Law Society of Saskatchewan Appellant v. Peter V. Abrametz, 2022 SCC 29

SUPREME COURT OF CANADA Citation: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 Appeal Heard: November 8, 2021 Judgment Rendered: July 8, 2022 Docket: 39340 Between: Law Society of Saskatchewan Appellant and Peter V.

Abrametz Respondent - and - Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Law Society of Alberta, Law Society of Manitoba, College of Physicians and Surgeons of Ontario, College of Nurses of Ontario, Ontario College of Pharmacists, Royal College of Dental Surgeons of Ontario, Federation of Law Societies of Canada, Alberta Securities Commission, British Columbia Securities Commission, Barreau du Québec and Canadian Association of Refugee Lawyers Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 127) Rowe J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Martin, Kasirer and Jamal JJ. concurring) Dissenting Reasons: (paras. 128 to 226) Côté J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Law Society of Saskatchewan Appellant v. Peter V.

Abrametz Respondent and Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Law Society of Alberta, Law Society of Manitoba, College of Physicians and Surgeons of Ontario, College of Nurses of Ontario, Ontario College of Pharmacists, Royal College of Dental Surgeons of Ontario, Federation of Law Societies of Canada, Alberta Securities Commission, British Columbia Securities Commission, Barreau du Québec and Canadian Association of Refugee Lawyers Interveners Indexed as: Law Society of Saskatchewan v.

Abrametz 2022 SCC 29 File No.: 39340. 2021: November 8; 2022: July 8. Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for saskatchewan Administrative law — Abuse of process — Delay — Disciplinary proceedings brought by law society against member lawyer — Lengthy delay in proceedings prompting member to apply for stay of proceedings on basis of inordinate delay amounting to abuse of process — Whether delay amounted to abuse of process — Whether stay of proceedings warranted.

Administrative law — Appeals — Standard of review — Standard of review applicable to questions of procedural fairness and to abuse of process in statutory appeals. The Law Society of Saskatchewan brought disciplinary proceedings against one of its member lawyers in 2012. In 2018, the member was found guilty of four charges of conduct unbecoming a lawyer, and in 2019, disbarred without a right to apply for readmission for almost two years. During the disciplinary proceedings, the member applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process .

His application was dismissed by the Hearing Committee of the Law Society. The Court of Appeal dismissed the member’s conduct appeal but allowed his appeal of the stay decision. It granted the stay, concluding that there had been inordinate delay which resulted in significant prejudice to the member such that the public’s sense of decency and fairness would be affected and the Law Society’s disciplinary process brought into disrepute.

Held (Côté J. dissenting) : The appeal should be allowed, the judgment of the Court of Appeal set aside and the matter remitted to the Court of Appeal to address the outstanding grounds of appeal.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe , Martin, Kasirer and Jamal JJ.: The instant case is a statutory appeal pursuant to Saskatchewan’s The Legal Profession Act, 1990 . Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law. Whether there has been an abuse of process is a question of law; thus, the applicable standard of review is correctness. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly.

There was also no proper basis for the Court of Appeal to contradict the Hearing Committee’s attribution of certain delays to the member, and no palpable and overriding error justified the Court of Appeal’s substitution of its own views for the Hearing Committee’s conclusions that there was no significant prejudice to the member. While the actions of the Law Society were not above reproach, the delay was not inordinate. There was no abuse of process. In Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, the Court held that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply. While this proposition was stated in the context of substantive review, the direction that appeals are to be decided according to the appellate standards of review was categorical. Thus, where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review.

In administrative proceedings, abuse of process is a question of procedural fairness. The Court dealt with abuse of process as it relates to administrative delay in Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44 , [2000] 2 S.C.R. 307, and recognized that decision makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay.

Delay may constitute an abuse of process in two ways: the fairness of a hearing can be compromised where delay impairs a party’s ability to answer the complaint against them, or, 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. Blencoe sets out a three-step test to determine whether delay that does not affect hearing fairness nonetheless amounts to an abuse of process. First, the delay must be inordinate.

This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case. These factors are not exhaustive, such that additional contextual factors can be considered in a particular case. Second, the delay must have directly caused significant prejudice. Prejudice is a question of fact.

Examples include significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention. When these two requirements are met, courts or tribunals will proceed to a final assessment of whether the delay amounts to an abuse of process. Delay will amount to an abuse of process if it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute. When an abuse of process is found, several remedies are available.

Courts and tribunals must be mindful as to appropriate remedies in the various contexts in which abuse of process can occur. Remedies for abuse of process can serve several purposes: they can compensate the applicant for the prejudice caused by the delay, serve as an incentive for the decision maker to address any problems of systemic delay, or express the court or the tribunal’s concern relating to delay in the administrative system. As the doctrine of abuse of process is broad, it can usefully be appreciated on a spectrum. Various remedies are available, up to and including a permanent stay of proceedings.

A stay of proceedings is the ultimate remedy for abuse of process, because it is final: the process will be permanently stayed. In disciplinary matters, that means that charges will not be dealt with, any complaint will go unheard and the public will not be protected. Given these consequences, a stay should be granted only in the clearest of cases, when the abuse falls at the high end of the spectrum of seriousness. The decision whether to grant a stay involves a balancing of public interests.

On one hand, the public has an interest in ensuring that a tribunal established for its protection follows fair procedures, untainted by an abuse of process. On the other hand, the public has an interest in the resolution of administrative cases on the merits. A balance must be struck between the public interest in a fair administrative process untainted by abuse and the competing public interest in having the complaint decided after a public hearing.

When faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself whether going ahead with the proceeding would result in more harm to the public interest than if the proceedings were permanently halted. If the answer is yes, then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed. In conducting this inquiry, the court or tribunal may have regard to whether other available remedies for abuse of process, short of a stay, would adequately protect the public’s interest in the proper administration of justice.

When an abuse of process is established, but the abuse is not such that a stay of proceedings is warranted, other remedies may be appropriate. While proof of significant prejudice is required to establish an abuse of process, the remedies ordered may vary according to the degree of prejudice. A high degree of prejudice may justify a stay. Lesser, but nevertheless significant prejudice, could justify other remedies. In such cases, the public interest can be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse that he or she suffered.

In the context of a disciplinary tribunal, a stay of proceedings, a reduction in sanction, or variation of an award of costs are possible remedies. This is not an exhaustive list. Various tribunals may be empowered by their enabling statutes to grant other remedies. They should not hesitate to use such tools to combat inordinate delay amounting to an abuse of process. Per Côté J. (dissenting): There is disagreement with the majority’s disposition.

The delay in these proceedings amounted to an abuse of process, and the Court of Appeal did not err in quashing the penalty for professional misconduct imposed on the member. Disagreement with the majority also extends to the legal principles governing the assessment of inordinate delay in administrative proceedings, including the majority’s reframing of the test for whether administrative delay amounts to an abuse of process and its reliance on Vavilov for the proposition that appellate standards of review apply in the present case.

The Court recognized in Blencoe that inordinate delay, on its own, is a breach of procedural fairness and thus abusive. An applicant need not demonstrate significant prejudice for unfair conduct to constitute an abuse of process; this requirement applies only where a stay of proceedings is sought. Inordinate delay risks bringing the administration of justice into disrepute. For this reason alone, courts must sanction it whenever it is brought to their attention.

