Court File and Parties

CITATION: Dmello v. Law Society of Upper Canada, 2015 ONSC 4542

COURT FILE NO.: 530/13

DATE: 20150715

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Roy Francis Dmello, Appellant

AND:

The Law Society of Upper Canada, Respondent

BEFORE: H. Sachs J.

COUNSEL: Roy Francis Dmello, self represented

Leslie Maunder, for the Respondent

HEARD at Toronto: July 13, 2015

Endorsement

[1] This is a motion by the Appellant seeking disclosure of an electronic version of a letter, the hard copy of which is dated December 17, 2008. The Appellant seeks to have this information produced so that he can have an expert analyze the electronic data with a view to providing evidence about this letter that he can file as “fresh evidence” on his appeal, which is scheduled to take place in September of this year.

[2] The Appellant brought a similar motion before the Hearing Panel that heard the disciplinary complaint giving rise to these proceedings. That motion was dismissed. The Appellant appealed the Hearing Panel’s decisions to the Law Society Appeal Panel. He also brought a motion for disclosure of the same information before the Law Society Appeal Panel. That motion was also dismissed. In dismissing the motion, the Appeal Panel concluded that the Hearing Panel was correct that the information at issue had no relevance to the allegation that Mr. Dmello failed to co-operate with a Law Society investigation (the misconduct that formed the basis for the Hearing Panel’s findings).

[3] The Appellant is appealing the Law Society Appeal Panel’s decisions, including “its decision that the letter purported to have been written on December 17, 2008 by CIBC (“the Letter”) had “no relevance whatsoever to the allegation of failure to co-operate’” (Appellant’s Notice of Appeal, p.2).

[4] The basis upon which the Appellant is seeking disclosure is that he needs the disclosure in order to bring a “fresh evidence” application before the Divisional Court panel that hears his appeal. The evidence he seeks to adduce, which may or may not come to fruition, is not “fresh evidence” as that term is understood in the case law. It is evidence that the body being appealed from found to be irrelevant and, therefore, declined to order produced. The appropriate way for the Appellant to challenge that ruling as to relevance is to appeal it, which the Appellant has done. It is not for the Appellant to bring the same production motion that he lost in the first instance.

[5] Further, even if it could be argued that the evidence was “fresh evidence”, for me to order the disclosure requested would require me to make a finding as to the likely relevance of the disclosure at issue, something that is at the heart of the Appellant’s appeal. As the Court of Appealfound, in R. v. Trotta, 2014 60014 at para. 25, in order to compel production of material in support of an application for fresh evidence, the moving party must “demonstrate that there is some possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.” As the Supreme Court of Canada made clear, in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, to be received as fresh evidence, the evidence must be relevant. Production motions in the context of fresh evidence applications are not meant to be used as a vehicle to compel production of information that the tribunal of first instance found to be irrelevant, especially when the applicant has made that ruling one of the grounds of his appeal.

[6] For these reasons, the Appellant’s motion for production is dismissed. The Respondent, as the successful party, is entitled to its costs of the motion, which I fix in the amount of $2500.00.

H. SACHS J.

Date: 20150715