Written by: Daniel McBain
On February 25, 2021, the Supreme Court of Canada granted leave to appeal in Law Society of Saskatchewan v. Peter Abrametz. This case raises significant issues around (1) when delay amounts to an abuse of process justifying a stay in administrative proceedings, and (2) standard of review in professional disciplinary matters.
Abrametz concerned whether a delay of 53 months between the start of an investigation and the start of a hearing justified staying disciplinary proceedings against Mr. Abrametz as an abuse of process, per the Supreme Court of Canada’s decision in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44. The Law Society said no. The Court of Appeal said yes.[1]
The Court of Appeal’s decision is significant for two main reasons:
1. First, it significantly lowers the bar on ordering stays of administrative proceedings for undue delay; and
2. Second, it raises the issue of how to characterize issues as questions of law, mixed fact and law, and fact, impacting how intrusive judicial oversight will be on statutory appeals. This is likely to be of significant interest to professional regulators with appeal clauses, who can no longer count on deference on questions of law, but who may receive deference if issues are characterized as questions of mixed fact and law, or fact.
Delay
The analysis as set out in Blencoe requires that the Court assess:
1. Whether the delay was inordinate;
2. Whether the delay caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected; and
3. Whether the harm to the public interest as a result of the delay exceeds the harm to the public interest in halting the proceedings.
The Saskatchewan Court of Appeal engaged in a vigorous analysis of delay, in light of what it saw as Supreme Court of Canada case law that demonstrate “an evolution in the Supreme Court’s understanding of the impact of, and need to address, delay in the administration of justice”.
Of the 53 months between the beginning of the investigation into Mr. Abrametz’s conduct and the commencement of the discipline hearing, the Court of Appeal found that 18 were inherent to the process, 2.5 were attributable to Mr. Abrametz, and 32.5 constituted undue delay. In coming to this conclusion, the Court of Appeal found the Law Society had made a number of factual and legal errors, such as misattributing delay to Mr. Abrametz, finding in the absence of evidence that he had failed to cooperate, and failing to conclude that an investigation report could have been completed much sooner having regard to the size and complexity of the case.
The Court of Appeal also found that the Law Society erred in failing to find significant prejudice. It held that it was an error to conclude that delay had caused prejudice by having Mr. Abrametz practice under a cloud of suspicion and restrictive conditions, causing stress to him, his family and employees. The Court came to this conclusion notwithstanding the fact that Mr. Abrametz was found guilty and, therefore, had the delay not occurred, he would not have been permitted to practice at all, and the cloud of suspicion would have permanently settled on him.
The Court of Appeals “invigoration” of the Blencoe principles raises important questions about where to draw the line on where delay becomes an abuse of process.
The Court of Appeal’s causation analysis in particular also raises important questions in this area. Should a professional regulator be able to justify undue delay having regard to the ultimate finding of misconduct? Or should a court be required to ignore that finding? A straightforward application of a “but for” test might have found that “but for” the delay, Mr. Abrametz would have been worse off – found guilty and disbarred much sooner. However, this after-the-fact justification might serve to encourage delay, to the detriment of the public interest in the timely prosecution of professional disciplinary matters, as well as encourage members to litigate in slices by bringing mid-proceeding applications for stays and consequent appeals. On the other hand, failing to take into account an adverse finding provides little weight to the public interest in ensuring that professionals practice in an ethical manner.
Standard of Review
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada changed its approach to statutory appeals, holding that appellate standards of review, rather than judicial review principles, will apply. In the result, questions of law will always be reviewed on a correctness rather than reasonableness standard, while questions of fact or mixed fact and law will (absent an extricable question of law) be reviewable on a standard of palpable and overriding error. This change may have significantly broadened the scope of judicial interference in the decisions of many professional regulators. How much interference is appropriate will depend on the willingness of courts to characterize issues as questions of law, or to find extricable questions of law.
Drawing the line between questions of law and questions of mixed fact and law is not always a straightforward exercise. For that reason, judicial policy preferences may sometimes play an important role.
For example, in the leading case on appellate standards of review, Housen v. Nikolaisen, 2002 SCC 33, the Supreme Court of Canada split 5-4 over whether a finding of negligence is typically reviewable on the standard of palpable and overriding error “unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application”, or, in the dissent’s view, this question “will in most cases be reviewable on a standard of correctness”. At the root of this split were competing views on the proper role of the different levels of court, itself a question of policy.
For that reason, while Vavilov attempted to simplify the approach to judicial oversight in statutory appeals, competing views of the appropriate role of courts and administrative tribunals may again rear their heads in Abrametz.
This can be seen in the Court of Appeal’s decision. The characterization issue was relatively straightforward on the discipline questions because they involved interpreting delegated legislation (the Law Society’s Rules). Whether, for example, a statement of adjustments could be a “record” within the meaning of the Law Society’s Rules was a question of law – a matter of interpreting the scope of delegated legislation. Whether the particular statements of adjustments in this matter were “records” was a question of mixed fact and law reviewable on the standard of palpable and overriding error.
The characterization issue was less straightforward on abuse of process. The Court of Appeal reviewed the case law in detail, concluding that delay amounting to an abuse of process is a breach of procedural fairness, which is a question of law. This is so even where fairness in its technical sense – the ability to respond to the case – is not actually impacted. The overall question is, the Court of Appeal determined, therefore a question of law.
However, individual elements of the analysis were treated as questions of fact or mixed fact and law. For example, the Court of Appeal characterized a misattribution of delay to Mr. Abrametz as a “palpable error of fact”. The error found by the Court of Appeal was in attributing a 5-month delay resulting from Mr. Abrametz’s adjournment application to Mr. Abrametz. The Court of Appeal held that the application was reasonable and was necessitated by the Law Society’s initial decision to pursue an investigation of tax issues alongside the disciplinary proceedings, delaying in pursuit of those issues, and then later bifurcating them.
Determining that characterization of delay constitutes a question of fact in this context contrasts with how the question has been addressed in the criminal sphere, where s. 11(b) of the Charter governs. There, characterization of delay is a question of law: R. v. Balogh, 2020 BCCA 96 at para. 19. Whether that proves to be the case in the civil context, where there is no constitutional right to be tried within a reasonable period of time, remains to be seen.
While Vavilov appeared to simplify standard of review for statutory appeals, the issues raised in Abrametz show that those difficulties may simplify have moved into the exercise of characterizing issues on appeal as questions of fact, law, or mixed fact and law. How the Supreme Court of Canada goes about characterizing issues in this case may have significant ramifications for how much deference professional regulators with appeal clauses receive in future.
Footnotes:
[1] The appeal also raised issues around whether the charges had actually been made out, which do not raise issues of broader import.