Abuse of process before administrative tribunals

S. v. College, 2012 ONCA 727 is a sad case. That said, it makes clear that delay in bringing administrative proceedings will not amount to abuse of process unless prejudice is established. The Court holds:

[199] At the outset of this discussion, Bastarache J. explicitly rejected the proposition that delay in bringing forward an administrative proceeding can, on its own, constitute an abuse of process. He explained, at para. 101: "[D]elay, without more, will not warrant a stay of proceedings as an abuse of process at common law. Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period" (citations omitted).

[200] Rather, Bastarache J. held: "In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay." He proceeded to explain that this prejudice can take two different forms.

[201] First, Bastarache J. noted that it is well-established that the passage of time may taint the quality of the evidence presented at the administrative hearing such that a stay of proceedings is required.

[202] At para. 102, he explained: "Where delay impairs a party's ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost," the proceedings may be rendered unfair and a stay of proceedings will be appropriate.

[203] In Blencoe, the application judge had rejected the respondent's claims of prejudice impacting the fairness of the hearing (including allegations that two witnesses had died and that the memories of many witnesses may have faded) as "vague assertions that fall short of establishing an inability to prove facts necessary to respond to the complaints." Bastarache J. found that the respondent had not established any basis upon which to interfere with the application judge's findings in this regard.

[204] At para. 115, Bastarache J. concluded, that even if the passage of time has not affected the fairness of the hearing, a second form of prejudice, such as psychological harm or stigma attaching to a person's reputation, can be sufficient to give rise to an abuse of process.

[205] However, to give rise to an abuse of process, delay in such circumstances must be "inordinate" and cause "actual prejudice of such magnitude that the public's sense of decency and fairness is affected"
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[244] First, as I explained earlier, Blencoe makes it clear that the mere passage of time, without more, does not give rise to an abuse of process. Rather, the reviewing court must adopt a contextual approach that takes account of all of the circumstances surrounding the delay.
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[246] Second, and importantly, the appellant failed to demonstrate that he suffered actual, significant prejudice caused by the delay in the College proceedings of a magnitude that would bring the administration of justice into disrepute.