Delay and Access to Justice: Revisited

“…Why, some of the work that I have by me now has been in my possession for years and years, and there isn’t a fingermark on it. I take a great pride in my work; I take it down now and then and dust it. No man keeps his work in a better state of preservation than I do.”

Jerome K. Jerome, Three Men in a Boat (To Say Nothing of the Dog)

In my last Slaw column I wrote about the potential impact of the Supreme Court’s decision on delay in criminal proceedings (R. v Jordan). In that column I wondered if the principles laid out by the Court would find a foothold in administrative law settings where there is no Charter right to a hearing within a reasonable time. A recent decision of the Saskatchewan Court of Appeal (Abrametz v Law Society of Saskatchewan) suggests that the Jordan principles might have a significant impact.

Peter Abrametz is a lawyer who was being investigated by the Law Society of Saskatchewan. The audit investigation started in 2012 and a decision was issued in 2018. The law society hearing committee determined that there had been misconduct. The misconduct involved his improper use of trust accounts, including issuing cheques from the trust account to a fictitious person and falsifying the signature of a fictitious person in order to transfer funds to himself. The committee also concluded that Mr. Abrametz loaned money to clients without ensuring that his clients were given a reasonable opportunity to obtain independent legal advice and without them consenting to the conflict of interest. The committee also found that he breached his fiduciary duty to his clients by charging excessive fees and interest on loans or advances to his clients. With regard to the loans, the hearing committee found that the 30% fee charged on every loan made was neither fair nor reasonable. The committee also held that there was an appearance of undue influence, as Mr. Abrametz was the last resort for many clients to obtain money while waiting for insurance benefits to replace lost earnings, and that some of his clients were vulnerable, had no bank account, were homeless or faced literacy challenges.

The court calculated the delay in the proceedings that were attributable to the regulator as 32.5 months.

The court noted the “insidious effects” of delay in judicial and administrative proceedings. The leading case on delay in administrative proceedings is the Supreme Court’s decision in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307. I summarized this decision in my earlier column. The Saskatchewan Court of Appeal used Blencoe as a starting point in its analysis. It then referred to the Supreme Court decision in Hryniak v Mauldin, 2014 SCC 7, about the need for timely justice in civil cases before turning to Jordan:

These seminal decisions [Hryniak and Jordan] demonstrate an evolution in the Supreme Court’s understanding of the impact of, and need to address, delay in the administration of justice. They were an important element of the judicial response to the public’s increased scrutiny of the justice system, which – like many long-cherished institutions – has been called to account when the walk does not accord with the talk.

The judicial response to delay in administrative proceedings must, of course, take due account of the principled reasons for judicial deference that shaped Blencoe … Beyond that, why should less be required of administrative decision-makers than courts? Administrative agencies decide many issues of great importance….

In deciding to grant a stay of proceedings, the court stated that this outcome was consistent with Blencoe. However, the court hedged a bit when it stated:

…If it does represent a step forward from Blencoe, I would characterize it as an incremental step that is necessary to enable Blencoe to better serve its remedial purpose for the benefit of both those caught up in the machinery of the administrative state and, ultimately, administrative decision-makers themselves. As such, it is consistent with stare decisis

In Blencoe the Supreme Court was clear that a stay of administrative proceedings was an exceptional remedy and that the respondent seeking a stay had a high burden. To justify a stay of proceedings, a court must be satisfied that there has been both inordinate delay caused by the regulator or tribunal, and prejudice attributable to that delay. The court must then weigh the competing interests: the damage to the public interest in the fairness of the administrative process should the proceeding go ahead must exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.

First, what is an inordinate delay? The Supreme Court noted that this turns on contextual factors, including:

  • The nature of the case and its complexity;
  • The facts and the issues;
  • The purpose and nature of the proceedings;
  • Whether the respondent contributed to the delay; and
  • Other circumstances.

The Saskatchewan Court of Appeal reviewed in great detail the steps of the process leading up to the commencement of the hearing (over 17 paragraphs) and concluded that there was an inordinate delay not attributable to the respondent of 32.5 months.

Secondly, what is the prejudice that must be shown? The Supreme Court held that the party claiming an abuse of process must show that the inordinate delay “directly caused” a “significant prejudice”. This significant prejudice must be “actual prejudice of such magnitude that the public’s sense of decency and fairness is affected”.

The prejudice to the respondent must flow from the delay itself, not from the fact that he/she is facing an administrative penalty or sanction. The kind of prejudice that might offend public’s sense of decency and fairness was touched on in Blencoe, where Justice Bastarache, writing for the majority, referred to the psychological harm or stigma affecting a person’s reputation resulting from an inordinate delay that might contribute to an abuse of process. The Saskatchewan Court of Appeal also noted the following examples of personal prejudice “of the right sort”:

  • damage to physical health;
  • negative economic consequences;
  • negative impacts on family; and
  • the prejudicial impact of interim regulatory measures, such as a suspension of the right to practice.

