Court File and Parties

Citation: Roy Francis DMello v. The Law Society of Upper Canada, 2013 ONSC 6857

Divisional Court File No.: 256/13

Date: 2013-11-05

Ontario Superior Court of Justice Divisional Court

Between:

Roy Francis Dmello Appellant

– and –

The Law Society of Upper Canada Respondent

Counsel:

Roy Francis Dmello, Respondent (Appellant on Appeal) representing himself

Leslie Maunder, for the Applicant (Respondent on Appeal)

Heard: November 4, 2013

Before: Himel J.

Reasons for Judgment

[1] The Law Society moved for an order quashing and/or striking portions of the Amended Notice of Appeal served by Roy Francis Dmello who is the respondent in a Law Society proceeding. Mr. Dmello appealed certain decisions of the Law Society’s administrative bodies. The Law Society took the position that this will narrow the scope of the appeal to that which is brought in a timely fashion, that which is not moot and that which is within the jurisdiction of the court. Counsel advised me this morning that Mr. Dmello had served and filed a further Amended Notice of Appeal which removes some of the grounds with which the Law Society took issue. The Society moves to strike only one remaining aspect of the notice of appeal which involves the appeal of the February 20, 2013 decision of the Law Society’s Appeal Panel. That motion proceeded before me today and the following is my decision.

Factual background

[2] Roy Francis Dmello was called to the Ontario Bar in 1998. He began working as in house counsel with Manulife. Then he left Manulife to open a firm where he has practised as a sole practitioner. His practice is in the field of real estate including mortgage and financing transactions. The Law Society received complaints concerning Mr. Dmello including an allegation of possible mortgage fraud and commenced an investigation. During the course of the investigation, the investigator requested documentation from Mr. Dmello. The investigator claimed that the documentation was not forthcoming in a timely way. The Law Society concluded that there was a failure to co-operate and referred the matter to Discipline to consider whether the lawyer was guilty of professional misconduct.

[3] The Law Society issued a Notice of Application with particulars on October 18, 2010 alleging that the appellant contravened s. 33 of the Law Society Act by engaging in professional misconduct. The particulars of the alleged misconduct were set out in paragraphs 3(a) and 3(b) of the notice. The appellant moved to strike particular 3(a) from the notice. That issue was argued before a hearing panel chaired by Paul Schabas. The panel dismissed the motion to strike on July 26, 2011.

[4] The appellant appealed the dismissal of the motion to strike. The Law Society moved to strike the Notice of Appeal on the basis that it sought to appeal what was an interlocutory order. The appellant served and filed a second motion to strike which came before a hearing panel chaired by John Campion. The Law Society argued that the matter had been decided by the Schabas hearing panel but the Campion hearing panel allowed the motion to strike particular 3(a) and made an order for costs. It referred the application on particular 3(b) to another hearing panel for a hearing on that issue. The Campion Hearing Panel ordered that the Law Society pay costs to the appellant of $6,938.20.

[5] The Law Society appealed the Campion panel decision to the Law Society Appeal Panel of five members chaired by Mark Sandler. On February 20, 2013, the Appeal Panel allowed the appeal, set aside the decision to strike particular 3(a) and ordered a new hearing before a newly constituted hearing panel. It then invited submissions on costs. The Law Society decided not to proceed with a hearing on particular 3(a).

[6] The parties made submissions on costs and on May 3, 2013, the Appeal Panel ordered the appellant to reimburse the Law Society with $6,938.20 representing the costs ordered by the Campion panel. The matter was referred to another panel on particular 3(b) and that hearing proceeded before a panel chaired by Adriana Doyle. It found that the appellant had engaged in professional misconduct as set out in particular 3(b). The appellant brought a motion to have that finding declared a nullity on the basis that Notice of Application LOcN108/10 was issued without authorization. The Doyle Hearing Panel dismissed that motion on June 26, 2013, and adjourned the question of penalty to January 15, 2014.

[7] The appellant served his Notice of Appeal on May 30, 2013 which was within 30 days of the decision on costs made by the Appeal Panel. He served the Amended Notice of Appeal on June 24, 2013 which set out the same grounds. In his notice, he also seeks to appeal the decision of February 20, 2013 on the merits. This aspect of the appeal was brought outside the 30 day time limit.

The motion to strike

[8] The issue on the motion to strike the ground of appeal concerning the February 20, 2013 decision relates to the late notice of this ground. Rule 61.04 of the Rules of Civil Procedure requires that a notice of appeal be served “within 30 days of the making of the order appealed from, unless a statute or these rules provide otherwise”. Here the decision appealed from was made on February 20, 2013. The notice of appeal was served and filed a few months later. The decision on costs rendered on May 3, 2013 is also being appealed but it was brought within the 30 day time limit.

[9] That a decision on costs was rendered on May 3 , 2013 does not extend the time from which a notice of appeal may be brought on the merits of a case: see Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc., (2003), 2003 42272 (ON CA), 62 O.R. (3d) 647, 28 C.P.C. (5th) 258, 167 O.A.C. 159 (C.A.), at para. 43. In Byers, Borins J.A. held that an unresolved issue as to costs at the time of the decision on the merits does not prevent the judgment becoming final and appealable from the date it is rendered. The decision on costs at a later date does not extend the time for appeal. The Law Society relies on Byers and argues that the notice of appeal was served well after the 30 days from the February 20, 2013 order of the Appeal Panel.

