Written By Katherine Fisher and Natasha Laffin
As we await the Supreme Court of Canada's (SCC) anticipated decision in the appeal of Abrametz v Law Society of Saskatchewan [Abrametz], 2020 SKCA 81, leave to appeal to SCC granted, No 39340, it is opportune to review the current state of the law regarding delay amounting to an abuse of process in administrative proceedings, and to highlight why the SCC may be inclined to update such law.
The leading case on delay in administrative proceedings has been Blencoe v British Columbia (Human Rights Commission) [Blencoe], 2000 SCC 44. As held by the SCC in Blencoe, delay, without more, will not constitute an abuse of process warranting a stay of proceedings. While this strict approach has blocked numerous delay applications from succeeding for over 20 years, notably, in July 2020, the Saskatchewan Court of Appeal revisited the issue in Abrametz, providing for the possibility of change in future administrative law proceedings.
The Court in Blencoe noted that "proof of significant prejudice which results from an unacceptable delay" (at para 101) was necessary to allow for a stay of administrative proceedings on the basis of delay. The Saskatchewan Court of Appeal in Abrametz seemingly lowered this bar, highlighting the recent SCC decisions of R v Jordan, 2016 SCC 27 (which contemplated the right to be tried within a reasonable time under section 11(b) of the Charter, and introduced a ceiling on delays in criminal proceedings), and Hryniak v Mauldin, 2014 SCC 7 (which called for "timely and affordable access to the civil justice system" (at para 2)). In light of these decisions in which the SCC expressly recognized the need for timely justice in criminal and civil cases alike, the question arises as articulated by Barrington-Foote, J. in Abrametz: "why should less be required of administrative decision-makers than courts?" (at para 9).
The SCC heard the Abrametz appeal in November 2021. In its anticipated decision, the SCC is expected to address whether the standing test for dismissal for undue delay in administrative proceedings set out in Blencoe ought to be reconsidered given "an evolution in the Supreme Court's understanding of the impact of, and need to address, delay in the administration of justice" (Abrametz at para 8).
Any shift away from the law as articulated in Blencoe will have significant implications for self-regulated professions, including various professional Colleges and their regulated members. Bennett Jones LLP is at the forefront of administrative law as it pertains to professional Colleges and regulated members alike, and we are readily available to provide information and guidance on developments in this area as they arise.
Katherine J. Fisher, BScN, MN, JD
Natasha O.Q. Laffin, BComm, JD, MPH