Tuesday, June 17, 2014

Staying a Law Society Discipline Matter for Inordinate Delay in Proceeding

The Hearing Panel in Law Society of Upper Canada v. Davies Bagambiire 2012 ONLSHP0122 summarized the test for a stay for inordinate delay in proceeding as follows:

[20]           In considering the Blencoe [2000 SCC 44 (CanLII), 2000 SCC 44] decision and the authorities that have followed it, it is clear that the test for this panel to apply is to determine:

(i)                 whether there was inordinate delay; and

(ii)               if so, did the delay cause prejudice to the Lawyer’s ability to have a fair hearing or cause other prejudice to him that constitutes an abuse of process. 

In Law Society v. Totera2013 ONLSHP 0009 the Hearing Panel wrote, as part of a ruling staying the application:

[10]           In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), 2000 SCC 44, the Supreme Court of Canada considered the principles that govern a motion to stay or dismiss an application before an administrative tribunal based on delay. In that case the British Columbia Court of Appeal stayed a hearing by the Commission based upon a 30-month delay between the date of filing of sexual harassment complaints against Mr. Blencoe and the date scheduled for the commencement of the hearing.
[11]           Mr. Blencoe, had been a cabinet minister in the provincial government of British Columbia.  As a result of the complaints, he was forced to resign from cabinet. There was considerable press scrutiny and publicity, which caused him substantial personal stress and economic harm.  The Commission appealed the stay to the Supreme Court.
[12]           Writing for the majority, Mr. Justice Bastarache stated:
The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. …[T]he determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay.
[13]           Mr. Justice LeBel pointed out that there are two types of delay, general and individual. Each may include both necessary and unnecessary delay. General delay may include certain kinds of delay due to substantive and procedural complexities inherent in the kind of matter the tribunal deals with, but it may also include delays from systemic problems.  Individual delay may relate to the special complexity of a particular decision, but it may also include delays from inattention to a particular file.
[14]           He established three factors to be balanced in assessing whether or not there was reasonable delay:
1.      the time taken compared to the inherent time requirements of the matter before the particular administrative body, which would encompass legal complexities (including the presence of any especially complex systemic issues) and factual complexities (including the need to gather large amounts of information or technical data) as well as reasonable periods of time for procedural safeguards that protect parties or the public;

2.      the causes of delay beyond the inherent time requirements of the matter, which would include consideration of such elements as whether the affected individual contributed to or waived parts of the delay and whether the administrative body used as efficiently as possible those resources it had available; and

3.      The impact of the delay, considered as encompassing both prejudice in an evidentiary sense and other harms to the lives of real people impacted by the ongoing delay. This may also include a consideration of the efforts of various parties to minimize negative impacts by providing information or interim solutions.

[15]           Neither the majority nor minority decision attempted to lay down a strict rule to determine when a delay would be deemed to be unnecessary or inordinate. Every administrative body has different purposes and one rule cannot fit all. In the circumstances surrounding the Blencoe case, the court held that a 30-month delay between the making of the complaint of sexual harassment and the date scheduled for the hearing was not unnecessary or inordinate.


No comments: