Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 https://canlii.ca/t/jqbs7
In Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, the Supreme Court (“SCC”) addressed (i) the doctrine of abuse of process for inordinate delay in administrative proceedings, and (ii) the standard of review applicable to questions of procedural fairness and abuse of process in statutory appeals.[1]
Background and Blencoe
The respondent lawyer was found guilty of conduct unbecoming and disbarred without a right to apply for readmission for almost two years.[2] During the disciplinary proceeding, they applied for a stay based on inordinate delay amounting to an abuse of process.[3] The stay application was dismissed by the Hearing Committee for the Law Society but allowed on appeal by the Court of Appeal for Saskatchewan.[4] The majority of the SCC allowed the appeal and held that while the Court of Appeal correctly determined the standard of review, they failed to properly apply it.[5]
The majority further held that Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”), remains the applicable authority for inordinate delay in administrative proceedings and rejected calls to “Jordanize” by bringing it into conformity with contemporary approaches to delay in the criminal justice system addressed in R. v. Jordan, 2016 SCC 27.[6]
Blencoe sets out a three-step test to determine whether delay that does not affect hearing fairness amounts to an abuse of process: (i) first, the delay must be inordinate, (ii) second, the delay itself must have directly caused significant prejudice, and (iii) third, there needs to be a final assessment of whether the delay amounts to an abuse of process by being manifestly unfair to a party or in some other way bringing the administration of justice into disrepute.[7]
Abuse of Process
The doctrine of abuse of process stems from the court’s inherent and residual discretion.[8] It is a broad concept that applies in various contexts.[9] In criminal law, unfair or oppressive treatment of an accused can constitute abuse of process and warrant judicial intervention.[10] In civil law, it can warrant a motion to strike or preclude relitigation of an issue.[11] The doctrine is broad and can be appreciated on a spectrum.[12]
Abuse of process is characterized by its flexibility.[13] Unlike res judicata or issue estoppel, “it is not encumbered by specific requirements”.[14] The “primary focus is the integrity of courts’ adjudicative functions, and less on the interests of parties”.[15] Fairness and the proper administration of justice are central to the doctrine.[16] In administrative proceedings, abuse of process is a question of procedural fairness[17] and the duty to be fair is relevant at all stages.[18]
Abuse of process can lead to various remedies, up to an including the ultimate remedy of a permanent stay of proceedings.[19] Where a stay is not warranted, other remedies can include a reduction in the sanction[20] and/or costs.[21]
Standard of Review
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), the SCC applied the appellate standards of review from Housen v. Nikolaisen, 2002 SCC 33, to statutory appeals from administrative decisions.[22] The majority in Abrametz added that “where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review”.[23]
As a statutory appeal, the standard of review in Abrametz was correctness for questions of law, and palpable and overriding error for questions of fact and question of mixed fact and law[24] (absent an extricable error of law). An “error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result”.[25] An “appellate court is not free to interfere with factual conclusions merely because it disagrees with the weight to be assigned to the underlying evidence”.[26]
The majority held that abuse of process is a question of law, and the applicable standard of review was correctness.[27] However, the Hearing Committee’s findings with respect to inordinate delay[28] and significant prejudice[29] were subject to the standard of palpable and overriding error.
In dissent, Justice Côté noted that the presumptive standard of review from Vavilov is reasonableness, by contrast with Mission Institution v. Khela, 2014 SCC 24 (“Khela”), where the Court confirmed that “the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be ‘correctness’”.[30] Justice Côté noted that procedural fairness is a “general common law principle” that exists “independently of statutorily confined administrative regimes”.[31]
The majority distinguished Khela and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (“Khosa”), from Abrametz on the basis that those decisions concerned judicial review and the granting of prerogative writs, not statutory appeals.[32]
Justice Côté would have kept the standard of correctness as the starting point of the analysis in the context of procedural fairness review.[33] Admittedly, Justice Côté noted that the majority’s approach would usually lead to the same result where the enabling statute establishes an appeal mechanism because procedural fairness is a legal standard, and “the assessment of whether an administrative decision maker complied with this duty is a question of law subject to correctness review on appeal “.[34]
Justice Côté noted that the majority applied the standard of palpable and overriding error to two requirements of the Blencoe test, namely inordinate delay and significant prejudice, and applied the standard of correctness to the third step of “conducting a final assessment”.[35] Justice Côté further noted that inordinate delay would have constituted an abuse of process on its own, “it is the legal standard against which an administrative body’s conduct is measured”, and should have been subject to correctness review.[36]
Future Discussion
As discussed in a previous WEL blog post on “Procedural Fairness at the Consent and Capacity Board”, Justice Myers held in [K.] v. Weinroth, 2022 ONSC 2748, that a proceeding is either fair or it is not, there is no other standard of review.[37] Although Abrametz sought to clarify the standard of review for procedural fairness on statutory appeals, Justice Côté’s dissent demonstrates ongoing conceptual challenges. In particular, questions remain for procedural fairness outside of statutory appeals where Khela and Khosa may need to be reconciled.
