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Administrative - Delay - Abrametz. Law Society of Saskatchewan v. Abrametz [delay - generally]
In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada reviewed two forms in which administrative delay may constitute abuse of process, one involving 'hearing prejudice delay' (eg. evidentiary degradation) and the other not (as in 'inordinate delay': para 43). At para 44, 74-100 the court reviews the remedies that are available to respond to delay. The difference between criminal delay under Charter 11(b) and administrative delay are set out in paras 45-49:(3) Abuse of Process in Administrative Proceedings
[38] In administrative proceedings, abuse of process is a question of procedural fairness: Blencoe, at paras. 105-7 and 121; G. Régimbald, Canadian Administrative Law (3rd ed. 2021), at pp. 344-350; P. Garant, with P. Garant and J. Garant, Droit administratif (7th ed. 2017), at pp. 766-67). This Court dealt with abuse of process as it relates to administrative delay in Blencoe. Our Court recognized that decision makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay.
[39] Mr. Blencoe, a former British Columbia Cabinet Minister, was accused by several women of sexual harassment. They filed complaints with the then British Columbia Council of Human Rights. Hearings were scheduled more than 30 months after the initial complaints were filed. Mr. Blencoe applied to have the proceedings stayed on the basis of abuse of process. While this Court declined to do so, it described circumstances when a stay could be ordered.
[40] The Court explained two ways in which delay may constitute an abuse of process.
[41] The first concerns hearing fairness. 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, at para. 102; D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at § 9:57.
[42] This is not what is in issue in this appeal. Rather, the Court is concerned with a second category of abuse of process. Even when there is no prejudice to hearing fairness, an abuse of process may occur if significant prejudice has come about due to inordinate delay: Blencoe, at paras. 122 and 132.
[43] Blencoe sets out a three-step test to determine whether delay that does not affect hearing fairness nonetheless amounts to an abuse of process. First, the delay must be inordinate. Second, the delay must have directly caused significant prejudice. When these two requirements are met, courts or tribunals will proceed to a final assessment of whether 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, at paras. 40-41.
[44] The minority reasons in Blencoe concluded that there was an abuse of process, although the appropriate remedy was not a stay but rather an order for an expedited hearing and costs. In my view, the two sets of reasons in Blencoe can be read as complementing each other and expressing a coherent set of principles. The majority reasons set a higher threshold only for an abuse of process requiring a stay, and accepted that lesser remedies continue to be available where a stay is not warranted. With respect to when a stay of proceedings is warranted, the minority reasons recognized that a threshold of “shocking abuse” is necessary to justify a stay of proceedings (para. 155). Moreover, the minority reasons set a lower threshold for an abuse of process which might call for a lesser remedy, such as an order for an expedited hearing or costs. . Law Society of Saskatchewan v. Abrametz [inordinate delay]
In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada set out the three tests for 'inordinate delay', which is one type of administrative delay - distinct from 'hearing prejudicial delay' [the latter is addressed in Blencoe (SCC, 2000)]:(5) First Requirement: Whether the Delay is Inordinate
[50] That a process took considerable time does not in itself amount to inordinate delay. Rather, one must consider the time in light of the circumstances of the case (Brown and Evans, at § 9:57-9:58; R. W. Macaulay, J. L. H. Sprague and L. Sossin, Practice and Procedure Before Administrative Tribunals (loose-leaf), at § 16:81; Blencoe, at para. 122). A process that seems lengthy may be justified on the basis of fairness.
[51] In determining whether 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, such that additional contextual factors can be considered in a particular case.
(a) The Nature and Purpose of the Proceedings
(i) Introduction
[52] Many public bodies and regulatory agencies have been entrusted with decision-making authority as statutory delegates: Vavilov, at paras. 4 and 88. Their decisions vary in complexity and significance. Sometimes they involve technical considerations. Other times, common sense and an understanding of the practicalities of ordinary life suffice: Vavilov, at para. 88. Of necessity, time requirements inherent to each of these kinds of proceedings will vary.
(ii) Disciplinary Proceedings
[53] The purposes of disciplinary bodies are to protect the public, to regulate the profession and to preserve public confidence in the profession: The Legal Profession Act, 1990, ss. 3.1 and 3.2; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at para. 16; Fortin v. Chrétien, 2001 SCC 45, [2001] 2 S.C.R. 500, at para. 17; Pearlman v. Manitoba Law Society Judicial Committee, 1991 CanLII 26 (SCC), [1991] 2 S.C.R. 869, at pp. 887-88; Wigglesworth, at p. 560; G. MacKenzie, Lawyers & Ethics: Professional Responsibility and Discipline (loose-leaf), at § 26:1. The client or patient is often in a vulnerable position in the professional relationship: Pharmascience Inc., at para. 36; Fortin, at para. 17. The public places great trust in the advice and services of professionals: Pharmascience Inc., at para. 36.
[54] Disciplinary proceedings are neither civil nor criminal, but rather sui generis: MacKenzie, at § 26:2; Béliveau v. Barreau du Québec (1992), 1992 CanLII 8689 (QC CA), 101 D.L.R. (4th) 324 (Que. C.A.). They maintain discipline within a limited sphere of private activity. Thus, as stated before, they differ from criminal matters, which are of a public nature, intended to promote order and welfare within a public sphere of activity: Wigglesworth, at p. 560; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 45.
[55] In disciplinary proceedings, inordinate delay can be harmful to members of professional bodies, complainants and the public in general. Allegations of misconduct against a member can weigh heavily on that person. They can overshadow his or her professional reputation, career and personal life. Anxiety and stress caused by the uncertainty of the outcome and the stigma attached to outstanding complaints are good reasons to investigate and prosecute in a timely way. Disciplinary bodies have a duty to deal fairly with members whose livelihood and reputation are affected by such proceedings: MacKenzie, at § 26:1.
[56] Complainants, whether patients or clients, benefit from having their case proceed promptly, so that they can be heard and move on to put the matter behind them. Finally, the public at large expects professionals guilty of misconduct to be effectively regulated and properly sanctioned. Given their role to protect the public from harmful professional conduct, disciplinary bodies must ensure that the public’s concerns are addressed on a timely basis: Wachtler v. College of Physicians and Surgeons (Alta.), 2009 ABCA 130, 448 A.R. 317, at paras. 46-47.
(b) The Length and Causes of the Delay
[57] When an applicant submits that inordinate delay amounts to an abuse of process, courts and tribunals are called on first to ascertain the length and causes of the delay: Blencoe, at para. 122.
[58] The duty to be fair is relevant at all stages of administrative proceedings, including the investigative stage: D. P. Jones and A. S. de Villars, Principles of Administrative Law (7th ed. 2020), at p. 285; Garant, at pp. 655-57; Irvine v. Canada (Restrictive Trade Practices Commission), 1987 CanLII 81 (SCC), [1987] 1 S.C.R. 181; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879; see, for example, Blencoe, at para. 123. When assessing the actual time period of delay, the starting point should be when the administrative decision maker’s obligations, as well as the interests of the public and the parties in a timely process are engaged. It should end when the proceeding is completed, including the time taken to render a decision.
[59] As noted, a lengthy delay is not per se inordinate; it may be justifiable when considered in context. For instance, a case will sometimes involve parallel criminal and administrative proceedings. Some disciplinary proceedings involve allegations of conduct that may be criminal, such as sexual misconduct, fraud and obstruction of justice: MacKenzie, at § 26:5. In some circumstances, disciplinary bodies will proceed while the criminal proceeding are outstanding. In other circumstances, suspension of the disciplinary proceedings to await the conclusion of criminal proceedings can be justified. This can be consistent with procedural fairness and not constitute an abuse of process, even if the delay that results is lengthy.
[60] In Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 (leave to appeal refused, [2013] 2 S.C.R. xii), for example, allegations against the member involved multiple complainants who were likely to be called as similar fact witnesses in criminal proceedings. The College monitored progress of the criminal proceedings and proceeded to investigate when the criminal charges were stayed. This added to the time for the disciplinary process. However, as the Court of Appeal concluded, it would have been impractical and unfair to the member for the College to pursue disciplinary proceedings arising from the allegations of misconduct against him without waiting for the criminal proceedings to be resolved: para. 245.
