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Timely discipline

In administrative law, how long is too long for a matter to be decided?

Lady justice clock

On November 8, the Supreme Court of Canada will hear arguments in the case of Peter Abrametz, a lawyer in Saskatchewan who was disbarred in 2018 after being found guilty of four counts of conduct unbecoming a lawyer. Abrametz challenged the ruling at the Saskatchewan Court of Appeal, arguing the process took seven years to reach its conclusion. The court held that the professional misconduct finding was it took too long, which amounted to an abuse of process. It set aside the penalty and cost award in the Law Society's decision.

According to court documents, Abrametz was accused of breaching his fiduciary duty to clients, by making withdrawals from trust funds with cheques payable to a fictitious person. The Law Society began its audit in December 2012, and issued formal charges in October 2015. In the interim, Abrametz was allowed to continue practising under certain conditions.

In April 2015, a separate investigation into his tax matters was also launched in the interest of speeding proceedings, which led to litigation. The final hearing committee decision that disbarred Abrametz was delivered on January 10, 2018, which he attempted to stay. When that was denied, Abrametz turned to the Court of Appeal.

"The Court of Appeal failed to afford deference to the findings of the Hearing Committee," the Law Society argues in its factum. "Instead, the Court of Appeal set aside those findings and substituted its own Blencoe analysis, which was deeply flawed."

Rebecca Durcan, a partner at Steinecke Maciura LeBlanc in Toronto, who represents regulators in her practice, says the case could change the landscape of administrative law, particularly if the Supreme Court tries to impose Jordan-principles in that context.

"What we often see in professional regulation is attempts by the registrant or the licensee to co-mingle criminal concepts within the administrative disciplinary process," says Durcan. "As the prosecutor, we're always trying to remind the discipline committee that disciplinary matters are not criminal. They're not punitive. The sanctions that you face in a criminal matter are not remotely what you're going to be dealing with at an admin level."

Durcan says she cringes at the notion that revoking a license is akin to a professional death penalty.

"Jordan is the leading criminal case on what is deemed to be acceptable from a delay perspective, and how things need to be resolved within a certain window of time because of the criminal sanctions and possible incarceration. None of that applies at the admin level," says Durcan. "It's important not to import Jordan."

Nadia Effendi, a partner at Borden Ladner Gervais LLP in Toronto, is counsel for the Federation of Law Societies of Canada at the Supreme Court hearing. She's also arguing the Jordan should not be imported to the administrative context.

"We're particularly concerned about any reformulation of the Blencoe test that would lead to a narrowing or a more stringent test being applied by the court," says Effendi. "In Blencoe, the court really adopted a flexible and contextual test, which is the one that we're saying the court should reiterate. As a result of case law in the last few years, including Jordan and Hryniak, there's been a push in the judicial world to import some of these concepts from the criminal world to the administrative law world."

Effendi says the Federation is hoping to caution the court that administrative bodies come in all shapes and sizes, so importing rigid Jordan-like timelines cannot work.

"The factors that Blencoe had emphasized in terms of whether or not a delay is inordinate are all factors that law societies are well-equipped to determine and assess in determining what is the appropriate delay," says Effendi. "Justice [Michel] Bastarache in Blencoe recognized that we had to be really careful in importing criminal law principles."

According to Durcan, regulators always want to ensure fairness to the licensee or the registrant because, reputationally and substantively, they are not discharging their mandate if they are not acting fairly.

"The desire to move things forward, in my experience, is baseline," says Durcan. "Regulators are not the state, writ large, and they do not have the resources of the state. They are self-funded organizations, funded by membership fees. You're going to have a variety of distinctions between certain regulators."

To illustrate her point, Durcan remarks that the College of Nurses of Ontario has over 200,000 members, while the College of Denturists has approximately 800 members. Their ability to deploy resources are not comparable.

"Regulators are not always fully in control of their processes," says Durcan. "Most regulators have publicly-appointed members. In Ontario, the 26 health colleges all have varying numbers of public appointees made by the government. The legislation in Ontario mandates that some of those public members must be on the investigative committee or disciplinary committee. When the government doesn't give the regulators a sufficient number of public members, things slow down."

This has an impact on the Blencoe analysis, which needs to be considered. A Jordan-esque fixed clock also puts regulators at risk of moving too quickly on disciplinary matters by rushing parts of an investigation. Disciplinary hearings will get scheduled too quickly and things will get missed.

"The strict adherence to this clock could really undermine their genuine obligation to investigate thoroughly," says Durcan. "There is this tension between being fair and ensuring your duty has been met to serve and protect the public interest."

Durcan adds that complex matters will take longer, and there will be delays in a case such as Abrametz's. "I have seen investigations take that long," she adds. "They haven't been sitting stale."