—
[1] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para 3 (“Abrametz”).
[2] Abrametz at para 1.
[3] Abrametz at para 2.
[4] Abrametz at para 2.
[5] Abrametz at para 4.
[6] Abrametz at paras 38 and 45-48.
[7] Abrametz at para 43 and 101.
[8] Abrametz at para 33.
[9] Abrametz at para 34.
[10] Abrametz at para 34.
[11] Abrametz at para 34.
[12] Abrametz at para 76.
[13] Abrametz at para 35.
[14] Abrametz at para 35.
[15] Abrametz at para 36.
[16] Abrametz at para 36.
[17] Abrametz at para 38.
[18] Abrametz at para 58.
[19] Abrametz at paras 76 and 83.
[20] Abrametz at paras 92-98.
[21] Abrametz at para 99.
[22] Abrametz at para 27; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 36.
[23] Abrametz at para 27.
[24] Abrametz at para 29.
[25] Abrametz at para 113 (original emphasis).
[26] Abrametz at para 113.
[27] Abrametz at para 30.
[28] Abrametz at para 116.
[29] Abrametz at para 124.
[30] Abrametz at paras 161-163.
[31] Abrametz at para 165.
[32] Abrametz at para 28.
[33] Abrametz at para 169.
[34] Abrametz at para 169.
[35] Abrametz at para 181.
[36] Abrametz at para 182 (original emphasis).
[37] [K.] v. Weinroth, 2022 ONSC 2748 at para 11.
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Written by: Nima Hojjati
Posted on: October 31, 2022
Categories: Commentary, WEL Newsletter
Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 https://canlii.ca/t/jqbs7
In Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, the Supreme Court (“SCC”) addressed (i) the doctrine of abuse of process for inordinate delay in administrative proceedings, and (ii) the standard of review applicable to questions of procedural fairness and abuse of process in statutory appeals.[1]
Background and Blencoe
The respondent lawyer was found guilty of conduct unbecoming and disbarred without a right to apply for readmission for almost two years.[2] During the disciplinary proceeding, they applied for a stay based on inordinate delay amounting to an abuse of process.[3] The stay application was dismissed by the Hearing Committee for the Law Society but allowed on appeal by the Court of Appeal for Saskatchewan.[4] The majority of the SCC allowed the appeal and held that while the Court of Appeal correctly determined the standard of review, they failed to properly apply it.[5]
The majority further held that Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”), remains the applicable authority for inordinate delay in administrative proceedings and rejected calls to “Jordanize” by bringing it into conformity with contemporary approaches to delay in the criminal justice system addressed in R. v. Jordan, 2016 SCC 27.[6]
Blencoe sets out a three-step test to determine whether delay that does not affect hearing fairness amounts to an abuse of process: (i) first, the delay must be inordinate, (ii) second, the delay itself must have directly caused significant prejudice, and (iii) third, there needs to be a final assessment of whether the delay amounts to an abuse of process by being manifestly unfair to a party or in some other way bringing the administration of justice into disrepute.[7]
Abuse of Process
The doctrine of abuse of process stems from the court’s inherent and residual discretion.[8] It is a broad concept that applies in various contexts.[9] In criminal law, unfair or oppressive treatment of an accused can constitute abuse of process and warrant judicial intervention.[10] In civil law, it can warrant a motion to strike or preclude relitigation of an issue.[11] The doctrine is broad and can be appreciated on a spectrum.[12]
Abuse of process is characterized by its flexibility.[13] Unlike res judicata or issue estoppel, “it is not encumbered by specific requirements”.[14] The “primary focus is the integrity of courts’ adjudicative functions, and less on the interests of parties”.[15] Fairness and the proper administration of justice are central to the doctrine.[16] In administrative proceedings, abuse of process is a question of procedural fairness[17] and the duty to be fair is relevant at all stages.[18]
Abuse of process can lead to various remedies, up to an including the ultimate remedy of a permanent stay of proceedings.[19] Where a stay is not warranted, other remedies can include a reduction in the sanction[20] and/or costs.[21]
Standard of Review
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), the SCC applied the appellate standards of review from Housen v. Nikolaisen, 2002 SCC 33, to statutory appeals from administrative decisions.[22] The majority in Abrametz added that “where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review”.[23]
As a statutory appeal, the standard of review in Abrametz was correctness for questions of law, and palpable and overriding error for questions of fact and question of mixed fact and law[24] (absent an extricable error of law). An “error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result”.[25] An “appellate court is not free to interfere with factual conclusions merely because it disagrees with the weight to be assigned to the underlying evidence”.[26]
The majority held that abuse of process is a question of law, and the applicable standard of review was correctness.[27] However, the Hearing Committee’s findings with respect to inordinate delay[28] and significant prejudice[29] were subject to the standard of palpable and overriding error.
