Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240126 DOCKET: M54767 (COA-23-OM-0342)

Gillese J.A. (Motions Judge)

BETWEEN

Korede Afolabi, Alson Harold Alfred, Azhar Imdad Ali, Poonam Bhurani, Gargi Singh, Gurveer Singh, Harjeet Kaur, Haleema Zeeshan Kiani, Faiqa Mirza, Qamar Naeem, Justice Agboramaka Nwabuwe, Jacinta Nkemdilim Obinugwu, Nneoma Diana Okoro, Muhammad Asad Rehan Qazi, Syed Hassan Raza Safdar, Natasha Eleen Stewart, Subajanany Subramaniam, Ishu Talwar, Ali Usman Virk and Faisal Zaman Applicants (Respondent/Responding Parties)

and

Law Society of Ontario Respondent (Appellant/Moving Party)

Counsel: Sean Dewart, for the appellant/moving party Allen Rouben, for the respondents/responding parties Ali Usman Virk, Syed Hassan Raza Safdar, Muhammad Asad Rehan Qazi, Qamar Naeem, Haleema Zeeshan Kiani, Gurveer Singh, Poonam Bhurani and Alson Harold Alfred Faiqa Mirza, acting in person Vinidhra Vaitheeswaran, for the respondents/responding parties Azhar Imdad Ali, Harjeet Kaur, Nneoma Diana Okoro, Ishu Talwar and Faisal Zaman [1] Marek Z. Tufman, for the respondents/responding parties Natasha Eleen Stewart, Gargi Singh, Korede Afolabi, Justice Agboramaka Nwabuwe, Jacinta Nkemdilim Obinugwu [2] Jeffrey Goldglass, for the respondent/responding party Subajanany Subramaniam [3]

Heard: January 24, 2024

Endorsement

[1] In late 2021 and early 2022, the Law Society of Ontario (the “LSO”) received evidence of misconduct related to the writing of the barrister and solicitor licensing examinations written in November 2021. The LSO took steps to deal with the matter.

[2] Ultimately, various groups of candidates whose November 2021 exam results and/or registration in the licensing process had been affected by the LSO’s actions brought judicial review applications in the Divisional Court, challenging the validity of the LSO’s actions.

[3] On November 29, 2023, the Divisional Court released its reasons for judgment. Those reasons included a ruling on costs (the “Costs Order”). The LSO alleges that the parties had not been afforded the opportunity to make costs submissions although they had been allowed to file bills of costs.

[4] The LSO moved for leave to appeal the Divisional Court orders (the “Leave Motion”). This court has not yet decided the Leave Motion.

[5] The LSO now brings this motion, asking for a stay of the Costs Order pending the determination of the Leave Motion (the “Stay Motion”). On behalf of his clients, Mr. Rouben opposes the Stay Motion based primarily on the harm he contends they have suffered, financially and otherwise, as a result of the LSO actions.

[6] At the conclusion of the oral hearing of the Stay Motion, I advised the parties I would grant the stay and that brief written reasons would follow. These are the promised reasons.

[7] Three key considerations underlie my decision to grant the stay. First, the requested stay is limited in duration: the LSO seeks a stay of the Costs Order only pending this court’s decision on the Leave Motion. Second, if the LSO is successful on its Leave Motion, the Costs Order will be stayed automatically by the delivery of the notice of appeal, pursuant to r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That is, the LSO’s request is for something to which it will automatically become entitled if the Leave Motion is granted. Third, in my view, the overall interests of justice strongly favour granting the stay.

[8] The test for staying an order pending appeal is well-known: see RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. It requires the court to consider whether: (1) there is a serious issue to be determined, in the sense that it is neither frivolous nor vexatious; (2) the moving party will suffer irreparable harm if the stay is denied; and (3) the balance of convenience favours the granting of the stay. The same test applies when the moving party seeks a stay pending a motion for leave to appeal: Spadacini Kelava v. Kelava, 2021 ONCA 345, 55 R.F.L. (8th) 263, at para. 16.

[9] In my view, the LSO meets the serious issue threshold, in respect of both the Divisional Court’s substantive decision and the Costs Order. The former can be seen from a review of the LSO notice of motion for leave to appeal, which identifies five alleged errors by the Divisional Court. In relation to the latter, the LSO’s allegation that the Divisional Court erred by ruling on costs without affording the parties an opportunity to make submissions on that matter alone constitutes a serious issue.

[10] Irreparable harm is harm that “cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”: RJR-MacDonald, at p. 341. The LSO makes a convincing argument relating to the legal and practical problems associated with attempting to recover any monies it pays out now, pursuant to the Costs Order, should it be granted leave and succeed on either the substantive appeal or the Costs Order appeal.

[11] Given the brief duration of the requested stay; the LSO’s automatic entitlement to such a stay if its Leave Motion is granted; and, the associated harms from granting or refusing the stay, in my view, the overall interests of justice strongly favour granting the stay.

Disposition

[12] For these reasons, the Stay Motion is granted. In the circumstances, however, I make no order as to costs of the Stay Motion and the LSO did not press that matter.

“E.E. Gillese J.A.”

[1] Vinidhra Vaitheeswaran appeared but took no position on behalf of the respondents Azhar Imdad Ali, Harjeet Kaur, Nneoma Diana Okoro, Ishu Talwar and Faisal Zaman.

[2] Marek Z. Tufman appeared but made no written or oral submissions on behalf of the respondents Natasha Eleen Stewart, Gargi Singh, Korede Afolabi, Justice Agboramaka Nwabuwe, Jacinta Nkemdilim Obinugwu. At the oral hearing of this motion, he indicated his “silent support” for Mr. Rouben’s position on behalf of his clients.

[3] Jeffrey Goldglass appeared but made no written or oral submissions on behalf of the respondent Subajanany Subramaniam. At the oral hearing of this motion, he indicated his “silent support” for Mr. Rouben’s position on behalf of his clients.