|
Administrative - Delay - Post-Abrametz (2). Benison v. Canada (Royal Canadian Mounted Police External Review Committee)
In Benison v. Canada (Royal Canadian Mounted Police External Review Committee) (Fed CA, 2026) the Federal Court of Appeal considered an appeal, here brought against the dismissal of a JR seeking "orders of mandamus to (1) compel the RCMP External Review Committee [ERC] to complete its review of the appeals they had filed of certain internal RCMP decisions within 30 calendar days of the Decision and (2) to publish and report on the service standards that apply to the review of every appeal file before it".
The court considered the third ('delay') element of the conjunctive (all required) Apotex mandamus test, here assessing the leading administrative delay case of Abrametz, and Blencoe:The common law system has always abhorred delay. In our system’s development of the courts’ supervisory role over administrative processes through mandamus, we see a crystallizing potential to compel government officers to do their duty and, in so doing, to avoid delay in administrative processes.
(Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 150, per LeBel J., dissenting in part [Blencoe])
....
VII. UNREASONABLE DELAY UNDER THE THIRD APOTEX CRITERION
[54] Under the third Apotex criterion, the appellants were required to demonstrate that they had a clear right to performance by the ERC of its duty to issue findings and recommendations with respect to their appeals. To do so, they needed to establish that they had satisfied all conditions precedent giving rise to the duty and that there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal, either express or implied, for example by unreasonable delay (Apotex at p. 767). The Federal Court held that, since it was common ground that the appellants were not responsible for the delay, it would be unreasonable if it had been longer than the nature of the ERC’s review process required, prima facie, and the ERC had not provided a satisfactory justification for the delay (Conille at para. 23). Relying on Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159 [Vaziri], the Federal Court also held that, in addition to establishing the delay was unreasonable under Conille, the appellants had to establish that it had caused them significant prejudice.
[55] In my view, the Federal Court made several reviewable errors in setting out and applying the test under the third Apotex criterion. First, it failed to take into account indicators of the nature and purpose of the ERC’s proceedings, a contextual factor it was required to consider to decide whether the ERC’s delay was unreasonable. Second, in deciding whether the delay experienced by the appellants was longer than required by the nature of the ERC’s process, the Federal Court failed to consider as relevant to its analysis the ERC’s findings and recommendations service standard for the processing of files. Third, in assessing whether the ERC provided a satisfactory justification for the delay, the Federal Court relied on jurisprudence developed in the context of the processing of immigration applications without regard to how the statutory objectives or the rights and interests of applicants in that context differ from those that prevail in the ERC’s review of appeals related to workplace disputes involving member discipline and harassment. Moreover, it accepted as satisfactory an explanation for delay untethered to the actual delay experienced by the appellants. Finally, the Federal Court incorrectly required the appellants to prove that the ERC’s delay had caused them significant prejudice. Cumulatively, these errors led the Federal Court to erroneously decide that the appellants failed to demonstrate their clear right to the issuance of the findings and recommendations in their respective appeals.
[56] In this section of the reasons, after identifying and expanding on the errors in the Federal Court’s analysis, I explain how the appellants have in my view established that the ERC’s delay in issuing its findings and recommendations has on its face been longer than the review process requires, and why the ERC has not provided a satisfactory justification for the delay. However, I begin by reviewing the legal framework that governs courts’ assessment of whether administrative delay is unreasonable — described in Blencoe and Abrametz, the leading cases on this question — and I situate the Conille test, applied by the Federal Court, within this framework.
A. The legal principles that govern the assessment of unreasonable delay
[57] In Abrametz, the Supreme Court re-examined the legal principles that govern whether a lengthy administrative delay results in an abuse of process. It confirmed its earlier decision in Blencoe that administrative delay amounts to an abuse of process if it is inordinate and has caused significant prejudice and where the delay is found to be manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute (Abrametz at para. 72). The appellants do not allege that the delays they have experienced amount to an abuse of process. However, Abrametz sets out a detailed analysis of how to assess whether an administrative delay is "“inordinate”" and, since the appellants must establish that the ERC’s delay was unreasonable under the third Apotex criterion for mandamus to issue, a review of this aspect of Abrametz and of Blencoe, its predecessor, is warranted.
(1) Abrametz and unreasonable administrative delay
[58] In Abrametz, the Supreme Court begins its analysis of administrative delay by recognizing that legislatures delegate authority to administrative decision-makers like the ERC "“because of their proximity and responsiveness to stakeholders, their ability to render decisions promptly, flexibly and efficiently, and their ability to provide simplified and streamlined proceedings that can promote access to justice”" (Abrametz at para. 32).
[59] By frustrating the goal of timely justice, unreasonable delay strikes at the raison d’être of administrative decision-making:Inordinate delay in administrative proceedings, as in other legal proceedings, is contrary to the interests of society. Decisions by administrative decision makers need to be rendered promptly and efficiently. Administrative delay undermines a key purpose for which such decision-making authority was delegated — expeditious and efficient decision-making.
(Abrametz at para. 46) [60] A lengthy delay is not in itself inordinate; the time taken to complete a process must be considered in light of the circumstances of the case (Abrametz at para. 50). Accordingly, in determining whether delay is inordinate, three non-exhaustive contextual factors should be considered: (a) the nature and purpose of the proceedings; (b) the length and causes of the delay; and (c) the complexity of the facts and issues in the case (Abrametz at para. 51). I now turn to these three factors.
(a) The nature and purpose of the proceedings
[61] The great diversity in administrative decision-makers, with their different powers, mandates and structures, means that there cannot be a "“one size fits all”" approach to assessing the reasonableness of administrative delay:Their decisions vary in complexity and significance. Sometimes they involve technical considerations. Other times, common sense and an understanding of the practicalities of ordinary life suffice: Vavilov, at para. 88. Of necessity, time requirements inherent to each of these kinds of proceedings will vary.
(Abrametz at para. 52) [62] In considering the nature and purpose of the proceedings, courts focus on the substantive and procedural complexities inherent in the kind of matter the administrative decision-maker deals with (Blencoe at para. 157, LeBel J., dissenting but not on this point). They also take into account the objectives pursued by the proceedings and how these proceedings affect the rights and interests of those involved. Their tolerance of delay is likely to vary with the nature of the individual rights at stake in a proceeding (Brown & Evans at § 9:58).
[63] In Abrametz, the Supreme Court found that the timely investigation and prosecution of complaints to professional disciplinary bodies was supported by the purposes of such bodies to protect vulnerable members of the public, regulate the profession and preserve public confidence in the profession; by the impact of prolonged disciplinary proceedings on a professional’s livelihood, reputation and personal life; and by the interest of complainants and the general public in expeditious proceedings.
(b) The length and causes of the delay
[64] This factor recognizes that, while some delays may result in unfairness, other delays, including those incurred to satisfy the requirements of procedural fairness, may not (Abrametz at para. 65). Lengthy delays may be justifiable when considered in context. For example, in certain circumstances, delays resulting from the suspension of a disciplinary proceeding pending the conclusion of criminal proceedings can be justified as consistent with procedural fairness (Abrametz at para. 59).
[65] The causes of the delay or of parts of the delay must also be considered. Delay that is an inherent part of a fair process is justified and cannot amount to an abuse of process, nor can delay caused or explicitly or implicitly waived by a party (Abrametz at paras. 62–63).
[66] Under this factor, the Supreme Court recognized that administrative decision-makers’ use and allocation of resources is relevant to assessing whether administrative delay is reasonable:[W]hether the administrative body used its resources efficiently should be considered in the analysis of inordinate delay. That said, insufficient agency resources cannot excuse inordinate delay in any case: Blencoe, at para. 135. Administrative tribunals have a duty to devote adequate resources to ensure the integrity of the process: see Hennig v. Institute of Chartered Accountants (Alta.), 2008 ABCA 241, 433 A.R. 221, at para. 31.
