Beyond Blencoe? Delay in Administrative Proceedings and Abrametz v Law Society of Saskatchewan
Ainslie Pierrynowski, 3L, Volume 80 Senior Editor
In recent years, delay in administrative proceedings has been the subject of news headlines, as well as academic scholarship [1]. Justice Stratas of the Federal Court of Appeal, writing extrajudicially, has noted that, “[W]hile the evidence is often anecdotal, it would seem that delays in the administrative justice system are increasingly severe. There are delays that would never be countenanced in the court system and whose effects, both on the parties involved and the public interest, are often massive” (The Hon. David Stratas, “Decision-makers under new scrutiny: sufficiency of reasons and timely decision-making” at 2 (Stratas)).
At the time of writing, the Supreme Court of Canada (SCC) is poised to revisit its leading decision on the threshold for staying an administrative proceeding due to delay causing prejudice, Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII) (Blencoe). More than twenty years after Blencoe was decided, the SCC is slated to examine undue delay, among other administrative law issues, when it decides the appeal from Abrametz v Law Society of Saskatchewan, 2020 SKCA 81 (CanLII) (Abrametz).
This upcoming appeal is particularly significant, because the Saskatchewan Court of Appeal (SKCA) appeared to lower the high threshold for staying an administrative proceeding due to delay as set out in Blencoe. Notably, the SKCA referenced R v Jordan, 2016 SCC 27 (CanLII) (Jordan), which dealt with the right to be tried within a reasonable time under section 11(b) of the Charter, and introduced a ceiling on delays in criminal proceedings. Beyond this ceiling, a delay is only acceptable in exceptional circumstances. The SKCA’s invocation of Jordan raises the question of whether this criminal law decision can – or should – inform the courts’ approach to delays in an administrative law context.
This blog post aims to offer a timely analysis of the SKCA decision and its implications for administrative law. Overall, this blog post argues that rather than lower the threshold set out in Blencoe as it applies to all administrative proceedings, the SCC might consider a contextual approach where the more an administrative proceeding resembles a judicial proceeding, the lower the threshold to stay the proceeding due to delay. To this end, the blog post will begin by reviewing the SKCA decision, before proceeding to an analysis of the case.
Facts and Procedural History
In 2012, the Law Society of Saskatchewan (LSS) initiated an audit investigation regarding Saskatchewan lawyer Peter Abrametz. The LSS conducted an extensive investigation into several admissions and allegations, including potential tax evasion. On two occasions, the LSS served Mr. Abrametz with a Notice of Intention to Interim Suspend, but Mr. Abrametz was permitted to continue practicing under the supervision of an approved LSS member.
The LSS continued to investigate the possible tax evasion and, despite Mr. Abrametz’s objections, sought Mr. Abrametz’s tax records. Ultimately, however, the Conduct Investigation Committee (CIC) of the LSS recommended that the LSS proceed with some charges against Mr. Abrametz while the tax investigation continued. In 2015, the CIC advised the LSS to appoint a Hearing Committee to determine seven charges against Mr. Abrametz. Mr. Abrametz applied to adjourn the proceeding, but the Hearing Committee denied this application.
In 2018, the Hearing Committee found Mr. Abrametz guilty on four charges related to financial misconduct. Before the penalty hearing was to be held, Mr. Abrametz applied to stay the proceeding due to delay constituting a breach of natural justice and procedural fairness resulting in an abuse of process, among other grounds. Mr. Abrametz averred that he had been subject to negative publicity even before he had been found guilty by the Hearing Committee. He also deposed that the stress caused by delay in the proceeding had impacted his health, leading to monitoring for high blood pressure. Moreover, Mr. Abrametz stated that the delay had caused stress among his family and staff.
The Hearing Committee denied the stay application. Considering the 66-month period between the start of the investigation and the finding of guilt being rendered, the Hearing Committee held that this time period was appropriate given the complexity of the case, the size of the investigation, and the delay directly attributable to Mr. Abrametz’s conduct. In January 2019, the Hearing Committee ordered that Mr. Abrametz be disbarred, with no right to reapply for admission before January 2021. Mr. Abrametz appealed the Hearing Committee’s decision to refuse a stay of the proceeding due to delay, among other grounds. The appeal was heard by the SKCA.
The SKCA Decision
While the SKCA decision involved other administrative law issues, the following summary of the decision will focus on the issue of whether the Hearing Committee erred by denying Mr. Abrametz’s application for a stay of the proceeding due to delay.
