Court of Appeal for Ontario

Date: 2024-01-31 Docket: M54798

Gillese J.A. (Motions Judge)

Between:

Paul Alexander Robson Respondent (Moving Party)

and

Law Society of Ontario Applicant (Responding Party)

Counsel: Paul Alexander Robson, acting in person Rhoda Cookhorn, for the responding party

Heard: January 24, 2024

Endorsement

I. Overview

[1] On December 18, 2023, a three-person panel of this Court (the “Panel”) granted Paul Alexander Robson an extension of time to perfect his motion for review of a decision of a single judge of this court (the “Review Motion”). The Panel ordered Mr. Robson to perfect the Review Motion within ten days of the release of its reasons, failing which the Review Motion would be “administratively dismissed” (the “Panel Order”). Ten days from the date of the Panel Order was December 28, 2023.

[2] Mr. Robson did not perfect by December 28, 2023. Instead, he attempted to file materials on January 2, 2024. On January 3, 2024, the Court acknowledged receipt of those materials, stated that the deadline established by the Panel Order was December 28, 2023, and informed Mr. Robson that because he submitted the materials after the deadline, the Review Motion was “deemed dismissed”. An email from the Court to Mr. Robson on January 4, 2024, confirmed that the Review Motion was administratively dismissed in accordance with the Panel Order (the “January 4, 2024 Email”).

[3] In the motion now before the Court, Mr. Robson seeks orders, seemingly pursuant to rr. 61.16(5) [1] and 3.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), extending the time for perfecting the Review Motion and reopening it (the “Current Motion”).

[4] For the reasons that follow, the Current Motion is quashed for want of jurisdiction.

II. Procedural History

[5] Mr. Robson is a former lawyer licensee. He was called to the bar in Ontario in 1983.

[6] In May 2021, the Law Society of Ontario (the “LSO”) received a complaint from a former client of Mr. Robson, who claimed that, among other things, he had paid Mr. Robson $11,000 to act in a civil litigation matter but Mr. Robson denied receiving $7,500 of these funds, did not do the legal work for which he was paid, and refused to return the funds. The LSO began an investigation into Mr. Robson’s conduct and asked Mr. Robson to provide certain financial documents and records. Despite repeated requests, Mr. Robson refused to provide all of the requested information and documents.

[7] In March 2022, the matter proceeded to a hearing before the Law Society Tribunal Hearing Division. Mr. Robson took the position the LSO did not have a reasonable suspicion he might have engaged in professional misconduct, so he was not required to respond to the investigative requests. Alternatively, he argued that the requested information and documents did not relate to the matter under investigation.

[8] The hearing panel rejected Mr. Robson’s submissions. It found Mr. Robson failed to provide prompt and complete disclosure to the LSO investigative inquiries and that he was obliged to do so. Accordingly, Mr. Robson had engaged in professional misconduct by failing to co-operate with an LSO investigation (the “LSO Hearing Panel Decision”). The hearing panel suspended Mr. Robson’s license indefinitely, pending compliance with the investigation, followed by an additional six-month suspension. It also ordered Mr. Robson to pay costs to the LSO.

[9] Mr. Robson appealed the LSO Hearing Panel Decision to the Law Society Tribunal Appeal Division.

[10] In December 2022, the Law Society Tribunal Appeal Division dismissed Mr. Robson’s appeal, finding that none of the 17 grounds of appeal he raised had any merit (the “LSO Appeal Decision”).

[11] Mr. Robson appealed the LSO Appeal Decision to the Divisional Court.

[12] On September 19, 2023, the Divisional Court dismissed Mr. Robson’s appeal (the “Divisional Court Decision”). The Divisional Court found Mr. Robson had failed to identify any factual or legal errors in the LSO Appeal Decision. It expressly agreed with the finding by the Law Society Tribunal Appeal Division that Mr. Robson’s appeal was “meritless”.

