In the recently released decision of Burgener v. Law Society of Alberta[1], the Alberta Court of Appeal found that the Law Society of Alberta’s persistent failure to address delay in a professional discipline proceeding (a situation the Court described as ”verging on Kafkaesque”[2]) constituted a breach of procedural fairness.
Key takeaways
In circumstances where there is obvious and inordinate delay in an administrative proceeding, administrative tribunals have a positive obligation to advise parties of the procedure for formally raising the issue of delay and they are expected to substantively address delay in their decision.
The case and decision
This appeal was initiated by a former lawyer who had been found guilty by a hearing committee of the Law Society of Alberta (Law Society) of 14 citations of professional misconduct. He was disbarred and ordered to pay costs in excess of CA$170,000 to the Law Society. The Law Society also referred the matter to the Attorney General for potential criminal prosecution.[3] The Appellant was unsuccessful in appealing the initial hearing decision to a Law Society appeal panel. He then appealed that decision to the Court of Appeal. While a number of grounds were raised, the Court of Appeal’s decision turned exclusively on the issue of delay.[4]
The Appellant had been practicing as a real estate lawyer for decades prior to the complaints that eventually led to his disbarment. A period of eight years and eight months elapsed between the time the first complaint was made against him and the date a hearing into his conduct began. By the time a decision was issued, it had been nine years and two months since the first complaint had been raised.
At the outset of the first hearing the Appellant, who was at that point self-represented, raised concerns about the inordinate delay. The Chair of the hearing panel acknowledged that delay was a serious issue and suggested it could be dealt with later in the hearing but did not advise when or how the delay issue would be addressed, and in the end it never was.[5] The Appellant also raised the issue of delay in his appeal to the Law Society appeal panel. He brought an application to adduce new evidence regarding the delay in advance of that hearing, which the Law Society opposed. The appeal panel refused to allow the new evidence despite acknowledging, “there was evidence of delay from the time of the investigations to the final hearing.” The appeal panel then found against the Appellant on the delay issue because he “failed to call evidence on the issue or raise it as a defence throughout his submissions before the Hearing Committee.”[6]
The case came before the Alberta Court of Appeal as a statutory appeal under the Legal Profession Act.[7]
The Court of Appeal reviewed the law regarding inordinate delay, as set out by the Supreme Court of Canada last year in Law Society of Saskatchewan v. Abrametz[8]. The Court noted that the Abrametz case involved a stay application, so there was a record regarding delay for the appellate courts’ review.[9] In this case, the manner in which the hearing unfolded meant there was little to no evidence addressing or explaining the more than nine years it took to investigate and decide the matter.[10]
The Court of Appeal found the lack of a record did not end the matter and it examined, in depth, the manner in which both the initial hearing and the appeal before the Law Society panels had proceeded.[11] The Court noted that the Appellant had raised the issue of the delay and its impacts on him numerous times. The Court further found that the Law Society hearings lacked procedural fairness because of the manner in which the hearing and appeal panels dealt with – and failed to deal with – the issue of delay, saying:
In our view, the manner in which the appellant’s delay concerns were handled constituted a breach of the common law duty of procedural fairness. Indeed, the situation facing the appellant verged on the Kafkaesque. It is true that the appellant is a lawyer, but it is no answer. He was a self-represented party at disciplinary proceedings facing serious allegations with serious potential consequences, including disbarment and the loss of his livelihood. He raised concerns about delay at the outset of the proceedings. The delay was lengthy and called out for an explanation. That there had been a lengthy delay in the process would have been apparent to all participants; the Law Society and the Chair of the Hearing Committee both acknowledged as much during the course of the proceedings. …
In our view, in these circumstances it was incumbent on the Hearing Committee to at least advise the appellant of the process they proposed be followed in the event he wished to make the argument on delay.…
In administrative proceedings, abuse of process, such as that caused by allegedly inordinate delay, is a matter of procedural fairness. … Moreover, addressing delay in administrative disciplinary proceedings “is an obligation on all parties” .. It follows that where, as here, the delay is lengthy and apparent to all, there is an expectation that the tribunal will advise the professional of any procedures required to raise the issue in a formal way and for the tribunal to address the matter substantively in its decision. This expectation is especially strong where the issue has been raised before the tribunal by a self-represented professional, as occurred in this case.
The failure to take these steps in the circumstances of this case constituted a breach of the duty of procedural fairness owed to the appellant.[12]
Conclusion
All administrative decision makers have a duty to employ fair and open procedures that are appropriate for the matters at issue before them. Those procedures must allow for impacted parties to have their views and evidence fully heard and considered. Delay is a matter of procedural fairness. Administrative decision makers have an obligation to advise participants of how to formally raise the issue of delay when it is raised or should be raised. Administrative decision makers also have an obligation to substantively address delay in their decisions when a delay in the proceedings is lengthy and apparent.
If you have any questions about this decision and how it impacts your business or about procedural fairness in administrative decisions generally, please reach out to the author, Laurie Livingstone.
[1] 2023 ABCA, 227 (Burgener)
[2] Burgener at para. 51.
[3] supra at para. 12.
[4] supra at para. 3.
[5] supra at paras. 10 and 44.
[6] supra at paras. 14 and 16.
[7] R.S.A. 2000, c L-8.
[8] 2022 SCC 29.
[9] Burgener at para. 28.
[10] supra at para. 30.
[11] supra at paras. 31 and 36-49.
[12] supra at paras. 51-54.
