There has been a lot of ink spilled about delays in the justice system. In criminal cases, delay can result in charges - including very serious ones - being dismissed. In civil litigation cases, actions may also be dismissed for delay if a case is not set down for trial within a set amount of time (in Ontario, that timeframe is a lengthy five years). There has been comparably less focus on delay at administrative tribunals.
Litigators in Ontario are aware that many of Ontario's tribunals are dealing with a substantial backlog and delay coming out of the COVID-19 pandemic. While it is possible to argue that matters should be dismissed when not advanced by a litigant, there is no clear route of dismissal when the cause of the delay is the work of the tribunal itself.
The Supreme Court of Canada recently dealt with the issue of delay in a tribunal setting. In The Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 the Supreme Court considered when an administrative delay can amount to an abuse of process.
What was the case about?
In Abrametz the Law Society of Saskatchewan launched disciplinary proceedings against a member in 2012. Six years later, Abrametz was disbarred for conduct unbecoming of a lawyer. The Hearing Committee of the Law Society had dismissed a stay application during the disciplinary process which was brought given the length of time it took for the matter to proceed to hearing. It was argued that the delay amounted to an abuse of process. That argument was rejected.
The matter was appealed up to the Saskatchewan Court of Appeal. The Saskatchewan Court of Appeal agreed that the delay was an abuse of process and granted Abrametz the stay in proceedings. that court ruled that the inordinate delay 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 Legal Test
The Supreme Court of Canada was called upon to consider the matter. In doing so, it applied the following test:
(1) is there an inordinate delay - including an assessment of the overall context of the matter including: the nature and purpose of the proceedings, the length and causes of the delay and the complexity of the facts and the issues;
(2) has the inordinate delay directly caused significant prejudice or impairs the party's ability to participate in the process - prejudice is a question of fact and can include considerations of significant psychological harm, stigma attached to the individual's reputation, disruption in family life, loss of work or business opportunities and media attention; and
(3) is the delay plainly unfair and/or brings the administration of justice in disrepute.
The Supreme Court also commented on the various remedies available in the case of significant delay - indicating that a stay in proceedings is the most drastic of the remedies available.
Application to the Facts
Ultimately, the Supreme Court of Canada overturned the Court of Appeal’s decision and upheld the decision of the Tribunal.
The majority of the Supreme Court (in a decision written by Rowe, J.A.) found that the delay was long (71 months) but it was not inordinate in the circumstances. The Tribunal had found that the case was a complex one that required an investigation. Much of the delay in the case, 14 1/2 months, was attributable to Mr. Abrametz or his counsel's unavailability as well as other procedural steps taken by them which lengthened the process. The Supreme Court found that the Court of Appeal departed from its proper role and failed to show the tribunal deference when it substituted its findings of fact regarding the scale and complexity of the investigation.
The majority of the Supreme Court also found that there was not significant prejudice to Mr. Abrametz. Mr. Abrametz pointed to four types of prejudice that he had sustained: media attention, practice conditions, the impact on his health and the impact on his family and employees.
Regarding media attention, the Tribunal accepted that Mr. Abrametz's reputation had suffered as a result of the media attention but that "he had failed to demonstrate that this arose from the delay rather than the fact that he was subject to investigation and prosecution." The media attention regarding the matter occurred over a short period of time in early 2018. The Tribunal took a similar review of the practice conditions. In particular, Mr. Abrametz agreed to the practice conditions, they were in place to protect the public and he put forward no evidence of harm caused to his practice by having to comply with the conditions. The Tribunal was not persuaded that the minor medical condition complained of by Mr. Abrametz and the stress experienced by his family and employees were connected to the delay. The Supreme Court found no palpable and overriding error in the Tribunal's reasoning which would have been necessary to overturn their decision.
Take Aways
Even though the Supreme Court did not find that the proceeding could be stayed as a result of the delay, there are important lessons to be learned in this case for litigants who are battling significant delays in their administrative proceedings.
First, it is necessary to keep track of the reasons for the delay and to ensure that your actions are not contributing to it. It might be handy to create a chart outlining all of the steps in the proceeding and identifying the cause of gaps in activity. These charts are easier to construct when started at the beginning of a proceeding than when history needs to be re-visited months or years after the fact.
Second, evidence needs to be collected of the prejudice that the delay has caused to you. It does not seem to be enough to simply say that the proceedings hanging over your head are causing you stress and reputational harm. Actual evidence of financial loss, emotional and physical health decline linked to the proceeding (supported by expert evidence), loss of available evidence and witnesses due to the passage of time, and significant and ongoing media attention are some factors which may assist in establishing prejudice.
Third, a stay in the proceedings is seen as the nuclear option. The Tribunal and any reviewing court is going to see if there are any less serious remedies to overcome the harm done by the delay. The most likely lessor remedies in the context of a disciplinary proceeding are likely to be reduction in sanctions imposed and/or an award of costs.
Fourth, we need to recognize that some matters simply take time. When serious allegations are levied against an individual, or multiple individuals, and there are large numbers of witnesses and documents to be reviewed, the investigation phase of a proceeding can take many months.
Delays caused by those investigations will likely be given significant latitude and will be treated differently than delays caused by parties or their lawyers not responding to matters, several adjournment requests or a lack of Tribunal resources to handle the matter promptly.
Even though a stay was not ultimately obtained in the Abrametz matter, I am interested in seeing whether more litigants and their counsel raise delay as an issue in tribunal and other administrative proceedings. In my view, doing so may be a useful way to encourage increased investment in tribunals so that matters do not languish for years.
Erin Durant
With research assistance from Sarah Del Villano.