Court File and Parties

CITATION: Isaac v. Law Society of Ontario, 2022 ONSC 3577

DIVISIONAL COURT FILE NO.: DC-20-427

DATE: 20220615

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: David Grant Isaac v. Law Society of Ontario

BEFORE: Pomerance, Kurke, and Davies JJ.

COUNSEL: David Isaac, on his own behalf Adrienne Lei, for the Respondent Law Society of Ontario

HEARD virtually at Toronto: June 9, 2022

ENDORSEMENT

[1] In May 2014, the Law Society of Ontario (“LSO”) suspended Mr. Isaac’s licence to practice law indefinitely for failing to pay a $17,000 costs award that had been levied against him during an earlier discipline proceeding. In 2015, Mr. Isaac applied to have his licence reinstated. His application was dismissed and on December 11, 2015, Mr. Isaac filed a notice of appeal to the LSO Appeal Tribunal from the reinstatement decision. When Mr. Isaac was not diligent in pursuing his appeal, the LSO moved to have it dismissed for delay. On April 7, 2020, the Appeal Division of the Law Society Tribunal granted the motion of the LSO and on September 3, 2020, ordered Mr. Isaac to pay $3,300 in costs.

[2] Mr. Isaac brought an appeal to this court from the April 7, 2020 and September 3, 2020 orders of the Appeal Division of the Law Society Tribunal. He argues the Appeal Panel was not properly constituted and, therefore, had no jurisdiction to dismiss his appeal.

[3] Justice Corbett was assigned as the appeal’s case management judge. On January 19, 2022, Justice Corbett dismissed Mr. Isaac’s appeal as abandoned for failing to follow case management scheduling directions.

[4] Mr. Isaac now brings a motion before a panel of this Court to set aside the dismissal of his appeal, on four grounds:

a. That Justice Corbett did not have jurisdiction as a case management judge to dismiss his appeal.

b. That the time for perfecting his appeal had not passed.

c. That Justice Corbett’s decision was tainted by a reasonable apprehension of bias.

d. That his appeal has substantial merit and should be heard.

[5] We would not give effect to any of these arguments and would dismiss the appeal.

Justice Corbett Had Jurisdiction to Dismiss Mr. Isaac’s Appeal

[6] Mr. Isaac filed his notice of appeal on October 15, 2020. Justice Corbett was assigned to case manage the appeal. Justice Corbett made several orders setting deadlines for Mr. Isaac to file materials on his motion to stay the Law Society’s orders and on his appeal. Mr. Isaac did not comply with any of Justice Corbett’s orders. On January 19, 2022, more than 15 months after Mr. Isaac filed his notice of appeal, Justice Corbett dismissed the appeal because Mr. Isaac had failed to comply with the Court’s orders and had not filed any materials for his appeal.

[7] Mr. Isaac argues that Justice Corbett, as a case management judge, had no jurisdiction to dismiss his appeal without a formal motion from the LSO. We disagree.

[8] The starting point of the analysis must be Justice Corbett’s jurisdiction to make orders setting deadlines for Mr. Isaac to file materials on an appeal at a case conference. We find that Justice Corbett had jurisdiction to do so based on either the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or the Divisional Court’s jurisdiction to control its own processes.

[9] Rule 77.04 of the Rules of Civil Procedures states that a case conference judge may establish or amend a timetable. A case management judge can also make orders, impose terms and give directions that are necessary to manage a case. The powers of a case management judge apply to actions and applications: Rule 77.02.

[10] The Rules do not specifically deal with case management of appeals to the Divisional Court. However, Rule 1.04(2) states that where matters are not provided for in the rules, “the practice shall be determined by analogy to them.” Applying the principles in Rule 77.04 by analogy, Justice Corbett was entitled to make directions about the timeline for filing materials on this appeal.

[11] In any event, Justice Corbett had jurisdiction to make scheduling orders pursuant to this Court’s jurisdiction to control its own process. As a statutory court, the Divisional Court does not have the inherent jurisdiction vested in the Superior Court of Justice. Nonetheless, the Court has implicit power to control its own process. The jurisdiction of the court to control its own process empowers the court to make any order that is reasonably necessary to perform its intended function: Sgrignuoli v. Sgrignuoli, 2017 ONSC 65, at para. 36, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 27, R. v. 9746499 Ontario Inc., 2001 SCC 81, at para. 70.

[12] The next question is whether Justice Corbett had jurisdiction to dismiss Mr. Isaac’s appeal without a formal motion by the LSO. We find he did. Mr. Isaac was given every opportunity to perfect his appeal. Mr. Isaac was cautioned that his continued failure to comply with court orders would result in his appeal being dismissed. Mr. Isaac was given an opportunity to explain why his appeal should not be dismissed after he missed the last deadline set.

[13] It is important to set out in some detail the chronology of events.

[14] Mr. Isaac filed his notice of appeal on October 15, 2020.

[15] On October 20, 2020, Justice Corbett directed Mr. Isaac to “advise the court as to when he can perfect his appeal.” Mr. Isaac never complied with Justice Corbett’s direction.

[16] A case conference was held on November 4, 2020. Mr. Isaac told Justice Corbett he intended to bring a motion to stay the LSO decision. Justice Corbett gave directions on the exchange of materials for the stay motion. Mr. Isaac did not comply with those directions.

