Court headnote

Law Society of Saskatchewan v. Abrametz
Collection
Supreme Court Judgments
Date
2022-07-08
Neutral citation
2022 SCC 29
Case number
39340
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Saskatchewan
Subjects
Administrative law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29
Appeal Heard: November 8, 2021 Judgment Rendered: July 8, 2022 Docket: 39340
Between:
Law Society of Saskatchewan Appellant
and
Peter V. Abrametz Respondent
- and -
Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Law Society of Alberta, Law Society of Manitoba, College of Physicians and Surgeons of Ontario, College of Nurses of Ontario, Ontario College of Pharmacists, Royal College of Dental Surgeons of Ontario, Federation of Law Societies of Canada, Alberta Securities Commission, British Columbia Securities Commission, Barreau du Québec and Canadian Association of Refugee Lawyers Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 127)
Rowe J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Martin, Kasirer and Jamal JJ. concurring)
Dissenting Reasons: (paras. 128 to 226)
Côté J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Law Society of Saskatchewan Appellant
v.
Peter V. Abrametz Respondent
and
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Saskatchewan,
Law Society of Alberta,
Law Society of Manitoba,
College of Physicians and Surgeons of Ontario,
College of Nurses of Ontario,
Ontario College of Pharmacists,
Royal College of Dental Surgeons of Ontario,
Federation of Law Societies of Canada,
Alberta Securities Commission,
British Columbia Securities Commission,
Barreau du Québec and
Canadian Association of Refugee Lawyers Interveners
Indexed as: Law Society of Saskatchewan v. Abrametz
2022 SCC 29
File No.: 39340.
2021: November 8; 2022: July 8.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for saskatchewan
Administrative law — Abuse of process — Delay — Disciplinary proceedings brought by law society against member lawyer — Lengthy delay in proceedings prompting member to apply for stay of proceedings on basis of inordinate delay amounting to abuse of process — Whether delay amounted to abuse of process — Whether stay of proceedings warranted.
Administrative law — Appeals — Standard of review — Standard of review applicable to questions of procedural fairness and to abuse of process in statutory appeals.
The Law Society of Saskatchewan brought disciplinary proceedings against one of its member lawyers in 2012. In 2018, the member was found guilty of four charges of conduct unbecoming a lawyer, and in 2019, disbarred without a right to apply for readmission for almost two years. During the disciplinary proceedings, the member applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process. His application was dismissed by the Hearing Committee of the Law Society. The Court of Appeal dismissed the member’s conduct appeal but allowed his appeal of the stay decision. It granted the stay, concluding that there had been inordinate delay which 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.
Held (Côté J. dissenting): The appeal should be allowed, the judgment of the Court of Appeal set aside and the matter remitted to the Court of Appeal to address the outstanding grounds of appeal.
Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The instant case is a statutory appeal pursuant to Saskatchewan’s The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law. Whether there has been an abuse of process is a question of law; thus, the applicable standard of review is correctness. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly. There was also no proper basis for the Court of Appeal to contradict the Hearing Committee’s attribution of certain delays to the member, and no palpable and overriding error justified the Court of Appeal’s substitution of its own views for the Hearing Committee’s conclusions that there was no significant prejudice to the member. While the actions of the Law Society were not above reproach, the delay was not inordinate. There was no abuse of process.
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court held that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply. While this proposition was stated in the context of substantive review, the direction that appeals are to be decided according to the appellate standards of review was categorical. Thus, where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review.
In administrative proceedings, abuse of process is a question of procedural fairness. The Court dealt with abuse of process as it relates to administrative delay in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, and recognized that decision makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay. Delay may constitute an abuse of process in two ways: the fairness of a hearing can be compromised where delay impairs a party’s ability to answer the complaint against them, or, even when there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due to inordinate delay.
Blencoe sets out a three-step test to determine whether delay that does not affect hearing fairness nonetheless amounts to an abuse of process. First, the delay must be inordinate. This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case. These factors are not exhaustive, such that additional contextual factors can be considered in a particular case. Second, the delay must have directly caused significant prejudice. Prejudice is a question of fact. Examples include significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention. When these two requirements are met, courts or tribunals will proceed to a final assessment of whether the delay amounts to an abuse of process. Delay will amount to an abuse of process if it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute.
When an abuse of process is found, several remedies are available. Courts and tribunals must be mindful as to appropriate remedies in the various contexts in which abuse of process can occur. Remedies for abuse of process can serve several purposes: they can compensate the applicant for the prejudice caused by the delay, serve as an incentive for the decision maker to address any problems of systemic delay, or express the court or the tribunal’s concern relating to delay in the administrative system. As the doctrine of abuse of process is broad, it can usefully be appreciated on a spectrum. Various remedies are available, up to and including a permanent stay of proceedings.
A stay of proceedings is the ultimate remedy for abuse of process, because it is final: the process will be permanently stayed. In disciplinary matters, that means that charges will not be dealt with, any complaint will go unheard and the public will not be protected. Given these consequences, a stay should be granted only in the clearest of cases, when the abuse falls at the high end of the spectrum of seriousness. The decision whether to grant a stay involves a balancing of public interests. On one hand, the public has an interest in ensuring that a tribunal established for its protection follows fair procedures, untainted by an abuse of process. On the other hand, the public has an interest in the resolution of administrative cases on the merits. A balance must be struck between the public interest in a fair administrative process untainted by abuse and the competing public interest in having the complaint decided after a public hearing. When faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself whether going ahead with the proceeding would result in more harm to the public interest than if the proceedings were permanently halted. If the answer is yes, then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed. In conducting this inquiry, the court or tribunal may have regard to whether other available remedies for abuse of process, short of a stay, would adequately protect the public’s interest in the proper administration of justice.
When an abuse of process is established, but the abuse is not such that a stay of proceedings is warranted, other remedies may be appropriate. While proof of significant prejudice is required to establish an abuse of process, the remedies ordered may vary according to the degree of prejudice. A high degree of prejudice may justify a stay. Lesser, but nevertheless significant prejudice, could justify other remedies. In such cases, the public interest can be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse that he or she suffered. In the context of a disciplinary tribunal, a stay of proceedings, a reduction in sanction, or variation of an award of costs are possible remedies. This is not an exhaustive list. Various tribunals may be empowered by their enabling statutes to grant other remedies. They should not hesitate to use such tools to combat inordinate delay amounting to an abuse of process.
Per Côté J. (dissenting): There is disagreement with the majority’s disposition. The delay in these proceedings amounted to an abuse of process, and the Court of Appeal did not err in quashing the penalty for professional misconduct imposed on the member. Disagreement with the majority also extends to the legal principles governing the assessment of inordinate delay in administrative proceedings, including the majority’s reframing of the test for whether administrative delay amounts to an abuse of process and its reliance on Vavilov for the proposition that appellate standards of review apply in the present case.
