Case Commentary: Law Society of Saskatchewan v Abrametz, 2022 SCC 29

In a much-anticipated decision for professional regulators, the Supreme Court of Canada has released its decision in the case of Law Society of Saskatchewan v Abrametz, 2022 SCC 29.

For those working in the professional disciplinary realm, the Saskatchewan Court of Appeal’s decision in this matter was rather shocking. The Court of Appeal stayed the disbarment of Mr. Abrametz because of delay in the investigation and hearing of the professional disciplinary case.

In this recent decision, the Supreme Court of Canada overturned the Court of Appeal’s stay of the penalty and found that the delay in investigation and the hearing process did not amount to an abuse of process.


In the original hearing, the discipline committee found that Mr. Abrametz had:

  1. Issued cheques to clients that were then endorsed by the client and cashed by Mr. Abrametz;
  2. Issued three cheques to a fictitious person, endorsed that false name on the cheques and cashed them; and
  3. Loaned (or advanced) money to clients, charging them a flat 30 percent fee of the amount advanced as well as a 30 percent contingency fee and interest.

The investigation was commenced in 2012. The investigation was complex and involved significant work from the Law Society’s auditor.

Ultimately, the discipline hearing took place on various dates between May and September 2017. A decision was rendered on January 10, 2018 finding Mr. Abrametz guilty of conduct unbecoming a lawyer.

After the decision was rendered but prior to a penalty hearing, Mr. Abrametz applied for a stay of proceedings on the basis that the time taken by the Law Society to investigate and decide his case constituted an abuse of process. The stay application was dismissed on November 9, 2018.

On January 20, 2019, the penalty decision was rendered which ordered that Mr. Abrametz be disbarred without a right to reapply for readmission until January 1, 2021.

The Court of Appeal overturned the hearing committee’s decision on the issue of the stay of proceedings application. The Court of Appeal found that the delay in the investigation and hearing of Mr. Abrametz’s case was so significant that it constituted an abuse of process. It found that the appropriate remedy was to retain the finding of conduct unbecoming, but stay the penalty such that there would be no further penalty imposed upon Mr. Abrametz.  In other words, Mr. Abrametz would not be disbarred.

It should be noted that Mr. Abrametz was subject to practice conditions while the investigation and hearing process was taking place. The conditions required that Mr. Abrametz retain another lawyer to supervise and monitor his practice and trust account activities; he had to seek prior approval from the supervisor for withdrawals/cheques from any trust account; and he could not accept the return of trust cheques from clients, nor accept endorsed cheques to be cashed or negotiated. Although there had been threatened interim suspensions, an interim suspension was not imposed.

In totality, there had been a 71-month delay between the commencement of the investigation until the stay decision was completed.

Takeaways from the Supreme Court

Some of the key takeaways from the Supreme Court’s decision are:

  1. The Supreme Court’s prior decision in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 was reaffirmed. In Blencoe, the Supreme Court found that delay in an administrative process can result in abuse of process. The test to determine whether there has been abuse of process is relatively high: paragraphs 38 to 44.
  2. There is an express rejection of requests to “Jordanize” the Blencoe Specifically, unlike in Jordan, the Court did not adopt a requirement that a proceeding be completed within a certain number of months, failing which there would be a presumption that the case would be stayed: paragraphs 45 to 48.
  3. There are two ways in which delay may constitute an abuse of process. The first is where the delay has compromised the fairness of a hearing, such as when memories have faded, essential witnesses are unavailable, or evidence has been lost. The second is when significant prejudice has come about due to inordinate delay: paragraphs 41 and 42.
  4. On the second form of abuse of process (ie. prejudice caused by inordinate of delay), there is a three-part test to determine whether delay constitutes an abuse of process:
  1. The delay is inordinate;
  2. The delay must have caused significant prejudice; and
  3. Whether the delay amounts to an abuse of process by being manifestly unfair to a party or in some other way bringing the administration of justice into disrepute: paragraph 43.
  1. In assessing whether delay is “inordinate”, the following considerations apply
  1. The period of delay starts when there is a practical necessity to engage the investigatory process and ends when the proceeding is completed: paragraph 58. Thus, for all practical purposes, the time starts ticking when a complaint is received or an investigation is started;
  2. A lengthy delay is not automatically inordinate. It can be justified where, for example, a case involves parallel criminal and administrative proceedings: paragraph 59;
  3. The reasons for a delay are important. To the extent that the member contributed to or waived parts of the delay, this is an important consideration: paragraph 61;
  4. Delay can be waived explicitly or implicitly. If the member asked for suspension of the proceedings or did not object to a suspension of the proceedings while other investigations proceeded and acted in a way that unequivocally suggests they acquiesce to such delay, it can constitute a waiver: paragraph 63;
  5. The complexity of the facts and issues must be considered in determining whether the delay is inordinate: paragraph 66.
  1. In assessing whether there was “significant prejudice”, the following considerations apply:
  1. Delay alone is not sufficient to lead to an abuse of process. Otherwise, it would be “tantamount to imposing the judicially created limitation period”: paragraph 67;
  2. The prejudice alleged by the member must relate to the delay, not to the fact that such proceedings were undertaken: paragraph 68;
  3. Some examples of prejudice would include: 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: paragraph 69.
  1. In assessing whether the inordinate delay amounts to an abuse of process, a decision-maker is to consider whether the delay is manifestly unfair to the party to the proceeding or in some way brings the administration of justice into disrepute: paragraph 72;
  2. In terms of remedies for abuse of process, the Court made the following observations:
  1. It is possible for a hearing committee to permanently stay proceedings because of abuse of process through delay. The threshold is very high. It is only where delay is so significant that it would “shock the community’s sense of fairness and decency” that it would be open for a hearing committee to stay the proceeding: paragraph 76;
  2. There is a duty both on the regulator and the member to ensure that matters proceed without delay. To the extent that a party feels aggrieved by delay, it should avail itself of the tribunal procedures to have matters proceed in an expeditious manner. Further, a member concerned about delay has the option of seeking a court order to have the matters proceed more expeditiously, including through an application for mandamus. A failure by a member to take these steps can be considered in relation to the remedy for abuse of process: paragraphs 78 to 82;
  3. Often, the appropriate remedies for abuse of process by reason of delay are to order a reduction in sanction and/or costs: paragraphs 89 to 99.
  1. The Supreme Court found that, although the Court of Appeal correctly determined that it should provide deference to the hearing committee’s findings of fact, it did not actually do so. Some of the comments in that regard were:
  1. The Court of Appeal erred by analyzing the evidence and making its own findings of fact as to whether various delays were “undue”. In essence, the Supreme Court found that the Court of Appeal interfered with factual conclusions merely because it disagreed with the weight to be assigned to the underlying evidence: paragraphs 107 to 116;
  2. The Court of Appeal failed to set out a proper basis for interfering with the finding that Mr. Abrametz did not suffer significant prejudice from the conditions imposed on his practice: paragraph 122.

