COURT OF APPEAL FOR ONTARIO

CITATION: Mundulai v. Law Society of Ontario, 2025 ONCA 68 DATE: 20250128 DOCKET: COA-24-OM-0188

Lauwers J.A. (Motion Judge)

BETWEEN

Aliamisse Omar Mundulai Moving Party

and

Law Society of Ontario Responding Party

Counsel: Aliamisse Omar Mundulai, acting in person Elizabeth Glasbergen, for the responding party

Heard: in writing

ENDORSEMENT

[1] The moving party, Aliamisse Omar Mundulai, moves for an extension of time to file a motion for leave to appeal from the decision of the Divisional Court, dated March 13, 2024, reported at 2024 ONSC 959 (Div. Ct.) (“Mundulai (Div. Ct.)”), which dismissed his application for judicial review of the Law Society Tribunal Appeal Division decision in Mundulai v. Law Society of Ontario, 2023 ONLSTA 13.

[2] The procedural saga is set out in Mundulai (Div. Ct.), at paras. 1-25, and I will not repeat it. The Law Society puts the problem it has been facing bluntly in its factum:

The appeals following the revocation of the Applicant’s [licence] to [practise] law were exhausted in 2015 and since then, the Law Society has continued to be engaged in litigation with the Applicant through meritless Re-Licensing Applications doomed to fail.

[3] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194,provide clear timelines 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. Mr. Mundulai’s deadline for service of the notice of motion for leave was March 28, 2024.

[4] The Law Society states that it was made aware that Mr. Mundulai intended to appeal the finding of the Divisional Court on April 5, 2024, 23 days after the Divisional Court released its Order and Reasons for Decision on March 13, 2024. Mr. Mundulai served a notice of appeal, rather than a notice of motion for leave to appeal.

[5] On April 24, 2024, Mr. Mundulai served a notice of motion for leave to appeal on the Law Society. That same day, the Law Society acknowledged service, but notified the court that Mr. Mundulai was well over the 15-day period to bring his motion. In response, the court advised that they had preserved the April 5, 2024 filing date, as Mr. Mundulai served the wrong notice. The Law Society responded that even as of April 5, 2024, the notice of motion for leave to appeal was still well past the 15-day deadline. This court’s filing office directed Mr. Mundulai to bring a motion for an extension of time.

[6] Mr. Mundulai sought the Law Society’s consent to extend time, to which the Law Society requested that he explain why he did not meet the deadline. Mr. Mundulai responded that he “thought this is an appeal from a final order of the Superior Court of Justice” and that he “considered the order made by the Divisional Court as a final order of the Superior Court of Justice. That is why the original Notice of Appeal was served and filed as a 30 [day] appeal.” The Law Society did not consent to an extension of time, which obliged Mr. Mundulai to bring this motion.

[7] Between May 14 and June 11, 2024, Mr. Mundulai attempted to file his motion to extend time, which was rejected by the court twice. On June 18, 2024, he re-filed his materials, and on July 2, 2024, the court accepted the filing of his motion to extend time.

[8] Mr. Mundulai should have served his notice for leave to appeal by March 28, 2024. He did not successfully file the motion to extend time until July 2, 2024, more than three months after it was due.

[9] 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.

[10] See also Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.), at para. 14, per Simmons J.A. The last factor, the merits and justice of the case, is the most important and can be determinative: see e.g. 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, at paras. 7-9; Overtveld v. Overtveld, 2021 ONCA 930, at para. 9.

[11] I now turn to consider the factors relating to Mr. Mundulai’s motion for an extension of time to file a motion for leave to appeal.

[12] I do not doubt that Mr. Mundulai had the intention to appeal the Divisional Court’s decision as soon as he received it. However, the length of delay, at more than three months, is significant. Mr. Mundulai did not directly address the reason for the delay. He says he had an allergic drug reaction at the time he got the decision, but provides no information about its duration or effect. He thought he had 30 days, not 15 days, to appeal and then he seemed simply unable to figure out what he had to file. Mr. Mundulai takes no responsibility for the delay.