[61] Besides considering the duration of the delay, the court or tribunal should consider the causes of the delay. This includes whether the applicant contributed to or waived parts of the delay: Blencoe, at para. 122.
[62] If the delay was caused by the party who complains of that delay, it cannot amount to an abuse of process: Blencoe, at para. 125; Diaz-Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221, 39 B.C.L.R. (6th) 87, at para. 50; Camara v. Canada, 2015 FCA 43, 91 Admin. L.R. (5th) 13, at paras. 13-14. Nor will there be unfairness if the delay is an inherent part of a fair process.
[63] Delay can be waived. This can be explicit or implicit. Thus, if the applicant asked for suspension of the proceedings, or did not object to a suspension of proceedings while other investigations proceeded and acted in a way that unequivocally suggests they acquiesced to such delay, it can constitute a waiver: Diaz-Rodriguez, at para. 51.
[64] Finally, whether the administrative body used its resources efficiently should be considered in the analysis of inordinate delay. That said, insufficient agency resources cannot excuse inordinate delay in any case: Blencoe, at para. 135. Administrative tribunals have a duty to devote adequate resources to ensure the integrity of the process: see Hennig v. Institute of Chartered Accountants (Alta.), 2008 ABCA 241, 433 A.R. 221, at para. 31.
[65] In sum, the requirements of procedural fairness sometimes slow the pace at which the proceedings progress. Whether the resulting delays are justified will depend on the circumstances of each case.
(c) The Complexity of the Facts and Issues in the Case
[66] The complexity of the facts and issues in a case will affect the time required to decide the matter. For example, sexual abuse allegations might entail difficult and time-consuming investigations. By contrast, large numbers of documents do not necessarily entail complexity, especially in a routine case dealing with issues in which the tribunal has experience. Assessing inordinate delay must account for the wide range of contexts in the administrative system.
(6) Second Requirement: Significant Prejudice
[67] The requirement for significant prejudice is grounded in the foundations of the doctrine of abuse of process in administrative law. If delay alone was sufficient to lead to an abuse of process, it would be “tantamount to imposing a judicially created limitation period”: Blencoe, at para. 101. It is only where there is detriment to an individual that a court or a tribunal will conclude that there has been an abuse of process: Blencoe, at para. 109; Brown v. Assn. of Professional Engineers and Geoscientists of British Columbia, [1994] B.C.J. No. 2037 (QL), 1994 CarswellBC 2980 (WL); Stefani v. College of Dental Surgeons (British Columbia) (1996), 1996 CanLII 877 (BC SC), 27 B.C.L.R. (3d) 34 (S.C.); Misra v. College of Physicians & Surgeons of Saskatchewan, (1988), 1988 CanLII 211 (SK CA), 52 D.L.R. 477 (Sask. C.A.). Furthermore, in some cases, delay by itself may be beneficial to the affected party. For example, if the affected party is facing the penalty of disbarment, delay in the administrative process might be welcomed by the affected party, insofar as it enables him or her to continue practicing. These are some of the reasons why the doctrine of abuse of process as it relates to administrative delay requires proof of significant prejudice.
[68] The reality is that an investigation or proceeding against an individual tends to disrupt his or her life. This was so in Blencoe, where the majority acknowledged that Mr. Blencoe and his family had suffered prejudice from the moment that sexual harassment allegations against him were made public. The Court concluded, however, that such prejudice could not be said to result directly from the delay in the human rights proceedings, but rather it resulted from the fact that such proceedings were undertaken: para. 133. It is the prejudice caused by inordinate delay that is relevant to the abuse of process analysis. That said, prejudice caused by the investigation of or proceedings against an individual can be exacerbated by inordinate delay. That is to be taken into account: paras. 68-73 and 133.
[69] 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.
[70] In Misra, a doctor was suspended from practice for almost six years, while the College of Physicians and Surgeons chose to wait for years for the completion of criminal proceedings against him before proceeding with the disciplinary process. The criminal proceedings were eventually abandoned. Dr. Misra’s reputation had suffered; he had been unable to practice his profession; his professional prospects were diminished.
