Published on August 11, 2022
Justice delayed is justice denied. But exactly how long is too long?
Sport organizations are frequently required to manage administrative processes, from team selections to the evaluations of officials to overseeing Code of Conduct and disciplinary proceedings. A reality of these proceedings is delays, for a wide range of reasons.
What is the dividing line from a reasonable delay, one that is necessary for the parties to effectively make their submissions and the decision makers to complete their work and an unreasonable delay that negatively affects a party and is so prejudicial that the entire process must be thrown out?
The Supreme Court of Canada (SCC) recently weighed in on the issue, considering whether a six-year delay between the start and finish of a disciplinary proceeding was an abuse of process. The SCC clarified how panels should assess the impact of delays in the administrative context and reaffirmed that delays alone are not an abuse of process.
In Law Society of Saskatchewan v. Abrametz, a lawyer found guilty of professional misconduct by the Law Society of Saskatchewan (LSS) challenged this decision, claiming in part that the disciplinary proceedings had taken too long to reach a conclusion.
In 2012, after concerns about his financial practices were raised, the LSS audited Mr. Abrametz. It then launched disciplinary action against him, proceedings that included an investigation of his trust account and financial practices.
In 2014, the final audit report was submitted to the LSS. In October 2015, the LSS brought seven charges against Mr. Abrametz.
The matter was heard by a disciplinary panel in 2017 and in early 2018, the panel found Mr. Abrametz guilty of four of the seven charges against him.
While he was allowed to continue his practice during the disciplinary process subject to certain limitations, Mr. Abrametz argued at the close of the hearing that the six-year gap between the investigation and decision of the panel was an abuse of process. He sought a stay of proceedings, which would have permanently ended the disciplinary process against him.
The LSS dismissed this argument in 2019 and Mr. Abrametz was disbarred, with no chance to reapply for his licence for at least two years.
Mr. Abrametz appealed the panel decision to the Court of Appeal for Saskatchewan (SKCA). He was partially successful on appeal, as the SKCA granted him a stay of proceedings after concluding that there was an inordinate delay that was significantly prejudicial to Mr. Abrametz.
The SKCA upheld the findings of professional misconduct but set aside the penalty and costs award.
The LSS then appealed the SKCA’s decision to the SCC.
In an 8 – 1 decision, the SCC ruled in favour of the LSS and set aside the decision of the SKCA.
The SCC relied on the three-step test in Blencoe v. British Columbia (Human Rights Commission) to assess whether the six year span between the initial referral for investigation and the final decision of the LSS was unfair to Mr. Abrametz and an abuse of process.
The SCC noted that abuse of process because of delay can arise when the fairness of the hearing is a concern because witnesses and documents are unavailable because so much time has passed and when there is significant prejudice to a party because of inordinate delay.
According to the test under Blencoe, the first step is an assessment of whether the delay was excessive (inordinate). This requires the reviewing body to consider the circumstances of the case, including the length and cause of the delay, the nature and purpose of the disciplinary proceedings, and the complexity of the issues involved.
The second step is an assessment of the consequences of the delay, specifically has the delay itself caused significant harm (prejudice), such as negative psychological or reputational impacts, disruption to family life, or loss of work to the party claiming that to have been harmed by the delay.
If the first two steps have been met, the third and final step requires the reviewing body to determine if the delay has so manifestly unfair to an affected party that it brings the administration of justice into disrepute.
The SCC agreed with the LSS that the delay in preparing the audit report was reasonable due to the complexity of the investigation and the nature of the issue. Further, some of the delays were directly caused by Mr. Abrametz and his counsel.
The SCC also concluded that the LSS correctly found that Mr. Abrametz failed to show that he had suffered any harm because of the delay. He was allowed to continue practicing law – subject to reasonable restrictions – and despite his allegations that media attention in the case had a negative impact on him, this was a result of the hearing itself, not the delay.
Accordingly, there was no abuse of process and the decision of the LSS was upheld.
The SCC also addressed the possible outcomes (remedies) available in situations where there has been an abuse of process. The Court held that a stay of proceedings is not the only outcome in situations where delays are found to be an abuse of process.
The appropriate remedy – which may include a reduction of the penalty or sanctions, an award of costs, or a stay of proceedings – is context specific and largely depends on the degree of harm proven by a party.
Stay of proceedings should only be granted in limited situations where there is no other fair choice.
Lessons for Sport Organizations
This decision does not grant organizations carte blanche to take as long as they want when dealing with challenging situations. While the SCC set a high bar for applicants to meet when claiming that a long process has been an abuse of process, the Court was clear that organizations must take ‘every effort to safeguard procedural fairness’ in their process.
When delays inevitably arise, sport organizations should be careful to document the reasons for the delay and to communicate these reasons with the parties involved. They should also consider whether conditional measures can be imposed, if appropriate, to minimize the potential negative impact of delayed proceedings.
Sport organizations must be diligent in advancing proceedings whenever possible. Even if a proceeding is not thrown out, failing to do so may result in cost consequences for the organization or the reduction of sanctions for misconduct.
If your organization requires support in managing complaints or establishing a fair and effective disciplinary process, please contact Will Russell at firstname.lastname@example.org.
Thank you to Angus Einarson and Ryan Albaum in their invaluable assistance in developing this post!