They possess a wide range of remedial tools, including declarations, costs, orders for an expedited hearing, reductions in penalty, and stays of proceedings, to grant relief that is proportionate to the abuse of process.

The majority purportedly relies on Blencoe in articulating a three-step test for determining whether delay in administrativeproceedings amounts to an abuse of process; however, this framework rests on a mistaken understanding of the doctrine of abuse ofprocess. Under the majority’s approach, even inordinate delay that directly causes significant prejudice is not per se abusive, as the laststep of its test indicates.

Not only is this proposition doctrinally flawed, but it results in an unduly elevated standard that isdisproportionate to the remedies available for abusive delay, which range from a mere declaration to a stay of proceedings. Themajority’s test is so onerous that it invites complacency in administrative proceedings. The Court rightly recognized in Blencoe thatinordinate delay, on its own, is a breach of the duty of fairness. Prejudice is not a necessary condition for delay to be inordinate, althoughit may contribute to such a finding.

Evidence of prejudice remains highly significant at the remedial stage, since the remedy must beproportionate to the abuse of process. This is consistent with the central principle laid down by the majority in Blencoe, namely thatcourts may grant a stay of proceedings only in the clearest of cases, where the applicant has demonstrated significant prejudice arisingfrom inordinate administrative delay. Abuse of process must be disentangled analytically from a stay of proceedings, which is but one of the remedies available atcommon law to redress abusive conduct.

It is crucial to draw this distinction because the threshold for demonstrating abusive conduct ismuch lower than the one for obtaining a stay of proceedings. The Court has established stringent requirements for granting a stay ofproceedings.

To obtain a stay, an applicant must satisfy the following test: there must be prejudice to the fairness of the trial or theintegrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; theremust be no alternative remedy capable of redressing the prejudice; and where it is unclear whether a stay is warranted after the first twosteps, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving theintegrity of the justice system, against the interest that society has in having a final decision on the merits.

This test also applies toabusive delay in administrative proceedings. The majority conflates the doctrine of abuse of process with the test for stays of proceedings, which are only a subset of theremedies that courts may order to sanction abusive conduct. The majority thus fails to distinguish between, on the one hand, the test forwhether conduct amounts to an abuse of process and, on the other hand, the test for whether a stay of proceedings is warranted in thecircumstances.

The former is flexible and unencumbered by particular requirements; the court must simply determine whether theimpugned conduct undermines adjudicative fairness or the integrity of the justice system. The latter establishes an onerous threshold thatis met only in the clearest of cases, where the applicant satisfies specific, stringent requirements. Where the applicant has demonstrated that the delay is inordinate, the next step in the analysis is for the court to determinethe appropriate remedy in the circumstances.

Courts possess an extensive arsenal of remedial tools to sanction and redress abusiveconduct that account for the circumstances of each case, ranging from a declaration to a stay of proceedings. The choice of remedy for anabuse of process falls within the trial judge’s discretion. Applicants must satisfy a specific test to obtain a stay of proceedings, but otherremedies are not subject to that test. The guiding principle in determining the appropriate remedy is proportionality.

Courts mustconsider the nature and magnitude of the prejudice as primary factors, alongside the length and causes of the delay, in selecting a remedyproportionate to the abuse of process. As mandated by Blencoe, the applicant must demonstrate significant prejudice to obtain a stay ofproceedings for inordinate delay in the administrative law context, but this standard does not apply to alternative remedies.

With respect to the applicable standard of review, the Court’s jurisprudence is clear: the question of whether anadministrative decision maker has complied with its duty of fairness is subject to the standard of correctness, regardless of the existenceof an appeal mechanism. There is no reason to revisit this well-established starting point. The majority purports to clarify the standard ofreview applicable to questions of procedural fairness in a statutory appeal.

It does so, however, without meaningfully considering Khela,the governing authority on this point of law, or any other case relating to the duty of procedural fairness. The mere reference to Vavilov, ajudgment that was rendered in a different context and that excluded procedural fairness review from its purview, does not suffice to oustKhela and other directly applicable precedents. While clarifications to the framework for determining the standard of review applicable to questions of procedural fairnessare warranted, the Court should draw on its existing jurisprudence to articulate a principled approach.

The standard of correctness mustremain the starting point of the analysis in the context of procedural fairness review. It is for the courts to provide the legal answer toprocedural fairness questions. The correctness standard applies to questions of compliance with the duty of procedural fairness as definedby the common law or by statute. However, the requirements of fairness are context-dependent, and deference is owed to theadministrative decision maker’s underlying findings of fact. The majority’s articulation of the standard of review in the context of inordinate administrative delay cannot be agreed with.

Inordinate delay constitutes an abuse of process on its own; it is the legal standard against which an administrative body’s conduct ismeasured. Courts do not owe deference to an administrative decision maker’s conclusion on whether delay is inordinate and its choice ofremedy for abuse of process. In the case at bar, there is agreement with the analysis of the Court of Appeal. The delay grossly exceeded the inherent timerequirements of this case; it is plainly inordinate and, as a result, abusive. This inordinate delay caused serious prejudice to the memberand his employees.

In these circumstances, the Court of Appeal correctly sanctioned this abuse of process by ordering that the penalty forprofessional misconduct, but not the convictions themselves, be set aside. Cases Cited By Rowe J. Applied: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Canada (Ministerof Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; distinguished: Canada (Citizenship and Immigration) v.Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Mission Institution v.

Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; considered: Sazant v.College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, leave to appeal refused, [2013] 2 S.C.R. xii; Misrav. College of Physicians & Surgeons of Saskatchewan (1988), (SK CA), 52 D.L.R. (4th) 477; Investment DealersAssociation of Canada v. MacBain, 2007 SKCA 70, 299 Sask. R. 122; Law Society of Upper Canada v. Abbott, 2017 ONCA 525, 139

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Coles (2000), (ON CA), 51 O.R. (3d) 481, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; R. v.Conway, (SCC), [1989] 1 S.C.R. 1659; R. v. Scott, (SCC), [1990] 3 S.C.R. 979; British Columbia(Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44,[2001] 2 S.C.R. 460; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Wigglesworth, (SCC), [1987] 2 S.C.R. 541;Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; Fortinv. Chrétien, 2001 SCC 45, [2001] 2 S.C.R. 500; Pearlman v.

Manitoba Law Society Judicial Committee, (SCC), [1991]2 S.C.R. 869; Béliveau v. Barreau du Québec (1992), (QC CA), 101 D.L.R. 324; Canada (Attorney General) v.Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; Wachtler v. College of Physicians and Surgeons (Alta.), 2009 ABCA 130, 448 A.R. 317;Irvine v. Canada (Restrictive Trade Practices Commission), (SCC), [1987] 1 S.C.R. 181; Syndicat des employés deproduction du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), (SCC), [1989] 2 S.C.R. 879;Diaz-Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221, 39 B.C.L.R. (6th) 87; Camara v.

Canada,2015 FCA 43, 91 Admin. L.R. (5th) 13; Hennig v. Institute of Chartered Accountants (Alta.), 2008 ABCA 241, 433 A.R. 221; Brown v.Assn. of Professional Engineers and Geoscientists of British Columbia, [1994] B.C.J. No. 2037 (QL), 1994 CarswellBC 2980 (WL);Stefani v. College Of Dental Surgeons (British Columbia) (1996), (BC SC), 27 B.C.L.R. (3d) 34; Financial andConsumer Services Commission v. Emond, 2020 NBCA 42; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Robertson v. BritishColumbia (Commissioner, Teachers Act), 2014 BCCA 331, 64 B.C.L.R. (5th) 258; R. (J.) v.