(Abrametz at para. 64) [67] The question of whether insufficient resources can justify unreasonable delay was also considered in Blencoe, where a majority of the Supreme Court decided that a 32-month delay between the filing of sexual harassment complaints with a human rights commission and a scheduled hearing into the merits of the complaints was not so inordinate or inexcusable as to amount to an abuse of process justifying a stay of proceedings. In doing so, the majority sided with Lowry J. of the British Columbia Supreme Court, who held that the time that had elapsed was nothing more than the time required to process complaints of this kind given the limitations imposed by the resources available (Blencoe at para. 131).
[68] In the penultimate paragraph of the majority’s reasons, Justice Bastarache had this to say about lack of agency resources as a justification for delay:... I am very concerned with the lack of efficiency of the Commission and its lack of commitment to deal more expeditiously with complaints. Lack of resources cannot explain every delay in giving information, appointing inquiry officers, filing reports, etc.; nor can it justify inordinate delay where it is found to exist. The fact that most human rights commissions experience serious delays will not justify breaches of the principles of natural justice in appropriate cases. In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 795, the Court stated that in the context of s. 11(b) of the Charter, the government “has a constitutional obligation to commit sufficient resources to prevent unreasonable delay”. The demands of natural justice are apposite.
(Blencoe at para. 135, underlining added) [69] In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 [Morin], on which Justice Bastarache relied in his discussion of administrative delay, the majority judgment discussed the state’s duty to commit adequate resources to prevent unreasonable delay in the context of the Charter right to be tried within a reasonable time:Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter. (…) As I have stated, this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11(b) was either conceived or in which it operates. We live in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11(b), account must be taken of this fact of life.
...
How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11(b) meaningless. The Court cannot simply accede to the government’s allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. (…)
(Morin at pp. 794-795, underlining added) [70] I return to the question of resources as a justification for delay in my review of the Federal Court’s analysis of whether the ERC’s delay in its processing of the appellants’ appeals is reasonable.
(c) The complexity of the facts and issues in the case
[71] The third contextual factor relevant to deciding whether administrative delay is inordinate recognizes that certain cases may require difficult and time-consuming investigations and that the complexity of the facts and issues particular to an individual case will affect the time required to decide the matter.
(2) Blencoe and unreasonable administrative delay
[72] In reviewing the principles governing the assessment of the reasonableness of administrative delay, it is useful to refer to the partially dissenting judgement of Justice LeBel in Blencoe, which attracted the support of three other members of the Court. In his minority reasons, Justice LeBel identified three contextual factors to be balanced in assessing the reasonableness of an administrative 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 by various parties to minimize negative impacts by providing information or interim solutions.
(Blencoe at para. 160, underlining in the original) [73] The minority reasons in Blencoe are not only of academic interest. The Supreme Court noted in Abrametz that while the minority reasons had set a lower threshold for an abuse of process that might call for a lesser remedy short of a stay of proceedings, the two sets of reasons could be read "“as complementing each other and expressing a coherent set of principles”" (Abrametz at para. 44).
[74] The inclusion of prejudice in the description of Justice LeBel’s third contextual factor deserves comment, as the appellants have argued that a requirement of proof of significant prejudice has no place in the analysis of the reasonableness of an administrative delay under the third Apotex factor. The decisions to which Justice LeBel refers in support of his list of contextual factors involve unreasonable delay alleged to rise to the level of an abuse of process (Ratzlaff v. British Columbia (Medical Services Commission) (1996), 1996 CanLII 616 (BC CA), 17 B.C.L.R. (3d) 336 (C.A.); Blencoe at para. 153), a violation of the right to life, liberty and security of the person (Saskatchewan (Human Rights Commission) v. Kodellas (1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143 (Sask. C.A.)) or a violation of the Charter right to be tried within a reasonable time (Morin) that would warrant a stay of proceedings. As I note below, while evidence of significant prejudice is relevant to deciding whether delay amounts to an abuse of process warranting a stay of proceedings, it does not follow that it is also required to obtain mandamus relief for the very purpose of avoiding such prejudice. Indeed, in Abrametz, the Supreme Court treats the requirements of prejudice and of unreasonable delay as distinct preconditions for a finding of abuse of process.