The Court recognized in Blencoe that inordinate delay, on its own, is a breach of procedural fairness and thus abusive. An applicant need not demonstrate significant prejudice for unfair conduct to constitute an abuse of process; this requirement applies only where a stay of proceedings is sought. Inordinate delay risks bringing the administration of justice into disrepute. For this reason alone, courts must sanction it whenever it is brought to their attention. They possess a wide range of remedial tools, including declarations, costs, orders for an expedited hearing, reductions in penalty, and stays of proceedings, to grant relief that is proportionate to the abuse of process.
The majority purportedly relies on Blencoe in articulating a three‑step test for determining whether delay in administrative proceedings amounts to an abuse of process; however, this framework rests on a mistaken understanding of the doctrine of abuse of process. Under the majority’s approach, even inordinate delay that directly causes significant prejudice is not per se abusive, as the last step of its test indicates. Not only is this proposition doctrinally flawed, but it results in an unduly elevated standard that is disproportionate to the remedies available for abusive delay, which range from a mere declaration to a stay of proceedings. The majority’s test is so onerous that it invites complacency in administrative proceedings. The Court rightly recognized in Blencoe that inordinate delay, on its own, is a breach of the duty of fairness. Prejudice is not a necessary condition for delay to be inordinate, although it may contribute to such a finding. Evidence of prejudice remains highly significant at the remedial stage, since the remedy must be proportionate to the abuse of process. This is consistent with the central principle laid down by the majority in Blencoe, namely that courts may grant a stay of proceedings only in the clearest of cases, where the applicant has demonstrated significant prejudice arising from inordinate administrative delay.
Abuse of process must be disentangled analytically from a stay of proceedings, which is but one of the remedies available at common law to redress abusive conduct. It is crucial to draw this distinction because the threshold for demonstrating abusive conduct is much lower than the one for obtaining a stay of proceedings. The Court has established stringent requirements for granting a stay of proceedings. To obtain a stay, an applicant must satisfy the following test: there must be prejudice to the fairness of the trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; there must be no alternative remedy capable of redressing the prejudice; and where it is unclear whether a stay is warranted after the first two steps, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. This test also applies to abusive delay in administrative proceedings.
The majority conflates the doctrine of abuse of process with the test for stays of proceedings, which are only a subset of the remedies that courts may order to sanction abusive conduct. The majority thus fails to distinguish between, on the one hand, the test for whether conduct amounts to an abuse of process and, on the other hand, the test for whether a stay of proceedings is warranted in the circumstances. The former is flexible and unencumbered by particular requirements; the court must simply determine whether the impugned conduct undermines adjudicative fairness or the integrity of the justice system. The latter establishes an onerous threshold that is met only in the clearest of cases, where the applicant satisfies specific, stringent requirements.
Where the applicant has demonstrated that the delay is inordinate, the next step in the analysis is for the court to determine the appropriate remedy in the circumstances. Courts possess an extensive arsenal of remedial tools to sanction and redress abusive conduct that account for the circumstances of each case, ranging from a declaration to a stay of proceedings. The choice of remedy for an abuse of process falls within the trial judge’s discretion. Applicants must satisfy a specific test to obtain a stay of proceedings, but other remedies are not subject to that test. The guiding principle in determining the appropriate remedy is proportionality. Courts must consider the nature and magnitude of the prejudice as primary factors, alongside the length and causes of the delay, in selecting a remedy proportionate to the abuse of process. As mandated by Blencoe, the applicant must demonstrate significant prejudice to obtain a stay of proceedings for inordinate delay in the administrative law context, but this standard does not apply to alternative remedies.
With respect to the applicable standard of review, the Court’s jurisprudence is clear: the question of whether an administrative decision maker has complied with its duty of fairness is subject to the standard of correctness, regardless of the existence of an appeal mechanism. There is no reason to revisit this well‑established starting point. The majority purports to clarify the standard of review applicable to questions of procedural fairness in a statutory appeal. It does so, however, without meaningfully considering Khela, the governing authority on this point of law, or any other case relating to the duty of procedural fairness. The mere reference to Vavilov, a judgment that was rendered in a different context and that excluded procedural fairness review from its purview, does not suffice to oust Khela and other directly applicable precedents.
While clarifications to the framework for determining the standard of review applicable to questions of procedural fairness are warranted, the Court should draw on its existing jurisprudence to articulate a principled approach. The standard of correctness must remain the starting point of the analysis in the context of procedural fairness review. It is for the courts to provide the legal answer to procedural fairness questions. The correctness standard applies to questions of compliance with the duty of procedural fairness as defined by the common law or by statute. However, the requirements of fairness are context‑dependent, and deference is owed to the administrative decision maker’s underlying findings of fact.
The majority’s articulation of the standard of review in the context of inordinate administrative delay cannot be agreed with. Inordinate delay constitutes an abuse of process on its own; it is the legal standard against which an administrative body’s conduct is measured. Courts do not owe deference to an administrative decision maker’s conclusion on whether delay is inordinate and its choice of remedy for abuse of process.
In the case at bar, there is agreement with the analysis of the Court of Appeal. The delay grossly exceeded the inherent time requirements of this case; it is plainly inordinate and, as a result, abusive. This inordinate delay caused serious prejudice to the member and his employees. In these circumstances, the Court of Appeal correctly sanctioned this abuse of process by ordering that the penalty for professional misconduct, but not the convictions themselves, be set aside.
Cases Cited
By Rowe J.
Applied: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; distinguished: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; considered: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, leave to appeal refused, [2013] 2 S.C.R. xii; Misra v. College of Physicians & Surgeons of Saskatchewan (1988), 52 D.L.R. (4th) 477; Investment Dealers Association of Canada v. MacBain, 2007 SKCA 70, 299 Sask. R. 122; Law Society of Upper Canada v. Abbott, 2017 ONCA 525, 139 O.R. (3d) 290, leave to appeal refused, [2018] 1 S.C.R. v; referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227; R. v. Power, [1994] 1 S.C.R. 601; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 40 C.R. (3d) 289; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. O’Connor, [1995] 4 S.C.R. 411; Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Wigglesworth, [1987] 2 S.C.R. 541; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; Fortin v. Chrétien, 2001 SCC 45, [2001] 2 S.C.R. 500; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Béliveau v. Barreau du Québec (1992), 101 D.L.R. 324; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; Wachtler v. College of Physicians and Surgeons (Alta.), 2009 ABCA 130, 448 A.R. 317; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Diaz‑Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221, 39 B.C.L.R. (6th) 87; Camara v. Canada, 2015 FCA 43, 91 Admin. L.R. (5th) 13; Hennig v. Institute of Chartered Accountants (Alta.), 2008 ABCA 241, 433 A.R. 221; Brown v. Assn. of Professional Engineers and Geoscientists of British Columbia, [1994] B.C.J. No. 2037 (QL), 1994 CarswellBC 2980 (WL); Stefani v. College Of Dental Surgeons (British Columbia) (1996), 27 B.C.L.R. (3d) 34; Financial and Consumer Services Commission v. Emond, 2020 NBCA 42; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Robertson v. British Columbia (Commissioner, Teachers Act), 2014 BCCA 331, 64 B.C.L.R. (5th) 258; R. (J.) v. College of Psychologists (British Columbia) (1995), 33 Admin. L.R. (2d) 174; Adams v. Law Society of Alberta, 2000 ABCA 240, 266 A.R. 157; Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; Hydro‑Québec v. Matta, 2020 SCC 37; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Salomon v. Matte‑Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729.