College of Psychologists (British Columbia)(1995), (BC SC), 33 Admin. L.R. (2d) 174; Adams v. Law Society of Alberta, 2000 ABCA 240, 266 A.R. 157; Benhaimv. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; Hydro-Québec v. Matta, 2020 SCC 37; H.L. v. Canada (Attorney General), 2005SCC 25, [2005] 1 S.C.R. 401; Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729. By Côté J. (dissenting) Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Blencoe v. BritishColumbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Behn v.

Moulton Contracting Ltd., 2013 SCC 26, [2013] 2S.C.R. 227; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R.v. O’Connor, (SCC), [1995] 4 S.C.R. 411; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2S.C.R. 33; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Babos, 2014 SCC16, [2014] 1 S.C.R. 309; United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587; R. v. Scott, (SCC),[1990] 3 S.C.R. 979; R. v. Power, (SCC), [1994] 1 S.C.R. 601; R. v.

Carosella, (SCC), [1997] 1S.C.R. 80; Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391; R. v.Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Sullivan, 2022 SCC 19; Ontario v. O.P.S.E.U., 2003 SCC 64, [2003] 3 S.C.R. 149;I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 S.C.R. 43; R. v. Bjelland, 2009 SCC 38,[2009] 2 S.C.R. 651; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28;Mission Institution v.

Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009]1 S.C.R. 339; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29,[2003] 1 S.C.R. 539; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817;Cardinal v. Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643; Canada (Attorney General) v. Mavi, 2011 SCC 30,[2011] 2 S.C.R. 504; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R.281; Ocean Port Hotel Ltd. v.

British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2S.C.R. 781; Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653; Martineau v. MatsquiInstitution Disciplinary Board, (SCC), [1980] 1 S.C.R. 602; Kane v. Board of Governors (University of BritishColumbia), (SCC), [1980] 1 S.C.R. 1105; Attorney General of Canada v. Inuit Tapirisat of Canada, (SCC), [1980] 2 S.C.R. 735; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, (SCC),[1979] 1 S.C.R. 311; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Dussault, 2022 SCC 16; R. v.

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Précis de droit professionnel . Cowansville, Que.: Yvon Blais, 2007. APPEAL from a judgment of the Saskatchewan Court of Appeal (Ottenbreit, Leurer and Barrington-Foote JJ.A.), 2020 SKCA 81 , [2020] S.J. No. 266 (QL), 2020 CarswellSask 336 (WL), setting aside a decision of the Hearing Committee for the Law Society of Saskatchewan (Chow, McCuskee and Sorestad), 2018 SKLSS 8 , [2018] L.S.D.D. No. 265 (QL). Appeal allowed, Côté J. dissenting. Alyssa Tomkins , Paul Daly and Charles R. Daoust , for the appellant. Amanda M. Quayle , Q.C. , Gordon J. Kuski , Q.C. , and Lauren J. Wihak , for the respondent.

Alexandra Clark and Matthew Chung , for the intervener the Attorney General of Ontario. Stéphane Rochette and Abdou Thiaw , for the intervener the Attorney General of Quebec. Meera Bennett and Robert Danay , for the intervener the Attorney General of British Columbia. Laura Mazenc and Johnna Van Parys , for the intervener the Attorney General of Saskatchewan. James T. Casey , Q.C. , and Katrina Haymond , for the intervener the Law Society of Alberta. Ayli Klein , for the intervener the Law Society of Manitoba.

Lisa Brownstone , Amy Block and Linda Rothstein , for the interveners the College of Physicians and Surgeons of Ontario, the College of Nurses of Ontario, the Ontario College of Pharmacists and the Royal College of Dental Surgeons of Ontario. Ewa Krajewska and Mannu Chowdhury , for the intervener the Federation of Law Societies of Canada. Lorenz Berner , Tracy Knight and Jennifer L. Whately , for the interveners the Alberta Securities Commission and the British Columbia Securities Commission. Sylvie Champagne , Nicolas Le Grand Alary and André-Philippe Mallette , for the intervener Barreau du Québec.

Audrey Macklin and Prasanna Balasundaram , for the intervener the Canadian Association of Refugee Lawyers. The judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. was delivered by Rowe J. — I. Introduction [ 1 ] This appeal arises from disciplinary proceedings pursued by the appellant, the Law Society of Saskatchewan (“Law Society”), against the respondent, Peter V. Abrametz. Mr.

Abrametz was found guilty of four charges of conduct unbecoming a lawyer, and disbarred without a right to apply for readmission for almost two years. [ 2 ] During the disciplinary proceedings, Mr. Abrametz applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process. His application was dismissed by the Hearing Committee for the Law Society (“Hearing Committee”), but allowed on appeal by the Court of Appeal for Saskatchewan. The Law Society appeals from that decision.

[ 3 ] This appeal affords the Court the opportunity to address once again the doctrine of abuse of process as it relates to inordinate delay in the administrative context. This was recognized more than 20 years ago in Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44 , [2000] 2 S.C.R. 307. This appeal also allows us to clarify the standard of review applicable to questions of procedural fairness and to abuse of process in statutory appeals. [ 4 ] I would allow the appeal. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly.

The Hearing Committee did not err when it concluded that there was no abuse of process. II. Facts [ 5 ] Mr. Abrametz is a member of the Law Society of Saskatchewan. He has practiced in Prince Albert, Saskatchewan, for 49 years. A. Pre-Charge Investigation [ 6 ] In 2012, the Law Society commenced an audit investigation of Mr. Abrametz’s financial records due to apparent irregularities in the use of a trust account. On the eve of a visit by investigators to his office in December 2012, Mr.

Abrametz self- reported to the Law Society that he had failed to promptly deposit more than $36,000 in fees into his office account. [ 7 ] The Law Society’s investigation related to eight transactions by Mr. Abrametz. In seven of these, Mr. Abrametz had issued cheques to clients that were then endorsed by the clients and cashed by Mr. Abrametz. In the other case, he had issued three cheques to a fictitious person, endorsed that false name on the cheques and cashed them. In addition, Mr.

Abrametz had on 11 occasions advanced money to clients, relating to settlement funds, charging them a flat 30 percent fee of the amount advanced, as well as a 30 percent contingency fee, and interest. [ 8 ] The investigation also looked into whether some of these transactions were carried out to evade tax. [ 9 ] In February 2013, Mr. Abrametz was served with a notice of intention to interim suspend. However, by agreement with the Law Society in March 2013, Mr. Abrametz was allowed to continue to practice, subject to certain conditions: Mr.

Abrametz had to retain another lawyer to supervise and monitor his practice and trust account activities; he had to seek prior approval from this supervisor for withdrawals/cheques from any trust account; and he could not accept the return of trust cheques from clients, nor accept endorsed cheques to be cashed or negotiated. A second notice of intention to interim suspend was served in November 2014, but the Law Society and Mr. Abrametz again agreed that he could continue to practice under substantially similar conditions. Mr.