The decision from the Supreme Court is good news for professional regulators. The Supreme Court has rejected a presumption that significant delay, on its own, constitutes abuse of process.   Further, the threshold for what constitutes abuse of process and the remedy for a stay of proceedings is high.  Lastly, the Supreme Court makes it clear that appellate bodies hearing professional regulatory appeals are to provide real and meaningful deference to hearing committees.

If you have any questions about this or any other regulatory matters, please feel free to contact Sean Sinclair at 306-933-1367.

Contacting a Lawyer on this Subject

Sean Sinclair, a partner with Robertson Stromberg LLP, has experience in most areas of civil litigation but focuses on family law, professional regulation, estate litigation and media law. Sean is also recognized as a family law arbitrator. Contact Sean at 1-306-933-1367 or [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

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Delay in Professional Disciplinary Cases

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Can a complainant appeal the outcome of a professional regulatory investigation?

The process for most professional regulatory complaints is largely the same: (1) a complaint is lodged with the regulator; (2) an investigation is undertaken; (3) the investigating body either determines that no further action should be undertaken or the complaint is referred to a discipline hearing.

Of course, a complainant may be unhappy with the outcome of an investigation, particularly if the matter does not proceed to a discipline hearing. It has though been quite rare that a complainant takes steps to appeal the decision of the investigative body.

In a new decision, Cameron v APEGS, 2021 SKQB 318, the court considered an application for judicial review (which is somewhat like an appeal) by a complainant of a decision of an investigative body to not refer a matter to a disciplinary committee. The complainant raised several issues, including that the investigative body’s reasons were insufficient.  The complainant sought disclosure of the evidence compiled during the investigation.

The court dismissed the request for judicial review by the complainant. The court found that a complainant had a very limited right to seek judicial review. A complainant has a right to “procedural fairness” to be heard and for an investigation to be conducted.

The complainant though has no right to challenge the reasonableness of the decision of the investigative body. Further, the court indicated that an investigative body is not required to give reasons for its decision. A complainant is not entitled to receive a copy of the evidence compiled by the investigative body.

Essentially, a professional regulator’s investigation is akin to a police complaint. Ultimately, the Crown or police must determine whether charges will be laid. A complainant cannot force charges to be laid.

This decision supports the rights of regulators to control their own processes and conduct investigations as they deem appropriate.

Contacting a Lawyer on this Subject

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. Contact Sean Sinclair at 1-306-933-1367 or [email protected] to learn more.

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Delay in Professional Disciplinary Cases

Abrametz v Law Society of Saskatchewan is an important new decision from the Saskatchewan Court of Appeal dealing with the impact of delay in professional disciplinary cases.

The charges against a lawyer under discipline, Peter Abrametz, were stayed by the Court of Appeal because of the time it took to investigate and prosecute the case. The investigation in Abrametz started in 2012 and ended with a hearing in 2018. The member was under an interim suspension since 2013.

Some of the important takeaways from Abrametz include:

  1. The courts will look at the delay both in the investigation and prosecution of the charges. This is different than criminal cases, where the courts typically only look at the prosecution length;
  2. To get a stay of charges, there must be “undue delay”. The Court looked at the Law Society’s reasons for delay and attempted to determine which delays were attributable to the regulator, as opposed to the member;
  3. The Law Society was determined to be responsible for 32 ½ months of delay, which was found to be unreasonable;
  4. In order for charges to be stayed, the member had to establish that there was harm or disadvantage suffered that was serious enough that to offend the public’s sense of decency and fairness. The interim suspension against Mr. Abrametz was a significant consideration in relation to this factor.

Abrametz is an extension of the Supreme Court’s decision in R. v. Jordan (2016), 1 S.C.R. 631 dealing with delay in criminal proceedings.

The impact of Abrametz is that it is now more important than ever that regulators investigate and prosecute cases swiftly. To the extent that delays are experienced, regulators should keep careful records as to why the delays are occurring and to who those delays are attributable. If they are delays caused by the member, those delays may not be counted against the regulator in determining whether there was “undue delay”.

Sean Sinclair of Robertson Stromberg LLP would be pleased to answer any questions or concerns that you have in relation to the Abrametz decision or any other regulatory issues. Sean can be reached at [email protected] or 306-933-1367.

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Area of ExpertiseProfessional Discipline and Liability