The six years it took for the Law Society of Saskatchewan (LSS) to discipline a lawyer after launching an investigation into his conduct did not amount to an abuse of process, according to the Supreme Court of Canada.
On July 8, the Supreme Court released its decision on Law Society of Saskatchewan v Abrametz, 2022 SCC 29 (Abrametz), which centred on Peter V. Abrametz, a lawyer. The LSS commenced an audit of Abrametz’s financial records in late 2012 and held a disciplinary hearing respecting allegations of professional misconduct in 2017. The LSS did not render a final penalty decision against him until January 20, 2019, when it disbarred Abrametz for almost two years for his conduct.
The Saskatchewan Court of Appeal later stayed the disbarment, finding that the six years it took for the LSS to discipline Abrametz amounted to an abuse of process due to inordinate delay. This decision was appealed and overturned by the Supreme Court.
Abuse of Process Due to Inordinate Delay
With an 8-1 majority, the Supreme Court overturned the decision of the Court of Appeal. It found that the Court of Appeal had erred in its application of the standard of review by incorrectly weighing evidence and substituting its own findings of fact.
Apart from finding errors in how the Court of Appeal applied the standard of review, the Supreme Court also clarified when an abuse of process due to inordinate delay arises. Delay may constitute an abuse of process in two ways: (a) where the fairness of the hearing has been compromised, such as where memories have faded, essential witnesses are unavailable or evidence has been lost; or (b) where significant prejudice has come about due to inordinate delay. Whether there has been an abuse of process is a question of procedural fairness, and decision-makers have an obligation to assess allegedly abusive delay.
The Supreme Court focused on (b) in Abrametz, and how decision-makers such as professional regulatory bodies should consider whether delay that does not affect hearing fairness amounts to an abuse of process. It determined that simply because a process took considerable time, this does not on its own amount to inordinate delay. Some parties had asked that the Court adapt and adopt its approach to delay in the criminal realm to the regulatory context, and find that regulatory proceedings must be completed with a certain number of months or otherwise be presumptively stayed. The Supreme Court refused to do so, finding that there are fundamental differences between criminal and administrative proceedings.
It instead affirmed a contextual, three-step inquiry, broken down as follows:
- the delay must be inordinate, with this determined by assessing the overall context including the nature and purpose of the proceedings, the length and causes of the delay and the complexity of the facts and issues;
- the delay must have caused significant prejudice – the prejudice must result not from the fact proceedings have been undertaken, but from the delay itself; and
- where 1) and 2) are met, whether the delay amounts to an abuse of process, meaning it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute.
The Supreme Court applied this test to the circumstances before it, and affirmed the Hearing Committee’s conclusion that no abuse of process had been established. While 71 months had passed since the audit began and the Hearing Committee rendered its decision on the abuse of process issue and this created “serious concern,” the delay was not inordinate when considered contextually. Further, Abrametz had not established that there had been any significant prejudice caused by the delay – any prejudice Abrametz suffered either was not significant or was not connected to the delay itself.
Despite finding that there had been no abuse of process, the Supreme Court concluded with a comment on the conduct of the Law Society, writing:
[126] Notwithstanding the foregoing, the actions of the Law Society were not above reproach. The Law Society is entrusted with self-regulation of the profession, and by extension an aspect of the rule of law. The Law Society should be keenly aware of the importance of justice being done in a timely way; it should make every effort to safeguard procedural fairness. In all this, the Law Society should set an example for its own members.
Key Takeaways for Regulated Professions
The Abrametz decision, while specific to proceedings against a lawyer, has implications for other regulated professionals and regulatory bodies. It affirms a contextual approach to abuse of process, and rejects a presumptive ceiling for delay.
But this does not mean that inordinate delay can never give rise to an abuse of process. Delay must be assessed contextually, and decisions on whether a delay is inordinate will turn on what happened in the proceedings such as whether there are parallel proceedings, who was responsible for the delay, or whether the delay has been waived. Regulatory bodies must remain alive to delay, and keep in mind the Supreme Court’s caution that the Law Society’s conduct was “not above reproach.”
The MLT Aikins Regulated Professionals practice group has extensive experience working with regulated professionals – including doctors, dentists, optometrists, pharmacists, chiropractors and veterinarians – on managing their practice and growing their business. We also advise a number of colleges and associations on enforcement matters. Contact us to learn more.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.