By Côté J. (dissenting)
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. O’Connor, [1995] 4 S.C.R. 411; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Power, [1994] 1 S.C.R. 601; R. v. Carosella, [1997] 1 S.C.R. 80; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Sullivan, 2022 SCC 19; Ontario v. O.P.S.E.U., 2003 SCC 64, [2003] 3 S.C.R. 149; I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 S.C.R. 43; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Dussault, 2022 SCC 16; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326; Bergeron v. Canada (Attorney General), 2015 FCA 160, 474 N.R. 366; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; R. v. Yusuf, 2021 SCC 2; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609; R. v. Virk, 2021 BCCA 58, 403 C.C.C. (3d) 492.
Statutes and Regulations Cited
Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 58(2)(b).
Canadian Charter of Rights and Freedoms , ss. 7 , 11(b) , 24(1) .
Legal Profession Act, 1990, S.S. 1990‑91, c. L‑10.1, ss. 3.1, 3.2, 39, 56, 63.
Authors Cited
Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada. Toronto: Thomson Reuters, 1998 (loose‑leaf updated June 2022, release 2).
Casey, James T. The Regulation of Professions in Canada. Toronto: Carswell, 1994 (loose‑leaf updated June 2022, release 4).
Coughlan, Steve. “Threading Together Abuse of Process and Exclusion of Evidence: How it Became Possible to Rebuke Mr. Big” (2015), 71 S.C.L.R. (2d) 415.
Evans, John M. “Fair’s Fair: Judging Administrative Procedures” (2015), 28 C.J.A.L.P. 111.
Garant, Patrice, avec la collaboration de Philippe Garant et Jérôme Garant. Droit administratif, 7e éd. Montréal: Yvon Blais, 2017.
Jones, David Phillip, and Anne S. de Villars. Principles of Administrative Law, 7th ed. Toronto: Carswell, 2020.
Lowery, Finn. “Abuse of Process: The Need for Structure” (2014), 20 Auckland U. L. Rev. 223.
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APPEAL from a judgment of the Saskatchewan Court of Appeal (Ottenbreit, Leurer and Barrington‑Foote JJ.A.), 2020 SKCA 81, [2020] S.J. No. 266 (QL), 2020 CarswellSask 336 (WL), setting aside a decision of the Hearing Committee for the Law Society of Saskatchewan (Chow, McCuskee and Sorestad), 2018 SKLSS 8, [2018] L.S.D.D. No. 265 (QL). Appeal allowed, Côté J. dissenting.
Alyssa Tomkins, Paul Daly and Charles R. Daoust, for the appellant.
Amanda M. Quayle, Q.C., Gordon J. Kuski, Q.C., and Lauren J. Wihak, for the respondent.
Alexandra Clark and Matthew Chung, for the intervener the Attorney General of Ontario.
Stéphane Rochette and Abdou Thiaw, for the intervener the Attorney General of Quebec.
Meera Bennett and Robert Danay, for the intervener the Attorney General of British Columbia.
Laura Mazenc and Johnna Van Parys, for the intervener the Attorney General of Saskatchewan.
James T. Casey, Q.C., and Katrina Haymond, for the intervener the Law Society of Alberta.
Ayli Klein, for the intervener the Law Society of Manitoba.
Lisa Brownstone, Amy Block and Linda Rothstein, for the interveners the College of Physicians and Surgeons of Ontario, the College of Nurses of Ontario, the Ontario College of Pharmacists and the Royal College of Dental Surgeons of Ontario.
Ewa Krajewska and Mannu Chowdhury, for the intervener the Federation of Law Societies of Canada.
Lorenz Berner, Tracy Knight and Jennifer L. Whately, for the interveners the Alberta Securities Commission and the British Columbia Securities Commission.
Sylvie Champagne, Nicolas Le Grand Alary and André‑Philippe Mallette, for the intervener Barreau du Québec.
Audrey Macklin and Prasanna Balasundaram, for the intervener the Canadian Association of Refugee Lawyers.
The judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. was delivered by
Rowe J. —
I. Introduction
[1] This appeal arises from disciplinary proceedings pursued by the appellant, the Law Society of Saskatchewan (“Law Society”), against the respondent, Peter V. Abrametz. Mr. Abrametz was found guilty of four charges of conduct unbecoming a lawyer, and disbarred without a right to apply for readmission for almost two years.
[2] During the disciplinary proceedings, Mr. Abrametz applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process. His application was dismissed by the Hearing Committee for the Law Society (“Hearing Committee”), but allowed on appeal by the Court of Appeal for Saskatchewan. The Law Society appeals from that decision.
[3] This appeal affords the Court the opportunity to address once again the doctrine of abuse of process as it relates to inordinate delay in the administrative context. This was recognized more than 20 years ago in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. This appeal also allows us to clarify the standard of review applicable to questions of procedural fairness and to abuse of process in statutory appeals.
[4] I would allow the appeal. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly. The Hearing Committee did not err when it concluded that there was no abuse of process.
II. Facts
[5] Mr. Abrametz is a member of the Law Society of Saskatchewan. He has practiced in Prince Albert, Saskatchewan, for 49 years.
A. Pre-Charge Investigation
[6] In 2012, the Law Society commenced an audit investigation of Mr. Abrametz’s financial records due to apparent irregularities in the use of a trust account. On the eve of a visit by investigators to his office in December 2012, Mr. Abrametz self-reported to the Law Society that he had failed to promptly deposit more than $36,000 in fees into his office account.
[7] The Law Society’s investigation related to eight transactions by Mr. Abrametz. In seven of these, Mr. Abrametz had issued cheques to clients that were then endorsed by the clients and cashed by Mr. Abrametz. In the other case, he had issued three cheques to a fictitious person, endorsed that false name on the cheques and cashed them. In addition, Mr. Abrametz had on 11 occasions advanced money to clients, relating to settlement funds, charging them a flat 30 percent fee of the amount advanced, as well as a 30 percent contingency fee, and interest.