Abrametz continued to practice under these conditions without incident while the Law Society investigation continued. [ 10 ] In October 2014, the auditor submitted a final trust report to the Law Society. [ 11 ] In October 2015, the Law Society issued a formal complaint containing seven charges against Mr. Abrametz and appointed a Hearing Committee. B. Post-Charge Prosecution [ 12 ] A simultaneous investigation into Mr. Abrametz’s tax situation gave rise to litigation before the Court of Queen’s Bench between the Law Society and Mr.

Abrametz regarding the scope of the Law Society’s investigatory powers: 2016 SKQB 134 ; 2016 SKQB 320 , 408 D.L.R. (4th) 134. [ 13 ] In March 2016, Mr. Abrametz applied to the Hearing Committee for an interim stay of the disciplinary proceedings until the resolution of the tax investigation. The Hearing Committee dismissed the request in August 2016. [ 14 ] The Hearing Committee heard the disciplinary matter on May 17-19, August 9-10 and September 29, 2017. The conduct decision was rendered on January 10, 2018. Mr. Abrametz was found guilty of four of the seven charges.

The four convictions were for matters disclosed in his self-report; they related to the advances to clients on settlement funds (referred to above). [ 15 ] On July 13, 2018, Mr. Abrametz applied for a stay of proceedings on the basis that the time taken by the Law Society to investigate and decide his case constituted an abuse of process. The application was heard on September 18, 2018, at the same hearing as that for submissions regarding penalty. The stay application was dismissed on November 9, 2018, in the stay decision. [ 16 ] On January 20, 2019, the penalty decision was rendered; the Committee ordered Mr.

Abrametz disbarred without a right to apply for readmission until January 1, 2021. [ 17 ] The conduct, stay and penalty decisions were published as one. In these reasons I address primarily the stay. III. Judgments Below A. Hearing Committee for the Law Society of Saskatchewan, 2018 SKLSS 8 (D. Chow, J. McCuskee and E. Sorestad ) [ 18 ] On the question of delay, the Hearing Committee found that Mr. Abrametz had made extensive efforts to conceal his actions.

The Committee also referred to the complexity arising from the nature and number of allegations of conduct unbecoming and the number of client files and other documents that needed to be examined. The Hearing Committee also found that a significant share of delay in the proceedings should be attributed to Mr. Abrametz, due to his unavailability or the unavailability of his counsel. The Hearing Committee further noted that Mr.

Abrametz had brought an application for a temporary stay of proceedings in April 2016. [ 19 ] The Hearing Committee found that the delay was neither inordinate nor unacceptable given the complexity of the case, the extent of the investigation and the delay attributed directly to Mr. Abrametz’s conduct. The Hearing Committee also concluded that any prejudice that Mr. Abrametz may have experienced as a result of the delay was not so significant that continuation of the process

would be so unfair to him that the public’s sense of fairness would be harmed, having regard to the Law Society’s mandate to protect the public. B. Court of Appeal for Saskatchewan, 2020 SKCA 81 (Ottenbreit, Leurer and Barrington-Foote JJ.A.) [ 20 ] Mr. Abrametz appealed the conduct, penalty and stay decisions to the Court of Appeal pursuant to s. 56(1) of The Legal Profession Act, 1990 , S.S. 1990-91, c. L-10.1 . [ 21 ] The Court of Appeal dismissed Mr.

Abrametz’s conduct appeal but allowed the stay appeal. [ 22 ] The Court of Appeal held that whether there had been delay constituting an abuse of process is a question of law, reviewable on the basis of correctness; the findings of fact underlying the stay decision are reviewable on the standard of palpable and overriding error. [ 23 ] The Court of Appeal stated that Blencoe set a high threshold for finding an abuse of process where hearing fairness had not been compromised. The Court of Appeal concluded, nonetheless, that Mr.

Abrametz was entitled to a stay. [ 24 ] The Court of Appeal concluded that there were significant periods that were not adequately explained and that could not be justified by the scale and complexity of the proceedings. The Court of Appeal concluded that of the 53-month period in issue, only 18 months were inherent to the process, and only 2 ½ months were attributable to Mr. Abrametz. The remainder, totaling 32 ½ months, the Court of Appeal concluded, was undue delay.

The Hearing Committee’s failure to reach that conclusion was the result of palpable and overriding errors (as referred to), and the Hearing Committee’s failure to apply the law correctly to the facts. [ 25 ] The Court of Appeal concluded that there had been inordinate delay which resulted in significant prejudice to Mr. Abrametz, such that the public’s sense of decency and fairness would be affected. It concluded that this inordinate delay would bring the Law Society’s disciplinary process into disrepute. Mr. Abrametz’s application for a stay should have been granted by the Hearing Committee. IV. Analysis A.

Standard of Review [ 26 ] This case allows the Court to clarify the standard of review applicable to questions of procedural fairness and abuse of process in a statutory appeal. The Court received submissions from the parties and interveners on this point. [ 27 ] In Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, the Court held that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply: paras. 33 and 36-52.

While this proposition was stated in the context of substantive review, the direction that appeals are to be decided according to the appellate standards of review was categorical. Thus, where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review. [ 28 ] This does not depart from Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, and Mission Institution v. Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502, as those decisions related to judicial review and to the granting of prerogative writs.

Here, we are dealing with a statutory appeal. As our Court has stated in Vavilov , at para. 36 , “[w]here a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis.” [ 29 ] This case is a statutory appeal pursuant to The Legal Profession Act, 1990 .

Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse ), 2021 SCC 43 , at paras. 24-25 . [ 30 ] Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness. B. Inordinate Delay in Administrative Law

(1) Introduction [ 31 ] Administrative decision makers regularly decide issues that affect individuals’ rights, privileges and interests. This Court recognized the important role of administrative decision makers in Vavilov , at para. 4 : This area of the law concerns matters which are fundamental to our legal and constitutional order, and seeks to navigate the proper relationship between administrative decision makers, the courts and individuals in our society. In parallel with the law, the role of administrative decision making in Canada has also evolved.

Today, the administration of countless public bodies and regulatory regimes has been entrusted to statutory delegates with decision-making power.

The number, diversity and importance of the matters that come before such delegates has made administrative decision making one of the principal manifestations of state power in the lives of Canadians. [ 32 ] Legislatures delegate authority to administrative decision makers because of their proximity and responsiveness to stakeholders, their ability to render decisions promptly, flexibly and efficiently, and their ability to provide simplified and streamlined proceedings that can promote access to justice: Vavilov , at para. 29 .

(2) The Doctrine of Abuse of Process [33] The doctrine of abuse of process is rooted in a court’s inherent and residual discretion to prevent abuse of its process:Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35; Behn v. Moulton Contracting Ltd., 2013 SCC 26,[2013] 2 S.C.R. 227, at para. 39; R. v. Power, (SCC), [1994] 1 S.C.R. 601, at p. 612; P. M. Perell, “A Survey of Abuseof Process”, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243, at p. 243. The doctrine wasrecognized in R. v.

Jewitt, (SCC), [1985] 2 S.C.R. 128, at pp. 135-37, where the Court drew from Dubin J.A. in R. v.Young (1984), (ON CA), 40 C.R. (3d) 289 (Ont.

C.A.), at p. 329, where he stated that there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate thosefundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’sprocess through oppressive or vexatious proceedings. [Emphasis added; p. 135.] [34] Abuse of process is a broad concept that applies in various contexts: C.U.P.E., at para. 36; Behn, at para. 39.

