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Administrative - Delay - Post-Abrametz. Sohail Aslam v. Ontario College of Pharmacists
In Sohail Aslam v. Ontario College of Pharmacists (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR against a denied abuse of process (for delay) tribunal ruling, here in a remitted OCP Discipline Committee proceeding.
The case extensively (though usefully) walks through factors in an administrative delay determination:The Legal Test for a Finding of Abuse of Process in the Administrative Law Context
[9] The leading case is Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. The Supreme Court of Canada set out a two-branch test for abuse of process arising out of inordinate delay. The two branches of the test can be summarized as follows, at para. 102:1) Has the inordinate delay in the proceedings impugned the fairness of the hearing; or
2) Has the inordinate delay directly caused significant prejudice to the applicant such that an administrative process would be brought into disrepute if the hearing proceeded? [10] In determining whether a delay is “inordinate” the following non-exhaustive factors ought to be considered:1) The nature and purpose of the proceedings;
2) The length and causes of the delay; and
3) The complexity of the facts and issues in the case See Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at para. 51.
[11] Regarding the second branch of establishing an abuse of process, where the delay does not affect trial fairness, a three-step analytical framework is followed:1) Was the delay inordinate?
2) Did the delay cause significant prejudice to the applicant?
3) A final assessment as to whether the delay is manifestly unfair to a party to the proceedings or the delay in some other way brings the administration of justice into disrepute. See Abrametz, at para. 43.
[12] It is also worth noting that a permanent stay of proceedings does not automatically follow a finding of abuse of process. 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”: Abrametz, at para. 76. Other remedies can include costs or a reduction in sanctions. A stay is a remedy of last resort, only granted in the “clearest of cases” when the abuse is at the high end of the spectrum of seriousness: Abrametz, at paras. 74-77, 83-100.
Did the Discipline Committee err in deciding that the delay was not inordinate?
[13] There is no issue that the delay in this case was a lengthy one. However, as pointed out in Abrametz, at para. 59 “... a lengthy delay is not per se inordinate; it may be justifiable in context.”
[14] As noted above, Abrametz provides a list of non-exhaustive factors to be considered in deciding whether a delay is inordinate. Mr. Aslam submits that in this case there is an additional factor that must be considered, not only in relation to prejudice but also in assessing whether the delay is inordinate – Mr. Aslam’s health. We disagree. In doing so, we make no finding either way on whether there can ever be a case where a registrant’s health can be considered as a contextual factor in the assessment of inordinate delay. However, as detailed further below, this is not a case where the registrant conducted his defence in a manner that made it clear to the College, either expressly or by his conduct, that the proceedings had to proceed expeditiously because of his health concerns.
[15] With respect to the nature and the purpose of the proceedings, like in Abrametz, this was a disciplinary proceeding conducted by a regulatory body with a mandate to “protect the public, to regulate the profession and to preserve public confidence in the profession”: Abrametz, para. 53. There is a real societal interest in having such proceedings conducted expeditiously, but not at the expense of jeopardizing the registrant’s opportunity to make full answer and defence.
[16] With respect to the length of the delay, the complaints giving rise to these proceedings were filed on May 2, 2016. The stay motion was heard in March of 2024 and decided July 23, 2024. Thus, the delay at issue was approximately eight years.
[17] With respect to the causes of delay, it is important to assess whether Mr. Aslam contributed to or waived parts of that delay: Blencoe, at para. 122. A party cannot complain about delay that they cause or waive. Moreover, “[n]or will there be unfairness if the delay is an inherent part of a fair process”: Abrametz, at para. 62.
[18] Analysis of the causes of the delay reveals that significant portions of the delay were caused by Mr. Aslam or were an inherent part of ensuring fairness.
[19] No complaint of delay has been made about the investigative phase of the case. On February 8, 2017, the Inquiries, Complaints, and Reports Committee referred the allegations to the Discipline Committee for a hearing. On March 29, 2017, Mr. Aslam received his disclosure package. A pre-hearing conference was conducted on May 12, 2017.