[8] The investigation also looked into whether some of these transactions were carried out to evade tax.
[9] In February 2013, Mr. Abrametz was served with a notice of intention to interim suspend. However, by agreement with the Law Society in March 2013, Mr. Abrametz was allowed to continue to practice, subject to certain conditions: Mr. Abrametz had to retain another lawyer to supervise and monitor his practice and trust account activities; he had to seek prior approval from this supervisor for withdrawals/cheques from any trust account; and he could not accept the return of trust cheques from clients, nor accept endorsed cheques to be cashed or negotiated. A second notice of intention to interim suspend was served in November 2014, but the Law Society and Mr. Abrametz again agreed that he could continue to practice under substantially similar conditions. Mr. Abrametz continued to practice under these conditions without incident while the Law Society investigation continued.
[10] In October 2014, the auditor submitted a final trust report to the Law Society.
[11] In October 2015, the Law Society issued a formal complaint containing seven charges against Mr. Abrametz and appointed a Hearing Committee.
B. Post-Charge Prosecution
[12] A simultaneous investigation into Mr. Abrametz’s tax situation gave rise to litigation before the Court of Queen’s Bench between the Law Society and Mr. Abrametz regarding the scope of the Law Society’s investigatory powers: 2016 SKQB 134; 2016 SKQB 320, 408 D.L.R. (4th) 134.
[13] In March 2016, Mr. Abrametz applied to the Hearing Committee for an interim stay of the disciplinary proceedings until the resolution of the tax investigation. The Hearing Committee dismissed the request in August 2016.
[14] The Hearing Committee heard the disciplinary matter on May 17-19, August 9-10 and September 29, 2017. The conduct decision was rendered on January 10, 2018. Mr. Abrametz was found guilty of four of the seven charges. The four convictions were for matters disclosed in his self-report; they related to the advances to clients on settlement funds (referred to above).
[15] On July 13, 2018, Mr. Abrametz applied for a stay of proceedings on the basis that the time taken by the Law Society to investigate and decide his case constituted an abuse of process. The application was heard on September 18, 2018, at the same hearing as that for submissions regarding penalty. The stay application was dismissed on November 9, 2018, in the stay decision.
[16] On January 20, 2019, the penalty decision was rendered; the Committee ordered Mr. Abrametz disbarred without a right to apply for readmission until January 1, 2021.
[17] The conduct, stay and penalty decisions were published as one. In these reasons I address primarily the stay.
III. Judgments Below
A. Hearing Committee for the Law Society of Saskatchewan, 2018 SKLSS 8 (D. Chow, J. McCuskee and E. Sorestad)
[18] On the question of delay, the Hearing Committee found that Mr. Abrametz had made extensive efforts to conceal his actions. The Committee also referred to the complexity arising from the nature and number of allegations of conduct unbecoming and the number of client files and other documents that needed to be examined. The Hearing Committee also found that a significant share of delay in the proceedings should be attributed to Mr. Abrametz, due to his unavailability or the unavailability of his counsel. The Hearing Committee further noted that Mr. Abrametz had brought an application for a temporary stay of proceedings in April 2016.
[19] The Hearing Committee found that the delay was neither inordinate nor unacceptable given the complexity of the case, the extent of the investigation and the delay attributed directly to Mr. Abrametz’s conduct. The Hearing Committee also concluded that any prejudice that Mr. Abrametz may have experienced as a result of the delay was not so significant that continuation of the process would be so unfair to him that the public’s sense of fairness would be harmed, having regard to the Law Society’s mandate to protect the public.
B. Court of Appeal for Saskatchewan, 2020 SKCA 81 (Ottenbreit, Leurer and Barrington-Foote JJ.A.)
[20] Mr. Abrametz appealed the conduct, penalty and stay decisions to the Court of Appeal pursuant to s. 56(1) of The Legal Profession Act, 1990, S.S. 1990-91, c. L‑10.1.
[21] The Court of Appeal dismissed Mr. Abrametz’s conduct appeal but allowed the stay appeal.
[22] The Court of Appeal held that whether there had been delay constituting an abuse of process is a question of law, reviewable on the basis of correctness; the findings of fact underlying the stay decision are reviewable on the standard of palpable and overriding error.
[23] The Court of Appeal stated that Blencoe set a high threshold for finding an abuse of process where hearing fairness had not been compromised. The Court of Appeal concluded, nonetheless, that Mr. Abrametz was entitled to a stay.
[24] The Court of Appeal concluded that there were significant periods that were not adequately explained and that could not be justified by the scale and complexity of the proceedings. The Court of Appeal concluded that of the 53-month period in issue, only 18 months were inherent to the process, and only 2 ½ months were attributable to Mr. Abrametz. The remainder, totaling 32 ½ months, the Court of Appeal concluded, was undue delay. The Hearing Committee’s failure to reach that conclusion was the result of palpable and overriding errors (as referred to), and the Hearing Committee’s failure to apply the law correctly to the facts.
[25] The Court of Appeal concluded that there had been inordinate delay which resulted in significant prejudice to Mr. Abrametz, such that the public’s sense of decency and fairness would be affected. It concluded that this inordinate delay would bring the Law Society’s disciplinary process into disrepute. Mr. Abrametz’s application for a stay should have been granted by the Hearing Committee.
IV. Analysis
A. Standard of Review
[26] This case allows the Court to clarify the standard of review applicable to questions of procedural fairness and abuse of process in a statutory appeal. The Court received submissions from the parties and interveners on this point.
[27] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court held that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply: paras. 33 and 36-52. While this proposition was stated in the context of substantive review, the direction that appeals are to be decided according to the appellate standards of review was categorical. Thus, where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review.
[28] This does not depart from Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, and Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, as those decisions related to judicial review and to the granting of prerogative writs. Here, we are dealing with a statutory appeal. As our Court has stated in Vavilov, at para. 36, “[w]here a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis.”
[29] This case is a statutory appeal pursuant to The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, at paras. 24-25.
[30] Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness.
