Court File and Parties

CITATION: Sriskanda v. Law Society of Upper Canada, 2017 ONSC 3735

DIVISIONAL COURT FILE NO.: 239/17

DATE: 20170627

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KUMAR SRISKANDA, Moving Party

AND:

THE LAW SOCIETY OF UPPER CANADA, Responding Party

BEFORE: SPIES J.

COUNSEL: Kumar Sriskanda, Self-Represented Moving Party

Glenn M. Stuart, for the Responding Party, The Law Society of Upper Canada

HEARD at Toronto: June 15, 2017

ENDORSEMENT

Introduction

[1] The Moving Party, Kumar Sriskanda, has brought a motion seeking an order extending the time to file a Notice of Appeal of a decision of the Law Society Tribunal – Appeal Division (the “Appeal Division”) released on January 12, 2017.

[2] For the reasons that follow, I would dismiss the motion, as the test for granting an extension of time to file a Notice of Appeal has not been met.

Background

[3] In a conduct hearing before the Law Society Tribunal – Hearing Division (the “Hearing Division”) the Law Society alleged that Mr. Sriskanda had participated in 12 fraudulent mortgage transactions and attempted to mislead the Law Society by fabricating notes on files after the Law Society’s investigation began. After 11 days of hearings in 2014, and a further 8 days of motions concluding March 30, 2015, the Hearing Division dismissed the motions brought by Mr. Sriskanda and released its Reasons for Decision on Findings on November 3, 2015, finding that Mr. Sriskanda had engaged in professional misconduct in, among other things, knowingly participating in mortgage fraud and attempting to mislead the Law Society by fabricating notes in various files relating to the mortgages.

[4] Mr. Sriskanda appealed to the Appeal Division and the appeal was heard on July 25, 2016. By order dated January 12, 2017 the Appeal Division dismissed the appeal on all grounds and provided extensive reasons for its decision.

The Test for Granting an Extension

[5] The test for an extension of time to file a Notice of Appeal is well established. The court must consider a number of factors:

(a) Whether the moving party formed an intention to appeal in a relevant appeal period;

(b) The length of the delay and the explanation for the delay;

(c) Any prejudice to the responding party;

(d) The merits of the appeal; and

(e) Whether the “justice of the case” requires an extension.

(See Khahra v. College of Veterinarians of Ontario, 2016 ONSC 4692 (Div. Ct.) at para. 6.)

Analysis

Intention to Appeal

[6] Mr. Sriskanda did not contact counsel for the Law Society about an appeal until May 11, 2017.

[7] Mr. Sriskanda’s position is that because he was in Sri Lanka for an extended period of time without access to the Internet, he did not receive the Reasons of the Appeal Division which were emailed to him on January 12, 2017, until he returned to Toronto on May 2, 2017. Mr. Sriskanda deposes that while he was in Sri Lanka, in April 2017, it came to his attention that the Appeal Division had released its decision through some of his friends in Toronto, and that his appeal had been dismissed and that he immediately booked a return flight to deal with the appeal. He provided a copy of his passport and airline tickets for the return flight. In his affidavit, Mr. Sriskanda did not assert that the email did not go through properly to his email account.

[8] Mr. Sriskanda did not state specifically when he left Toronto in his affidavit but it is clear from a stamp on his passport that that was on January 19, 2017, a week after the email of the decision. He provides no explanation for why he did not take steps to appeal the decision in that period of time. In oral submissions he suggested that he was having difficulty with his email but that is not in evidence and was in response to my pointing out that he had had one week to deal with the matter.

[9] Mr. Sriskanda’s affidavit does not disclose that he was back in Toronto between January 19, 2017 and May 2, 2017. It is interesting that he did not disclose this because his passport shows that he came back to Canada on March 5, 2017 and returned to Sri Lanka on March 23, 2017. Mr. Sriskanda acknowledged this and again, there is no explanation for why, in that period of almost three weeks, he took no steps to appeal the decision.

[10] Mr. Sriskanda argued that because he vigorously contested the hearing before the Hearings Division including all the motions that he brought and that he appealed to the Appeal Division that I can infer that he had an intention to appeal the decision all along. Given his actual conduct following the hearing of the appeal, I do not agree.

[11] Based on this evidence it is my view that Mr. Sriskanda did not form an intention to appeal in the relevant period. I believe he only formed the intention to appeal the Appeal Division’s decision in early May when he contacted Mr. Stuart, counsel for the Law Society.

Length of Delay and the Explanation for It

[12] The delay is about three months after the deadline. This is not overly excessive but as I have already concluded, there is no explanation for the delay.

Prejudice

[13] The Law Society does not allege that it would be prejudiced in defending an appeal if an extension of time to appeal were provided to Mr. Sriskanda.

The Merits of the Appeal

[14] As for the merits of the appeal, I do so not with a view to determining whether the appeal would succeed, but to determine whether it has so little merit that the court could reasonably deny the important right of an appeal: see Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67 at para. 10.

