SCC To Revisit The Issue Of Delay In Administrative Proceedings

• Published date: 01 July 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Field LLP
• Author: Ms Katrina Haymond and Kimberly Precht

'Justice delayed is not always justice denied.' (Abrametz at para 171)

For over twenty years, the Supreme Court of Canada's decision in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, has been the leading case on delay in administrative proceedings. The SCC will have an opportunity to revisit the Blencoe decision when it hears the Law Society of Saskatchewan's appeal of the Saskatchewan Court of Appeal's decision in Abrametz v Law Society of Saskatchewan, 2020 SKCA 81. It is anticipated the appeal will be heard in November 2021.

In Blencoe, the SCC set a very high bar for a respondent seeking a stay of administrative proceedings based on undue delay, requiring 'proof of significant prejudice which results from an unacceptable delay' (para 101). In cases where hearing fairness has not been compromised, the SCC held 'the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process' (para 115). In determining whether the unacceptable delay has resulted in an abuse of process warranting a stay, the question is whether 'the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted' (para 120). The SCC also clarified in Blencoe that the constitutional right to be tried within a reasonable time (s. 11(b) of the Charter) applies only in the criminal context and not to administrative law proceedings.

In recent years, the SCC squarely addressed the need for timely justice in civil cases in Hryniak v Mauldin, 2014 SCC 7. The SCC also attempted to address the 'culture of complacency' in criminal proceedings in R v Jordan, 2016 SCC 27. In Jordan, the SCC held that there is a presumptive ceiling of eighteen months for the time that a criminal trial must conclude in provincial court and a presumptive ceiling of thirty months for matters in superior courts. The timelines are calculated starting from the date the accused is charged. If a matter takes longer, the delay is presumed to be unreasonable and the Crown must justify the delay on the basis of exceptional circumstances. In calculating whether the delay has reached the presumptive ceiling, the delay attributable to or waived by the defence does not count.

In light of these decisions, it was only a matter of time before the question of delay in administrative proceedings came back...