Incriminal proceedings, unfair or oppressive treatment of an accused can constitute an abuse of the court’s process and warrant judicialintervention: R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at para. 25, citing Power, at pp. 612-15; Jewitt, at pp. 136-37; R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 59. In civil matters, it can warrant granting a motion to strike pleadingsor to preclude relitigation of an issue: see Behn; Canam Enterprises Inc. v. Coles (2000), (ON CA), 51 O.R. (3d) 481(C.A.), rev’d 2002 SCC 63 , 2022 SCC 63, [2002] 3 S.C.R. 307. [35] It is also characterized by its flexibility.

It is not encumbered by specific requirements, unlike the concepts of resjudicata and issue estoppel: Behn, at para. 40; C.U.P.E., at paras. 37-38. In Behn, at para. 40, LeBel J. referred with approval toGoudge J.A., dissenting, in Canam Enterprises Inc. (C.A.), where Goudge J.A. explained that the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to thelitigation before it or would in some other way bring the administration of justice into disrepute.

It is a flexible doctrine unencumberedby the specific requirements of concepts such as issue estoppel. [Emphasis added; para. 55.] Such flexibility is important in the administrative law context, given the wide variety of circumstances in which delegated authority isexercised. [36] The primary focus is the integrity of courts’ adjudicative functions, and less on the interests of parties: C.U.P.E., atpara. 43; R. v. Conway, (SCC), [1989] 1 S.C.R. 1659, at p. 1667; R. v. Scott, (SCC), [1990] 3 S.C.R.979, at p. 1007.

The proper administration of justice and ensuring fairness are central to the doctrine: Behn, at para. 41; British Columbia(Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at paras. 24-25 and 31. It aims to prevent unfairness byprecluding “abuse of the decision-making process”: Figliola, at para. 34, citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44,[2001] 2 S.C.R. 460, at para. 20. [37] Such considerations underlie the courts’ concern with inordinate delay in the administrative context.

(3) Abuse of Process in Administrative Proceedings [38] In administrative proceedings, abuse of process is a question of procedural fairness: Blencoe, at paras. 105-7 and 121;G. Régimbald, Canadian Administrative Law (3rd ed. 2021), at pp. 344-350; P. Garant, with P. Garant and J. Garant, Droit administratif(7th ed. 2017), at pp. 766-67). This Court dealt with abuse of process as it relates to administrative delay in Blencoe. Our Courtrecognized that decision makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay. [39] Mr.

Blencoe, a former British Columbia Cabinet Minister, was accused by several women of sexual harassment.They filed complaints with the then British Columbia Council of Human Rights. Hearings were scheduled more than 30 months after theinitial complaints were filed. Mr. Blencoe applied to have the proceedings stayed on the basis of abuse of process. While this Courtdeclined to do so, it described circumstances when a stay could be ordered. [40] The Court explained two ways in which delay may constitute an abuse of process. [41] The first concerns hearing fairness.

The fairness of a hearing can be compromised where delay impairs a party’sability to answer the complaint against them, such as when memories have faded, essential witnesses are unavailable or evidence hasbeen lost: Blencoe, at para. 102; D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie, Judicial Review of AdministrativeAction in Canada (loose-leaf), at § 9:57. [42] This is not what is in issue in this appeal.

Rather, the Court is concerned with a second category of abuse of process.Even when there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due toinordinate delay: Blencoe, at paras. 122 and 132. [43] Blencoe sets out a three-step test to determine whether delay that does not affect hearing fairness nonethelessamounts to an abuse of process. First, the delay must be inordinate.

Second, the delay must have directly caused significant prejudice.When these two requirements are met, courts or tribunals will proceed to a final assessment of whether the delay amounts to an abuse ofprocess. Delay will amount to an abuse of process if it is manifestly unfair to a party or in some other way brings the administration ofjustice into disrepute: Behn, at paras. 40-41. [44] The minority reasons in Blencoe concluded that there was an abuse of process, although the appropriate remedy wasnot a stay but rather an order for an expedited hearing and costs.

In my view, the two sets of reasons in Blencoe can be read ascomplementing each other and expressing a coherent set of principles. The majority reasons set a higher threshold only for an abuse ofprocess requiring a stay, and accepted that lesser remedies continue to be available where a stay is not warranted. With respect to when astay of proceedings is warranted, the minority reasons recognized that a threshold of “shocking abuse” is necessary to justify a stay of

proceedings (para. 155). Moreover, the minority reasons set a lower threshold for an abuse of process which might call for a lesserremedy, such as an order for an expedited hearing or costs.

(4) Calls to “Jordanize” Blencoe [45] The Court received submissions to the effect that since Blencoe, it has become more active in addressing institutionaldelays in criminal proceedings: see R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Mr. Abrametz and some of the interveners arguethe Blencoe test needs to be revisited to bring it into conformity with contemporary approaches to delay. Mr. Abrametz refers to the“culture of complacency” in the criminal justice system addressed in Jordan: R.F., at paras. 88-104. Without asking for the directadoption of the Jordan framework in administrative law, Mr.

Abrametz sought to have this Court recognize inordinate delay asprejudicial in and of itself. [46] Inordinate delay in administrative proceedings, as in other legal proceedings, is contrary to the interests of society.Decisions by administrative decision makers need to be rendered promptly and efficiently. Administrative delay undermines a keypurpose for which such decision-making authority was delegated — expeditious and efficient decision-making. [47] However, there are important reasons why Jordan does not apply to administrative proceedings.

Jordan deals withthe right to be tried within a reasonable time under s. 11(

b) of the Canadian Charter of Rights and Freedom. No such Charter rightapplies to administrative proceedings. As such, there is no constitutional right outside the criminal context to be “tried” within areasonable time. [48] There are fundamental differences between criminal and administrative proceedings: Blencoe, at paras. 88-96.

Ahuman 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 professionalconduct within a limited private sphere of activity, the latter is intended to maintain public order and welfare for the broad public: R. v.Wigglesworth, (SCC), [1987] 2 S.C.R. 541, at p. 560. [49] I will now deal more fully with the application of the doctrine of abuse of process to administrative delays.

(5) First Requirement: Whether the Delay is Inordinate [50] That a process took considerable time does not in itself amount to inordinate delay. Rather, one must consider thetime in light of the circumstances of the case (Brown and Evans, at § 9:57-9:58; R. W. Macaulay, J. L. H. Sprague and L. Sossin,Practice and Procedure Before Administrative Tribunals (loose-leaf), at § 16:81; Blencoe, at para. 122). A process that seems lengthymay be justified on the basis of fairness. [51] In determining whether delay is inordinate, the court or tribunal should consider the following contextual factors: (a)the nature and purpose of the proceedings, (

b) the length and causes of the delay, and (

c) the complexity of the facts and issues in thecase. These factors are not exhaustive, such that additional contextual factors can be considered in a particular case. (

a) The Nature and Purpose of the Proceedings (

i) Introduction [52] Many public bodies and regulatory agencies have been entrusted with decision-making authority as statutorydelegates: Vavilov, at paras. 4 and 88. Their decisions vary in complexity and significance. Sometimes they involve technicalconsiderations. Other times, common sense and an understanding of the practicalities of ordinary life suffice: Vavilov, at para. 88.