[71] In Investment Dealers Association of Canada v. MacBain, 2007 SKCA 70, 299 Sask. R. 122, lengthy delays exacerbated the harm to the applicant’s reputation by publicity from a disciplinary investigation. Profits from his business collapsed, then recovered to some degree as publicity around the initial investigation faded, only to be threatened again after the negative publicity around his business was revived years later when the notices of hearing were finally issued: paras. 40-41; see also Financial and Consumer Services Commission v. Emond, 2020 NBCA 42. This is the type of significant prejudice contemplated in Blencoe.
(7) Conclusion: A Final Assessment
[72] The test for whether delay amounts to an abuse of process has three steps. First, the delay must be inordinate. This is determined on an assessment of the context overall. Second, the delay must have caused significant prejudice. When these two requirements are met, the court or tribunal is to conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute: Behn, at paras. 40-41.
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V. Summary
[101] Where delay has not affected the fairness of a hearing, the test to determine if the delay amounts to an abuse of process has three steps:1. First, the delay must be inordinate. This is determined on an assessment of the context overall, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case; and
2. Second, the delay itself must have caused significant prejudice;
3. When these two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to a party to the litigation or in some other way brings the administration of justice into disrepute. . Law Society of Saskatchewan v. Abrametz [admin delay - remedies]
In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada considers the remedies for administrative delay:[73] When an abuse of process is found, several remedies are available.
C. Remedies
(1) Introduction to Remedies for Abuse of Process
[74] Courts and tribunals must be mindful as to appropriate remedies in the various contexts in which abuse of process can occur: Blencoe, at para. 117; O’Connor, at para. 66, per L’Heureux-Dubé J., writing for a unanimous Court on this point. In this judgment, I will address the main remedies. The list that follows is not intended to be exhaustive.
[75] Remedies for abuse of process can serve several purposes. They can compensate the applicant for the prejudice caused by the delay. They can serve as an incentive for the decision maker to address any problems of systemic delay. Remedies can also express the court or the tribunal’s concern relating to delay in the administrative system.
[76] As noted, the doctrine of abuse of process is broad; it can usefully be appreciated on a spectrum: see, in criminal matters, R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 107. Various remedies are available, up to and including a permanent stay of proceedings. However, when this high threshold is not met, when there is inordinate delay and resulting prejudice, but it is “not significant enough that proceeding in its wake would, in and of itself, shock the community’s sense of fairness and decency” (Regan, at para. 107), then other remedies are available.
[77] Before addressing various remedies for delay amounting to abuse of process, I would make two preliminary points.
(a) Internal tribunal procedure
[78] Addressing delay is an obligation on all parties. As soon as delay becomes a concern, the affected party should seek to use all available procedures to move matters forward. The tribunal may often have internal procedures for dealing with delay; the party complaining of delay should avail itself of these. Even if there are no such procedures, the affected party should raise the issue of delay on the record, by means such as correspondence or oral submissions.
[79] In most cases, the affected party should avail itself of the tribunal procedures first. If the affected party does not act in a timely manner to raise concerns about delay, this may be considered in determining the relevant remedy. That said, in considering whether an affected party has sought to move matters forward, one has to be mindful of practical impediments to doing so: see, for example, Wachtler, at para. 44. There may be exceptional cases where the affected party may ask the courts to step in, in accordance with the existing rules.
(b) Mandamus
[80] Mandamus can be sought to compel administrative decision makers to carry out their duties and, in so doing, to limit delay in administrative proceedings: Blencoe, at para. 150. A party who believes he or she is facing undue delay can seek such a remedy, or an order for an expedited hearing, even before an abuse of process exists, rather than “waiting in the weeds” in the hopes of obtaining a stay at some future point: Blencoe, at para. 182. Mandamus may also be ordered as a remedy for an abuse of process if one is found.
[81] My comments here do not intend to change any of the standards applicable for obtaining an order of mandamus generally. They merely affirm that it may also be an appropriate tool to prevent and address abuse of process.
[82] Also, if used at the right moment, the remedy of an expedited hearing can protect the interests of all parties: Blencoe, at para. 182; D. J. Mullan and D. Harrington, “The Charter and Administrative Decision-Making: The Dampening Effects of Blencoe” (2002), 27 Queen’s L.J. 879 (QL), at pp. 908-9.