B. Inordinate Delay in Administrative Law
(1) Introduction
[31] Administrative decision makers re

Court headnote

Law Society of Saskatchewan v. Abrametz Collection Supreme Court Judgments Date 2022-07-08 Neutral citation 2022 SCC 29 Case number 39340 Judges Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud On appeal from Saskatchewan Subjects Administrative law Notes Case in Brief SCC Case Information Decision Content SUPREME COURT OF CANADA Citation: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 Appeal Heard: November 8, 2021 Judgment Rendered: July 8, 2022 Docket: 39340 Between: Law Society of Saskatchewan Appellant and Peter V. Abrametz Respondent - and - Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Law Society of Alberta, Law Society of Manitoba, College of Physicians and Surgeons of Ontario, College of Nurses of Ontario, Ontario College of Pharmacists, Royal College of Dental Surgeons of Ontario, Federation of Law Societies of Canada, Alberta Securities Commission, British Columbia Securities Commission, Barreau du Québec and Canadian Association of Refugee Lawyers Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. Reasons for Judgment: (paras. 1 to 127) Rowe J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Martin, Kasirer and Jamal JJ. concurring) Dissenting Reasons: (paras. 128 to 226) Côté J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports. Law Society of Saskatchewan Appellant v. Peter V. Abrametz Respondent and Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Law Society of Alberta, Law Society of Manitoba, College of Physicians and Surgeons of Ontario, College of Nurses of Ontario, Ontario College of Pharmacists, Royal College of Dental Surgeons of Ontario, Federation of Law Societies of Canada, Alberta Securities Commission, British Columbia Securities Commission, Barreau du Québec and Canadian Association of Refugee Lawyers Interveners Indexed as: Law Society of Saskatchewan v. Abrametz 2022 SCC 29 File No.: 39340. 2021: November 8; 2022: July 8. Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for saskatchewan Administrative law — Abuse of process — Delay — Disciplinary proceedings brought by law society against member lawyer — Lengthy delay in proceedings prompting member to apply for stay of proceedings on basis of inordinate delay amounting to abuse of process — Whether delay amounted to abuse of process — Whether stay of proceedings warranted. Administrative law — Appeals — Standard of review — Standard of review applicable to questions of procedural fairness and to abuse of process in statutory appeals. The Law Society of Saskatchewan brought disciplinary proceedings against one of its member lawyers in 2012. In 2018, the member was found guilty of four charges of conduct unbecoming a lawyer, and in 2019, disbarred without a right to apply for readmission for almost two years. During the disciplinary proceedings, the member applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process. His application was dismissed by the Hearing Committee of the Law Society. The Court of Appeal dismissed the member’s conduct appeal but allowed his appeal of the stay decision. It granted the stay, concluding that there had been inordinate delay which 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. Held (Côté J. dissenting): The appeal should be allowed, the judgment of the Court of Appeal set aside and the matter remitted to the Court of Appeal to address the outstanding grounds of appeal. Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The instant case is a statutory appeal pursuant to Saskatchewan’s The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law. Whether there has been an abuse of process is a question of law; thus, the applicable standard of review is correctness. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly. There was also no proper basis for the Court of Appeal to contradict the Hearing Committee’s attribution of certain delays to the member, and no palpable and overriding error justified the Court of Appeal’s substitution of its own views for the Hearing Committee’s conclusions that there was no significant prejudice to the member. While the actions of the Law Society were not above reproach, the delay was not inordinate. There was no abuse of process. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court held that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply. While this proposition was stated in the context of substantive review, the direction that appeals are to be decided according to the appellate standards of review was categorical. Thus, where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review. In administrative proceedings, abuse of process is a question of procedural fairness. The Court dealt with abuse of process as it relates to administrative delay in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, and recognized that decision makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay. Delay may constitute an abuse of process in two ways: the fairness of a hearing can be compromised where delay impairs a party’s ability to answer the complaint against them, or, even when there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due to inordinate delay. Blencoe sets out a three-step test to determine whether delay that does not affect hearing fairness nonetheless amounts to an abuse of process. First, the delay must be inordinate. This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case. These factors are not exhaustive, such that additional contextual factors can be considered in a particular case. Second, the delay must have directly caused significant prejudice. Prejudice is a question of fact. Examples include significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention. When these two requirements are met, courts or tribunals will proceed to a final assessment of whether the delay amounts to an abuse of process. Delay will amount to an abuse of process if it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute. When an abuse of process is found, several remedies are available. Courts and tribunals must be mindful as to appropriate remedies in the various contexts in which abuse of process can occur. Remedies for abuse of process can serve several purposes: they can compensate the applicant for the prejudice caused by the delay, serve as an incentive for the decision maker to address any problems of systemic delay, or express the court or the tribunal’s concern relating to delay in the administrative system. As the doctrine of abuse of process is broad, it can usefully be appreciated on a spectrum. Various remedies are available, up to and including a permanent stay of proceedings. A stay of proceedings is the ultimate remedy for abuse of process, because it is final: the process will be permanently stayed. In disciplinary matters, that means that charges will not be dealt with, any complaint will go unheard and the public will not be protected. Given these consequences, a stay should be granted only in the clearest of cases, when the abuse falls at the high end of the spectrum of seriousness. The decision whether to grant a stay involves a balancing of public interests. On one hand, the public has an interest in ensuring that a tribunal established for its protection follows fair procedures, untainted by an abuse of process. On the other hand, the public has an interest in the resolution of administrative cases on the merits. A balance must be struck between the public interest in a fair administrative process untainted by abuse and the competing public interest in having the complaint decided after a public hearing. When faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself whether going ahead with the proceeding would result in more harm to the public interest than if the proceedings were permanently halted. If the answer is yes, then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed. In conducting this inquiry, the court or tribunal may have regard to whether other available remedies for abuse of process, short of a stay, would adequately protect the public’s interest in the proper administration of justice. When an abuse of process is established, but the abuse is not such that a stay of proceedings is warranted, other remedies may be appropriate. While proof of significant prejudice is required to establish an abuse of process, the