Saturday, March 26, 2016

Understanding and Navigating The Supreme Court's Decision in Blencoe: Facts Always Matter

     Several years ago I learned a very significant lesson with respect to appellate advocacy that has stayed with me to this day.  Brian Brock, Q.C., my then articling principal, asked me to review and comment on a factum he was working on in a judicial review application involving the decision of an Adjudicator appointed under the Employment Standards Act. In our re-working of the original factum Mr. Brock got me to focus on the facts in the record.  He said to me, "Ernest, facts always matter".  As simple as it may seem, I must thank Mr. Brock for providing me with that important lesson on my journey as an advocate.

     In the past few months I have written extensively about the Supreme Court of Canada's leading decision Blencoe  v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307.  This is the leading authority with respect to when and how delay may render an administrative hearing an abuse of process requiring a remedy.  I have shown how various administrative tribunals including the Law Society Tribunal - both at the Hearing Panel level and the Appeal level are grappling with what is a very important public interest legal issue.  Indeed, just as recently as a few weeks ago our Divisional Court overturned a decision of the Law Society Tribunal Appeal Panel which reversed a stay ordered by a Hearing Panel on the basis of Blencoe supra.

     As state actors and regulators continue to be taxed with declining financial and other resources to undertake their statutory duties, the ruling in Blencoe supra and its proper application to the multitude of stay applications which have and will likely continue to come for adjudication in the future make it a very significant legal  authority.  In order to properly apply the principles in Blencoe supra it is imperative that courts, adjudicators, lawyers and even litigants have a sound understanding of the underlying facts of that case.  Courts, tribunals and counsel are quick to latch onto the following words from the majority ruling without an appreciation of the actual facts of the case:  ..."However, delay without more, will not warrant a stay of proceedings as an abuse of process at common law.  There must be proof of significant prejudice which results from an unacceptable delay.  Here, the respondent's ability to have a fair hearing has not been compromised.  Proof of prejudice has not been demonstrated to be of sufficient magnitude to impact on the fairness of the hearing."  I will delineate the salient facts from the Blencoe decision which are often glossed over when courts, tribunals and counsel deal with this very significant public law decision.

The Background Facts from Blencoe supra:

- In March 1995, while serving as a minister in the Government of British Columbia, the respondent was accused by one of his assistants of sexual harassment
- A month later, the Premier removed Blencoe from the NDP caucus
- In July and August of 1995 two complaints alleging sexual harassment were filed with the B.C. Human Rights Commission against Blence
- The complaints centered on acts taking place between March 1993 and March 1995
- Mr. Blencoe was informed of the first complaint in July 1995 and the second in September, 1995
- Following the Commission's investigation hearings were scheduled in March 1998 - 30 months after the initial complaints were filed( 2.5 years)
- Following the allegations against Mr. Blencoe media attention was intense
- Mr. Blencoe suffered from severe depression. He did not stand for re-election n 1996
- Mr. Blencoe commenced judicial review proceedings in November 1997 to have the proceedings stayed
- Mr. Blencoe asserted that the Commission had lost jurisdiction due to the unreasonable delay in processing the complaints.  In addition, he asserted that the delay caused serious prejudice to him and his family which amounted to an abuse of process and a denial of natural justice.

The Key and Limiting Facts:

- Blencoe raised delay seeking a stay to prohibit the hearing from taking place
- The hearing was scheduled for March 1998 and Mr. Blencoe brought his application for a stay in November 1997
- The B.C. Court of Appeal stayed the proceedings on account of the delay
- The majority(5) of the Supreme Court of Canada allowed the appeal and vacated the stay but ordered costs to Mr. Blencoe and the complainants
- The minority(4) allowed the appeal but ordered and expedited hearing and costs to Mr. Blencoe at the Supreme Court of Canada and through out

Implications for Courts and Tribunals:

     Courts, tribunals and counsel involved in advocating or adjudicating claims grounded in abuse of process founded on Blencoe surpra must pay careful attention to the fact that Blencoe involved a mere 2.5 years of delay between notice of the allegations and scheduled hearing dates and five years between the first alleged occurence and the scheduled start of the hearing.  Most significantly it must not be forgotten that the application in Blencoe was to prevent the hearing from taking place. This is very significant with respect to the emerging Blencoe test with respect to when proceedings ought to be stayed.

     Where the hearing has actually taken place courts and tribunals alike must be very careful not to succumb to the temptation to improperly conclude that there has "in fact" been no prejudice to the moving party's rights to a fair and impartial hearing on account of the delay.  It should be clear that this finding can not be made in a vacume but requires careful study of the whole of the evidence to evaluate credibility and reliability of the evidence. Hence when the tribunal adopts a "wait and see approach" to determine whether delay actually compromised the fairness of the hearing it must actually complete this task.

     Indeed, the current conventional wisdom in judicial review against bifurcating administrative proceedings means that Mr. Blencoe's application for judicial review would be dismissed by the Superior Court as premature. This means that it is for the first instance tribunal to grapple with the issue of - was the delay inordinate - did the delay cause prejudice to; 1. the hearing process; 2. the moving party in terms of adverse impact on health or reputation; 3.  adverse impact to the administration of justice.  It is difficult to imagine grounds for not staying any legal proceeding where relevant evidence has admittedly not been preserved and the passage of time has admittedly impacted the recollection of witnesses on material points in a case.  It would appear that the more challenging issue for courts and administrative tribunals on the Blencoe question are points 2 and 3 above. What exactly is the level of prejudice which will bring an applicant to the point of entitlement to a remedy and to bring the administration of justice into disrepute is much less clear than the first requirement.

No comments:

Post a Comment