[13] Mr. Robson says he intended to seek leave to appeal the Divisional Court Decision to this Court. However, he failed to file a notice of motion for leave within the prescribed time. [2] Consequently, Mr. Robson then brought a motion before a single judge of this Court for an extension of time to file the leave motion.

[14] On October 24, 2023, Thorburn J.A. dismissed the motion, stating there was “no merit” to Mr. Robson’s putative appeal. She ordered costs on a substantial indemnity basis in favour of the LSO because Mr. Robson had unsuccessfully raised the same grounds in the three prior levels of judicial proceedings.

[15] Mr. Robson then filed materials to commence the Review Motion, asking that a panel of the court review Thorburn J.A.’s decision. The LSO responded by moving to have the Review Motion dismissed pursuant to r. 2.1.02 of the Rules.

[16] The Panel dismissed the LSO’s r. 2.1.02 motion because the LSO had not provided sufficient material for it to determine whether, on its face, the Review Motion was frivolous, vexatious, or an abuse of process. However, the Panel went on to make the Panel Order requiring Mr. Robson to perfect the Review Motion within ten days of the release of its reasons, failing which the Review Motion would be administratively dismissed.

[17] It is Mr. Robson’s failure to comply with the Panel Order and the ensuing administrative dismissal of the Review Motion which led to the Current Motion.

III. The Jurisdictional Question

[18] It is unclear on what basis Mr. Robson brings the Current Motion. To the extent he relies on r. 61.16(6) of the Rules, he is in error. Rule 61.16(6) governs a motion for review of a single judge’s order. Thus, it is does not apply to the Current Motion, in which Mr. Robson seeks to have reviewed the Registrar’s administrative dismissal of his Review Motion.

[19] It may be that Mr. Robson intended to rely on r. 61.16(5), which governs the review of an order or decision of the Registrar. The relevant part of r. 61.16(5) reads as follows:

A person affected by an order or decision of the Registrar may make a motion to a judge of the appellate court to set it side or vary it by a notice of motion …

[20] At the oral hearing of the Current Motion, I raised with the parties whether a single judge had jurisdiction to hear it. I questioned whether the Registrar’s dismissal, which flowed from the Panel Order, was properly characterized as a decision or order of the Registrar for the purposes of r. 61.16(5). Neither party had addressed this jurisdictional matter in their materials.

[21] Mr. Robson was unable to offer the court assistance with this matter.

[22] Counsel for the LSO advised she had considered the matter and searched the jurisprudence for any case in which a single judge of this court had varied a decision of a three-judge panel. She found no such caselaw. LSO counsel proceeded on the Current Motion assuming a single judge had jurisdiction to hear it for two reasons. First, she contended that certain language in Sickinger v. Sickinger, 2017 ONCA 760, could be construed as support for that proposition. Second, the January 4, 2024 Email from Court staff said as much. The relevant part of the January 4, 2024 Email reads as follows:

Please be advised that the above-noted motion has now been administratively dismissed in accordance with the Panel’s decision dated December 18, 2023 (attached).

If you intend to perfect the above-noted motion, a single judge motion to reopen and extend the deadline to perfect the above-noted motion can be filed with the Court.

IV. Analysis

[23] In my view, a single judge of this Court does not have jurisdiction to hear the Current Motion. Two considerations drive this conclusion.

[24] First, allowing a single judge to vary or set aside the Panel Order is prohibited by r. 61.16(6.1) of the Rules. Rule 61.16(6.1) reads as follows:

Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules.

[25] Neither rr. 37.14 nor 59.06 apply in this case. [3] Therefore, on the plain wording of r. 61.16(6.1), the Panel Order may not be set aside or varied under the Rules.

[26] But that is precisely what Mr. Robson seeks to do by means of the Current Motion. He asks that the time period for compliance, as established by the Panel Order, be varied. And, he asks to have set aside that part of the Panel Order stipulating that failing to comply will result in the administrative dismissal of the Review Motion.