In dissent, Justice Côté noted that the presumptive standard of review from Vavilov is reasonableness, by contrast with Mission Institution v. Khela, 2014 SCC 24 (“Khela”), where the Court confirmed that “the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be ‘correctness’”.[30] Justice Côté noted that procedural fairness is a “general common law principle” that exists “independently of statutorily confined administrative regimes”.[31]
The majority distinguished Khela and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (“Khosa”), from Abrametz on the basis that those decisions concerned judicial review and the granting of prerogative writs, not statutory appeals.[32]
Justice Côté would have kept the standard of correctness as the starting point of the analysis in the context of procedural fairness review.[33] Admittedly, Justice Côté noted that the majority’s approach would usually lead to the same result where the enabling statute establishes an appeal mechanism because procedural fairness is a legal standard, and “the assessment of whether an administrative decision maker complied with this duty is a question of law subject to correctness review on appeal “.[34]
Justice Côté noted that the majority applied the standard of palpable and overriding error to two requirements of the Blencoe test, namely inordinate delay and significant prejudice, and applied the standard of correctness to the third step of “conducting a final assessment”.[35] Justice Côté further noted that inordinate delay would have constituted an abuse of process on its own, “it is the legal standard against which an administrative body’s conduct is measured”, and should have been subject to correctness review.[36]
Future Discussion
As discussed in a previous WEL blog post on “Procedural Fairness at the Consent and Capacity Board”, Justice Myers held in [K.] v. Weinroth, 2022 ONSC 2748, that a proceeding is either fair or it is not, there is no other standard of review.[37] Although Abrametz sought to clarify the standard of review for procedural fairness on statutory appeals, Justice Côté’s dissent demonstrates ongoing conceptual challenges. In particular, questions remain for procedural fairness outside of statutory appeals where Khela and Khosa may need to be reconciled.
—
[1] Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para 3 (“Abrametz”).
[2] Abrametz at para 1.
[3] Abrametz at para 2.
[4] Abrametz at para 2.
[5] Abrametz at para 4.
[6] Abrametz at paras 38 and 45-48.
[7] Abrametz at para 43 and 101.
[8] Abrametz at para 33.
[9] Abrametz at para 34.
[10] Abrametz at para 34.
[11] Abrametz at para 34.
[12] Abrametz at para 76.
[13] Abrametz at para 35.
[14] Abrametz at para 35.
[15] Abrametz at para 36.
[16] Abrametz at para 36.
[17] Abrametz at para 38.
[18] Abrametz at para 58.
[19] Abrametz at paras 76 and 83.
[20] Abrametz at paras 92-98.
[21] Abrametz at para 99.
[22] Abrametz at para 27; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 36.
[23] Abrametz at para 27.
[24] Abrametz at para 29.
[25] Abrametz at para 113 (original emphasis).
[26] Abrametz at para 113.
[27] Abrametz at para 30.
[28] Abrametz at para 116.
[29] Abrametz at para 124.
[30] Abrametz at paras 161-163.
[31] Abrametz at para 165.
[32] Abrametz at para 28.
[33] Abrametz at para 169.
[34] Abrametz at para 169.
[35] Abrametz at para 181.
[36] Abrametz at para 182 (original emphasis).
[37] [K.] v. Weinroth, 2022 ONSC 2748 at para 11.
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