[13] The Law Society does not claim any prejudice for the delay beyond its desire for finality in what seems to be an interminable set of “meritless” proceedings at Mr. Mundulai’s instance.

[14] This motion falls to be determined on the merits of the proposed appeal.

[15] Mr. Mundulai puts his position on the merits of his proposed appeal in these words in his notice of motion for leave to appeal:

The crux of this case thus rests on the question [of] whether a licensing application can be refused on the basis of evidence recorded on non-approved audio recording instrument[s] and transcribed and certified by an individual who is not trained, qualified and authorized to transcribe and certify transcribed evidence.

The transcription made by the Law Society investigator was annotated with words, phrases or statements that attempt to describe the Appellant’s state of mind, which were added during the transcription process and which do not appear in the original audio recordings. Because these words do not form part of the words spoken during the interview, these words are hearsay evidence. Given the prejudicial nature of the annotations, the fact that the additions were unnecessary, and potentially unreliable, the hearsay exception rule is inapplicable for the admission of these words and statements into evidence.

The Divisional Court, moreover, erred in principle and misapprehended the evidence when the court concluded that the transcript annotations were the “evidence of the investigator, like any notes she may have made during an interview”. There was no evidence adduced at the Law Society Hearing Tribunal indicating that the Law Society investigator had made any notes during the interview in question, and the investigation work notes were never introduced into evidence and the Law Society Tribunal Appeal Division’s decision does not make reference to any such investigative notes.

[16] In Mundulai (Div. Ct.), McWatt A.C.J.S.C., speaking for the court, addressed this transcription issue squarely, at paras. 46-49:

The Applicant complains that the Appeal Division erred in affirming the Hearing Division’s decision to admit his interview transcribed by the Law Society investigator into evidence.

The Appeal Division found no error in the Hearing Division’s decision given that the Applicant never objected to the transcript being marked as an exhibit. He has never claimed the transcript is inaccurate. The transcript and the recording of the transcript were disclosed to him. The Law Society also offered to play portions of the transcript and allow the Hearing Division to determine for themselves what was said, but the Applicant did not accept the offer. Based on these considerations, the Appeal Division’s decision was reasonable.

With respect to annotations on the transcript by the investigator, the Applicant has argued that they are hearsay evidence and inadmissible. However, the Applicant did not object to the transcript being marked as an exhibit, and it is clear from her testimony that the annotations were the evidence of the investigator, like any notes she may have made during an interview. The Appeal Division’s conclusion that the Hearing Division did not err in admitting this evidence, is reasonable.

Penultimately, the Appeal Division found no merit in the Applicant’s argument that the Hearing Division did not have an evidentiary basis to find that he had been abusive during the investigation. The Appeal Division found that there was a sufficient evidentiary record, both in the investigator’s Affidavit and her oral evidence, to support the Hearing Divisions’ findings. I agree.

[17] I can discern no error in the Divisional Court’s decision. The issue Mr. Mundulai asserts to be the crux of his case – the formalities attending the investigator’s evidence – carries no weight. Mr. Mundulai made no effort to address the reasons why the Law Society refused to restore his licence to practise law, and on which both the Tribunal’s decision and Divisional Court’s decision turned. I am satisfied that the proposed appeal has no merit and that the justice of the case does not warrant granting Mr. Mundulai an extension of time to file a motion for leave to appeal from the Divisional Court decision. Mr. Mundulai’s motion is dismissed.

[18] This leaves the question of costs, which the Law Society seeks but on which it provided no submissions. The Divisional Court made a modest order for costs, at para. 53: “The Applicant was asked and agreed with the Costs submissions of the Respondent. As a result, the Applicant shall pay the Respondent $4,149.36 in costs, including HST and Disbursements.”

[19] Since this motion was in writing and did not require attendance for oral argument, I would be inclined to fix costs at $2,000, all-inclusive. If the parties are not satisfied with this costs disposition and wish to make submissions, they may file written costs submissions no more than three pages in length within ten days of the release of this decision.

“P. Lauwers J.A.”