Justice Barrington-Foote, writing for the court, determined that the appropriate standard of review for the delay issue was correctness [2]. Justice Barrington-Foote then reviewed the principles articulated in Blencoe. In Blencoe, Justice Bastarache held that there is a narrow range of circumstances in which delay may constitute abuse of process where hearing fairness has not been compromised. Namely, the delay must be so inordinate as to be clearly unacceptable; a person must suffer significant prejudice, which can include psychological harm or the attachment of stigma to their reputation; and the court must be satisfied that the harm to the public interest if the proceeding were to go ahead would be greater than the harm to the public interest if the proceeding was halted (Blencoe at paras 115, 120). Justice Bastarache emphasized that “few lengthy delays will meet this threshold” (Blencoe at para 115). Indeed, later cases which applied Blencoe suggest that a stay of proceedings due to delay is rarely granted (Stratas at 25).
Nevertheless, Justice Barrington-Foote held that the Hearing Committee had erred by denying Mr. Abrametz’s stay application. He found that of the time between the start of the investigation and the beginning of the hearing, 32.5 months constituted undue delay (Abrametz at para 197). This delay was so clearly unacceptable as to be inordinate. The Hearing Committee had erred in finding that the investigation process was unusually complex and that Mr. Abrametz had been uncooperative. With respect to the question of prejudice, Justice Barrington-Foote held that the Hearing Committee had erred in its treatment of Mr. Abrametz’s circumstances. For example, it had not considered the stress suffered by Mr. Abrametz’s family and staff in its Blencoe analysis. Lastly, Justice Barrington-Foote reasoned that the public interest supported issuing a stay of the proceeding. On the one hand, Mr. Abrametz faced serious charges which dealt with matters important to the LSS’s mandate to protect the public interest. On the other hand, Mr. Abrametz did not misappropriate funds, the possible tax evasion was not at play in the proceeding, no clients of Mr. Abrametz had complained to the LSS, and Mr. Abrametz was a longstanding practitioner with no prior disciplinary record. Accordingly, Justice Barrington-Foote stayed the proceeding and set aside the penalty but maintained the findings of misconduct.
Abrametz’s divergence from Blencoe
In the SKCA decision, while Justice Barrington-Foote reasoned that his decision was consistent with Blencoe, he nonetheless acknowledged that the outcome Mr. Abrametz sought was “not an easy fit” with the subsequent interpretation of Blencoe by the courts (Abrametz at para 4). The majority in Blencoe held that there was “no analogous provision to s. 11(b) [of the Charter] which applies to administrative proceedings” (para 88). Justice Bastarache noted that administrative proceedings and criminal proceedings diverge in terms of their objectives, procedures, and consequences (Blencoe at para 92).
Yet throughout the SKCA decision, Justice Barrington-Foote emphasized that key cases about judicial delay point to “an evolution in the Supreme Court’s understanding of the impact of, and need to address, delay in the administration of justice” (Abrametz at para 8). In particular, Justice Barrington-Foot referenced Hryniak v Mauldin, 2014 SCC 7 (CanLII), which called for a culture shift to promote “timely and affordable access to the civil justice system” (para 2). Justice Barrington-Foote also made several references to Jordan. Aside from taking account of the need for judicial deference, Justice Barrington-Foote asked, “why should less be required of administrative decision-makers than courts?” (Abrametz at para 9).
Beyond Blencoe?
This brings us to an analysis of whether a renewed approach to Blencoe is indeed necessary. On the one hand, as Mr. Abrametz argued before the SKCA, Doré v Barreau du Québec, 2012 SCC 12 (CanLII) (Doré) has altered the administrative law landscape (Abrametz at para 212). Doré established that administrative decision-makers must exercise statutory discretion in accordance with Charter values. As the Court elaborated in Loyola High School v Quebec, 2015 SCC 12 (CanLII), Charter values are “those values that underpin each right and give it meaning” (para 36). Seemingly, this judicial development might suggest that the Charter values underlying s. 11(b) have implications for administrative law. On the other hand, however, Charter values have been the subject of judicial and scholarly criticism [3]. For instance, as Justices Lauwers and Miller observed in Gehl v Canada (Attorney General), 2017 ONCA 319 (CanLII) at para 79:
Charter values lend themselves to subjective application because there is no doctrinal structure to guide their identification or application. Their use injects a measure of indeterminacy into judicial reasoning because of the irremediably subjective - and value laden - nature of selecting some Charter values from among others, and of assigning relative priority among Charter values and competing constitutional and common law principles. The problem of subjectivity is particularly acute when Charter values are understood as competing with Charter rights.