Ofnecessity, time requirements inherent to each of these kinds of proceedings will vary. (ii) Disciplinary Proceedings [53] The purposes of disciplinary bodies are to protect the public, to regulate the profession and to preserve publicconfidence in the profession: The Legal Profession Act, 1990, ss. 3.1 and 3.2; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R.513, at para. 36; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at para. 16; Fortin v. Chrétien, 2001 SCC 45, [2001] 2S.C.R. 500, at para. 17; Pearlman v.

Manitoba Law Society Judicial Committee, (SCC), [1991] 2 S.C.R. 869, at pp. 887-88; Wigglesworth, at p. 560; G. MacKenzie, Lawyers & Ethics: Professional Responsibility and Discipline (loose-leaf), at § 26:1. Theclient or patient is often in a vulnerable position in the professional relationship: Pharmascience Inc., at para. 36; Fortin, at para. 17.

Thepublic places great trust in the advice and services of professionals: Pharmascience Inc., at para. 36. [54] Disciplinary proceedings are neither civil nor criminal, but rather sui generis: MacKenzie, at § 26:2; Béliveau v.Barreau du Québec (1992), (QC CA), 101 D.L.R. (4th) 324 (Que. C.A.). They maintain discipline within a limitedsphere of private activity. Thus, as stated before, they differ from criminal matters, which are of a public nature, intended to promoteorder and welfare within a public sphere of activity: Wigglesworth, at p. 560; Canada (Attorney General) v.

Whaling, 2014 SCC 20,[2014] 1 S.C.R. 392, at para. 45. [55] In disciplinary proceedings, inordinate delay can be harmful to members of professional bodies, complainants andthe public in general. Allegations of misconduct against a member can weigh heavily on that person. They can overshadow his or herprofessional reputation, career and personal life. Anxiety and stress caused by the uncertainty of the outcome and the stigma attached tooutstanding complaints are good reasons to investigate and prosecute in a timely way.

Disciplinary bodies have a duty to deal fairly withmembers whose livelihood and reputation are affected by such proceedings: MacKenzie, at § 26:1. [56] Complainants, whether patients or clients, benefit from having their case proceed promptly, so that they can beheard and move on to put the matter behind them. Finally, the public at large expects professionals guilty of misconduct to be effectively

regulated and properly sanctioned. Given their role to protect the public from harmful professional conduct, disciplinary bodies mustensure that the public’s concerns are addressed on a timely basis: Wachtler v. College of Physicians and Surgeons (Alta.), 2009 ABCA130, 448 A.R. 317, at paras. 46-47. (

b) The Length and Causes of the Delay [57] When an applicant submits that inordinate delay amounts to an abuse of process, courts and tribunals are called onfirst to ascertain the length and causes of the delay: Blencoe, at para. 122. [58] The duty to be fair is relevant at all stages of administrative proceedings, including the investigative stage:D. P. Jones and A. S. de Villars, Principles of Administrative Law (7th ed. 2020), at p. 285; Garant, at pp. 655-57; Irvine v. Canada(Restrictive Trade Practices Commission), (SCC), [1987] 1 S.C.R. 181; Syndicat des employés de production du Québecet de l’Acadie v.

Canada (Canadian Human Rights Commission), (SCC), [1989] 2 S.C.R. 879; see, for example,Blencoe, at para. 123. When assessing the actual time period of delay, the starting point should be when the administrative decisionmaker’s obligations, as well as the interests of the public and the parties in a timely process are engaged. It should end when theproceeding is completed, including the time taken to render a decision. [59] As noted, a lengthy delay is not per se inordinate; it may be justifiable when considered in context.

For instance, acase will sometimes involve parallel criminal and administrative proceedings. Some disciplinary proceedings involve allegations ofconduct that may be criminal, such as sexual misconduct, fraud and obstruction of justice: MacKenzie, at § 26:5. In some circumstances,disciplinary bodies will proceed while the criminal proceeding are outstanding. In other circumstances, suspension of the disciplinaryproceedings to await the conclusion of criminal proceedings can be justified.

This can be consistent with procedural fairness and notconstitute an abuse of process, even if the delay that results is lengthy. [60] In Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 (leave to appealrefused, [2013] 2 S.C.R. xii), for example, allegations against the member involved multiple complainants who were likely to be called assimilar fact witnesses in criminal proceedings. The College monitored progress of the criminal proceedings and proceeded to investigatewhen the criminal charges were stayed. This added to the time for the disciplinary process.

However, as the Court of Appeal concluded,it would have been impractical and unfair to the member for the College to pursue disciplinary proceedings arising from the allegationsof misconduct against him without waiting for the criminal proceedings to be resolved: para. 245. [61] Besides considering the duration of the delay, the court or tribunal should consider the causes of the delay.

Thisincludes whether the applicant contributed to or waived parts of the delay: Blencoe, at para. 122. [62] If the delay was caused by the party who complains of that delay, it cannot amount to an abuse of process: Blencoe,at para. 125; Diaz-Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221, 39 B.C.L.R. (6th) 87, at para. 50;Camara v. Canada, 2015 FCA 43, 91 Admin. L.R. (5th) 13, at paras. 13-14. Nor will there be unfairness if the delay is an inherent partof a fair process. [63] Delay can be waived. This can be explicit or implicit.

Thus, if the applicant asked for suspension of the proceedings,or did not object to a suspension of proceedings while other investigations proceeded and acted in a way that unequivocally suggests theyacquiesced to such delay, it can constitute a waiver: Diaz-Rodriguez, at para. 51. [64] Finally, whether the administrative body used its resources efficiently should be considered in the analysis ofinordinate delay.

That said, insufficient agency resources cannot excuse inordinate delay in any case: Blencoe, at para. 135.Administrative tribunals have a duty to devote adequate resources to ensure the integrity of the process: see Hennig v. Institute ofChartered Accountants (Alta.), 2008 ABCA 241, 433 A.R. 221, at para. 31. [65] In sum, the requirements of procedural fairness sometimes slow the pace at which the proceedings progress. Whetherthe resulting delays are justified will depend on the circumstances of each case. (

c) The Complexity of the Facts and Issues in the Case [66] The complexity of the facts and issues in a case will affect the time required to decide the matter. For example,sexual abuse allegations might entail difficult and time-consuming investigations. By contrast, large numbers of documents do notnecessarily entail complexity, especially in a routine case dealing with issues in which the tribunal has experience. Assessing inordinatedelay must account for the wide range of contexts in the administrative system.

(6) Second Requirement: Significant Prejudice [67] The requirement for significant prejudice is grounded in the foundations of the doctrine of abuse of process inadministrative law. If delay alone was sufficient to lead to an abuse of process, it would be “tantamount to imposing a judicially createdlimitation period”: Blencoe, at para. 101. It is only where there is detriment to an individual that a court or a tribunal will conclude thatthere has been an abuse of process: Blencoe, at para. 109; Brown v. Assn. of Professional Engineers and Geoscientists of BritishColumbia, [1994] B.C.J.

No. 2037 (QL), 1994 CarswellBC 2980 (WL); Stefani v. College of Dental Surgeons (British Columbia)(1996), (BC SC), 27 B.C.L.R. (3d) 34 (S.C.); Misra v. College of Physicians & Surgeons of Saskatchewan, (1988), (SK CA), 52 D.L.R. 477 (Sask. C.A.). Furthermore, in some cases, delay by itself may be beneficial to the affectedparty. For example, if the affected party is facing the penalty of disbarment, delay in the administrative process might be welcomed bythe affected party, insofar as it enables him or her to continue practicing.