[15] Mr. Sriskanda has not filed a draft Notice of Appeal, which would have assisted in an assessment of the merits of the appeal as he would have had to specify the grounds of appeal. I have reviewed his affidavit and it appears that he raises three issues with the decision of the Appeal Division. The first is set out at para. 13 of his affidavit. Mr. Sriskanda alleges that the Appeal Division failed to appreciate the evidence and arguments that he made and in particular that despite his oral and written submissions, the Appeal Division did not address his case regarding the costs ordered by the Hearing Division. That is not the case, however. The issue of Mr. Sriskanda’s costs is dealt with at paras. 143-144 of the Reasons of the Appeal Division under the heading “The Costs Order”. I see no error.

[16] In para. 14 of Mr. Sriskanda’s affidavit he states that the Appeal Division totally failed to consider case law submitted by him and in particular that the investigator denied his “right and opportunity to submit forensic evidence to rebut the allegation” and that the Appeal Division relied on “slim hearsay evidence of a bank employee and did not consider at all the value and the importance of scientific evidence.” It is apparent that this issue relates to an argument made by Mr. Sriskanda both before the Hearing Division and the Appeal Division, that there should be ink testing of Mr. Sriskanda’s notes to determine when the notes were made. He argues that the Appeal Division erred in not overturning the Hearing Division’s finding that the notes were altered.

[17] This issue was considered by the Appeal Division. At para. 158 of its decision the Appeal Division states: “The second point is that Mr. Sriskanda says that the Law Society could and should have arranged for ink testing in 2011 at which time it could have been determined whether the notations were recently added…” The Appeal Division then went on to consider the issue. In particular, at para. 161 of its decision, the Appeal Division noted that the Hearing Division addressed this issue in its Reasons and at para. 162 the Appeal Division held that they could not conclude that the conclusion of the Hearing Division was unreasonable. They found no reversible error in respect of the conclusion of the Hearing Division on this point.

[18] Mr. Sriskanda provided me with a case from the Federal Court, Trial Division, Bekesinski v. The Queen, 2014 TCC 245 where the trial judge did not accept expert evidence and found that without it she could not conclude that the appellant had backdated his signature on a document. The facts of that case are different from the case at bar as the Appeal Division found that the conclusion of the Hearing Division relying on other evidence to reach its conclusion was reasonable. I have read the lengthy and comprehensive reasons of the Hearing Division. Essentially they held that ink testing “would not address the absence of any corresponding reference to these communications in … [the lender’s] file or in any written reports sent to that client…”. I see no error in this conclusion.

[19] Finally, Mr. Sriskanda alleges that the penalty was not merely “too harsh and excessive” but rather “cruel and unusual”. The Hearing Division found at para. 23 that “Sriskanda participated or assisted in many fraudulent mortgage transactions and also committed numerous other serious ethical breaches …that protection of the public demands that his licence to practice be revoked…” This issue was also argued before the Appeal Division and addressed in their Reasons commencing at para. 333 under the heading “Penalty”. The Appeal Division specifically considered Mr. Sriskanda’s argument as one pursuant to s. 12 of the Canadian Charter of Rights and Freedoms and concluded that the penalty imposed by the Hearing Division was a reasonable one. This portion of the Appeal Division’s Reasons span from paras. 333 to 362.

[20] In summary, there is no merit to any of the assertions made by Mr. Sriskanda in his affidavit. Furthermore, he does not assert that there were any particular errors of fact or law with respect to the Reasons of the Appeal Division. It is clear from the lengthy decision of the Appeal Division that the matter was carefully considered and the Reasons are extensive. I see no basis to conclude that there is any merit to an appeal.

The Justice of the Case

[21] I appreciate that practicing law is Mr. Sriskanda’s livelihood. As Mr. Stuart submitted however, this aspect of the test does not balance the interest of the proposed appellant, Mr. Sriskanda, but rather the interests of the public. Although the Law Society does not argue any specific prejudice, as Justice Swinton noted in Khahra at para. 36, there is a public interest in the finality of decisions and “public confidence in the efficacy of the professional regulatory system would be eroded if this appeal were allowed to proceed.” These competing interests need to be balanced in the context of the other factors I have outlined.

Disposition

[22] In summary, given that Mr. Sriskanda has not satisfactorily explained the delay in seeking leave to appeal and given the lack of merit of the proposed appeal, justice requires that Mr. Sriskanda’s motion for an extension of time to file his motion for leave to appeal is dismissed.

Costs

[23] The Law Society sought costs in the all-inclusive amount of $2,000 if successful on the motion. As the successful party they are entitled to costs on a partial indemnity basis. There was not much in the way of material filed on this motion and the argument was brief. In my view $1,500 is a reasonable amount for costs. Accordingly Mr. Sriskanda shall pay The Las Society the amount of $2,000 for its costs within 30 days of the release of this endorsement.

SPIES J.

Date: June 27, 2017