In the wake of last year’s Supreme Court of Canada decision in R. v. Jordan, lawyers are wondering if a similar approach could be applied to Law Society of Upper Canada proceedings that face long delays.
The Jordan decision capped delays in the criminal courts, but it does not apply to professional regulatory tribunals.
As some cases have lasted years at the law society, and the test to get a prosecution stayed for delay in the tribunal is hard to meet, lawyers are questioning whether tribunals could apply some aspects of the Jordan framework to their proceedings.
Graeme Hamilton, a lawyer with Borden Ladner Gervais LLP, says where tribunals can learn the most from Jordan is the Supreme Court’s treatment of prejudice.
He says the Supreme Court did away with the requirement of demonstrating actual prejudice by the accused and instead moves toward an inference of prejudice from the delay.
“It’s confusing and it can be analytically very difficult to distinguish between prejudice from the delay so to speak and prejudice from the charges or prosecution itself,” he says.
“When it comes to prejudice in my own practice and in representing professionals, it’s very clear in many circumstances that the proceeding and the delay both have effects, and that the effects of the delay are often insidious.”
In Law Society of Upper Canada v. Savone, a law society hearing panel refused to stay a proceeding against Ottawa lawyer Luigi Savone. The law society first started investigating Savone for alleged misconduct in 2007 and initiated proceedings against him in 2011.
Lawyers say the decision was one of the first tribunal rulings that dealt with whether a proceeding should be stayed for delay since the Supreme Court’s decision in R. v. Jordan. The hearing panel applied the analysis of another Supreme Court of Canada decision in Blencoe v. British Columbia, which is used in tribunal proceedings. The Blencoe decision set a narrow test that there are two grounds for determining whether a stay is warranted: if an inordinate delay impugns the fairness of the hearing or if the delay causes significant harm to the lawyer.
Hamilton says that this analysis requires the applicant to establish prejudice from the delay.
Hamilton says that, in Blencoe, the court drew a dichotomy between prejudice in the charges themselves and prejudice from the delay in the prosecution, and analytically it can be very difficult to distinguish them.
Rather than make prejudice a prerequisite to stay a proceeding for delay, the Supreme Court in Jordan created guidelines in which prejudice has already been factored in, Hamilton says.
He says the tribunals can borrow from the judicial recognition that prejudice can be difficult to prove. He adds that if the standard around prejudice were relaxed, there would be a shift back to the issue of whether the delay in the first place was inordinate.
“It’s not just the professional who loses out when a proceeding is delayed,” he says. “It’s the public interest as well, because justice delayed is justice denied for all of the parties to the proceeding.”
Some lawyers say that, going forward, tribunals might grapple with whether and how to apply the animating principles of Jordan in the disciplinary context, which could lead to the courts weighing in on the topic.
Daniel Naymark, of Naymark Law, says he expects the courts will look at delay in the administrative context and consider whether to import Jordan-like principles.
He says that while a “bright lines” mechanism like that in Jordan would encourage prosecuting regulators to take delay seriously, it would be difficult to apply a one-size-fits-all approach to tribunals given their different mandates and structures.
“There are good arguments for empowering and deferring to individual tribunals to decide how reasonable a period of delay is and what remedies to apply for unreasonable delay,” he says.
A spokesman for the Law Society of Upper Canada refused to provide the age of the oldest complaint currently in its system — or from last year.
But LSUC statistics show that the median age of active caseloads in its investigation department increased in 2016 to 380 days from 268 days the year before.
The law society’s professional regulation division has claimed that the backlog has improved in the first half of 2017, as it implemented a reorganization starting in February to deal with complaints more efficiently.
Hamilton noted that most delays in law society proceedings happen before they get to a hearing during the investigative process and that the tribunal is actually a “model of efficiency.”
This might make it difficult for tribunals to borrow the idea of a bright line ceiling from the criminal law context, he says, as it is based on delay after an accused is charged.
Jordan Glick, a partner with WeirFoulds LLP, says Jordan itself could not be used in law society proceedings as section 11(b) of the Charter does not apply to professional regulatory proceedings. But he says delay is still going to affect lawyers when their professional life is on the line.
He adds that Jordan provides an aspirational message to regulators to improve their processes.
“While we might not be held to a Charter standard [or] a Jordan-style standard, these are really the timelines we want to be working towards [and] to aspire towards because of the true impact on the individuals which is very real,” he says.