These are some of the reasons why the doctrine of abuse ofprocess as it relates to administrative delay requires proof of significant prejudice. [68] The reality is that an investigation or proceeding against an individual tends to disrupt his or her life. This was so inBlencoe, where the majority acknowledged that Mr. Blencoe and his family had suffered prejudice from the moment that sexualharassment allegations against him were made public. The Court concluded, however, that such prejudice could not be said to result

directly from the delay in the human rights proceedings, but rather it resulted from the fact that such proceedings were undertaken: para. 133. It is the prejudice caused by inordinate delay that is relevant to the abuse of process analysis. That said, prejudice caused by the investigation of or proceedings against an individual can be exacerbated by inordinate delay. That is to be taken into account: paras. 68-73 and 133. [ 69 ] Prejudice is a question of fact.

Examples include significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention, especially given technological developments, the speed at which information can travel today and how easy it is to access. [ 70 ] In Misra , a doctor was suspended from practice for almost six years, while the College of Physicians and Surgeons chose to wait for years for the completion of criminal proceedings against him before proceeding with the disciplinary process.

The criminal proceedings were eventually abandoned. Dr. Misra’s reputation had suffered; he had been unable to practice his profession; his professional prospects were diminished. [ 71 ] In Investment Dealers Association of Canada v. MacBain , 2007 SKCA 70 , 299 Sask. R. 122, lengthy delays exacerbated the harm to the applicant’s reputation by publicity from a disciplinary investigation.

Profits from his business collapsed, then recovered to some degree as publicity around the initial investigation faded, only to be threatened again after the negative publicity around his business was revived years later when the notices of hearing were finally issued: paras. 40-41; see also Financial and Consumer Services Commission v. Emond , 2020 NBCA 42 . This is the type of significant prejudice contemplated in Blencoe .

(7) Conclusion: A Final Assessment [ 72 ] The test for whether delay amounts to an abuse of process has three steps. First, the delay must be inordinate. This is determined on an assessment of the context overall. Second, the delay must have caused significant prejudice. When these two requirements are met, the court or tribunal is to conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute: Behn , at paras. 40-41 . [ 73 ] When an abuse of process is found, several remedies are available. C. Remedies

(1) Introduction to Remedies for Abuse of Process [ 74 ] Courts and tribunals must be mindful as to appropriate remedies in the various contexts in which abuse of process can occur: Blencoe , at para. 117 ; O’Connor , at para. 66, per L’Heureux-Dubé J., writing for a unanimous Court on this point. In this judgment, I will address the main remedies. The list that follows is not intended to be exhaustive. [ 75 ] Remedies for abuse of process can serve several purposes. They can compensate the applicant for the prejudice caused by the delay.

They can serve as an incentive for the decision maker to address any problems of systemic delay. Remedies can also express the court or the tribunal’s concern relating to delay in the administrative system. [ 76 ] As noted, the doctrine of abuse of process is broad; it can usefully be appreciated on a spectrum: see, in criminal matters, R. v. Regan , 2002 SCC 12 , [2002] 1 S.C.R. 297, at para. 107 . Various remedies are available, up to and including a permanent stay of proceedings.

However, when this high threshold is not met, when there is inordinate delay and resulting prejudice, but it is “not significant enough that proceeding in its wake would, in and of itself, shock the community’s sense of fairness and decency” ( Regan , at para. 107 ), then other remedies are available. [ 77 ] Before addressing various remedies for delay amounting to abuse of process, I would make two preliminary points. (

a) Internal tribunal procedure [ 78 ] Addressing delay is an obligation on all parties. As soon as delay becomes a concern, the affected party should seek to use all available procedures to move matters forward. 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. [ 79 ] In most cases, the affected party should avail itself of the tribunal procedures first.

If the affected party does not act in a timely manner to raise concerns about delay, this may be considered in determining the relevant remedy. That said, in considering whether an affected party has sought to move matters forward, one has to be mindful of practical impediments to doing so: see, for example, Wachtler , at para. 44 . There may be exceptional cases where the affected party may ask the courts to step in, in accordance with the existing rules. (

b) Mandamus [ 80 ] 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. [ 81 ] 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. [ 82 ] Also, if used at the right moment, the remedy of an expedited hearing can protect the interests of all parties: Blencoe ,

at para. 182 ; D. J. Mullan and D. Harrington, “The Charter and Administrative Decision-Making: The Dampening Effects of Blencoe ” (2002), 27 Queen’s L.J. 879 (QL), at pp. 908-9.

(2) Stay of Proceedings [ 83 ] A stay of proceedings is the ultimate remedy for abuse of process. It is “ultimate” because it is “final”; the process will be permanently stayed: Regan , at para. 53 . In disciplinary matters , that means that charges will not be dealt with, any complaint will go unheard and the public will not be protected.

Given these consequences, a stay should be granted only in the “clearest of cases”, when the abuse falls at the high end of the spectrum of seriousness: Blencoe , at para. 120 , citing Power , at p. 616. [ 84 ] The decision whether to grant a stay involves a balancing of public interests. On one hand, t he public has an interest in ensuring that a tribunal established for its protection follows fair procedures, untainted by an abuse of process. On the other hand, the public has an interest in the resolution of administrative cases on the merits.

A balance must be struck between the public interest in a fair administrative process untainted by abuse and the competing public interest in having the complaint decided on its merits : Blencoe , at paras. 118-21 and 154 ; Conway , at p. 1667; Robertson v. British Columbia (Commissioner, Teachers Act) , 2014 BCCA 331 , 64 B.C.L.R. (5th) 258 , at paras. 78-80 ; Diaz-Rodriguez , at paras. 71-73 ; Law Society of Upper Canada v.

Abbott , 2017 ONCA 525 , 139 O.R. (3d) 290 , at paras. 61-63 (leave to appeal refused, [2018] 1 S.C.R. v) . [ 85 ] When faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself: would going ahead with the proceeding result in more harm to the public interest than if the proceedings were permanently halted? If the answer is yes , then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed.

In conducting this inquiry, the court or tribunal may have regard to whether other available remedies for abuse of process, short of a stay, would adequately protect the public’s interest in the proper administration of justice. [ 86 ] A stay will be more difficult to obtain where the charges are more serious. For example, in Diaz-Rodriguez , a police officer faced disciplinary proceedings because he used a police baton to repeatedly strike a young man on the head.

He also attempted, after the fact, to lay (apparently) unfounded charges, including assaulting a police officer; being intoxicated in a public place; and causing a disturbance: para. 72. The Court of Appeal concluded that in this context, the public interest in fairness in the administrative process did not outweigh the public interest in having the matter proceed to a resolution on its merits: para. 73 (see also: Robertson , at paras. 79-80 ; R. (J.) v. College of Psychologists (British Columbia) (1995), 33 Admin. L.R. 2 (d) 174 (B.C.S.C.), at para. 10). The same was also true in Sazant , in which Dr.

Sazant faced allegations of sexual misconduct against children. There was a strong public interest in having the case considered on the merits, despite the length of the delay: para. 248. [ 87 ] Even if rare, stays of proceedings are sometimes warranted. An example is MacBain where the charge against an investment dealer did not involve complex factual or legal issues, and he did not contribute to or waive the delay. As well, the Investment Dealers Association failed to provide an explanation for the delay (three years and eight months).