Depending on the facts in each case, these examples are not surprising and would seem to fit within the Blencoe analytic framework. However, the Saskatchewan Court of Appeal then added: “In my view, the extent of the inordinate delay may also be relevant in determining whether the prejudice suffered is of sufficient magnitude to meet this requirement”. This does not quite fit with the Supreme Court’s edict that it is “actual prejudice” that must be demonstrated, not just the passage of time.

In measuring the prejudice to Mr. Abrametz, the court tried to address the tension in Blencoe between separating out the effect of an accusation on a person’s reputation (which is not relevant) from the delay in proceeding with that accusation. The court honed in on the fact that the investigation and charges were known to his staff and members of the bar, since law society disciplinary proceedings are posted on the law society’s website. The court concluded that Mr. Abrametz “practiced under the cloud of suspicion” and that the failure of the law society hearing committee to consider this was an error in law.

This finding might be better in keeping with Blencoe principles, if Mr. Abrametz had been exonerated. The court did not interfere with the findings of misconduct. The “cloud of suspicion” parted, revealing the truth of the allegations against him. In such cases, it is hard to argue that the stigma associated with the accusations is related to the delay itself. If the hearing had proceeded in a timely manner, he would have faced the same stigma. There is little difference in stigma between “he might be guilty of misconduct” and “he is guilty of misconduct”.

The Court of Appeal then looked at the stress Mr. Abrametz experienced and the development of high blood pressure. Mr. Abrametz deposed that the high blood pressure was a result of the lapse of time. It is not clear from the Court of Appeal’s decision if any medical reports were provided to the hearing committee. The hearing committee concluded that the stress and high blood pressure were the result of the allegations and the finding of misconduct, not the delay. The court disagreed, finding that the stress he experienced as a result of the allegations and investigation “lasted far longer than it would have” if there had not been an inordinate delay.

We don’t have the benefit of the full evidentiary record and Mr. Abrametz’s account of the stress he experienced. There is also no medical opinion on the record to support the statement that the high blood pressure was caused by the delay. The court does seem to agree that it was the allegations and the outcome of the investigation that led to these consequences and the delay prolonged those consequences. This again illustrates the challenges of teasing out the difference between the effect of the delay from the effect of the allegations.

The court also found that the hearing committee should have relied on the stress experienced by Mr. Abrametz’s family and employees in its Blencoe analysis. It described this as an error in applying the law to the facts. There is no analysis of this finding in the decision so it is difficult to assess. In Blencoe, the Supreme Court did refer to the stress on family members and it is easy to infer that family members would be stressed by ongoing allegations against a family member. It is not clear from the Saskatchewan Court of Appeal’s analysis what evidence was provided of the stress on employees. I think it is more difficult to infer stress on employees or colleagues than on family members.

The court also found that the hearing committee had improperly discounted the fact that Mr. Abrametz had been forced to practice under intrusive conditions for such an extended period. The court noted that the hearing committee took into account the fact that Mr. Abrametz had been found guilty of most of the charges leveled against him, and confirmed that the practice conditions were therefore appropriate. The court held that:

…With respect, that “justification” has no bearing on the question of whether Mr. Abrametz was subject to these conditions – which any reasonable observer would characterize as prejudicial – for an unreasonable period of time as a result of delay.

It is important to note that Mr. Abrametz was found guilty of misconduct in 2018 and was disbarred with no chance of reapplying for admission to the bar until January 2021. Due to the delay in proceedings, he was able to continue practicing law, albeit with restrictions, from 2012 to 2018. If there had been no delay, he would have been disbarred 32.5 months earlier. If he had been readmitted to the bar after approximately 24 months, it is easy to measure the prejudice caused by the delay (8.5 months of practicing under restrictions). Balanced against this prejudice is the fact that he was not disbarred during this 32.5 month period.

All of these factors considered by the court convinced it that Mr. Abrametz had demonstrated that there was unreasonable delay which resulted in very significant personal prejudice of such magnitude that the public’s sense of decency and fairness would be affected.

The court then turned to the balancing of competing interests. The court disagreed with the law society penalty committee’s presumptive penalty of disbarment for participating in mortgage fraud. The court noted that this case “did not fit neatly into a pigeon-hole of that kind”. It was important to the court that Mr. Abrametz had not misappropriated funds. The court also noted that he was a long-standing practitioner with no prior disciplinary record, and had, by the time of the hearing, been effectively compelled to practice under supervision for in excess of four years. The court concluded that given the primary importance of the public interest and protection of the public, the fact that he had been practicing under supervision “without incident” was significant.

