In its recent decision of Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, the Supreme Court of Canada considered the issue of whether lengthy disciplinary proceedings against a Saskatchewan lawyer amounted to an abuse of process.

Peter Abrametz was a member of the Law Society of Saskatchewan. In 2012, the Law Society began an investigation of Mr. Abrametz's financial records as a result of irregularities in the use of a trust account.

The investigation began in December 2012, and the disciplinary hearing was held between May 2017 and September 2017.

Six years after the investigation began, in 2018, the Law Society of Saskatchewan found Mr. Abrametz guilty of four charges of conduct unbecoming a lawyer. In 2019, the Law Society of Saskatchewan issued its penalty decision. Ultimately, the Law Society of Saskatchewan held that Mr. Abrametz would be disbarred without a right to apply for readmission for almost two years.

Mr. Abrametz applied for a stay of proceedings, arguing that the Law Society's extended delay in investigating and deciding his case constituted an abuse of process. For its reasons, the Hearing Committee dismissed his application.

The Hearing Committee concluded that the delay was neither inordinate nor unacceptable given the complexity of the case, the extent of the investigation and the fact that the delay was attributed directly to Mr. Abrametz's conduct. Additionally, the Hearing Committee found that any delay was not significant enough to impair the fairness of the proceedings in a way that would offend the public's sense of fairness.

When this matter came before the Supreme Court, the Supreme Court reaffirmed the approach adopted in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44.

Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44

In Blencoe, a human rights complaint that had dragged on for 30 months was determined not to be an abuse of process. In Blencoe, the Supreme Court confirmed that a stay of proceeding is available for "inordinate delay" that "comprises the very fairness of the hearing" or leads to a "gross or shocking abuse of process."

Robin Blencoe was a minister of the British Columbia government for several years when Fran Yanor went public with a claim that Blenco had sexually harassed her. Yanor filed to the British Columbia Human Rights Council (later the British Columbia Human Rights Commission). Following this allegation, Blencoe stepped down as Minister, but he remained in Cabinet pending the results of the inquiry.

Several months later, nine other women filed complaints for sexual harassment. Due to delays in the tribunal hearings, the claims were not resolved for 11 years after the first filing in 1995.

During this time, Blencoe was subjected to vast media coverage that ruined his career and contributed to his and his family's social and psychological hardships.

Blencoe challenged the delay of the Human Rights Commission in the British Columbia Supreme Court on the basis of denial of natural justice. The court dismissed his challenge. Blencoe appealed to the British Columbia Court of Appeal on the basis that the delay of the hearing for over 30 months was a violation of his right to "security of person" under section 7 of the Charter.

Ultimately, the Supreme Court considered whether the delay in the tribunal hearing violated Blencoe's section 7 Charter rights or any rules against undue delay. The Supreme Court dismissed the possibility that the trial was not fair as there was no evidence to suggest that Blencoe was not able to provide a full answer and defence.

The Supreme Court explained that a delay alone does not warrant a stay of proceedings. However, according to the Supreme Court in Blencoe, there must be a finding of "significant prejudice" that results from the "unacceptable delay." The Supreme Court provided a list of examples of significant prejudice:

  • The impairing of a party's ability to answer the complaint because of faded memories;
  • Witnesses no longer available;
  • Lost evidence;
  • Delay has caused significant psychological harm to a person; and
  • Delay has attached a stigma to a person's reputation.

Blencoe explained that an unacceptable delay may amount to an abuse of process in certain circumstances, even where the fairness of the hearing has not been compromised.

Blencoe also explained that because other remedies are available for abuse of process, a party seeking a stay of proceedings must meet a heavy onus. To constitute a breach of the duty of fairness, the delay must have been unreasonable or inordinate.

Supreme Court decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29

In Abrametz, the Supreme Court set out a three-part test for whether there has been an abuse of process due to an inordinate delay.

As mentioned, this test was derived from the majority's decision in Blencoe.

First, it must be demonstrated that the delay was "inordinate." The length of time must be assessed based on the circumstances of each case. Factors to consider include (a) the nature and purpose of the proceedings, (b) the length and causes of the delay, and (c) the complexity of the facts and issues in the case.

The next element of the test is that it must be demonstrated that the inordinate delay has caused the applicant "significant prejudice."

Justice Rowe writing for the majority, noted that every investigation or proceeding against a person tends to disrupt the person's life and cause some prejudice; however, the only relevant prejudice in the analysis is prejudice caused specifically by the delay itself.

Lastly, if the first two elements are met, the court or tribunal should conduct a final assessment as to whether an abuse of process is established. This will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute.

The Supreme Court also noted that even if these three elements are satisfied, a stay of proceedings will not always be the appropriate remedy. The decision made reference to other various remedies that exist, including a reduction of sanction and an award of costs. A stay of proceedings will only be justified in rare cases.

Argument to 'Jordanize'

Notably, in its decision, the Supreme Court explained that the principles set out in R v Jordan (which states that it is a charter right to have a proceeding completed in a certain number of months) should not apply in the administrative context.

The Supreme Court explained that there are important reasons why Jordan does not apply to administrative proceedings. Jordan deals with the right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms. No such Charter right applies to administrative proceedings. As such, there was no constitutional right outside the criminal context to be "tried" within a reasonable time.

Abrametz made reference to Blencoe and explained that there are fundamental differences between criminal and administrative proceedings. The Supreme Court explained that a human rights body's investigation is aimed at determining what took place and seeks to settle the matter in a non-adversarial manner. The purpose of human rights proceedings is to eradicate discrimination rather than to punish an offender. The decision explained that similar distinctions can be drawn between disciplinary and criminal matters. While the former is intended to regulate professional conduct within a limited private sphere of activity, the latter is intended to maintain public order and welfare for the broad public.


Ultimately, in Abrametz, the Supreme Court held that since the Hearing Committee had not been shown to have erred in its finding that there was no inordinate delay or significant prejudice to Mr. Abrametz, there was no basis to set aside its conclusion that there was no abuse of process in this case.

Going forward, it will be interesting to see how the test in Abrametz is applied and how courts and administrative tribunals may respond to this jurisprudence.

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