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Why Jordan does not apply to administrative proceedings

Supreme Court resists the attempt to set a ceiling on regulatory decisions.

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In an 8-1 decision, the Supreme Court of Canada resisted calls to impose hard timelines on the decisions of regulatory bodies, upholding their previous decision in Blencoe that outlined a three-part test to determine if delays in regulatory decisions amount to an abuse of process.

In the case at hand, Saskatchewan lawyer Peter Abrametz had been found guilty of four charges of conduct unbecoming a lawyer and disbarred without a right to reapply for almost two years. Abrametz applied for a stay of proceedings on grounds that an inordinate delay in those proceedings amounted to an abuse of process. While the hearing committee for the Law Society dismissed the application, it was allowed on appeal by the province's Court of Appeal. The Supreme Court of Canada has set that decision aside. Even though the appeal court had correctly determined the standard of review, it failed to apply it correctly. What's more, the hearing committee had not erred in determining there was no abuse of process.

Writing for the majority, Justice Malcolm Rowe recognized that an inordinate delay in administrative proceedings is contrary to the interests of society, and undermines a fundamental purpose for why such decision-making authority was delegated. But the court resisted applying the same reasoning as it had in its 2016 Jordan rulingwhich set a ceiling on trial of 18 months for provincial courts and 30 months for superior courts.

"There are important reasons why Jordan does not apply to administrative proceedings," Rowe wrote. "Jordan deals with the right to be tried within a reasonable time under s.11(b) of the Canadian Charter of Rights and Freedoms. No such Charter right applies to administrative proceedings. As such, there is no constitutional right outside of the criminal context to be 'tried' within a reasonable time."

Rowe also noted the fundamental differences between a criminal and administrative proceeding, and that flexibility is essential in an administrative law context, "given the wide variety of circumstances in which the delegated authority is exercised."

University of Ottawa law professor Paul Daly, who represented the Law Society of Saskatchewan at the Supreme Court, says that Abrametz represents a reaffirmation of the status quo concerning undue delay in administrative law.

"Judicial remedies are mostly only available where delay is inordinate and has caused significant prejudice," Daly says. In rejecting the proposition that the jurisprudence on delay in criminal law context be transplanted into public administration, Daly says this is "consistent with the Supreme Court's general resistance to extending Charter protections to those who voluntarily engage in economic activity in a regulated sector."

Abrametz also reaffirms the status quo on stays of proceedings, which are extraordinary remedies, available only in the most serious of cases, Daly adds.

Rebecca Durcan, the co-managing partner at Steinecke Maciura LeBlanc in Toronto, represents regulators in her practice but was not involved in this case. She points to the majority's recognition that the public interest isn't served when matters are stayed.

"The majority repeatedly came back to the public, which was refreshing to see," Durcan says. "Clearly, the regulator needs to ensure that any such investigation is fair to the registrant. But the majority is reminding that the public interest must be at the forefront."

Durcan says that regulatory investigations can take a long time, not because of a sense of "complacency," but because of the matters' complexity.

"It is in the public's—and the registrant's—interest to ensure investigations are thorough," Durcan says. "This can sometimes result in lengthy investigations." The majority is recognizing this, she says, adding that she was interested to see the introduction of a contextual standard when determining the appropriate remedy once abuse of process has been proven. She notes that in the court's words, "a stay will be more difficult to obtain where the charges are more serious" and that the threshold in the sanction will be particularly high when the presumptive penalty is revocation.

"This again seems to be grounding the rationale and the analysis in the risk to the public," Durcan says. "The riskier the alleged conduct, the more danger the registrant poses to the public. Ergo, it is not in the public's interest to willingly grant stays or even lengthy suspensions instead of a revocation."

"Given the gravity of the misconduct generally required for such a penalty to be imposed, setting it aside might imperil public confidence in the administration of justice rather than enhance it," says Nadia Effendi, a partner at Borden Ladner Gervais LLP in Toronto, who represented the Canadian Federation of Law Societies at the hearing.

Still, Durcan notes that it is still incumbent upon regulators, barring certain exceptions, to move investigations and prosecutions forward, and that they are not discharging their mandate to serve and protect the public interest if they fail to do so.

"Regulators need to maintain not only the confidence of the public but also of the profession that they are not falling into complacency," says Durcan.

Effendi adds that the court confirmed that an affected party can't simply sit back and do nothing in the face of a possible delay but that they must raise it at all available procedures to move the matter forward.

"This is an important finding, highlighting that everyone involved in a proceeding is responsible for addressing delay," Effendi says. "A party affected by delay can't simply sit back and ignore it, leave it to the disciplinary body to move things forward, but then attack such conduct months or years later to seek redress."

Daly says that those hoping for the Supreme Court to show some creativity in administrative delay will likely be disappointed by the decision. But they should take note of the door left open for mandamus to compel speedier decision-making. "I expect developments on this front to accelerate in the coming years, especially in areas like visas where public administration is struggling to keep up with demand," Daly says.

Daly also notes the court's emphasis on the need for deference to the hearing committee, which rejected Mr. Abrametz's undue delay argument in the first instance.

"Even though this was a matter of procedural fairness, attracting the standard of correctness, the underlying findings of fact were subject to deference," Daly says. "Here, the findings of fact largely drove the legal conclusions. As such, the recognition that deference is appropriate when decision-makers make factual conclusions on procedural fairness issues is liable to have important implications for judicial review going forward."

"Of course, that deference was fatal to Mr. Abrametz's case, as there was no basis for an appellate court to interfere with the hearing committee's analysis," Daly adds.