I am not an expert in lawyer discipline, and have no opinion on whether disbarment would have been appropriate on the facts in this case. But this decision is not about the merits of the penalty (disbarment) it is about a stay of proceedings. Although Mr. Abrametz relied on the inappropriateness of the penalty as a ground of his judicial review, the court did not address this ground in disposing of the judicial review.

The fact that a lawyer who is subject to discipline and is working under supervision does not engage in misconduct is not surprising. Most of us are on our best behaviour when we are closely watched. I am not implying that Mr. Abrametz would have engaged in misconduct if he had not been under supervision. I am just observing that the reliance on an absence of misconduct by a lawyer under supervision is not a strong argument in the balancing of competing interests.

The court also viewed it as significant that none of Mr. Abrametz’s clients complained to the law society or testified at the conduct hearing. The court relied on Justice Bastarache’s comment in Blencoe: “[a] stay accords very little importance to the interest of implementing the Human Rights Code and giving effect to the complainants’ rights to have their cases heard”. The court also relied on Justice Lebel’s emphasis (in the dissent) on the significance of the complainant’s interest:

…Nobody benefits from delay, but the interests of innocent parties must influence our choice of remedy. The Court of Appeal seems to have dealt with this case as if it were a pure conflict between the respondent and the state, without taking into account that the complainants … also had an important interest in an efficient disposition of their allegations against Blencoe and in the correct and timely application of the appropriate administrative law remedies.

Although the court highlighted the fact that there were no complainants, Justice Barrington-Foote ended this part of the court’s analysis with: “I do not suggest that the presence, absence or views of complainants or others directly involved in an administrative proceeding is determinative”.

The reliance on the absence of complainants does not take into account the important differences between a licensing regime and a complaint-based regime. Human rights processes in Canada are, for the most part, complaint-driven processes. There is no independent third-party regulating human rights and bringing forward complaints for investigation. I recognize that Human Rights Commissions may have some scope to do this, but the vast majority of cases are complaint-driven. Given that there was no misappropriation of funds by Mr. Abrametz, it is logical that no clients would have bothered to file a complaint. What could possibly be in it for them? And I assume that testifying at the hearing was not something that a client or former client could insist on – it is not clear from the decision if they were asked. Clearly, the law society was able to prove misconduct without those witnesses.

In its analysis of the competing interests, the court does not engage in any analysis of the public interest in protecting vulnerable clients against excessive fees or interest on loans or the public interest in the proper administration of trust accounts.

In its conclusion, the court again returns to Jordan. The court states that in its decision, at most, it was “invigorating the [Blencoe] principles which animated that decision, taking account of the circumstances of this case”. The court noted that allegations of serious professional conduct:

…generally weigh heavily, raising as they do the prospect of damage to livelihood, reputation, and mental and physical health as a result of delay and regardless of outcome. Where charges are unfounded or are not made out, an unwarranted cloud of suspicion may have descended and never dissipate. A rush to judgment may occur. These dangers have become ever more pressing at a time when notices of disciplinary measures are published on law society websites for all to see, and information is so often shared quickly, widely, and in small and misleading bites. Delay has taken on a new meaning in the online age.

The court concluded that by any reasonable measure, and in the eyes of a reasonable observer, the delay that occurred was unacceptable. It asserted that the contrary conclusion “could only be reached by those who have become inured to delay”. The court also concluded that by the time of the commencement of the disciplinary hearing, Mr. Abrametz had “paid a heavy price for the serious misconduct he was found to have committed” and the public’s interest in enforcement had been well served. The stay of proceedings was granted by the court, although the findings of misconduct were maintained.

If we compare this outcome to that in Blencoe, I think we can conclude that Jordan has certainly reinvigorated the Blencoe principles, at least in Saskatchewan. It will be interesting to see if such a reinvigorated application of the Blencoe principles is taken in other jurisdictions. After Abrametz was issued, the British Columbia Court of Appeal faced a similar argument from a police officer seeking a stay of misconduct proceedings (Diaz-Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221). The court held that it was “neither necessary nor appropriate” to import the principles in Jordan into the assessment of delay in administrative proceedings. The court succinctly noted:

…The Supreme Court of Canada drew a clear line between criminal cases and administrative proceedings in Blencoe, noting that there is no constitutional right outside of the criminal context to be tried within a reasonable time. Indeed, the Supreme Court of Canada found that this Court erred in transplanting s. 11(b) principles into administrative proceedings under s. 7: Blencoe at paras. 91–96. The Court observed that “there are appropriate remedies available in the administrative law context to deal with state-caused delay”: Blencoe at para. 101. In my view that continues to be so.

In light of the success of the respondent in Abrametz, it is quite likely that tribunals will face more applications for stays of proceedings (in jurisdictions other than British Columbia). In my next column I will focus on what tribunals can do to prepare for such applications.

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