(2) Stay of Proceedings
[83] A stay of proceedings is the ultimate remedy for abuse of process. It is “ultimate” because it is “final”; the process will be permanently stayed: Regan, at para. 53. In disciplinary matters, that means that charges will not be dealt with, any complaint will go unheard and the public will not be protected. Given these consequences, a stay should be granted only in the “clearest of cases”, when the abuse falls at the high end of the spectrum of seriousness: Blencoe, at para. 120, citing Power, at p. 616.
[84] The decision whether to grant a stay involves a balancing of public interests. On one hand, the public has an interest in ensuring that a tribunal established for its protection follows fair procedures, untainted by an abuse of process. On the other hand, the public has an interest in the resolution of administrative cases on the merits. A balance must be struck between the public interest in a fair administrative process untainted by abuse and the competing public interest in having the complaint decided on its merits: Blencoe, at paras. 118-21 and 154; Conway, at p. 1667; Robertson v. British Columbia (Commissioner, Teachers Act), 2014 BCCA 331, 64 B.C.L.R. (5th) 258, at paras. 78-80; Diaz-Rodriguez, at paras. 71-73; Law Society of Upper Canada v. Abbott, 2017 ONCA 525, 139 O.R. (3d) 290, at paras. 61-63 (leave to appeal refused, [2018] 1 S.C.R. v).
[85] When faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself: would going ahead with the proceeding result in more harm to the public interest than if the proceedings were permanently halted? If the answer is yes, then a stay of proceeding should be ordered. Otherwise, the application for a stay should be dismissed. In conducting this inquiry, the court or tribunal may have regard to whether other available remedies for abuse of process, short of a stay, would adequately protect the public’s interest in the proper administration of justice.
[86] A stay will be more difficult to obtain where the charges are more serious. For example, in Diaz-Rodriguez, a police officer faced disciplinary proceedings because he used a police baton to repeatedly strike a young man on the head. He also attempted, after the fact, to lay (apparently) unfounded charges, including assaulting a police officer; being intoxicated in a public place; and causing a disturbance: para. 72. The Court of Appeal concluded that in this context, the public interest in fairness in the administrative process did not outweigh the public interest in having the matter proceed to a resolution on its merits: para. 73 (see also: Robertson, at paras. 79-80; R. (J.) v. College of Psychologists (British Columbia) (1995), 33 Admin. L.R. 2(d) 174 (B.C.S.C.), at para. 10). The same was also true in Sazant, in which Dr. Sazant faced allegations of sexual misconduct against children. There was a strong public interest in having the case considered on the merits, despite the length of the delay: para. 248.
[87] Even if rare, stays of proceedings are sometimes warranted. An example is MacBain where the charge against an investment dealer did not involve complex factual or legal issues, and he did not contribute to or waive the delay. As well, the Investment Dealers Association failed to provide an explanation for the delay (three years and eight months). When the Court of Appeal heard the case, almost seven years had passed since the commencement of the investigation. Moreover, the member was seriously affected, his business declined greatly, and his personal life was adversely impacted: para. 41.
[88] Finally, in the present case, the Court of Appeal considered that the absence of complainants was relevant in the weighing of competing interests; in effect, the absence of complainants favoured for a stay: paras. 209-10. I cannot agree. The absence of a complainant is a neutral factor. The public at large expects a professional who is guilty of misconduct to be effectively regulated and properly sanctioned. A professional misconduct hearing involves more than the interests of those affected; rather one needs to consider “the effect of the individual’s misconduct on both the individual client and generally on the profession in question. This public dimension is of critical significance to the mandate of professional disciplinary bodies”: Adams v. Law Society of Alberta, 2000 ABCA 240, 266 A.R. 157, at para. 6.
(3) Other Remedies: Reduction in Sanction and Costs
[89] When an abuse of process is established, but the abuse is not such that a stay of proceedings is warranted, other remedies may be appropriate: Blencoe, at para. 117; Brown and Evans, at § 9:60.
