No Inordinate Delay for “Unbecoming” Saskatchewan Lawyer

Administrative law – Decisions reviewed – Law Societies – Judicial review – Appeal – Procedural requirements and fairness – Standard of review – Correctness – Barristers and solicitors – Disciplinary proceedings – Delay – Remedies – Mandamus

Law Society of Saskatchewan v. Abrametz, [2022] S.C.J. No. 29, 2022 SCC 29, Supreme Court of Canada, July 8, 2022, R. Wagner C.J. and M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin, N. Kasirer and M. Jamal JJ.

In 2012, Mr. Abrametz, a lawyer in Saskatchewan, was investigated by the Law Society of Saskatchewan (LSS) relating to apparent fraudulent billing of clients and use of a trust account.

The LSS initially pursued an interim suspension in 2013 and 2014, however ultimately permitted Mr. Abrametz to continue practicing with conditions. In October 2015, a formal complaint containing seven charges was issued and a Hearing Committee appointed. During this period, a simultaneous investigation into Mr. Abrametz’s tax situation gave rise to litigation concerning the LSS’ investigatory powers.

The matter was heard by the LSS Hearing Committee in 2017 and decision rendered January 2018 finding Mr. Abrametz guilty of four of the seven charges. On July 13, 2018, Mr. Abrametz applied for a stay of proceedings on the basis that the time taken by the LSS to investigate amounted to an abuse of process. The Hearing Committee found the delay neither inordinate nor unacceptable given the complexity of the case, the extent of the investigation and delay attributed to Mr. Abrametz. The Hearing Committee also determined that any prejudice experienced was not so significant such that it was so unfair that the public’s sense of fairness would be harmed, having regard to the LSS’ mandate to protect the public.

The Saskatchewan Court of Appeal overturned the decision of the Hearing Committee, finding that Mr. Abrametz was entitled to a stay. The Court concluded that there were significant periods that were not adequately explained and could not be justified by the scale and complexity of the proceedings, and that the delay resulted in significant prejudice offending the public’s sense of decency and fairness.

The Supreme Court of Canada (SCC) confirmed the three-step test for whether delay that does not affect hearing fairness is an abuse of process set out in Blencoe: a) the delay must be inordinate b) the delay must have directly caused significant prejudice and c) if those two requirements are met, then an assessment will be made with respect to whether the delay was manifestly unfair to a party or in some other way brought the administration of justice into disrepute. The SCC disagreed that the Jordan framework applied to administrative proceedings because Jordan dealt specifically with the right to be tried within a reasonable time pursuant to s. 11(b) of the Charter. No such constitutional right exists outside the criminal context.

The SCC commented that a lengthy delay will not per se be inordinate, but might be justifiable (for example, in cases involving parallel criminal or administrative proceedings). The causes of delay must be considered, noting that the requirements of procedural fairness sometimes slow the pace at which proceedings progress.

With respect to remedy, the SCC noted that the Courts can compel administrative decision makers to carry out their duties under the remedy of mandamus and cautioned that a stay of proceedings is the “ultimate remedy” and one that should only be made in the “clearest of cases” when the abuse falls at the high end of the spectrum.

In this case, the SCC found that the Court of Appeal had misapplied the applicable standard of review and did not accord deference to the Hearing Committee’s finding of facts. The SCC determined there was no palpable and overriding error providing a basis for overturning the Hearing Committee’s finding that the delay had not been inordinate and significant prejudice had not been demonstrated by Mr. Abrametz. On this basis, the SCC found that none of the elements of the three-step test for abuse of process had been met and granted the appeal, remitting the matter to the Court of Appeal.

This case was digested by Roshni Veerapen, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Roshni Veerapen at [email protected].

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