[20] At the pre-hearing conference, Mr. Aslam raised his intention to bring a motion for abuse of process and a motion to introduce his criminal court acquittals. Two days were scheduled. Ms. Aslam abandoned his abuse of process motion, but the other motion was heard on October 30, 2017, with the decision dismissing the motion on November 20, 2017.
[21] A further pre-hearing conference on December 18, 2017, set a five-day misconduct hearing at the end of April of 2018, but due to the unavailability of a panel, an institutional resource reason, the hearing dates were re-scheduled for November 5 to 9, 2018.
[22] The delay occasioned by the lack of availability of a panel is a source of concern. However, before the misconduct hearing commenced, further motions were entertained by the Discipline Committee in the intervening period. The College brought a motion for accommodations for the complainant (which was granted). Mr. Aslam brought a cross motion to cross-examine the complainant on her affidavit-in-support of that motion (which was dismissed). These motions were decided in August of 2018. Additionally, in July of 2018, the College made further disclosure to Mr. Aslam.
[23] On September 18, 2018, Mr. Aslam brought a third-party records production motion to produce the entirety of the complainant’s medical records. He also requested an adjournment of the merits hearing and that the November hearing dates be converted to hear his third-party records motion. A further pre-hearing conference was conducted on September 21, 2018, and on October 15, 2018. Mr. Aslam’s request for an adjournment was granted and the records motion was heard on November 5-6, 2018. The Respondent took the position that this was a novel motion under a relatively new amendment introduced in 2017, s. 42.2 of the Health Professionals Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Mr. Aslam’s motion was dismissed on February 27, 2019, with lengthy reasons released on April 23, 2019.
[24] Although the production motion decision had not yet been released, on January 24, 2019, dates for the misconduct hearing were set in April and May of 2019, for a five-day hearing.
[25] On April 18, 2019, the Respondent advised that the complainant required a Hungarian interpreter for the hearing. The parties agreed this would extend the length of time for the hearing. Further dates were canvassed for the summer and fall subject to the availability of independent counsel for the Discipline Committee.
[26] The misconduct hearing commenced on April 25, 2019. It was completed on December 3, 2019. Fourteen days of hearing spread over various dates were required. During this time, additional case management conferences were held. The examination-in-chief of the complainant was completed on the second day of the hearing. Mr. Aslam cross-examined her for five days, significantly longer than the defence’s original 3-hour estimate given earlier. The College called the complainant. The defence called six witnesses. A day was lost due to a family emergency of Mr. Aslam’s counsel.
[27] The Discipline Committee reserved its decision. A 62-page decision involving six separate allegations was released on November 18, 2020, almost a year after the hearing ended [we note that this year coincided with the first year of the Covid epidemic in Toronto].
[28] The Respondent did not attempt to schedule a penalty hearing until April 22, 2021. As Mr. Aslam had filed a notice of appeal of the Discipline Committee’s misconduct findings, the Respondent’s hearings office erroneously assumed Mr. Aslam was seeking to appeal before his penalty hearing. Penalty hearing dates were then offered for August and September of 2021, but counsel for Mr. Aslam was not available for the second day of the hearing on those dates. Thus, the penalty hearing was set for September 24 and December 1, 2024.
[29] After the first day of the penalty hearing was completed, on November 26, 2021, Mr. Aslam brought a motion to re-open the misconduct hearing based on “fresh evidence” he had discovered. The Discipline Committee decided to complete the penalty hearing on December 1, 2024, but not to decide the sanction until Mr. Aslam’s fresh evidence motion was heard on February 22, 2022, and determined. The motion was dismissed on July 20, 2022, on the basis that the additional video evidence would not have changed the result of the misconduct findings.
[30] On August 25, 2022, the penalty decision was released.
[31] Mr. Aslam then appealed the matter to the Divisional Court. In the Divisional Court, Mr. Aslam requested extensions of time to perfect his appeal. The appeal was heard on April 18, 2023. The decision was released on April 28, 2023, granting the appeal in part, and remitting one allegation of sexual harassment back to the Discipline Committee: Aslam v. Ontario College of Pharmacists, 2023 ONSC 2549 (Div. Ct.).
