The delay in a regulatory or administrative process can have a
profound impact on the parties affected.
Delay hinders a party’s psychological well-being and
undermines the public’s confidence in the administration of
But when does delay in a tribunal or regulatory process become
so inordinate, that the entire proceeding should be stayed?
A new decision of the Supreme Court of Canada (“SCC”),
Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, seeks to answer this question in
the context of a professional discipline hearing.
Abrametz establishes a refined legal framework for
assessing when administrative delay can give rise to an abuse of
Abrametz involved a professional discipline proceeding
by the Law Society of Saskatchewan (the “Law Society”)
against a lawyer for a range of alleged financial and trust account
The Law Society began its audit investigation of the
lawyer’s financial records in 2012.
In February 2013, the lawyer was served with a notice of
intention to suspend his license, but ultimately was allowed to
continue to practise law, on conditions.
The auditor submitted a final trust report to the Law Society in
The Law Society charged the lawyer by way of formal complaint in
October, 2015 and the matter was referred to a hearing
At the same time, the lawyer’s tax circumstances led to
litigation about the scope of the Law Society’s investigatory
jurisdiction. The lawyer applied to the Law Society’s hearing
committee for a stay of the disciplinary proceedings against him
pending the resolution of the tax investigation. The hearing
committee denied the request.
Ultimately, the hearing committee held hearings over several
days between May and September, 2017 and rendered reasons for
decision on January 10, 2018. The lawyer was found guilty on four
of seven charges. In January, 2019, the hearing committee disbarred
the lawyer, with a right to re-apply for admission two years
In July, 2018, the lawyer applied to the hearing committee to
stay all the proceedings against him on the basis that the delay in
the investigation and decision of his case, amounting to
approximately 71 months, constituted an abuse of process.
The hearing committee dismissed the application for a stay. On
appeal, the Saskatchewan Court of Appeal allowed the appeal,
holding that the Law Society’s inordinate delay resulted in
significant prejudice to the lawyer and brought the administration
of justice into disrepute.
On further appeal to the SCC, the majority of the Court
The Court held, among other things, that the Court of Appeal
should have deferred to the hearing committee’s finding that
certain delays were attributable to the lawyer himself. There was
no significant prejudice to the lawyer as a result of the delay.
While the SCC recognized that the Law Society’s delay was
worthy of sanction, the delay was not so inordinate as to rise to
the level of an abuse of process.
In reaching these conclusions, the majority of the Court
codified a formal test for how to assess whether inordinate delay
gives rise to an abuse of process.
The Court also set out a number of key considerations any party
should consider before seeking to stay administrative proceedings
on the basis of abuse of process. They are:
1. If it’s an Appeal, the Appellate Standards of Review
Citing its most recent decision in Canada (Minister of
Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Court noted that where
questions of procedural fairness, such as abuse of process, are the
object of a statutory appeal mechanism, then in assessing the
matter on appeal, the Courts should apply the ordinary standards
applicable to appeals, being the less deferential standard of
“correctness” and the highly deferential standard of
“palpable and overriding error”, depending on whether the
question at issue is one of law, mixed fact and law, or of
The Court was careful to note, however, that this reasoning may
not apply where the abuse of process analysis is conducted in the
context of a judicial review application, as opposed to a formal
Since Abrametz involved a statutory appeal under
Saskatchewan’s Legal Profession Act, 1990,
and the question was one of law because it involved the doctrine of
abuse of process, the applicable standard of review was
2. There are Two Ways Delay Can Give Rise to An Abuse of
Citing its 2000 decision in Blencoe v. British Columbia
(Human Rights Commission), 2000 SCC 44, the Court identified two ways in
which excessive delay in the administrative law context can give
rise to an abuse of process:
- Where a hearing’s fairness is undermined because the delay
impairs the party’s right to answer the complaint against them,
i.e. “memories have faded, essential witnesses are unavailable
or evidence has been lost”; and
- Even if there is no prejudice caused by the delay to the
hearing’s fairness, an abuse of process happens where there has
been “inordinate delay” causing “significant
The delay at issue in Abrametz was the latter type,
requiring proof of inordinate delay and significant prejudice.
3. Criminal Standards of Delay do not Apply to the
The Court rejected the application of the criminal law delay
principle from its decision R. v. Jordan, 2016 SCC 27 to administrative hearings.
That is, the Court declined to recognize that inordinate delay,
in and of itself, gives rise to an abuse of process without
evidence of prejudice. This is a criminal law standard, where
Charter rights are engaged, that has no application to the
4. There is Now a Conceptual Framework for Assessing
Building on its analysis in Blencoe, supra,
the Court refined the conceptual framework through which a claim
for “inordinate delay” ought to be assessed.
The following factors now must be taken into account:
- Is the Delay
Inordinate? The delay must be
considered “in light of the circumstances of the
case”.The following contextual factors are relevant: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.The Court
noted that these factors were not exhaustive and further factors
could be taken into consideration.
- Did the Delay Directly Cause “Significant
Prejudice”? Only where a delay causes
“detriment” to an individual will a Court find that it
amounted to an abuse of process.Examples of the types of prejudice
that would give rise to an abuse of process include significant
psychological harm, stigma attached to an individual’s
reputation, disruption of family life, loss of work or business
opportunities, and extended and intrusive media attention.
- The Final Assessment of the Delay. If
the two requirements above have been met, the Court must then
“conduct a final assessment as to whether the abuse of process
is established”.The Court considers whether the delay “is
manifestly unfair to the party to the proceedings or in some other
way brings the administration of justice into disrepute”.
5. What is the Remedy for an Abuse of Process?
A permanent stay of proceedings against the individual as a
remedy for an abuse of process is the “ultimate
It should only be ordered in the “clearest of cases”,
where “the abuse falls at the high end of the spectrum of
The test is whether “going ahead with the proceeding
[would] result in more harm to the public interest than if the
proceedings were permanently halted”. The Court may consider
such factors as the gravity of the charges against the
Alternatively, there are other potential remedies for an abuse
of process apart from a stay. These include remedies such as a
reduction in sanction to the individual, or costs.
The Refined Conceptual Framework for an Abuse of Process
Abrametz represents a genuine effort by the SCC to
clarify the conditions in which an administrative proceeding will
be permanently halted on the basis of inordinate delay.
The majority of the Court was clearly concerned with the
dismissal of substantive proceedings on the basis of a due process
concern, in the absence of evidence of “significant
The Court was careful, however, to emphasize the contextual
grammar through which an inordinate delay ought to be analyzed
– each case will inevitably turn on its facts.
There will no doubt be circumstances where a regulatory or
tribunal delay is so excessive, and the prejudice to the individual
so significant, that an abuse of process arises.
The Abrametz framework gives Courts and tribunals the
flexibility to recognize those circumstances, with the ultimate
goal of protecting the proper administration of justice.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.