a requirement of proportionality between the seriousness of the delay (and perhaps prejudice) and the remedy awarded. Indeed, the majority reasons already implicitly recognize the possibility of a proportionality-based approach by noting that remedies for undue delay are arrayed along a “spectrum”. That said, the majority evidently was less concerned than their colleague about “complacency” in administrative proceedings. It is also worth noting that a feature of the post-Blencoe jurisprudence has been that alternative remedies to a stay of proceedings “are discussed in a small minority of reported decisions” (Gerald P. Heckman, “Remedies for Delay in Administrative Decision-making: Where Are We after Blencoe?” (2011) 24 Canadian Journal of Administrative Law & Practice 177, at p. 199), suggestive of a lack of judicial appetite to invigorate the law of undue delay.

Côté J also took issue with the majority’s reading of Blencoe. She argued that Blencoe was concerned with a situation where a stay of proceedings was sought (at para. 146) and, given its focus, should not be read as excluding the “more holistic” approach in LeBel J’s minority reasons in Blencoe. However, although the remedy of a stay of proceedings was evidently front of mind in Blencoe, the majority reasons were not confined to stays, as the following passage makes clear:

I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised.  Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.  The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay.  It must however be emphasized that few lengthy delays will meet this threshold.  I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process.  It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute.  The difficult question before us is in deciding what is an “unacceptable delay” that amounts to an abuse of process (Blencoe, at para. 115).

The word “stay” does not appear here at all. One can accept that LeBel J’s minority reasons set out an attractive proportionality approach to undue delay (at paras. 157-159) (indeed, this was our submission in the alternative!) but nonetheless recognize that Blencoe erects a high bar in front of applicants complaining of undue delay (which was our primary submission). The high bar was maintained by the majority in Abrametz.

What future, then, for remedies for administrative delay?

First, mandamus is available to speed up tardy decision-making. In his majority reasons, Rowe J observed:

Mandamus can be sought to compel administrative decision makers to carry out their duties and, in so doing, to limit delay in administrative proceedings: Blencoe, at para. 150. A party who believes he or she is facing undue delay can seek such a remedy, or an order for an expedited hearing, even before an abuse of process exists, rather than “waiting in the weeds” in the hopes of obtaining a stay at some future point: Blencoe, at para. 182. Mandamus may also be ordered as a remedy for an abuse of process if one is found. My comments here do not intend to change any of the standards applicable for obtaining an order of mandamus generally. They merely affirm that it may also be an appropriate tool to prevent and address abuse of process (at paras. 80-81).

There is comparative support for such an approach: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470.

Notice that Rowe J saw applications for mandamus as conceptually distinct from remedies for abuse of process: mandamus is available “even before an abuse of process exists”. In principle, then, an applicant can resort to mandamus in any case in order to speed up a tardy decision-making process (subject, perhaps, to the principle that interlocutory judicial review applications are to be discouraged): see e.g. Nilam v. Canada (Citizenship and Immigration), 2016 FC 896.

This is potentially an important development. As the Canadian Association of Refugee Lawyers pointed out in its intervention in Abrametz, many undue delay applications in respect of Canada’s immigration and refugee systems have been rejected because of the high threshold for establishing inordinate delay and prejudice. Decoupling mandamus from abuse of process has the potential to lower the threshold for judicial intervention in situations where delays are long but not quite inordinate and/or accompanied by prejudice.

However, the “standards” for obtaining mandamus remain unchanged; in Canadian law, these are very demanding and have frustrated applicants complaining of undue delay (see e.g. Skibsted v. Canada (Environment and Climate Change), 2021 FC 416, at para. 128; Tayeb Ali v. Canada (Citizenship and Immigration), 2016 FC 1051, [2017] 1 FCR 372, at para. 23). I have suggested that these “standards” are unduly demanding (Understanding Administrative Law in the Common Law World, at p. 161) but there is no immediate prospect of their being relaxed. Any optimism about the potential utility of mandamus as a remedy for tardy administrative decision-making must, therefore, be tempered by an appreciation of the reality that mandamus is a difficult remedy to obtain.

