A Caution From The Supreme Court Of Canada On Institutional Delay: Lessons From Abrametz

• Published date: 14 July 2022
• Law Firm: WeirFoulds LLP
• Author: Ms Alyssa Armstrong

In a much anticipated decision, the Supreme Court of Canada released its reasons in Law Society of Saskatchewan v. Abrametz last week - confirming that obtaining a stay for inordinate delay in administrative proceedings is a very high bar to meet.¹

Justice Rowe, writing for a majority of the Supreme Court, confirmed that the Blencoe test² remains the legal framework for establishing an abuse of process arising from delay that would justify a remedy of a stay - which is essentially an order made by the tribunal bringing the proceedings to an end without adjudicating the merits. As was discussed in a previous blog post,³ prior to this decision there had been some rumblings in the legal community and elsewhere that, due to institutional delays, the Supreme Court of Canada should adopt a more stringent timetable for the completion of administrative proceedings - as was done in criminal matters following the Court's decision in R. v. Jordan.⁴

But with this decision in Abrametz, the Supreme Court has confirmed that such an approach in administrative proceedings would be inappropriate and that the principles that underlie Jordan (such as the Charter right to be tried within a reasonable time) do not apply to administrative proceedings - including complaints, investigations, discipline, and/or fitness to practise processes.⁵ Instead, the Court focused on the need for flexibility and reaffirmed its earlier decision in Blencoe v. British Columbia (Human Rights Commission), while providing further direction on the approach to be taken by administrative tribunals when dealing with issues of institutional delay.

In particular, while the Supreme Court did not depart from the Blencoe test, the Court had some strong words about the negative impact of institutional delay, noting that inordinate delay in administrative proceedings is contrary to the interests of society. Decisions by administrative decision-makers need to be rendered promptly and efficiently. Administrative delay undermines a key purpose for which such decision-making authority was delegated by the province - expeditious and efficient decision-making. In other words, this decision stands as a caution to administrative decision-makers on institutional delay. This blog post first sets out the key take-aways in the Abrametz decision to guide regulators. It then raises further issues for consideration arising from this decision with respect to (i) regulator resources and the need for expeditious and efficient decision-making and (ii) how the courts may treat pandemic-related delay in the regulatory context.

The Blencoe Test

In order to understand the effect of the Abrametz decision, it is necessary to appreciate the approach to administrative delay and abuse of process previously articulated by the Supreme Court in the Blencoe case. In that case, the Supreme Court recognized that delay may constitute an abuse of process in two ways:

1. The fairness of a hearing can be compromised where delay impairs a party's ability to answer the complaint against them,⁶ or,
2. Even when there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due to inordinate delay.⁷

Regarding the second category of delay (i.e., delay that does not impact hearing fairness), Blencoe established a three-part test for whether such delay amounts to an abuse of process. First, the delay must be inordinate based on an analysis of the overall context. Second, the delay must have directly caused "significant prejudice." Finally, if these two criteria are met, it must be determined whether the delay amounts to an abuse of process. If the delay is "manifestly unfair to a party or in some other way brings the administration of justice into disrepute," then abuse of process is established.⁸

The Facts in Abrametz

Mr. Abrametz was the subject of disciplinary proceedings before a Hearing Committee of the Law Society of Saskatchewan ("LSS") with respect to fraudulent transactions and tax evasion relating to his law practice. There were numerous delays throughout these proceedings, 32 '...