Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230918 DOCKET: M54283 (COA-23-OM-100)

Tulloch C.J.O., Lauwers and Miller JJ.A.

BETWEEN

Gabriella V. Deokaran Appellant (Moving party)

and

Law Society of Ontario Respondent (Responding Party)

Counsel: Gabriella V. Deokaran, acting in person Stephen Wishart, for the responding party

Heard: September 11, 2023

Reasons for Decision

[1] The appellant, Gabriella Deokaran, moves for an extension of time within which to seek this court’s leave to appeal from a decision of the Divisional Court (2023 ONSC 1702) dismissing her appeal of the decision of the Appeal Division of the Law Society of Ontario Tribunal in Law Society of Ontario v. Deokaran, 2022 ONLSTA 16.

[2] It is trite law that a right of appeal is a creature of statute. Under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal from an order of the Divisional Court requires leave to appeal to the Court of Appeal. An appeal on the basis of a reasonable apprehension of bias is not an exception. In seeking leave to appeal, Ms. Deokaran was obliged to follow the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[3] The Rules provide clear timelines to follow for filing documents with the court. Rule 61.03.1(3) requires that a notice of motion for leave to appeal be served within 15 days of the order to be appealed from and filed within 5 days of that service. Rule 61.03.1(6) requires the moving party to file a motion record, a factum, and transcripts, if any, within 30 days after the filing of the notice of motion for leave to appeal.

[4] On June 12, 2023, three days before the motion for an extension was set to be heard by a single judge of this court, Ms. Deokaran amended her notice of motion. She added a request for an order setting aside the Divisional Court’s decision on the basis of a reasonable apprehension of bias and filed a factum addressing the bias issue. The motion judge adjourned the amended motion to a three-judge panel, with costs reserved to the panel.

[5] As we see it, the addition of the bias allegation to the notice of motion for leave to appeal relates to the merits of the appeal. It does not alter the basic legal issue that the appellant must address: whether her proposed appeal meets the test for an extension of time.

[6] The test for an extension of time was succinctly stated by Weiler J.A. in Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2:

The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.

See also Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35, per Simmons J.A. at para. 14.

[7] Ms. Deokaran met the timeline for filing the notice of motion for leave to appeal. The Divisional Court’s decision was rendered on March 14, 2023. Ms. Deokaran properly served the notice of motion on March 29, 2023 and filed it on April 5, 2023, within the appropriate timeline. Her motion record and factum were due 30 days later, on May 5, 2023. However, on May 12, 2023, a week beyond the deadline, Ms. Deokaran moved for an extension of the time to file her factum and motion record. She argued that she needed the extension in order to pursue Divisional Court transcripts.

[8] Leading up to the Divisional Court hearing, Ms. Deokaran was represented by Richard Watson, a lawyer who was on the record for her and who filed the documentation necessary for the hearing. However, Ms. Deokaran made submissions on her own behalf. While Mr. Watson remained on the zoom call and heard the proceedings, he made no submissions. Ms. Deokaran filed Mr. Watson’s affidavit, which explains what happened:

Before the commencement of the appeal, I advised Justice Backhouse, Justice Lederer, and Justice Charney that I was retained by Ms. Deokaran on a limited-scope retainer, that Ms. Deokaran was self-represented, that I was present at Court (by Zoom) that day solely to provide support for Ms. Deokaran, and that Ms. Deokaran would be making the submissions on her appeal to the Divisional Court on her own.

Justice Backhouse advised that I could be present at the motion but I would not be permitted to speak.

In accordance with my above submissions, Justice Backhouse, Justice Lederer and Justice Charney made the finding that Ms. Deokaran was self-represented in their decision released on March 14, 2023, on the aforesaid matter.

[9] Although he was present for the Divisional Court hearing, we note that Mr. Watson made no suggestion that the panel exhibited any bias against Ms. Deokaran.

[10] The practice of the Divisional Court is to record hearings in which self-represented litigants are involved. However, in this case the hearing was not recorded. We draw no inference of malfeasance related to the lack of a recording.

[11] We now turn to consider the factors relating to Ms. Deokaran’s motion for an extension of time to perfect the motion. These are whether she had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case.