[32] In our opinion, while certain specific periods of the delay are concerning, when the entire proceeding is assessed contextually and holistically, the most significant portions of the delay were either directly caused by the defence including defence motions, of which there were four, or were a result of the careful respect paid by the Discipline Committee to the fairness of the process. As the Discipline Committee noted, the most concerning aspect of the delay is the year it took the Discipline Committee to render its decision on the merits. However, given the length of the merits hearing and the amount of evidence that needed to be considered we do not find that this delay, taken in context, reaches the threshold required to be classified as “inordinate.”
[33] With respect to complexity, as set out above, there were a number of issues that the Discipline Committee had to determine at every stage of the proceedings. This made the proceedings far more complex. This included the novel third-party records motion, the number and nature of the allegations, the under-estimation of how long the hearing would take, and a bid to re-open the misconduct findings.
[34] Given all these factors, we agree with the Discipline Committee that the delay, while lengthy, was not inordinate.
Other issues
[35] Given our finding that the delay was not inordinate, there is no need to determine the other issues raised. . RS v. Ontario (Health Professions Appeal and Review Board)
In RS v. Ontario (Health Professions Appeal and Review Board) (Div Court, 2024) the Divisional Court considers administrative delay, here complaint investigation delay by the ICRC under the College of Psychologists of Ontario:Relevant Statutory Provisions
[34] The Code contains the following provisions with respect to timely disposal of complaints:Timely disposal
28 (1) A panel shall dispose of a complaint within 150 days after the filing of the complaint.
Impact of ADR on timelines
(2) Time spent by a complainant and member in an alternative dispute resolution process pursuant to a referral under section 25.1 shall not be included in the calculation of time under this section.
If complaint not disposed of
(3) If a panel has not disposed of a complaint within 150 days after the complaint was filed, the Registrar shall provide the complainant with written notice of that fact and an expected date of disposition which shall be no more than 60 days from the date of the written notice.
If further delay
(4) If a panel has not disposed of the complaint by the expected date of disposition described in subsection (3), the Registrar shall,
(a) provide the member and complainant with written notice and reasons for the delay and the new expected date of disposition which shall be no more than 30 days from the date of the revised notice or from the expected date of disposition described in subsection (3), whichever is sooner; and
(b) provide the Board with written notice of and reasons for the delay as were provided to the member and complainant.
Powers of the Board
(5) The Board, on application of the member or the complainant, shall consider the written reasons for the delay and shall do any one of the following:
1. Direct the Inquiries, Complaints and Reports Committee to continue the investigation.
2. Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.
3. Investigate the complaint and make an order under subsection (9) within 120 days of the decision to investigate the complaint.
Board’s investigatory powers
(6) In investigating a complaint under paragraph 3 of subsection (5), the Board has all the powers of a panel of the Inquiries, Complaints and Reports Committee and of the Registrar with respect to the investigation of the matter and may appoint an investigator under clause 75(1)(c).
Continuing power of Inquiries, Complaints and Reports Committee
(7) The Inquiries, Complaints and Reports Committee may take action under section 26 at any time before the Board completes its investigation.
Same
(8) For greater certainty, if the Inquiries, Complaints and Reports Committee takes action as provided for in subsection (7), the Board no longer has jurisdiction to take action under section 26.
Powers of Board re an investigation
(9) After an investigation, the Board may do any one or more of the following:
1. Refer the matter to the Inquiries, Complaints and Reports Committee.
2. Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.
3. Require the Inquiries, Complaints and Reports Committee or a panel to do anything the Committee or a panel may do under the health profession Act and this Code except to request the Registrar to conduct an investigation.
....
Powers of Board re time limits
28.1 If the Board is satisfied that no person will be unduly prejudiced, it may, on reasonable grounds, extend any time limit with respect to,
(a) a requirement, under subsection 21(1), for a review or hearing by the Board;
(b) a request, under subsection 29(2), for a review by the Board; or
(c) the Registrar’s obligation to give to the Board, under subsection 32(1), a record of an investigation of a complaint against a member and all relevant documents and things. ....
[39] The Applicant’s position is that the ICRC Decision, having failed to address the Applicant’s submissions regarding delay, was unreasonable. Similarly, the HPARB Decision was unreasonable notwithstanding the fact that it addressed the issue of delay, because it failed to address ICRC’s failure to address the issue of delay and failed to address why, given the passage of time, the remedial measures which included a SCERP, remained appropriate.
