In criminal proceedings, there are fixed deadlines that the Crown must abide by in prosecuting a case. When those deadlines are breached, the delay will be considered inordinate, constituting an abuse of process that can result in a stay of charges. Until recently, there was some speculation that the same approach could be applied in the professional disciplinary context.
The Supreme Court of Canada’s decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 has confirmed that no strict deadlines will be imposed for administrative proceedings, including professional discipline matters. Instead, courts are to consider all of the circumstances to determine whether a period of delay is inordinate and, therefore, an abuse of process.
Where the delay has not affected the fairness of a hearing, the test to determine if the delay amounts to an abuse of process has three parts:
Various remedies are available if abuse of process is established. For example, a permanent stay of proceedings will be justified when proceeding with the matter will cause more harm to the public interest than if the proceedings are halted. However, a stay will be exceedingly rare, especially where the allegations are serious. More common remedies could include a reduction of the penalty or variation in the award of costs.
Unfortunately for most regulated health professionals, the threshold for demonstrating an abuse of process will remain high. In Abrametz, the Law Society of Saskatchewan brought disciplinary proceedings against Mr. Abrametz in 2012. In 2018, he was found guilty of four charges of conduct unbecoming a lawyer, and in 2019, he was disbarred without the right to apply for admission for almost two years. Even though the disciplinary process took almost seven years, the Supreme Court of Canada held that there was no abuse process.
Although regulators have been warned not to be complacent in handling proceedings in a timely matter, it will be important for health professionals and their lawyers to give regulators notice of their concerns about delays in a proceeding to preserve their rights throughout the process.
Note: The Team at Wise Health Law has extensive experience assisting health professionals through disciplinary matters. Please contact us to see if we can assist you.