Additionally, there are a number of key differences between the judicial realm, particularly criminal law, and administrative justice. With respect to criminal law, there seems to be a principled rationale for imposing a lower threshold for staying a criminal proceeding due to delay. That is, the accused in a criminal proceeding must, as the LSS argues in its SCC factum, face the “might and limitless resources of the state, with deprivation of liberty a potential result” (29-30). These circumstances seemingly justify affording the accused in a criminal proceeding greater procedural protections with respect to delay than those given to an individual in an administrative proceeding, where the risk of imprisonment is not present.
This does not necessarily mean that Blencoe ought to remain wholly unchanged, over two decades after it was decided. Administrative law, after all, “is defined by its diversity” (Lorne Sossin and Mark Friedman, “Charter Values and Administrative Justice” at 1). Administrative tribunals have a wide variety of structures, goals, and procedures. They range from immigration boards to professional disciplinary bodies, to housing tribunals, and beyond. The majority opinion in Blencoe does afford the courts a flexible and contextual approach in responding to undue delay in administrative proceedings, to an extent. Instead of staying a proceeding, the courts can turn to other administrative law remedies (Blencoe at para 101). For example, an applicant who does not meet the high threshold for delay established in Blencoe might nonetheless have recourse to mandamus, where a court issues an order to an administrative decision-maker specifying a specific act or duty (see e.g. Latham v Canada, 2020 FC 670 (CanLII) at para 52).
Nonetheless, administrative tribunals have evolved in two key ways. First, academic commentators have observed that administrative tribunals have increasingly taken on a court-like character. While administrative proceedings are generally intended to be less cumbersome and less formal than court proceedings, a combination of statutory change, judicial developments related to procedural fairness rights, and other circumstances have rendered at least some administrative processes more court-like [4]. Second, a host of factors, including higher stakes and increased procedural protections, resource limitations, and expanded jurisdiction for some tribunals, may be contributing to worsening delays in administrative proceedings (Stratas at 31-38). For these reasons, a more robust approach to delay which takes into account these developments, as well as the procedural diversity of administrative tribunals, is needed.
A desirable approach could be a contextual test for staying a proceeding due to delay, where the more an administrative proceeding resembles a court proceeding, the lower the threshold to stay the proceeding due to delay. This approach draws on Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC) (Baker), which held that among other factors, the extent and nature of the duty of procedural fairness depends on the decision being made and the process followed in making it. As Justice L’Heureux-Dubé observed at para 23 of Baker:
The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.
It seems appropriate to incorporate principles from Baker into the analysis set out in Blencoe, given that whether a delay in an administrative proceeding amounts to abuse of process is a procedural fairness question (Financial and Consumer Services Commission v Emond et al., 2017 NBCA 28 (CanLII) at para 13).
Overall, the outcome of the SCC appeal in Abrametz will likely prove consequential for a range of administrative regimes. In the interim, although the British Columbia Court of Appeal declined to incorporate principles from Jordan into a 2020 decision regarding delay (see Diaz-Rodriguez v British Columbia (Police Complaint Commissioner), 2020 BCCA 221 (CanLII)), the SKCA case is relatively recent and, as an appellate decision, it could still prove highly persuasive in other jurisdictions. As the SCC prepares to reconsider Blencoe, administrative decision-makers would do well to bear the implications of the SKCA decision in mind.
[1] With respect to news articles, see, e.g., Paola Loriggio, “Experts say staffing shortage compounds COVID-19 delays at human rights tribunal.”; with respect to academic scholarship see, e.g., David J. Mullan and Deirdre Harrington, “The Charter and Administrative Decision-Making: The Dampening Effects of Blencoe” (2002) 27:2 Queen’s LJ 879, and Terence Ison, “Administrative Law – The Operational Realities” (2009) 22 Can J Admin L & Prac 315.
[2] Justice Barrington-Foote observed that the courts diverge as to the standard of review for procedural fairness questions (which include the issue of staying an administrative proceeding due to delay amounting to an abuse of process). Some decisions maintain that the standard of review is correctness, others that the standard of review is reasonableness, and still others that there is no standard of review per se.
[3] See e.g. the minority opinion of Rowe J. in Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII) at paras 152-259. See also Audrey Macklin, “Charter Right or Charter-Lite? Administrative Discretion and the Charter” (2014) 67 SCLR 561, and Matthew Horner, “Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014) 67 SCLR 361.
[4] See David Mullan, “Tribunals Imitating Courts – Foolish Flattery or Sound Policy?”