When the Court of Appeal heard the case, almost seven years had passed since the commencement of the investigation. Moreover, the member was seriously affected, his business declined greatly, and his personal life was adversely impacted: para. 41. [ 88 ] Finally, in the present case, the Court of Appeal considered that the absence of complainants was relevant in the weighing of competing interests; in effect, the absence of complainants favoured for a stay: paras. 209-10. I cannot agree. The absence of a complainant is a neutral factor.

The public at large expects a professional who is guilty of misconduct to be effectively regulated and properly sanctioned. A professional misconduct hearing involves more than the interests of those affected; rather one needs to consider “the effect of the individual’s misconduct on both the individual client and generally on the profession in question. This public dimension is of critical significance to the mandate of professional disciplinary bodies”: Adams v. Law Society of Alberta , 2000 ABCA 240 , 266 A.R. 157, at para. 6 .

(3) Other Remedies: Reduction in Sanction and Costs [ 89 ] When an abuse of process is established, but the abuse is not such that a stay of proceedings is warranted, other remedies may be appropriate: Blencoe , at para. 117 ; Brown and Evans, at § 9:60. [ 90 ] The threshold to grant such remedies will be lower than that required for a stay. While proof of significant prejudice is required to establish an abuse of process, the remedies ordered may vary according to the degree of prejudice. A high degree of prejudice may justify a stay. Lesser, but nevertheless significant prejudice, could justify other remedies.

In such cases, the public interest can be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse that he or she suffered. [ 91 ] In the context of a disciplinary tribunal, I will address two further remedies: a reduction in sanction and/or costs. (

a) Reduction in Sanction [ 92 ] When a member is found guilty of professional misconduct, the tribunal must determine the appropriate sanction. [ 93 ] As noted, the Law Society’s disciplinary process has as its purposes the protection of the public, regulation of the profession and preservation of public confidence in the legal profession. These purposes are relevant to deciding the sanction to be imposed. [ 94 ] A wide range of penalties is possible, from a reprimand to a lifetime revocation of a licence to practice.

Various factors, including the presence of an abuse of process, can be considered when determining the appropriate sanction (see J. T. Casey, The Regulation of Professions in Canada (loose-leaf), at § 14:3; J. G. Villeneuve et al., Précis de droit professionnel (2007), at pp. 246-49; MacKenzie, at § 26:18). Since Blencoe , numerous tribunals and courts have taken abuse of process into account as an attenuating factor in deciding an appropriate sanction.

[ 95 ] Wachtler provides an example of how delay can be a factor in determining what disciplinary sanctions should be imposed. The Court of Appeal reduced the member’s penalty given the length of the proceedings. The member had received a penalty including a three-month suspension and a costs award against him following disciplinary proceedings by the College of Physicians and Surgeons: paras. 9-10. The Court of Appeal found that the College had failed to properly consider the lengthy delay in the case.

The Court of Appeal concluded that although the member had shown that he suffered some prejudice, he was unable to demonstrate that the prejudice was such as would justify a stay: para. 36. Instead, the Court of Appeal reduced the sentence to a one-month suspension (which had already been served) and set aside the costs award: paras. 45-46 and 49. [ 96 ] The threshold for a reduction in the sanction will be particularly high when the presumptive penalty is licence revocation.

Given the gravity of the misconduct generally required for such a penalty to be imposed, setting it aside might imperil public confidence in the administration of justice, rather than enhance it. [ 97 ] For example, in Abbott , the Court of Appeal dealt with a lawyer who had engaged in professional misconduct where licence revocation was the presumptive penalty, as he had knowingly participated in mortgage fraud: para. 17. The Hearing Division of the Law Society Tribunal revoked the lawyer’s licence to practice.

Given the lengthy delay in the proceedings, the Appeal Division of the Law Society Tribunal reversed this decision, set aside the penalty of licence revocation and substituted a two-year suspension. The Divisional Court dismissed the appeal from the Appeal Division. The Court of Appeal allowed the appeal and reinstated the penalty of licence revocation: see paras. 88-90 and 98. [ 98 ] As noted, abuse of process can be viewed on a spectrum. To convert a presumptive licence revocation into a lesser penalty requires a significant abuse of process, one at the high end of the spectrum.

Moreover, under no circumstances should the adjustment of the penalty undermine the purposes of the disciplinary process, notably the protection of the public and its confidence in the administration of justice. For these reasons, a remedy that substitutes a licence revocation for a lesser penalty will generally be as difficult to receive as a stay. Both may equally undermine a professional body’s responsibility to regulate the profession. (

b) Costs [ 99 ] Courts faced with applications for review of administrative delay have the discretion to set aside an order of costs against a party or to order costs against the administrative agency. This can be done in the exercise of the court’s discretion relating to costs. As Blencoe illustrates, even where inordinate delay does not amount to abuse of process, it may still justify an award of costs against the agency: para. 136.

(4) Conclusion [ 100 ] A stay of proceedings, a reduction in sanction, or variation of an award of costs are possible remedies. This is not an exhaustive list. Various tribunals may be empowered by their enabling statutes to grant other remedies. They should not hesitate to use such tools to combat inordinate delay amounting to an abuse of process. V.

Summary [ 101 ] Where delay has not affected the fairness of a hearing, the test to determine if the delay amounts to an abuse of process has three steps: 1. First, the delay must be inordinate. This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case; and 2. Second, the delay itself must have caused significant prejudice; 3. When these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established.

This will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute. [ 102 ] When an abuse of process is found, various remedies are available. In rare cases, where going ahead with the proceeding results in more harm to the public interest than if the proceedings were halted, a permanent stay of proceedings will be justified. When this threshold is not met, other remedies exist, including reduction of sanction and a variation in any award of costs. VI.

Application to the Present Case [ 103 ] The Hearing Committee found that the delay did not amount to an abuse of process given the complexity of the case, the scale of the investigation and the delay that could be attributed directly to Mr. Abrametz’s conduct. The Hearing Committee also concluded that Mr.

Abrametz failed to demonstrate that he suffered significant prejudice from the delay. [ 104 ] The Court of Appeal substituted its own views with respect to the foregoing, and concluded that there had been an abuse of process such that a stay was warranted. [ 105 ] 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. [ 106 ] Regarding the remedy, the Court of Appeal purported to stay the proceedings; however, while it set aside the penalty and costs award imposed by the penalty decision, it allowed the findings of professional misconduct to stand: para. 217. This unusual result is more akin to a reduction in sanction, rather than a stay. Nonetheless, such an order could only have been made if there was an abuse of process in Mr. Abrametz’s case. The three-step test I have previously described to determine if delay amounts to an abuse of process applies.

As I will explain, none of the requirements were met.

A. The Delay Was Long, But Not Inordinate [ 107 ] The audit started on December 4, 2012. The Hearing Committee heard the disciplinary matter between May and September of 2017, and rendered the conduct decision on January 10, 2018. Mr. Abrametz applied for a stay of proceedings on July 13, 2018, that is after the conduct decision, but before the Penalty Hearing was scheduled. The Penalty Hearing took place on September 18, 2018. In the same hearing, the Hearing Committee dealt with the application for a stay. The stay decision was rendered on November 9, 2018. [ 108 ] From the start of the audit in December 4, 2012, to t

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