[27] Second, properly characterized, the Registrar’s dismissal is neither an order nor a decision within the meaning of r. 61.16(5). The parties agree the Registrar did not make an order so no more need be said on that score. In my view, in dismissing the Review Motion, the Registrar did not make a decision either. The Registrar simply did as the Panel Order dictated and administratively dismissed the Review Motion. It was the Panel that made the decision stipulating that failure to comply with the deadline would result in dismissal of the Review Motion – not the Registrar.

[28] The wording of the email correspondence from the Court staff to the parties confirms this: “As per the [Panel Order], if you did not perfect by that time, the matter would be administratively dismissed” and “[T]he above-noted motion has now been administratively dismissed in accordance with the Panel’s decision dated December 18, 2023” (emphasis added).

[29] I do not accept that Sickinger v. Sickinger, 2017 ONCA 760 suggests otherwise. It is correct that, at para. 1 of Sickinger, Brown J.A. refers to the “administrative dismissal” of the appellant’s appeal for delay. However, he immediately defines that act as the “Dismissal Order” and later describes the process the Registrar followed in making the Dismissal Order. The Registrar sent the parties a Notice of Intention to Dismiss for Delay, advising them the appeal would be dismissed unless perfected within a specific time. When the appeal was not perfected in time, the Registrar issued the Dismissal Order: Sickinger, at paras. 16-17. Therefore, in Sickinger, as the affected party, the appellant could move under r. 61.16(5) to set aside the Registrar’s order.

[30] It is somewhat unfortunate that the January 4, 2024 Email indicated that if Mr. Robson intended to perfect the Review Motion, a single judge motion to reopen and extend the deadline to perfect could be filed with the Court. However, jurisdiction can often be a tricky matter, as the long-standing debate between interlocutory and final matters exemplifies. In any event, it is for the Court to decide whether it has jurisdiction. For the reasons given, in my view, a single judge lacks jurisdiction to hear the Current Motion.

[31] If I am incorrect and do have jurisdiction, I would dismiss the Current Motion for three reasons.

[32] First, the putative appeal is meritless. I will not repeat Thorburn J.A.’s thorough reasons which make this point.

[33] Second, I do not find credible Mr. Robson’s explanation for why he failed to meet the ten-day deadline imposed by the Panel Order. He says he missed the deadline because he believed that ten days meant ten business days and, therefore, did not include holidays or weekends. However, Mr. Robson practiced as a lawyer in Ontario for approximately 40 years. As an experienced lawyer, if he were in doubt about how time was computed, it would have been an easy matter for him to read r. 3.01(1) of the Rules. [4] Moreover, in light of Mr. Robson’s previous failures to meet deadlines in this proceeding, he must have been alive to the importance of complying with the panel-imposed deadline and ought reasonably to have taken the steps needed to meet it.

[34] Third, the interests of justice demand that the Current Motion be dismissed. Mr. Robson has argued his meritless case four times already: before two separate divisions of the Law Society Tribunal, before the Divisional Court, and then before a single judge of this court. Enough is enough.

V. Disposition

[35] The Current Motion is quashed for want of jurisdiction, with costs to the LSO fixed at $4,155, all inclusive.

“E.E. Gillese J.A.”

Footnotes

[1] Mr. Robson’s materials refer to r. 61.16(6). However, as I explain below, that rule does not apply. It appears that he brings the Current Motion pursuant to r. 61.16(5).

[2] An appeal lies to this court, with leave, from an order of the Divisional Court: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a). A notice of motion for leave to appeal must be served within 15 days after the making of the order or decision from which leave to appeal is sought: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 61.03.1(3).

[3] As noted below, both parties acknowledge the Registrar made no order in this matter.

[4] Rule 3.01 of the Rules of Civil Procedure governs computation of time under the Rules of Civil Procedure. The relevant subsections read: 3.01 (1) In the computation of time under these rules or an order, except where a contrary intention appears, (a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used; (b) where a period of seven days or less is prescribed, holidays shall not be counted.