Law Society of Saskatchewan v. Abrametz, 2020 SKCA 812022 SCC 29 (39340)

“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.”

The SCC (8:1) allowed the appeal, set aside the judgment of the Court of Appeal and remitted the matter to the Court of Appeal to address the outstanding grounds of appeal.

Justice Rowe wrote as follows (at paras. 26-27, 29-30, 38, 46-47, 101-102, 125-126):

“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.

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.


 

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.

Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness.



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 Court recognized that decision makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay.


 

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 key purpose for which such decision-making authority was delegated — expeditious and efficient decision-making.

However, there are important reasons why Jordan does not apply to administrative proceedings. Jordan deals with the right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedom. No such Charter right applies to administrative proceedings. As such, there is no constitutional right outside the criminal context to be “tried” within a reasonable time.


 

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.

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.


 

Since the Hearing Committee has not been shown to have erred in its finding that there was no inordinate delay or significant prejudice to Mr. Abrametz, there is no basis to set aside its conclusion that there was no abuse of process in this case. Consequently, it is not necessary to proceed to the next step and consider what remedy should be ordered. Notwithstanding the foregoing, the actions of the Law Society were not above reproach. The Law Society is entrusted with self-regulation of the profession, and by extension an aspect of the rule of law. The Law Society should be keenly aware of the importance of justice being done in a timely way; it should make every effort to safeguard procedural fairness. In all this, the Law Society should set an example for its own members.”