Delay, without More, will not Warrant a Stay in Administrative Proceedings
Written By Katherine Fisher and Natasha Laffin
In an eight to one split decision, the Supreme Court of Canada (SCC) has rendered its long-anticipated judgment regarding delay in administrative proceedings in Law Society of Saskatchewan v Abrametz [Abrametz], 2022 SCC 29. In its decision, the SCC concluded that, unlike in criminal proceedings, delay alone will not constitute an abuse of process warranting a stay in administrative proceedings.
The SCC in Abrametz was tasked with reviewing the law as previously set out by it in Blencoe v British Columbia (Human Rights Commission) [Blencoe],2000 SCC 44, and seemingly varied by the Saskatchewan Court of Appeal (SKCA) in Abrametz v Law Society of Saskatchewan [Abrametz CA], 2020 SKCA 81. In Blencoe, the SCC called for a strict approach to be applied in administrative proceedings, holding that delay, without more, will not constitute an abuse of process warranting a stay of proceedings. This was the unwavering state of the law for over 20 years, until the SKCA in Abrametz CA ostensibly proposed lowering the standard to be more in line with the SCC's decisions in R v Jordan [Jordan], 2016 SCC 27 and Hryniak v Mauldin, 2014 SCC 7, where the need for timely justice in criminal and civil cases was prioritized.
In overturning the SKCA's decision, the majority in Abrametz seemingly affirmed Blencoe, rejecting the application of Jordan-like principles in the administrative law context, and confirming the applicable standard of review as correctness. In finding that delay of roughly 6 years was "long, but not inordinate," the SCC highlighted factors for contextual review, 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 (at para 51). The Court further held that, despite introducing evidence of prejudice resulting from media attention, practice conditions, and health and family impacts resulting from the delay, Mr. Abrametz had not provided sufficient proof of significant prejudice warranting a finding of delay amounting to an abuse of process (at para 124).
In upholding Blencoe's strict approach, the majority in Abrametz reasoned that a stay should be granted only in the clearest of cases, "when the abuse falls at the high end of the spectrum of seriousness" (at para 83). However, the Court indicated that lesser, but nevertheless significant prejudice, could justify remedies other than a stay, noting that in such cases, the public interest may be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse suffered (at paras 89-90). 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 (at paras 94-99). The Court noted that various tribunals may be empowered by their enabling statues to grant other remedies, and encouraged such tribunals not to hesitate to use tools to combat inordinate delay amounting to an abuse of process (at para 100).
Notably, in her dissenting opinion, Justice Suzanne Côté took issue with the Court's decision, commenting: "the majority’s test is so onerous that it invites complacency in administrative proceedings" (at para 136). She further disagreed with the majority's articulation of the standard of review in the context of inordinate administrative delay, and their affording deference to an administrative decision maker's conclusion on whether delay is inordinate and their resulting choice of remedy. Justice Côté's dissent, while certainly more favourable to regulated professionals than the majority's position, provides insight into likely areas of discord between regulators and regulated professions in the future.
In anticipation of the SCC's decision, self-regulated professions, including various professional Colleges and their regulated members awaited further direction, anticipating change; however, it appears that the SCC has elected to maintain status quo, rather than recognizing an evolution in the law in the context of administrative proceedings. Notably, while the Court upheld the strict approach in Blencoe and reasoned that a stay should be granted in only the most serious of cases, the Court clearly articulated that some form of remedy, such as a reduction in sanction or variation of an award of costs, should be afforded in cases of inordinate delay amounting to an abuse of process.
Bennett Jones LLP remains at the forefront of administrative law as it pertains to professional Colleges and regulated members alike, and we are readily available to provide information and guidance on matters in this area as they arise.
Katherine J. Fisher, BScN, MN, JD
Natasha O.Q. Laffin, BComm, JD, MPH