Second, Rowe J pointed out that all parties have an obligation to prevent undue delay:

The tribunal may often have internal procedures for dealing with delay; the party complaining of delay should avail itself of these. Even if there are no such procedures, the affected party should raise the issue of delay on the record, by means such as correspondence or oral submissions (at para. 78)

Failure to take advantage of available procedures and/or to signal dissatisfaction with slow processes “may be considered in determining the relevant remedy” (at para. 79). A gentle nudge may, in many instances, be sufficient to kick a process into gear. Failing to apply any pressure to a tardy administrative decision-maker, in the hope of springing an application for undue delay at a later date, is not a course of conduct to be encouraged.

Outside the context of regulated professions and activities, there will rarely be any advantage to delaying proceedings. In the context of regulated professions, voluntariness is — again — a key feature: a professional can either decide to live with a slow process (making the calculation that delay is in their interest but thereby foregoing the opportunity to make an abuse of process argument further down the line) or alternatively to attempt to speed things up forthwith (thinking that bringing an end to proceedings would ultimately be in their interests).

It is also worth highlighting that, inasmuch as abuse of process is a general common law principle, an administrative decision-maker may have the authority to grant remedies for undue delay, as long as doing so would be consistent with its statutory mandate (see the discussion in Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594, [2019] 3 FCR 107). Abuse of process may, therefore, be a useful tool where delay is frustrating proceedings before an administrative tribunal: rather than seeking relief from the courts, which might not be available whilst administrative proceedings are pending, it would be appropriate for applicants to ask administrative tribunals to ensure that matters move along in a timely manner.

Third, nothing in Abrametz rules out the possibility that delay can be considered in determining the remedy to grant for a successful application for judicial review. In cases such as Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, D’Errico v. Canada (Attorney General), 2014 FCA 95 and Wilkinson v. Canada (Attorney General), 2020 FCA 223, the Federal Court of Appeal has recognized that delay may be taken into account in directing a particular outcome in the exercise of remedial discretion (see also Al Khatib v. Canada (Citizenship and Immigration), 2020 FC 3, ordering that a fresh decision be taken within 90 days).

Lastly, however, the three scenarios I have laid out involve individualized responses to delay. Mandamus has not been a successful vehicle for systemic claims: see e.g. Liang v. Canada (Citizenship and Immigration), 2012 FC 758, at para. 49. Like any vehicle, it could conceivably be repurposed, but as noted above any tinkering with mandamus probably has to commence with a review of the demanding standards for its deployment.

In any event, the lure of mandamus should not blind us to the existence of mechanisms for dealing with delay in systemic fashion.

Systemic delay is not easily cured by judicial intervention. Often, the causes of delay lie with governments which fail to adequately fund particular administrative decision-making processes. In such cases, only political solutions are likely to prove durable. These are not entirely far-fetched: Tribunal Watch Ontario’s proposals on administrative justice made it into a party political platform at the last provincial election; see also Ron Ellis’s Model Administrative Justice Act.

Legislative reform can improve the speediness with which administrative justice is delivered. Gilles Ouimet points me to the Loi modifiant le Code des professions en matière de justice disciplinaire, LQ 2013, c 12, which created a “bureau des présidents” for Quebec’s disciplinary system, in order to tackle persistent problems with delay.

Furthermore, responsible administrative tribunals will have complaints procedures in place to deal with problematic decision-makers. Tardy adjudicators can be disciplined and even removed from office for failure to issue decisions in a timely manner: Gagnon c. Conseil de la justice administrative, 2022 QCCA 1011.

Where discretionary decision-making within government departments is concerned, the buck for tardy decision-making stops with the responsible minister. This is hardly a panacea (especially where groups with little electoral strength are concerned), but although it is common to scoff at ministerial accountability as a meaningful constraint in contemporary Westminster systems, there is no doubt that recent delays in processing passport requests in Canada have inflicted significant political damage on the government of the day. The result has been the development of specific timelines for treating passport applications.

In short, executives and legislatures can respond to systemic delays by providing increased funding and making statutory provision for more efficient decision-making structures, and administrative decision-makers themselves can proactively take measures to incentivize proactive decision-making. Although judicial remedies for systemic delay are unlikely after Abrametz, this does not mean that widespread administrative tardiness must inevitably go unremedied.

This content has been updated on September 7, 2022 at 18:03.