[40] I agree that the ICRC Decision should have addressed the Applicant’s submissions with respect to delay. As noted by the Supreme Court in Vavilov, an administrative decision-maker cannot be expected to respond to every argument or line of possible analysis. “However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.” Vavilov, at para. 128.
[41] In this case, however, the allegations of significant delay (1,147 days) to complete the investigation were raised before the HPARB and were reasonably addressed in its decision. The HPARB acknowledged that a Committee should not delay dealing with a complaint and that any unnecessary delays should not be taken lightly. It noted that the Code sets out clear timelines in which the investigation is expected to occur and the receipt of a delayed decision can negatively affect both parties and can negatively impact the public interest.
[42] The HPARB noted that the timelines set out in the Code are directory and not mandatory. A member may request that the HPARB inquire into a Committee’s delay pursuant to s. 28(5) of the Code. The HPARB may take over the investigation itself. The College brought this provision to the attention of the Applicant’s lawyer in response to his concerns about delay. No request was made on behalf of the Applicant pursuant to s. 28(5).
[43] The level of procedural fairness the College was required to provide to the Applicant is to be considered with reference to the Baker factors. The ICRC plays a role as a screening committee, and the stakes are not as high as they are before a discipline panel.
[44] In Young, relied upon by the Applicant, more than four years passed from the time the applicants’ employment came to an end and their receipt of the investigation documents and request for submissions from the ICRC. The applicants submitted that their ability to respond to the allegations was compromised because of the delay and gave specific examples of witnesses who could not be interviewed or documents that were no longer available. Both applicants had moved onto new employment and different positions. They argued that they were prejudiced by the ICRC contacting their current employers, which caused them distress, anxiety and was stigmatizing to them. In the case of Ms. Young, by the time the ICRC issued its order that she be cautioned in relation to her former work in a gynecological unit in the period from January to March 2016, she had been in a new nursing role in long term care without incident for almost five years. This court found that the ICRC’s reasons did not address how or why, given the passage of time, the remedial measures which included a caution, remained appropriate. It was in these circumstances that this court found that the ICRC’s decisions were unreasonable because they failed to adequately address the applicants’ submissions relating to the delay.[2]
[45] The Applicant submitted to the ICRC that the College failed to send out notices required by ss. 28(3) and (4) of the Code and that although the College advised that it was collecting further information, many months went by where no steps were taken. The Applicant’s counsel wrote to the College on his behalf on three occasions regarding the delay. On one of those occasions, on June 3, 2020, over two years after the receipt of the complaint, the Applicant’s counsel advised the College that a complaint investigation can be a very stressful experience for a health care professional and that the Applicant had endured some health issues during the course of the investigation which had been aggravated, in part, as a result of the ongoing investigation.
[46] However it must be said that the Applicant knew from the outset what the College’s concerns were and his consistent denials that he engaged in therapy sessions with the child contrary to the ICRC’s findings undoubtedly lengthened the investigation.
[47] The delay in this case, while concerning, is not as significant as the delay in Young. There is nothing on the record in the instant case to show significant prejudice to the Applicant from the delay. There is no supporting documentation to verify his claim that his health issues had been aggravated by the delay. There is also no changed circumstances of new employment and changed work positions for an extended period after the time of the allegations that existed in Young. It was these factors in Young that this court found made it unreasonable for the ICRC not to address the applicants’ submissions relating to the delay and not to consider whether the remedial measures, including a caution, remained appropriate.
[48] The test for abuse of process due to delay comes from Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328: delay must be inordinate and must have caused significant prejudice. If these two requirements are met, a delay will be abusive if it is manifestly unfair to the party, or would bring the administration of justice into disrepute. In the present case, the delay was not inordinate and did not cause significant prejudice. The investigation took a little over three years and did not end in a referral to discipline. In the circumstances of this case, the Applicant does not meet the test for showing an abuse of process due to delay.
