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Administrative - Delay - Post-Abrametz

. Sioux Lookout (Municipality) v Clace

In Sioux Lookout (Municipality) v Clace (Div Court, 2023) the Divisional Court considered (and denied for prematurity) a JR application to permanently stay an HRTO hearing, here for (in part) the unusual reason that undue delay in scheduling was caused by "lack of resources" - and also by the tribunal not addressing the appellant's prior administrative motion to stay (again for delay). The case speaks volumes on the chronic delay involved in Ontario's human rights system, a problem that has been with us for at least 30 years.

. Young v. College of Nurses of Ontario

In Young v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court considered two applications for judicial review challenging decisions of the Respondent, College of Nurses for Ontario (the “College”) for delay (citing Abrametz):
[25] In their submissions, both Ms. Young and Ms. Ghafur argued that the delay in the conduct of the investigations was inordinate and that the test for abuse of process was met. Both submitted that their ability to respond to the allegations was compromised because of the delay and gave specific examples of witnesses who could not be interviewed or documents that were no longer available. Both Applicants argued that they were prejudiced by the ICRC contacting their current employers, which caused them distress, anxiety and was stigmatizing to them. The Applicants submitted in the alternative that given the extensive delay, and because they had both been practising without incident in the approximately five years since the incidents at issue, the only appropriate disposition was for the ICRC to take no further action.

[26] Despite the Applicants’ extensive submissions on the delay and abuse of process issues, the decisions are silent on both the issue of delay and abuse of process. Both decisions address only the Applicants’ responses to the substantive allegations regarding the incidents that were investigated.

[27] As noted by the Supreme Court in Vavilov, an administrative decision-maker cannot be expected to respond to every argument or line of possible analysis. “However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.” Vavilov, at para. 128. In the absence of reasons, it cannot be ascertained from a review of the decisions whether the ICRC rejected the Applicants’ submissions relating to delay and abuse of process or whether it failed to consider them. The lack of any mention of the delay issue raises a question as to whether the ICRC was “alert and sensitive to” the Applicants’ submissions and whether those submissions were fully considered.

[28] In this case, the Applicants raised legitimate concerns about the time that had passed since the incidents at issue, their ability to respond to the investigation and the need for remedial action, given that they continued practising without incident for a number of years. Because a caution serves a remedial function, the ICRC’s reasons had to demonstrate that it considered whether a caution was in the public interest given the significant passage of time. While a caution soon after the conduct at issue would be expected to have remedial impact, a caution five years later might no longer be beneficial. At the very least, and given that both Applicants had raised the issue, the ICRC had to at least consider and give reasons as to why, in the circumstances, a caution remained the preferred disposition.

[29] I do not accept the Respondent’s submission that the ICRC was unable to consider the issues of delay and abuse of process because it does not engage in fact-finding. In Reyhanian v. Health Professions Appeal and Review Board, 2013 ONSC 297, at para. 20, this court found as follows:
... the ICRC is entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues (such as, the record of the respondent, special circumstances surrounding the incident, policy concerns, the capacity of the discipline committee, among others.)
[30] As the Supreme Court of Canada held in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 38, administrative decision-makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay.


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Last modified: 22-06-23
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