Delays can be caused by many things when litigating a claim. For instance, a party to a dispute may fail to show up to a court date. In other cases, parties may need additional time to gather the evidence required to prove their case.

When delays are particularly lengthy, this can have a negative impact on the parties. The Supreme Court of Canada recently considered in what circumstances delay can be considered an abuse of process in administrative proceedings.

Lawyer is found guilty of conduct unbecoming of a lawyer

In Law Society of Saskatchewan v. Abrametz, disciplinary proceedings were brought against a Saskatchewan lawyer. After an audit in 2012, the Law Society of Saskatchewan found irregularities in Mr. Abrametz’s financial records. The lawyer had made some loans to vulnerable clients and endorsed fake cheques he had issued before cashing them.

Mr. Abrametz was temporarily suspended in 2013, although he was still permitted to practice under certain conditions. Specifically, he was to retain a lawyer to oversee his financial accounts. He was not allowed to accept, endorse, or cash any cheques. This arrangement continued after the Law Society issued a second notice in 2014.

In 2015, the Law Society made a formal complaint against the lawyer and appointed a Hearing Committee. The disciplinary hearing was held between May to September 2017. In January 2018, Mr. Abrametz was found guilty of four counts of behaviour unbecoming of a lawyer. He brought an application to stay the proceedings in July 2018, which the Hearing Committee rejected in November of that year. Mr. Abrametz was disbarred and not allowed to reapply until January 2021.

Lawyer alleged that delay in verdict amounts to an abuse of process

Mr. Abrametz argued before the Hearing Committee that the Law Society took so long to investigate and decide on his case, it constituted an abuse of process. In total, 71 months had passed between the start of the investigation to the Hearing Committee’s decision. While the Hearing Committee dismissed this argument, the Court of Appeal for Saskatchewan sided with Mr. Abrametz.

Blencoe: assessing abuse of process

In Blencoe v. British Columbia (Human Rights Commission), the Supreme Court took a strict approach to determine abuse of process when applied to administrative proceedings. In these kinds of proceedings, there needs to be more than simply a delay to be considered an abuse of process that warrants a stay of proceedings.

The Court of Appeal for Saskatchewan preferred an approach similar to the Supreme Court’s later decisions in R v. Jordan and Hryniak v. Mauldin. Those cases emphasized the need for a fair and just resolution of disputes, including avoiding unnecessary expense and delay.

SCC set out a three-part test for abuse of process caused by delay

The Law Society of Saskatchewan appealed to the Supreme Court of Canada. The main issue on appeal was how the abuse of process doctrine should be decided when it relates to an administrative delay. The Supreme Court set out the test for determining if a delay amounts to an abuse of process:

1. The delay must be inordinate, based on the overall context of the case. This requires consideration of the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the case’s facts and issues;
2. The delay must have caused significant prejudice; and
3. When the first two requirements are met, the court or tribunal should conduct a final assessment to determine whether there was an abuse of process. This occurs when the delay is manifestly unfair to one party or otherwise brings the administration of justice into disrepute.

Saskatchewan Court of Appeal should have had deference to Law Society Hearing Committee

The Supreme Court held that the Saskatchewan Court of Appeal should have held more deference to the decision of the Hearing Committee. Instead, the Court of Appeal substituted its own findings of fact with those in the decision. It also erred in applying the stay of proceedings by setting aside the penalty and costs while preserving the findings of professional misconduct.

SCC’s application of the three-part test supported Hearing Committee’s position

The Supreme Court of Canada applied its three-part test to the facts:

1. On the first step of the test, it found that the delay was not inordinate. In total, 71 months had passed from the start of the audit of Mr. Abrametz’s financial records. The Court of Appeal interfered with the Hearing Committee’s decision, specifically concerning the scale and complexity of the investigation. The Hearing Committee concluded the delay to be reasonable based on the evidence before it. Deference should have been given to the Hearing Committee.
2. On the second step of the test, the Hearing Committee disagreed with Mr. Abrametz’s claims of prejudice of “the media attention; the practice conditions; the impact on his health; and the impact on his family and employees.” By contrast, the Court of Appeal found Mr. Abrametz experienced significant prejudice. The Supreme Court agreed with the Hearing Committee.
3. The Supreme Court held that the Hearing Committee did not err in finding no inordinate delay or significant prejudice in the delay Mr. Abrametz experienced in his case. Therefore, there was no need to consider the final step.

While the Supreme Court acknowledged the importance for the Law Society to administer justice in a timely fashion, it allowed the appeal. The Court of Appeal judgment was set aside. The matter was remitted back to the Court of Appeal for the outstanding grounds of appeal.

Contact Campbells LLP in Oakville for Skilled Advocacy in Administrative Proceedings

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