Time limits in disciplinary law are often very, even too long for the professionals concerned, and it is common for them to wonder about possible remedies for such delays, or whether there is a maximum time limit within which the investigation and disciplinary process must be completed.
In 2016, in the criminal case of R. v. Jordan1, the Supreme Court of Canada ordered a stay of proceedings against the accused on the grounds that the delay incurred since the beginning of the judicial proceedings was unreasonable, thereby obscuring the right to be tried within a reasonable time, which is protected by s.11(b) of the Canadian Charter of Rights and Freedoms.
In Quebec civil law, excessive delays caused by one party may lead to a declaration of abuse of process, which may include the reimbursement of legal fees incurred by the opposing party.
In both civil2 and criminal cases3, the courts have repeatedly pointed out that unreasonable delays in treatment can lead to legal action. But what about professional and disciplinary law?
In the recent Law Society of Saskatchewan v. Abrametz4 decision, the country’s highest court addressed the issue and clarified the analytical framework for determining what constitutes excessive delay in disciplinary proceedings that may justify a stay of proceedings.
Peter V. Abrametz has been a lawyer and member of the Law Society of Saskatchewan for forty-nine years. In 2012, the Law Society conducted various audits of the lawyer’s financial records. Following these audits, which spanned several years, it was not until February 2015 that the Law Society filed a formal complaint containing seven counts against Mr. Abrametz.
LEGAL BACKGROUND AND HISTORY
Me Abrametz was the victim of a lengthy administrative process totalling a delay of seventy-one months. The Hearing Committee rendered its decision on the lawyer’s professional conduct on January 10, 2018. On July 13, 2018, Me Abrametz requested a stay of proceedings on the grounds that the unreasonable delay constituted an abuse of process, and on November 9, 2018 the decision on the stay of proceedings was rendered.
The Hearing Committee concluded that the delay was neither excessive nor unreasonable given the complexity of the case, the scope of the investigation and the delay attributable to Me Abrametz’s own conduct. Furthermore, he concluded that the prejudice suffered by Me Abrametz was not so great that the continuation of the process would be so unfair as to offend the public’s sense of fairness and decency, given the Bar’s mission to protect the public.
Mr. Abrametz appealed to the Saskatchewan Court of Appeal, which found that the excessive delay had caused significant prejudice and was likely to bring the Law Society’s disciplinary process into disrepute. The Court of Appeal therefore concluded that Me Abrametz’s request for a stay of proceedings should have been granted by the Hearing Committee. The Bar has appealed this decision.
QUESTION AT ISSUE
The question the Supreme Court had to answer was whether the delay in this administrative process constituted an abuse of process requiring a stay of proceedings. This is a question of law, and therefore the applicable standard of review is correctness5.
ANALYSIS OF THE COURT
Firstly, in its decision, the Court clarifies that the Jordan ruling does not apply to administrative proceedings, considering that the right to be tried within a reasonable time applies only in the context of criminal proceedings.
Secondly, the Court identifies two situations in which delay in disciplinary proceedings may constitute an abuse of process.
In the first instance, the fairness of the hearing may be compromised when the delay in question impairs a party’s ability to respond to the complaint against them. For example, when the memory of witnesses is impaired by the time elapsed since the facts in question, when essential witnesses are no longer available to testify, or when documentary evidence has been lost or destroyed since the facts.
Secondly, there may also be an abuse of procedure if the excessive delay causes significant prejudice to the accused professional.
In the Abrametz case, the fairness of the hearing was not in jeopardy. Consequently, the Court analyzed the second plea, recalling the pre-established analysis in the Blencoe5 case to determine whether a delay that does not jeopardize the fairness of the hearing still constitutes an abuse of process because of the prejudice suffered by the professional.
In this second form of abuse (when the excessive delay causes significant prejudice to the accused professional), a three-step test has been determined:
- In context, the delay must be disproportionate;
- The delay must have caused significant prejudice to the accused professional; and
- When these first two conditions are met, we must assess whether the delay discredits the sound administration of justice.
Thus, unlike situations where the fairness of the trial is jeopardized, here a sine qua non condition is the presence of inordinate delay. To determine whether a delay is inordinate in the context of the case, the court must consider several factors, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in dispute.
In this analysis, the primary objective of a professional order must be taken into consideration: protecting the public and preserving its confidence in the institution. However, this type of decision sometimes involves technical elements that take longer to assess.
As well, the cause of the delay is an essential element to examine. It is important to know that if the party requesting the stay of proceedings has contributed to the extension of the delay, or has waived certain parts of it, the delay does not constitute an abuse of process. It is also important to bear in mind the wide variety of contexts that characterize the justice system in disciplinary law.
It should also be pointed out that the period to be assessed begins when the professional investigation begins, and not when the complaint is lodged with the professional order’s disciplinary council.
The second requirement is the existence of significant prejudice caused by the excessive delay. Whether or not prejudice exists is a question of fact.
A significant prejudice could, for example, be psychological harm, damage to reputation preventing the professional from practicing, significant family impact, loss of employment or business opportunities, or media attention impacting on the professional’s private life.
The alleged prejudice must be directly linked to the excessive delay: it is not enough simply to allege that the disciplinary process itself causes prejudice to the professional.
Sound administration of justice
Once the above two conditions have been met, to establish abuse of process, the court must make a final assessment of the situation, determining whether the delay unreasonably disrupts the administration of justice.
Ultimately, once abuse of process has been established, several remedies may be available. In particular, the party who has been the victim of an abuse of process can be compensated by the party who caused the delay and have his or her penalty or costs reduced.
Certain measures may be taken solely to alleviate the delay while it is still running. For example, the tribunal may encourage the decision-maker to address the systemic delay, or a mandamus petition may be filed by a party to compel the decision-maker to fulfill its obligation and limit the delay in administrative proceedings.
Finally, as a last resort, and only in rare cases, a stay of proceedings may be ordered.
In this case, Me Abrametz had to wait more than seventy-one months to bring the disciplinary proceedings to a close. Nevertheless, taking into account the public interest, the Supreme Court of Canada decided by an eight-to-one majority that this was not an abuse of process justifying a stay of proceedings.
Indeed, the Court found that, given the context of the case, the delay was not excessive. Moreover, given the absence of any significant prejudice suffered by Me Abrametz, the Court of Appeal erred in law in concluding that there had been an abuse of process, which justified setting aside its decision.
All things considered, in a disciplinary law context, the bar is very high for ordering a stay of proceedings for an abuse of process due to excessive delay. But each case is unique. Although in this case a delay of six years was not deemed excessive, it may well be that the same delay in another case would have been sufficient to justify a stay of proceedings.
1 R. v. Jordan, 2016 CSC 27.
2 Hryniak c. Mauldin, 2014 CSC 7.
3 R. v. Jordan, supra note 1.
4 Law Society of Saskatchewan v. Abrametz, 2022 CSC 29.
5 Housen v. Nikolaisen, 2002 CSC 33.
6 Blencoe v. British Columbia (Human Rights Commission),  2 R.C.S. 307.