[90] The threshold to grant such remedies will be lower than that required for a stay. While proof of significant prejudice is required to establish an abuse of process, the remedies ordered may vary according to the degree of prejudice. A high degree of prejudice may justify a stay. Lesser, but nevertheless significant prejudice, could justify other remedies. In such cases, the public interest can be properly served by continuation of the proceedings, while the applicant receives some compensation for the abuse that he or she suffered.
[91] In the context of a disciplinary tribunal, I will address two further remedies: a reduction in sanction and/or costs.
(a) Reduction in Sanction
[92] When a member is found guilty of professional misconduct, the tribunal must determine the appropriate sanction.
[93] As noted, the Law Society’s disciplinary process has as its purposes the protection of the public, regulation of the profession and preservation of public confidence in the legal profession. These purposes are relevant to deciding the sanction to be imposed.
[94] A wide range of penalties is possible, from a reprimand to a lifetime revocation of a licence to practice. Various factors, including the presence of an abuse of process, can be considered when determining the appropriate sanction (see J. T. Casey, The Regulation of Professions in Canada (loose-leaf), at § 14:3; J. G. Villeneuve et al., Précis de droit professionnel (2007), at pp. 246-49; MacKenzie, at § 26:18). Since Blencoe, numerous tribunals and courts have taken abuse of process into account as an attenuating factor in deciding an appropriate sanction.
[95] Wachtler provides an example of how delay can be a factor in determining what disciplinary sanctions should be imposed. The Court of Appeal reduced the member’s penalty given the length of the proceedings. The member had received a penalty including a three-month suspension and a costs award against him following disciplinary proceedings by the College of Physicians and Surgeons: paras. 9-10. The Court of Appeal found that the College had failed to properly consider the lengthy delay in the case. The Court of Appeal concluded that although the member had shown that he suffered some prejudice, he was unable to demonstrate that the prejudice was such as would justify a stay: para. 36. Instead, the Court of Appeal reduced the sentence to a one-month suspension (which had already been served) and set aside the costs award: paras. 45-46 and 49.
[96] The threshold for a reduction in the sanction will be particularly high when the presumptive penalty is licence 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.
[97] For example, in Abbott, the Court of Appeal dealt with a lawyer who had engaged in professional misconduct where licence revocation was the presumptive penalty, as he had knowingly participated in mortgage fraud: para. 17. The Hearing Division of the Law Society Tribunal revoked the lawyer’s licence to practice. Given the lengthy delay in the proceedings, the Appeal Division of the Law Society Tribunal reversed this decision, set aside the penalty of licence revocation and substituted a two-year suspension. The Divisional Court dismissed the appeal from the Appeal Division. The Court of Appeal allowed the appeal and reinstated the penalty of licence revocation: see paras. 88-90 and 98.
[98] As noted, abuse of process can be viewed on a spectrum. To convert a presumptive licence revocation into a lesser penalty requires a significant abuse of process, one at the high end of the spectrum. Moreover, under no circumstances should the adjustment of the penalty undermine the purposes of the disciplinary process, notably the protection of the public and its confidence in the administration of justice. For these reasons, a remedy that substitutes a licence revocation for a lesser penalty will generally be as difficult to receive as a stay. Both may equally undermine a professional body’s responsibility to regulate the profession.
(b) Costs
[99] Courts faced with applications for review of administrative delay have the discretion to set aside an order of costs against a party or to order costs against the administrative agency. This can be done in the exercise of the court’s discretion relating to costs. As Blencoe illustrates, even where inordinate delay does not amount to abuse of process, it may still justify an award of costs against the agency: para. 136.
(4) Conclusion
[100] A stay of proceedings, a reduction in sanction, or variation of an award of costs are possible remedies. This is not an exhaustive list. Various tribunals may be empowered by their enabling statutes to grant other remedies. They should not hesitate to use such tools to combat inordinate delay amounting to an abuse of process.
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[102] When an abuse of process is found, various remedies are available. In rare cases, where going ahead with the proceeding results in more harm to the public interest than if the proceedings were halted, a permanent stay of proceedings will be justified. When this threshold is not met, other remedies exist, including reduction of sanction and a variation in any award of costs.
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