remedies ordered may vary according to the degree of prejudice. A high degree of prejudice may justify a stay. Lesser, but nevertheless significant prejudice, could justify other remedies. In such cases, the public interest can be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse that he or she suffered. In the context of a disciplinary tribunal, a stay of proceedings, a reduction in sanction, or variation of an award of costs are possible remedies. This is not an exhaustive list. Various tribunals may be empowered by their enabling statutes to grant other remedies. They should not hesitate to use such tools to combat inordinate delay amounting to an abuse of process. Per Côté J. (dissenting): There is disagreement with the majority’s disposition. The delay in these proceedings amounted to an abuse of process, and the Court of Appeal did not err in quashing the penalty for professional misconduct imposed on the member. Disagreement with the majority also extends to the legal principles governing the assessment of inordinate delay in administrative proceedings, including the majority’s reframing of the test for whether administrative delay amounts to an abuse of process and its reliance on Vavilov for the proposition that appellate standards of review apply in the present case. The Court recognized in Blencoe that inordinate delay, on its own, is a breach of procedural fairness and thus abusive. An applicant need not demonstrate significant prejudice for unfair conduct to constitute an abuse of process; this requirement applies only where a stay of proceedings is sought. Inordinate delay risks bringing the administration of justice into disrepute. For this reason alone, courts must sanction it whenever it is brought to their attention. They possess a wide range of remedial tools, including declarations, costs, orders for an expedited hearing, reductions in penalty, and stays of proceedings, to grant relief that is proportionate to the abuse of process. The majority purportedly relies on Blencoe in articulating a three‑step test for determining whether delay in administrative proceedings amounts to an abuse of process; however, this framework rests on a mistaken understanding of the doctrine of abuse of process. Under the majority’s approach, even inordinate delay that directly causes significant prejudice is not per se abusive, as the last step of its test indicates. Not only is this proposition doctrinally flawed, but it results in an unduly elevated standard that is disproportionate to the remedies available for abusive delay, which range from a mere declaration to a stay of proceedings. The majority’s test is so onerous that it invites complacency in administrative proceedings. The Court rightly recognized in Blencoe that inordinate delay, on its own, is a breach of the duty of fairness. Prejudice is not a necessary condition for delay to be inordinate, although it may contribute to such a finding. Evidence of prejudice remains highly significant at the remedial stage, since the remedy must be proportionate to the abuse of process. This is consistent with the central principle laid down by the majority in Blencoe, namely that courts may grant a stay of proceedings only in the clearest of cases, where the applicant has demonstrated significant prejudice arising from inordinate administrative delay. Abuse of process must be disentangled analytically from a stay of proceedings, which is but one of the remedies available at common law to redress abusive conduct. It is crucial to draw this distinction because the threshold for demonstrating abusive conduct is much lower than the one for obtaining a stay of proceedings. The Court has established stringent requirements for granting a stay of proceedings. To obtain a stay, an applicant must satisfy the following test: there must be prejudice to the fairness of the trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; there must be no alternative remedy capable of redressing the prejudice; and where it is unclear whether a stay is warranted after the first two steps, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits. This test also applies to abusive delay in administrative proceedings. The majority conflates the doctrine of abuse of process with the test for stays of proceedings, which are only a subset of the remedies that courts may order to sanction abusive conduct. The majority thus fails to distinguish between, on the one hand, the test for whether conduct amounts to an abuse of process and, on the other hand, the test for whether a stay of proceedings is warranted in the circumstances. The former is flexible and unencumbered by particular requirements; the court must simply determine whether the impugned conduct undermines adjudicative fairness or the integrity of the justice system. The latter establishes an onerous threshold that is met only in the clearest of cases, where the applicant satisfies specific, stringent requirements. Where the applicant has demonstrated that the delay is inordinate, the next step in the analysis is for the court to determine the appropriate remedy in the circumstances. Courts possess an extensive arsenal of remedial tools to sanction and redress abusive conduct that account for the circumstances of each case, ranging from a declaration to a stay of proceedings. The choice of remedy for an abuse of process falls within the trial judge’s discretion. Applicants must satisfy a specific test to obtain a stay of proceedings, but other remedies are not subject to that test. The guiding principle in determining the appropriate remedy is proportionality. Courts must consider the nature and magnitude of the prejudice as primary factors, alongside the length and causes of the delay, in selecting a remedy proportionate to the abuse of process. As mandated by Blencoe, the applicant must demonstrate significant prejudice to obtain a stay of proceedings for inordinate delay in the administrative law context, but this standard does not apply to alternative remedies. With respect to the applicable standard of review, the Court’s jurisprudence is clear: the question of whether an administrative decision maker has complied with its duty of fairness is subject to the standard of correctness, regardless of the existence of an appeal mechanism. There is no reason to revisit this well‑established starting point. The majority purports to clarify the standard of review applicable to questions of procedural fairness in a statutory appeal. It does so, however, without meaningfully considering Khela, the governing authority on this point of law, or any other case relating to the duty of procedural fairness. The mere reference to Vavilov, a judgment that was rendered in a different context and that excluded procedural fairness review from its purview, does not suffice to oust Khela and other directly applicable precedents. While clarifications to the framework for determining the standard of review applicable to questions of procedural fairness are warranted, the Court should draw on its existing jurisprudence to articulate a principled approach. The standard of correctness must remain the starting point of the analysis in the context of procedural fairness review. It is for the courts to provide the legal answer to procedural fairness questions. The correctness standard applies to questions of compliance with the duty of procedural fairness as defined by the common law or by statute. However, the requirements of fairness are context‑dependent, and deference is owed to the administrative decision maker’s underlying findings of fact. The majority’s articulation of the standard of review in the context of inordinate administrative delay cannot be agreed with. Inordinate delay constitutes an abuse of process on its own; it is the legal standard against which an administrative body’s conduct is measured. Courts do not owe deference to an administrative decision maker’s conclusion on whether delay is inordinate and its choice of remedy for abuse of process. In the case at bar, there is agreement with the analysis of the Court of Appeal. The delay grossly exceeded the inherent time requirements of this case; it is plainly inordinate and, as a result, abusive. This inordinate delay caused serious prejudice to the member and his employees. In these circumstances, the Court of Appeal correctly sanctioned this abuse of process