[49] In considering the Applicant’s submissions with respect to delay, the HPARB stated:70. In this case, the Committee may have taken a long time to investigate the complaint, however the Board cannot find that the delay in this specific case resulted in an inadequate investigation of the Respondent’s complaint. The information in the Record demonstrates that the investigation was active and extensive. The Board observes that, as the information was being gathered, the Committee required additional information including responses from the Applicant to concerns the Committee identified.
...
79. The Board finds that, had the Committee not provided the Applicant with an opportunity to respond to the concerns it identified, the Committee’s investigation could have been found to be inadequate. Here, although the additional requests for information may have contributed to delays in the investigation process, they do not render the investigation inadequate but rather, adhere to the concept of procedural fairness owed to the Applicant. [50] The Applicant was not denied procedural fairness, and there is nothing unreasonable in HPARB’s conclusion to that effect.
[51] The finding in Young is distinguishable from the facts of this case as set out above. The HPARB Decision reasonably addressed the Applicant’s submissions regarding ICRC’s failure to comply with the statutory timeline obligations. There was nothing unreasonable about the HPARB’s consideration of the delay.
[52] The HPARB’s Decision was reasonable. Accordingly, the application is dismissed. . Sioux Lookout (Municipality) v Clace
In Sioux Lookout (Municipality) v Clace (Div Court, 2023) the Divisional Court considered (and denied for prematurity) a JR application to permanently stay an HRTO hearing, here for (in part) the unusual reason that undue delay in scheduling was caused by "lack of resources" - and also by the tribunal not addressing the appellant's prior administrative motion to stay (again for delay). The case speaks volumes on the chronic delay involved in Ontario's human rights system, a problem that has been with us for at least 30 years.
. Young v. College of Nurses of Ontario
In Young v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court considered two applications for judicial review challenging decisions of the Respondent, College of Nurses for Ontario (the “College”) for delay (citing Abrametz):[25] In their submissions, both Ms. Young and Ms. Ghafur argued that the delay in the conduct of the investigations was inordinate and that the test for abuse of process was met. Both submitted that their ability to respond to the allegations was compromised because of the delay and gave specific examples of witnesses who could not be interviewed or documents that were no longer available. Both Applicants argued that they were prejudiced by the ICRC contacting their current employers, which caused them distress, anxiety and was stigmatizing to them. The Applicants submitted in the alternative that given the extensive delay, and because they had both been practising without incident in the approximately five years since the incidents at issue, the only appropriate disposition was for the ICRC to take no further action.
[26] Despite the Applicants’ extensive submissions on the delay and abuse of process issues, the decisions are silent on both the issue of delay and abuse of process. Both decisions address only the Applicants’ responses to the substantive allegations regarding the incidents that were investigated.
[27] As noted by the Supreme Court in Vavilov, an administrative decision-maker cannot be expected to respond to every argument or line of possible analysis. “However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.” Vavilov, at para. 128. In the absence of reasons, it cannot be ascertained from a review of the decisions whether the ICRC rejected the Applicants’ submissions relating to delay and abuse of process or whether it failed to consider them. The lack of any mention of the delay issue raises a question as to whether the ICRC was “alert and sensitive to” the Applicants’ submissions and whether those submissions were fully considered.
[28] In this case, the Applicants raised legitimate concerns about the time that had passed since the incidents at issue, their ability to respond to the investigation and the need for remedial action, given that they continued practising without incident for a number of years. Because a caution serves a remedial function, the ICRC’s reasons had to demonstrate that it considered whether a caution was in the public interest given the significant passage of time. While a caution soon after the conduct at issue would be expected to have remedial impact, a caution five years later might no longer be beneficial. At the very least, and given that both Applicants had raised the issue, the ICRC had to at least consider and give reasons as to why, in the circumstances, a caution remained the preferred disposition.
[29] I do not accept the Respondent’s submission that the ICRC was unable to consider the issues of delay and abuse of process because it does not engage in fact-finding. In Reyhanian v. Health Professions Appeal and Review Board, 2013 ONSC 297, at para. 20, this court found as follows:... the ICRC is entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues (such as, the record of the respondent, special circumstances surrounding the incident, policy concerns, the capacity of the discipline committee, among others.) [30] As the Supreme Court of Canada held in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 38, administrative decision-makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay.
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