[12] On the first factor, Ms. Deokaran’s court filings show that she intended to appeal from the Divisional Court’s decision within the time for bringing an appeal, even though the amendment to add the bias allegation was late-breaking.

[13] Second, the delay and any explanation for it must be addressed. Ms. Deokaran’s motion record and factum were due on May 5, 2023, but her factum was only filed on June 12 – over a month late – and it did not address the grounds raised in the original motion. Ms. Deokaran provided the court with a motion record concerning the issues raised in the original motion for leave on the morning of this hearing – 4 months after the filing deadline had passed in relation to the original motion of leave to appeal.

[14] Ms. Deokaran explains that the delays arose from circumstances beyond her control, which directly relate to her appeal, in particular, her discovery, in late April, that the Divisional Court had no transcripts or recordings of her hearing. The transcripts, she argues, are “necessary, required and imperative” to her appeal in order to establish a reasonable apprehension of bias. We address this issue below.

[15] The third factor is prejudice to the responding party. We do not accept the Law Society of Ontario’s argument that it has been prejudiced by the delay because it considers Ms. Deokaran to be a vexatious litigant with whom it has been required to engage. This is not the sort of prejudice contemplated by the test.

[16] The last factor, the merits and justice of the case, is the most important and can be determinative: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at para. 7; Overtveld v. Overtveld, 2021 ONCA 930, at para. 9.

[17] Here, the merits of the proposed appeal, as laid out in the original notice of motion for leave to appeal, are limited. The notice devotes a single line to the decision or conduct of the Divisional Court, stating only that the Court’s reasons deprived Ms. Deokaran of her right to procedural fairness, without providing any particulars. Little additional information has been properly filed in this regard. The other grounds of appeal closely mirror the issues on which each prior proceeding was focused, and which were dismissed. In the absence of additional evidence or argument, there is nothing to show that the appeal on those grounds has merit.

[18] Finally, Ms. Deokaran makes very serious bias allegations against members of the Divisional Court. Such allegations must be accompanied by particulars and cogent evidence: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 113, 117. Ms. Deokaran did not meet this high threshold.

[19] Ms. Deokaran contends that the lack of transcripts from the Divisional Court makes the decision below unreviewable because it eliminates the evidence for bias. She argues that this alone is sufficient to warrant a successful appeal and therefore leave to appeal.

[20] Ms. Deokaran makes two bald claims in support of a reasonable apprehension of bias. The first purported ground for alleging bias is confusion around whether Ms. Deokaran was self-represented before the Divisional Court. She speculates that one of the panel judges must have said she was not self-represented, that this statement was incorrect, that this led to the hearing not being recorded, and that this lack of recording speaks to bias. Confusion as to her self-represented status does not point to bias. The second ground on which Ms. Deokaran alleges bias is that questions posed by the panel members demonstrated that they had closed their minds and determined her to be guilty. But no particulars of these questions were provided. Hard questions are routine in court. One party might be subjected to more vigorous questioning than another, questions to which the answers might be particularly damaging to a party’s case. Tough questions to one side in a dispute do not disclose any bias.

[21] The bias claim’s merit is further weakened by the lack of evidence. Both Ms. Deokaran and her counsel were present at the Divisional Court hearing. Both have submitted affidavits to this court. Yet neither provides an example of biased statements, questions, or conduct on the part of panel members. The only reasonable inference from the lack of particulars is that there is no evidence to support the bias allegations. There is no reason to expect that transcripts would have made out the appellant’s case and would therefore provide a valid excuse for delay.

[22] Taking into account the factors in the test relating to Ms. Deokaran’s motion for an extension of time to perfect the motion, we are satisfied that the proposed appeal has no merit and that the justice of the case does not warrant granting an extension of time.

[23] Ms. Deokaran’s motion for an extension of time to perfect her leave to appeal, both as to the original merits and as to the added allegation of bias, is dismissed with costs to the Law Society of Ontario in the agreed amount of $2,000.

“M. Tulloch C.J.O.”

“P. Lauwers J.A.”

“B.W. Miller J.A.”