[10] The Law Society also argues that where a decision will have no practical effect or resolve a “tangible and concrete dispute” between the parties, it should not be heard as it is moot. Particular 3(a) of the Law Society’s Notice of Application was abandoned; therefore, the Society argues that an appeal of the decision of the Appeal Panel setting aside the striking of the particular is moot. The Society asks the court to decline to exercise its discretion to hear this issue as there is no “strong public interest” component.

[11] Mr. Dmello submits that the decision of the Appeal Panel is not moot, that it involved a detrimental finding against him and that he has brought his appeal within the time prescribed as it was an interlocutory decision and is inextricably connected to the costs decision given on May 3, 2013. In the alternative, he argues that the Society suffered no prejudice by the late filing of the appeal.

Decision

[12] The Byers decision sets out a detailed analysis of the effect of a costs judgment rendered after the rendering or release of the judgment on its merits. Justice Borins noted that the two decisions are separate determinations and concluded at para. 16 that “…a decision on the merits is final for the purpose of appeal when it is rendered, notwithstanding the pendency of the determination of the costs attributable to the case.” He disagreed with counsel’s position that the release of the trial judge’s costs decision in effect extended the time for serving the appellant’s notice of appeal from the merits judgment to thirty days following that date. Following a historical review of the jurisprudence, he determined that a judgment on the merits is final and appealable when it finally disposes of the proceeding, that the time for appealing runs from the date that the judgment is pronounced and that the awarding of costs does not have the effect of extending the time for filing an appeal.

[13] At the conclusion of the case, Borins J.A. considered the issue of an extension of time to serve the plaintiff’s notice of appeal. He commented that the appellants neglected to request that the court exercise its discretion under Rule 3.02(1) to extend the time for service of their notice of appeal in the event that the court found that it was not served with the time stipulated by Rule 61.04. He requested that counsel file written submissions on that issue while the court was considering the merits of the motion to quash the appeal as being out of time.

[14] Rule 3.02 of the Rules of Civil Procedure states:

(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.

(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.

(3) An order under under subrule (1) extending or abridging a time prescribed by these rules and relating to an appeal to an appellate court may be made only by a judge of the appellate court.

(4) A time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by filing a consent.

[15] The factors that apply when determining whether to exercise discretion to extend the time for filing a notice of appeal include: a firm intention to appeal within the relevant period, a reasonable explanation for the delay, prejudice to the respondent, lack of merit such that the court could reasonably deny the appellant this important right and the “justice of the case”: see Mauldin v. Cassels Brock & Blackwell LLP (2011) 274 O.A.C. 353, 2011 ONCA 67; Kefeli v. Centennial College of Applied Arts and Technology, [2002] O.J. No. 3023 (C.A.) citing Frey v. MacDonald (1989) 33 C.P.C. (2d) 13 (Ont. C.A.) The length of the delay and an explanation for it is also relevant: see Mignacca v. Merck Frosst Canada Ltd. (2009) 2009 ONCA 393, 96 O.R, (3d) 164, 249 O.A.C. 19 (C.A.).

[16] In Byers, the court described the situation as “a close call” but was satisfied that the appellants had met two of the factors and applied the overriding objective on a motion to extend the time to appeal as reflected in Rule 1.04(1) to deal with cases justly and if fairness demands, an extension of time should be granted. He found that the “justice of the case” requires that an extension of the time for service of the notice of appeal should be granted.

[17] Similarly, in the case at bar, Mr. Dmello has not brought a motion to extend the time for filing the appeal. However, counsel addressed the test in oral argument. I see no value in adjourning the matter to permit further submissions to be made. The length of delay in this case is a few months, the Law Society conceded that there is no prejudice caused by Mr. Dmello in the late filing of the notice of appeal of the February 20 decision. While there is no adequate explanation for the delay, it would appear that Mr. Dmello believed that the time began to run from the date the costs decision was rendered which was an erroneous belief. In my view, the issues in the decision on the merits of February 20, 2013 and the costs decision of May 3, 2013 are inextricably linked and the “justice of the case” requires a consideration of the merits of the appeal in order to consider the appeal of the costs decision. While I am dubious about the merit of an appeal, I cannot say there is so little merit in the appeal that the appellant should be denied his important right of appeal.

[18] For these reasons, I find that the appeal of the decision of the Appeal Panel dated February 20, 2013 is out of time. However, in view of the justice of the case, I exercise my discretion and extend the time for filing the notice of appeal of the February 20 decision to the date of the filing of the notice of appeal on May 30, 2013.

[19] Having considered the submissions made on costs, I exercise my discretion in accordance with s. 131 of the Courts of Justice Act and deem this an appropriate case in which to make no order as to costs.

HIMEL J.

Released: November 05, 2013

CITATION: Roy Francis DMello v. The Law Society of Upper Canada, 2013 ONSC 6857

DIVISIONAL COURT FILE NO.: 256/13

DATE: 20131105

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

HIMEL J.

BETWEEN:

ROY FRANCIS DMELLO Appellant

– and –

THE LAW SOCIETY OF UPPER CANADA Respondent

REASONS FOR JUDGMENT

HIMEL J.

Released: November 05, 2013