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The provincial government has passed legislation allowing certain professions to self-regulate. This establishes a regulatory body that creates by-laws, policies and rules to guide the profession and its members. This all falls under the broader category of law known as administrative law, which includes the legality of administrative decision-making and procedural fairness.
Professional regulatory bodies, in support of their established standards and rules and to ensure the protection of the public, have processes for conducting investigations and initiating and implementing disciplinary action in cases where members have committed acts professional misconduct. This was the case in a disciplinary process initiated in 2012 by the Saskatchewan Law Society against one of its members. That culminated in a 2018 Bar Hearing Panel decision that found Mr. Abrametz guilty of professional misconduct on four counts. This was followed in 2019 by a decision sanctioning Mr. Abrametz’s disbarment without the right to seek readmission for around two years. The facts of this first case, while interesting in themselves, are legally overshadowed by the significant events that followed the Law Society’s decision and ultimately led to a recent decision by the Supreme Court of Canada in July 2022.
As part of the proceedings, Mr. Abrametz requested a suspension due to delays in the disciplinary process. He argued that the excessive delay was procedurally unfair and constituted an abuse of process. The Law Society’s Inquiry Committee argued that the length of the process, given the complexity and scope of the investigation, the evasive tactics employed, and the unavailability of the lawyer himself during more than a year, justified any delay. The Hearing Panel denied the Member’s request. The Member then appealed directly to the Saskatchewan Court of Appeal on this issue. The Court of Appeal ultimately granted a stay of the panel’s decision. The Court of Appeal found that the delay was excessive and caused public prejudice against the appellant and, in essence, an abuse of process.
The Law Society appealed this decision to the Supreme Court of Canada. The Supreme Court overturned the Court of Appeals decision in an 8-1 decision. She examined the standard of review in statutory appeals concerning abuse of process and fairness, and the issue of delay in administrative tribunals. The decision indicates that even if the Court of Appeal correctly determined the standard of review, it did not correctly apply it. The Supreme Court found that deference should be shown to the hearing panel with respect to certain findings, such as those regarding the complexity of the investigation or external factors causing delays. The decision reinforced the idea that the factual findings of the court or the original disciplinary body carry significant weight even in procedural fairness. He also found that no actual harm had been established for the member.
The Supreme Court emphasized the need for speed and efficiency in administrative proceedings and warned against undue delays, but clearly recognized that the context of such delays and the factors which caused them should be carefully considered. . Essentially, timeliness counts for fairness, but the lack of timeliness, in and of itself, does not impose an abuse of process. The Supreme Court has clearly recognized that the role of the Law Society Hearing Panel is to weigh and evaluate the evidence and that an appellate court cannot interfere with factual findings solely on the grounds that it is not agree with the weight given to the evidence.
Recognizing the Need for Reasoned Opportunity in Legal Businesses, the Supreme Court Commented on Late Referencing Issues R. v. Jordan, focused on reducing delays in criminal proceedings. Although speed is clearly desired, the Court has found fundamental differences in its application in criminal proceedings compared to administrative proceedings. Jordan directly addresses a person’s right to a timely hearing under the Canadian Charter of Rights and Freedoms. There is no comparable law in administrative proceedings and therefore the Court rejected the adoption of Jordan principles of delay in this context.
This Supreme Court decision helped clarify the standards for reviewing statutory appeals and clearly provided additional understanding of the significance of delay with respect to procedural fairness and abuse of process in administrative law. For anyone involved in the operation of administrative procedures, the findings are worth exploring and understanding.
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