Dmello v. Law Society of Upper Canada
CITATION: Dmello v. Law Society of Upper Canada, 2015 ONSC 518
DIVISIONAL COURT FILE NO.: 256/13 DATE: 20150122
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, NORDHEIMER AND HARVISON YOUNG JJ.
BETWEEN:
ROY FRANCIS DMELLO Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA Respondent
In Person
Leslie Maunder and Nisha Dhanoa, for the Respondent
HEARD at Toronto: January 22, 2015
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (ORALLY)
[1] Mr. DMello appeals from an order of the Law Society Appeal Panel that set aside an order of a Hearing Panel. The Hearing Panel had struck out a particular in a Notice of Application that alleged professional misconduct on the part of the appellant. The Appeal Panel found that the Hearing Panel had erred in so doing, allowed the appeal and reinstated the particular.
[2] Before continuing I should note that when this matter originally came on for a hearing before this court, there was an issue raised by the court as to the jurisdiction of the Divisional Court to hear this matter. The concern was expressed that the order in question might be interlocutory in nature such that no appeal lay. Mr. DMello took the position that the order was final. The Law Society was also concerned that the order might be interlocutory. The appeal was adjourned to permit the parties to consider the issue. The Law Society has since filed supplementary materials confirming that, in its view, the order in question is indeed final relying on the decision in Law Society of Upper Canada v. Robson, [2014] O.J. No. 6011 (Div. Ct.).
[3] We agree that the order in question is final such that an appeal lies to this court. The Appeal Panel’s order finally disposed of the question at issue, that is, whether the Law Society could rely on the particular for the purpose of prosecuting Mr. DMello for professional misconduct.
[4] Turning then to the main issue, I begin by saying that the standard of review of the Appeal Panel’s decision is reasonableness. This is not a matter of “central importance to the legal system” such as to invoke the correctness standard. Rather, it is a matter of policy for the Law Society to set regarding the proper conduct of disciplinary proceedings, and the nature of the allegations and the particulars necessary for a lawyer to know the case that s/he has to meet. Policy decisions are ones that attract review on a reasonableness standard: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 51 & 53.
[5] In my view, the decision that the Appeal Panel reached regarding this issue was a reasonable one. In thorough reasons, the Appeal Panel reviewed the existing authorities on the subject including authorities that have expressly held that Notices of Application against a lawyer are not to be treated as if they were counts in an indictment. As long as the contents of the Notice of Application provide the lawyer with sufficient information to know the case that is being put against him/her, and thus be able to properly respond, the Notice of Application has met its objective. I note that the Appeal Panel also found that Mr. DMello could not have been prejudiced by any imperfection in the Notice of Application. Mr. DMello could not have been under any misapprehension as to the conduct that the Law Society was alleging he engaged in that amounted to professional misconduct.
[6] For considered reasons, the Appeal Panel resolved the issues surrounding the procedural requirements in the manner that they did. Their decision falls within the range of possible and acceptable outcomes that are defensible in respect of the facts and law. The Appeal Panel’s decision is entitled to deference. Absent an error of law or of principle, there is no basis for this court to interfere.
[7] The other issue that is raised by Mr. DMello involves costs. The Hearing Panel had ordered the Law Society to pay Mr. DMello the costs of the hearing before them. The Law Society paid those costs. The foundation for the costs award, that is, that Mr. DMello had been successful on his motion, was set aside by the Appeal Panel. The Appeal Panel therefore ordered Mr. DMello to repay the amount that he had received from the Law Society for costs. To be clear, the Appeal Panel did not order Mr. DMello to pay the costs of the appeal or the original hearing, which it might have done given that the Law Society was ultimately successful. Rather, all that the Appeal Panel did was order Mr. DMello to repay the monies that he had received for costs from the Law Society.
[8] Mr. DMello objects to the Appeal Panel’s order on the basis that the Law Society did not separately appeal the costs disposition. There was no need for the Law Society to do so. The costs order was predicated on the correctness of the Hearing Panel’s decision. With the correctness of that order overturned by the Appeal Panel, the foundation for the costs award fell away. Simply put, Mr. DMello is not entitled to retain a sum for costs that he ought not to have received in the first place.
[9] The appeal is dismissed.
COSTS
SACHS J.
[10] I have endorsed the Appeal Book, “This appeal is dismissed by reasons given orally by Nordheimer J. As the successful party, the Law Society is entitled to its costs of this appeal, which we fix in the amount of $4,000, all inclusive.”
NORDHEIMER J.
SACHS J.
HARVISON YOUNG J.
Date of Reasons for Judgment: January 22, 2015
Date of Release: January 26, 2015
CITATION: Dmello v. Law Society of Upper Canada, 2015 ONSC 518
DIVISIONAL COURT FILE NO.: 256/13 DATE: 20150122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, NORDHEIMER AND HARVISON YOUNG JJ.
BETWEEN:
ROY FRANCIS DMELLO Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA Respondent
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: January 22, 2015
Date of Release: January 26, 2015