(3) Conille in light of Abrametz and Blencoe
[75] In assessing the reasonableness of the ERC’s delay, the Federal Court applied the test from Conille, a decision that precedes both Blencoe and Abrametz. To facilitate my review of the Federal Court’s decision, I situate the Conille test within the framework set out by these leading decisions.
[76] Conille holds that a delay is unreasonable where (1) it has been longer than the nature of the process required, prima facie; (2) the applicant and their counsel are not responsible for it; and (3) the authority responsible for the delay has not provided satisfactory justification.
[77] The first Conille factor, which compares the delay in question to the time that the nature of the process requires, prima facie, largely corresponds to the first Abrametz factor and the first factor from the Blencoe minority judgement. It addresses the time requirements inherent to the administrative proceedings in light of the legal and factual complexities of the matters dealt with by the administrative decision-maker, and considering the requirements of a fair process, the purpose of the proceedings and the rights and interests of those affected by them.
[78] The second Conille factor examines some of the causes of delay beyond the inherent time requirements described in the second factor from both Abrametz and the Blencoe minority judgement, specifically, whether delay was caused or waived, explicitly or implicitly, by the party or their counsel.
[79] The third Conille factor becomes relevant where the delay in question, excluding any delay for which the applicant and their counsel are responsible (accounted for in the second Conille factor), exceeds the inherent time requirements of the matter. It provides the authority responsible for the delay with an opportunity to identify factors that satisfactorily justify this excess delay. For example, an administrative decision-maker could attribute certain delays to factors specific to an individual case. These could include the presence of particularly complex facts and issues requiring difficult and time-consuming investigations, as set out in the third Abrametz factor.
[80] Having set out the framework governing how to assess the reasonableness of an administrative delay, I turn now to the Federal Court’s analysis of the third Apotex factor, beginning with the application of the Conille factors and followed by the question of significant prejudice. Since it was common ground that the appellants were not responsible for the delay in question, I will, like the Federal Court, only address the first and third Conille factors.
....
[81] Abrametz and Blencoe provide that the nature and purpose of the proceedings conducted by a public body are contextual factors that should be considered in deciding whether a delay in conducting these proceedings is inordinate. At paras 82-97 the court walks through these delay factors on the case facts, and at paras 98-129 reaches it's conclusion as follows:(4) The ERC failed to provide a satisfactory justification for the delays
[129] For the reasons detailed above, structural constraints induced by scarce resources are not, in and of themselves, a satisfactory justification for the delays that have occurred in processing the appellants’ appeals: see, e.g., Coderre v. Canada (Office of the Information Commissioner), 2015 FC 776 at para. 49, citing Dragan v. Canada (Minister of Citizenship and Immigration) (T.D.), 2003 FCT 211, [2003] 4 FC 189 at para. 58. This Court knows only that the appeals are on the lower end of the prioritization system. The ERC has not adduced evidence regarding the expected average processing time for similarly situated appeals, the expected time required to process the appellants’ appeals, or how much longer it would take the ERC to consider higher priority appeals if the prioritization system were disturbed to accommodate the writ of mandamus requested by the appellants. Despite the additional resources allocated to the ERC in 2020 to enable it to discharge its expanded mandate, the record does not indicate that processing of the appellants’ appeals is imminent, let alone disclose any evidence of activity for these appeals since they were pre-screened by the ERC as complete and ready for review as early as 2019. Therefore, the appellants have in my view established a right to have the ERC perform its duty to issue findings and recommendations in their respective appeals. The ERC has failed to place before the court evidence linked specifically to the appellants’ appeals that could justify a delay of this magnitude. The third Apotex criterion is satisfied.
|