by ordering that the penalty for professional misconduct, but not the convictions themselves, be set aside. Cases Cited By Rowe J. Applied: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; distinguished: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; considered: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, leave to appeal refused, [2013] 2 S.C.R. xii; Misra v. College of Physicians & Surgeons of Saskatchewan (1988), 52 D.L.R. (4th) 477; Investment Dealers Association of Canada v. MacBain, 2007 SKCA 70, 299 Sask. R. 122; Law Society of Upper Canada v. Abbott, 2017 ONCA 525, 139 O.R. (3d) 290, leave to appeal refused, [2018] 1 S.C.R. v; referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227; R. v. Power, [1994] 1 S.C.R. 601; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 40 C.R. (3d) 289; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. O’Connor, [1995] 4 S.C.R. 411; Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Wigglesworth, [1987] 2 S.C.R. 541; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; Fortin v. Chrétien, 2001 SCC 45, [2001] 2 S.C.R. 500; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Béliveau v. Barreau du Québec (1992), 101 D.L.R. 324; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; Wachtler v. College of Physicians and Surgeons (Alta.), 2009 ABCA 130, 448 A.R. 317; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Diaz‑Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221, 39 B.C.L.R. (6th) 87; Camara v. Canada, 2015 FCA 43, 91 Admin. L.R. (5th) 13; Hennig v. Institute of Chartered Accountants (Alta.), 2008 ABCA 241, 433 A.R. 221; Brown v. Assn. of Professional Engineers and Geoscientists of British Columbia, [1994] B.C.J. No. 2037 (QL), 1994 CarswellBC 2980 (WL); Stefani v. College Of Dental Surgeons (British Columbia) (1996), 27 B.C.L.R. (3d) 34; Financial and Consumer Services Commission v. Emond, 2020 NBCA 42; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Robertson v. British Columbia (Commissioner, Teachers Act), 2014 BCCA 331, 64 B.C.L.R. (5th) 258; R. (J.) v. College of Psychologists (British Columbia) (1995), 33 Admin. L.R. (2d) 174; Adams v. Law Society of Alberta, 2000 ABCA 240, 266 A.R. 157; Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; Hydro‑Québec v. Matta, 2020 SCC 37; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Salomon v. Matte‑Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729. By Côté J. (dissenting) Canada (Minister of Citizenship and Immigration) v. 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O.P.S.E.U., 2003 SCC 64, [2003] 3 S.C.R. 149; I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 S.C.R. 43; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Dussault, 2022 SCC 16; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326; Bergeron v. Canada (Attorney General), 2015 FCA 160, 474 N.R. 366; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; R. v. Yusuf, 2021 SCC 2; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609; R. v. Virk, 2021 BCCA 58, 403 C.C.C. (3d) 492. Statutes and Regulations Cited Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 58(2)(b). Canadian Charter of Rights and Freedoms , ss. 7 , 11(b) , 24(1) . Legal Profession Act, 1990, S.S. 1990‑91, c. L‑10.1, ss. 3.1, 3.2, 39, 56, 63. Authors Cited Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada. Toronto: Thomson Reuters, 1998 (loose‑leaf updated June 2022, release 2). Casey, James T. The Regulation of Professions in Canada. Toronto: Carswell, 1994 (loose‑leaf updated June 2022, release 4). Coughlan, Steve. “Threading Together Abuse of Process and Exclusion of Evidence: How it Became Possible to Rebuke Mr. Big” (2015), 71 S.C.L.R. (2d) 415. Evans, John M. “Fair’s Fair: Judging Administrative Procedures” (2015), 28 C.J.A.L.P. 111. Garant, Patrice, avec la collaboration de Philippe Garant et Jérôme Garant. Droit administratif, 7e éd. Montréal: Yvon Blais, 2017. Jones, David Phillip, and Anne S. de Villars. Principles of Administrative Law, 7th ed. Toronto: Carswell, 2020. Lowery, Finn. “Abuse of Process: The Need for Structure” (2014), 20 Auckland U. L. Rev. 223. Macaulay, Robert W., James L. H. Sprague and Lorne Sossin. Practice and Procedure Before Administrative Tribunals. Toronto: Carswell, 2004 (loose‑leaf updated June 2022, release 6). MacKenzie, Gavin. Lawyers & Ethics: Professional Responsibility and Discipline. Toronto: Carswell, 2009 (loose‑leaf updated June 2022, release 2). McKee, Derek. “The Standard of Review for Questions of Procedural Fairness” (2016), 41 Queen’s L.J. 355. Mullan, David J., and Deirdre Harrington. “The Charter and Administrative Decision‑Making: The Dampening Effects of Blencoe” (2002), 27 Queen’s L.J. 879. Perell, Paul M. “A Survey of Abuse of Process”, in Todd L. Archibald and Randall Scott Echlin, eds., Annual Review of Civil Litigation 2007. Toronto: Thomson Carswell, 2007. Régimbald, Guy. Canadian Administrative Law, 3rd ed. Toronto: LexisNexis, 2021. Villeneuve, Jean‑Guy, et autres. Précis de droit professionnel. Cowansville, Que.: Yvon Blais, 2007. APPEAL from a judgment of the Saskatchewan Court of Appeal (Ottenbreit, Leurer and Barrington‑Foote JJ.A.), 2020 SKCA 81, [2020] S.J. No. 266 (QL), 2020 CarswellSask 336 (WL), setting aside a decision of the Hearing Committee for the Law Society of Saskatchewan (Chow, McCuskee and Sorestad), 2018 SKLSS 8, [2018] L.S.D.D. No. 265 (QL). Appeal allowed, Côté J. dissenting. Alyssa Tomkins, Paul Daly and Charles R. Daoust, for the appellant. Amanda M. Quayle, Q.C., Gordon J. Kuski, Q.C., and Lauren J. Wihak, for the respondent. Alexandra Clark and Matthew Chung, for the intervener the Attorney General of Ontario. Stéphane Rochette and Abdou Thiaw, for the intervener the Attorney General of Quebec. Meera Bennett and Robert Danay, for the intervener the Attorney General of British Columbia. Laura Mazenc and Johnna Van Parys, for the intervener the Attorney General of Saskatchewan. James T. Casey, Q.C., and Katrina Haymond, for the intervener the Law Society of Alberta. Ayli Klein, for the intervener the Law Society of Manitoba. Lisa Brownstone, Amy Block and Linda Rothstein, for the interveners the College of Physicians and Surgeons of Ontario, the College of Nurses of Ontario, the Ontario College of Pharmacists and the Royal College of Dental Surgeons of Ontario. Ewa Krajewska and Mannu Chowdhury, for the intervener the Federation of Law Societies of Canada. Lorenz Berner, Tracy Knight and Jennifer L. Whately, for the interveners the Alberta Securities Commission and the British Columbia Securities Commission. Sylvie Champagne, Nicolas Le Grand Alary and André‑Philippe Mallette, for the intervener Barreau du Québec. Audrey Macklin and Prasanna Balasundaram, for the intervener the Canadian Association of Refugee Lawyers. The judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. was delivered by Rowe J. — I. Introduction [1] This appeal arises from disciplinary proceedings pursued by the appellant, the Law Society of Saskatchewan (“Law Society”), against the respondent, Peter V. Abrametz. Mr. Abrametz was found guilty of four charges of conduct unbecoming a lawyer, and disbarred without a right to apply for readmission for almost two years. [2] During the disciplinary proceedings, Mr. Abrametz applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process. His application was dismissed by the Hearing Committee for the Law Society (“Hearing Committee”), but allowed on appeal by the Court of Appeal for Saskatchewan. The Law Society appeals from that decision. [3] This appeal affords the Court the opportunity to address once again the doctrine of abuse of process as it relates to inordinate delay in the administrative context. This was recognized more than 20 years ago in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. This appeal also allows us to clarify the standard of review applicable to questions of procedural fairness and to abuse of process in statutory appeals. [4] I would allow the appeal. While the Court of Appeal correctly determined the standard of review, it failed to apply it properly. The Hearing Committee did not err when it concluded that there was no abuse of process. II. Facts [5] Mr. Abrametz is a member of the Law Society of Saskatchewan. He has practiced in Prince Albert, Saskatchewan, for 49 years. A. Pre-Charge Investigation [6] In 2012, the Law Society commenced