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To Stay or Not to Stay: SCC Considers Issue of Delay in Administrative Proceedings – Law Society of Saskatchewan v. Abrametz, 2022 SCC 29

8 minute read

In Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (“Abrametz”), the Supreme Court of Canada considered whether the law on “undue delay” within criminal proceedings extends to administrative proceedings. The Supreme Court of Canada held: it does not – but delays in administrative proceedings may warrant a remedy in certain circumstances.


This appeal arises from disciplinary proceedings pursued by the Law Society of Saskatchewan against Mr. Abrametz. Mr. Abrametz was found guilty of four charges of conduct unbecoming a lawyer and disbarred without a right to apply for readmission for almost two years.

During the disciplinary proceedings, Mr. Abrametz applied for a stay of the proceedings on the basis of inordinate delay amounting to an abuse of process. His application was dismissed by the Hearing Committee for the Law Society, but allowed on appeal by the Court of Appeal for Saskatchewan. The Law Society appealed that decision to the Supreme Court of Canada (SCC). In an 8:1 majority judgment written by Justice Rowe (with Justice Côté dissenting), the SCC ultimately allowed the Law Society’s appeal.

On appeal, the court addressed the doctrine of abuse of process as it relates to inordinate delay in administrative proceedings. In particular, the Supreme Court of Canada addressed whether the law on inordinate delay in administrative proceedings needs to be loosened, and brought into conformity with the criminal standard set by R v. Jordan 2016 SCC 27 (“R v Jordan”).

What is R v Jordan?

R v Jordan is a Supreme Court of Canada case which involved a man who waited over four years for his criminal charges to be tried. The Supreme Court of Canada unanimously held that his charges must be dismissed due to the delay. With a view to the chronic delays more generally in criminal proceedings, the majority of the Supreme Court of Canada set strict timelines for criminal trials. In provincial court, trials must be completed within 18 months from the date of the charges being laid; in superior court, trials must be completed within 30 months.

Any delay beyond those timelines is presumed to be unreasonable – unless that presumption is rebutted by the crown, the delay would warrant a stay of the proceedings.

Its Application to Administrative Proceedings

Mr. Abrametz sought to have the Supreme Court of Canada bring the spirit of Jordan into administrative proceedings. Without asking for the direct adoption of the Jordan framework in administrative law, Mr. Abrametz sought to have the Supreme Court of Canada recognize inordinate delay as prejudicial in and of itself.

The majority of the Supreme Court of Canada did not accept that. In their majority judgment, the Supreme Court of Canada was clear that the principles arising from Jordan do not extend to administrative proceedings.

Why not?

The right to be tried within a reasonable time in criminal proceedings is a constitutional right. Section 11(b) of the Canadian Charter of Rights and Freedoms specifies that any person charged with an offence has the right to be tried within a reasonable time.

The Charter does not extend the same constitutional right to administrative proceedings. There can be many reasons for this – one of which being the significant prejudice that inherently arises from delay in criminal proceedings, including, but certainly not limited to, stress, anxiety, stigma, restriction of liberty, and security (see Blencoe, para 88-96).

Recognizing the “fundamental differences” between criminal and administrative proceedings, the majority affirmed that Jordan does not apply in the context of administrative law – i.e., delay does not, alone, warrant a stay of administrative proceedings.

Can there be any remedy for delay in administrative proceedings?

Yes. The Supreme Court of Canada recognized that “inordinate delay in administrative proceedings, as in other legal proceedings, is contrary to the interests of society.” The Supreme Court of Canada stressed that “administrative delay undermines a key purpose for which such decision-making authority was delegated – expeditious and efficient decision-making.” (Abrametz, para 46).

The majority of the Supreme Court of Canada held that delays in administrative proceedings can and should be remedied, but only when they amount to an “abuse of process.”

The majority affirmed the test set by the case of Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”), which addresses when a delay constitutes an abuse of process.

The Blencoe Test – affirmed by Abrametz

There are two ways in which a delay may constitute an abuse of process:

  1. The fairness of the hearing has been compromised.

    The fairness of a hearing can be compromised where delay impairs a party’s ability  to answer the complaint against them, such as when memories have faded, essential witnesses are unavailable or evidence has been lost (Blencoe, para 102).

  2. Hearing fairness has not been compromised, but:
    (a) the delay is inordinate and
    (b) the delay causes significant prejudice and
    (c) the delay amounts to an abuse of process. Delay will amount to an abuse of process if it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute (Behn, paras 40-41).

The majority in Abrametz affirmed the Blencoe test outlined above, and provided further guidance on when a delay is considered “inordinate” and what constitutes “significant prejudice”:

  • Inordinate delay: In determining whether a delay is inordinate, the court or tribunal should consider the following contextual factors: (a) the nature and purpose of the proceedings, (b) the length and causes of the delay, and (c) the complexity of the facts and issues in the case. These factors are not exhaustive; additional contextual factors can be considered in each particular case. (Abrametz, para 51).
  • Significant Prejudice: Prejudice is a question of fact. Examples include significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention, especially given technological developments, the speed at which information can travel today and how easy it is to access. (Abrametz, paras 67, 69).

What Remedies are available where an abuse of process is found?

Remedies available include a stay of proceedings or reduction in sanction or costs. A stay of proceedings means that the charges will not be dealt with, or the complaint will not be heard. Given the gravity of those consequences, a stay should only be granted in the “clearest of cases” – when the abuse falls at the high end of the spectrum of seriousness. Lesser prejudice may warrant other remedies such as reduction in sanction and/or a variation in any award of costs.

On the facts of Abrametz…

The majority held that the delay in Mr. Abrametz’s case did not constitute an abuse of process. The majority held that delay of 71 months, considered contextually, was not “inordinate”. Similarly, the prejudice suffered by Mr. Abrametz was not found to be “significant.” Having found that there was no abuse of process in this case, no remedy was ordered.

A Strong Dissent per Justice Côté

Justice Côté disagreed with the majority’s disposition and would have held that the delay in Mr. Abrametz’s proceedings amounted to an abuse of process. Further, Justice Côté disagreed with the legal principles governing the assessment of delay in administrative proceedings, finding that the “majority’s test is so onerous that it invites complacency in administrative proceedings.” (Abrametz, para 136).


  • A delay alone will not warrant a stay of administrative proceedings. Majority affirmed that if delay alone was sufficient to lead to an abuse of process, it would be “tantamount to imposing a judicially created limitation period” (Blencoe, para 101, Abrametz, para 67).
  • The Blencoe test is alive and well: delays will only be remedied if the fairness of the hearing has been compromised, or if the delay is inordinate and causes significant prejudice.
  • Where abuse of process is found, various remedies are available, including a stay of proceedings or reduction in sanction or costs. The remedies ordered may vary according to the degree of prejudice.
  • Justice Côté disagreed with the majority’s approach, finding that such an onerous test will invite complacency in administrative proceedings.

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