More than ten years ago, Peter Abrametz, a Saskatchewan lawyer, was investigated with respect to misleading trust fund transactions and loans made to his clients. The evidence was that no funds were misappropriated, but that the transactions may have provided collateral benefits to him. The case went to the Supreme Court of Canada, which found that the Law Society’s delay in investigating and prosecuting the case was not an abuse of process and returned the matter to the Saskatchewan Court of Appeal. That latter Court recently returned the matter to the disciplinary tribunal because it found that the tribunal had made palpable and overriding errors on the issue of penalty: Abrametz v Law Society of Saskatchewan, 2023 SKCA 114 (CanLII).
As a preliminary matter, the Court also dealt with a refusal to grant Mr. Abrametz an adjournment until separate allegations related to tax evasion had been addressed. The Court held that even though that investigation was related (as a possible motivation for some of the transactions), the allegations in the present case could stand alone. There was no procedural unfairness in Mr. Abrametz’s ability to defend himself. Additionally, “the public and the profession have an interest in the timely resolution of complaints and of charges of misconduct.”
The Court then discussed at length the degree of scrutiny that applies to penalty decisions, including not accepting some language from Ontario courts about affording a high degree of deference. However, in this context, the Court stated that the “palpable and overriding error” test included the failure to consider accepted principles of disciplinary sanctions. In particular, the disciplinary tribunal had failed to recognize and apply several mitigating factors that applied to Mr. Abrametz. While the Court said it would give deference to how the discipline tribunal weighed mitigating factors, those factors could not be ignored.
In discussing the approach to disciplinary sanctions, the Court said that both the enabling legislation and the common law indicated that public protection and the public interest took priority over the interest in the reputation of the profession. According to the Court, the reputation of the profession “should be taken into account only to the extent that doing so could be said to advance those purposes.” An example where the reputation of the profession might be taken into account is the interest in public confidence in the profession and in the regulator. This distinction meant that criminal sentencing principles did not fully apply to discipline sanctions. For example, mitigating circumstances have less significance in discipline proceedings than in criminal proceedings. However, mitigating circumstances must still be considered, including on the issue of deterrence, especially of the registrant. While the Court did not say so, its analysis suggests that mitigating circumstances may also affect the assessment of the registrant’s ability to change their behaviour in the future.
Here the discipline tribunal, by only considering Mr. Abrametz’s age and absence of a prior discipline history, failed to consider the following mitigating factors:
- Abrametz had self-reported some of the conduct (in the face of an audit) and had cooperated with some aspects of the investigation.
- While the delay in this case did not amount to an abuse of process, it was still a mitigating factor. The “financial, reputational, [and] emotional” impact of such a lengthy delay was not insignificant.
- While Mr. Abrametz did not “plead guilty”, and while his explanation that he did not misappropriate trust funds and had made some restitution was not a defence to the allegations, his explanation did mitigate the worst aspects of his conduct.
- Abrametz had practised under restrictions and supervision for six years, without incident. Both the impact of such restrictions and his compliance with them were mitigating factors that should have been considered.
- The Court also noted that community service and general character evidence was relevant.
In addition to considering mitigating factors, the discipline tribunal also needed to assess the parity or proportionality of the sanction compared to other cases. The Court said that “parity relates to the imposition of a similar sentence based on similarities in the offenders and the circumstances.” The Court recognized “that the difficulty that is frequently present in applying the principle of parity – that the circumstances of offences and offenders differ from case to case – was very much present in this case.” But focussing only on cases like revocation for misappropriation of trust funds, which did not occur here, and emphasizing the seriousness of the conduct without reference to the mitigating factors “resulted in a failure [of the discipline tribunal] to properly apply the proportionality principle….”
The sanction of revocation was set aside, and the case was returned for a new decision on sanction. Mr. Abrametz, who is now in his seventies, faces another proceeding.