an audit investigation of Mr. Abrametz’s financial records due to apparent irregularities in the use of a trust account. On the eve of a visit by investigators to his office in December 2012, Mr. Abrametz self-reported to the Law Society that he had failed to promptly deposit more than $36,000 in fees into his office account. [7] The Law Society’s investigation related to eight transactions by Mr. Abrametz. In seven of these, Mr. Abrametz had issued cheques to clients that were then endorsed by the clients and cashed by Mr. Abrametz. In the other case, he had issued three cheques to a fictitious person, endorsed that false name on the cheques and cashed them. In addition, Mr. Abrametz had on 11 occasions advanced money to clients, relating to settlement funds, charging them a flat 30 percent fee of the amount advanced, as well as a 30 percent contingency fee, and interest. [8] The investigation also looked into whether some of these transactions were carried out to evade tax. [9] In February 2013, Mr. Abrametz was served with a notice of intention to interim suspend. However, by agreement with the Law Society in March 2013, Mr. Abrametz was allowed to continue to practice, subject to certain conditions: Mr. Abrametz had to retain another lawyer to supervise and monitor his practice and trust account activities; he had to seek prior approval from this supervisor for withdrawals/cheques from any trust account; and he could not accept the return of trust cheques from clients, nor accept endorsed cheques to be cashed or negotiated. A second notice of intention to interim suspend was served in November 2014, but the Law Society and Mr. Abrametz again agreed that he could continue to practice under substantially similar conditions. Mr. Abrametz continued to practice under these conditions without incident while the Law Society investigation continued. [10] In October 2014, the auditor submitted a final trust report to the Law Society. [11] In October 2015, the Law Society issued a formal complaint containing seven charges against Mr. Abrametz and appointed a Hearing Committee. B. Post-Charge Prosecution [12] A simultaneous investigation into Mr. Abrametz’s tax situation gave rise to litigation before the Court of Queen’s Bench between the Law Society and Mr. Abrametz regarding the scope of the Law Society’s investigatory powers: 2016 SKQB 134; 2016 SKQB 320, 408 D.L.R. (4th) 134. [13] In March 2016, Mr. Abrametz applied to the Hearing Committee for an interim stay of the disciplinary proceedings until the resolution of the tax investigation. The Hearing Committee dismissed the request in August 2016. [14] The Hearing Committee heard the disciplinary matter on May 17-19, August 9-10 and September 29, 2017. The conduct decision was rendered on January 10, 2018. Mr. Abrametz was found guilty of four of the seven charges. The four convictions were for matters disclosed in his self-report; they related to the advances to clients on settlement funds (referred to above). [15] On July 13, 2018, Mr. Abrametz applied for a stay of proceedings on the basis that the time taken by the Law Society to investigate and decide his case constituted an abuse of process. The application was heard on September 18, 2018, at the same hearing as that for submissions regarding penalty. The stay application was dismissed on November 9, 2018, in the stay decision. [16] On January 20, 2019, the penalty decision was rendered; the Committee ordered Mr. Abrametz disbarred without a right to apply for readmission until January 1, 2021. [17] The conduct, stay and penalty decisions were published as one. In these reasons I address primarily the stay. III. Judgments Below A. Hearing Committee for the Law Society of Saskatchewan, 2018 SKLSS 8 (D. Chow, J. McCuskee and E. Sorestad) [18] On the question of delay, the Hearing Committee found that Mr. Abrametz had made extensive efforts to conceal his actions. The Committee also referred to the complexity arising from the nature and number of allegations of conduct unbecoming and the number of client files and other documents that needed to be examined. The Hearing Committee also found that a significant share of delay in the proceedings should be attributed to Mr. Abrametz, due to his unavailability or the unavailability of his counsel. The Hearing Committee further noted that Mr. Abrametz had brought an application for a temporary stay of proceedings in April 2016. [19] The Hearing Committee found that the delay was neither inordinate nor unacceptable given the complexity of the case, the extent of the investigation and the delay attributed directly to Mr. Abrametz’s conduct. The Hearing Committee also concluded that any prejudice that Mr. Abrametz may have experienced as a result of the delay was not so significant that continuation of the process would be so unfair to him that the public’s sense of fairness would be harmed, having regard to the Law Society’s mandate to protect the public. B. Court of Appeal for Saskatchewan, 2020 SKCA 81 (Ottenbreit, Leurer and Barrington-Foote JJ.A.) [20] Mr. Abrametz appealed the conduct, penalty and stay decisions to the Court of Appeal pursuant to s. 56(1) of The Legal Profession Act, 1990, S.S. 1990-91, c. L‑10.1. [21] The Court of Appeal dismissed Mr. Abrametz’s conduct appeal but allowed the stay appeal. [22] The Court of Appeal held that whether there had been delay constituting an abuse of process is a question of law, reviewable on the basis of correctness; the findings of fact underlying the stay decision are reviewable on the standard of palpable and overriding error. [23] The Court of Appeal stated that Blencoe set a high threshold for finding an abuse of process where hearing fairness had not been compromised. The Court of Appeal concluded, nonetheless, that Mr. Abrametz was entitled to a stay. [24] The Court of Appeal concluded that there were significant periods that were not adequately explained and that could not be justified by the scale and complexity of the proceedings. The Court of Appeal concluded that of the 53-month period in issue, only 18 months were inherent to the process, and only 2 ½ months were attributable to Mr. Abrametz. The remainder, totaling 32 ½ months, the Court of Appeal concluded, was undue delay. The Hearing Committee’s failure to reach that conclusion was the result of palpable and overriding errors (as referred to), and the Hearing Committee’s failure to apply the law correctly to the facts. [25] The Court of Appeal concluded that there had been inordinate delay which resulted in significant prejudice to Mr. Abrametz, such that the public’s sense of decency and fairness would be affected. It concluded that this inordinate delay would bring the Law Society’s disciplinary process into disrepute. Mr. Abrametz’s application for a stay should have been granted by the Hearing Committee. IV. Analysis A. Standard of Review [26] This case allows the Court to clarify the standard of review applicable to questions of procedural fairness and abuse of process in a statutory appeal. The Court received submissions from the parties and interveners on this point. [27] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court held that when the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply: paras. 33 and 36-52. While this proposition was stated in the context of substantive review, the direction that appeals are to be decided according to the appellate standards of review was categorical. Thus, where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review. [28] This does not depart from Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, and Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, as those decisions related to judicial review and to the granting of prerogative writs. Here, we are dealing with a statutory appeal. As our Court has stated in Vavilov, at para. 36, “[w]here a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis.” [29] This case is a statutory appeal pursuant to The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, at paras. 24-25. [30] Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness. B. Inordinate Delay in Administrative Law (1) Introduction [31] Administrative decision makers re

Law Society of Saskatchewan v. Abrametz

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Law Society of Saskatchewan v. Abrametz

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