[17] On January 21, 2021, Justice Corbett directed Mr. Isaac to tell the Court when he would serve and file his materials on the motion to stay. Mr. Isaac did not respond to Justice Corbett’s direction so on January 29, 2021, Justice Corbett directed Mr. Isaac to file his materials on the stay motion no later than February 5, 2021. Mr. Isaac did not file his motion materials as directed. On March 5, 2021, Justice Corbett found that Mr. Isaac’s stay motion had been abandoned. Justice Corbett also ordered Mr. Isaac to serve “all the materials to which he relies for this appeal by April 30, 2021.” Justice Corbett indicated that he would make a further scheduling order once Mr. Isaac’s appeal materials were served.

[18] Mr. Isaac did not file any materials by the April 30, 2021 deadline.

[19] On May 10, 2021, Mr. Isaac requested an extension, but he did not say when he would be able to file his appeal materials. Justice Corbett granted an extension to May 28, 2021. In his endorsement, dated May 18, 2021, Justice Corbett cautioned Mr. Isaac that if his materials were not served and filed by May 28, 2021, his appeal would be dismissed:

If Mr. Isaac has not served and uploaded his appeal materials to CaseLines by May 28, 2021, this appeal will be dismissed as abandoned. The respondent may seek such a dismissal by email request to the court noting that the materials have not been uploaded to CaseLines. The court will then check CaseLines, and if the materials are not there, the appeal will be dismissed.

[20] On May 28, 2021, Mr. Isaac filed an amended notice of appeal but did not file any other materials.

[21] On May 31, 2021, the Law Society requested by email that Mr. Isaac’s appeal be dismissed in accordance with Justice Corbett’s May 18, 2021 direction, as no material had been uploaded as required.

[22] Justice Corbett gave Mr. Isaac until June 8, 2021 to explain why his appeal should not be dismissed. In effect, Justice Corbett was giving Mr. Isaac a further 10-day extension. Had Mr. Isaac filed materials in support of his appeal before June 8, 2021, that likely would have offered a very compelling reason why his appeal should not be dismissed. Instead, Mr. Isaac argued that the amended notice of appeal had restarted the time for perfecting his appeal. Mr. Isaac also argued that it was in the interests of justice to allow him to pursue his appeal because his appeal had significant merit.

[23] On November 2, 2021, the Law Society renewed its request for the appeal to be dismissed. By that time, Mr. Isaac still had not filed any materials on his appeal.

[24] On January 19, 2022 – more than six months after Mr. Isaac filed his amended notice of appeal – Justice Corbett dismissed his appeal as abandoned. Mr. Isaac had still not filed any materials in relation to his appeal.

[25] All the orders made by Justice Corbett had the effect of extending the timelines for Mr. Isaac to file his appeal materials. Under Rule 61.09(1)(b), Mr. Isaac was required to perfect his appeal within 30 days after he filed his notice of appeal on October 15, 2020. In other words, under the rules, he was required to perfect his appeal by November 14, 2020.

[26] Case management orders are not suggestions. They are orders of the Divisional Court that must be respected and followed. Where a litigant casually disregards, or deliberately ignores, directions of the court, there are consequences: Bottan v. Vroom, [2001] O.J. No. 2737, at paras. 24-25. Mr. Isaac was afforded considerable latitude by Justice Corbett. He was given various extensions of filing deadlines, yet still failed to pursue the matter with any degree of diligence. The right of appellate review must be balanced against the public interest in finality. The principle of finality will take precedence where, as here, an appeal has languished, and the appellant has repeatedly failed to comply with court orders.

[27] In his May 18, 2021 endorsement, Justice Corbett cautioned Mr. Isaac that his appeal would be dismissed if he failed to upload materials to CaseLines by May 28, 2021. Justice Corbett thereby dispensed with the need for the LSO to bring a formal motion to have Mr. Isaac’s appeal dismissed if he once again failed to comply with the court’s order. It was open to Justice Corbett to make that order in the circumstances of this case. It would have been open to Justice Corbett to dismiss Mr. Isaac’s appeal upon receipt of the LSO email and upon confirmation that no materials had been uploaded. Instead, Justice Corbett invited Mr. Isaac to make submissions on the LSO request to have the appeal dismissed as abandoned. In other words, Justice Corbett afforded Mr. Isaac the same right to respond that he would have had if the LSO had filed a formal notice of motion.

[28] There was no unfairness in the process adopted by Justice Corbett. To the contrary, Justice Corbett gave Mr. Isaac ample notice that his appeal could be dismissed as abandoned if he did not file his appeal materials as directed. Mr. Isaac knew that the LSO was seeking an order dismissing his appeal for delay and he had been put on notice that, by filing no material, his appeal would be dismissed. Mr. Isaac was given one last opportunity to make submissions (or file his materials) before his appeal was dismissed.

Filing an Amended Notice of Appeal does not Restart the Time for Perfecting an Appeal

[29] Justice Corbett made no error in finding that Mr. Isaac’s decision to file an amended notice of appeal did not re-start the time for perfecting his appeal.

[30] Mr. Isaac was entitled to file an amended notice of appeal. Rule 61.08 allows an appellant to amend the notice of appeal without leave before the appeal is perfected, to give notice of its intention to seek additional or different relief, raise different grounds or rely on different evidence than originally contemplated. However, filing an amended notice of appeal does not alter the time requirements for perfecting the appeal, which are set out in Rule 61.09(1):

61.09 (1) The appellant shall perfect the appeal by complying with subrules (2) and (3),

(a) where no transcript of evidence is required for the appeal, within thirty days after filing the notice of appeal; or

(b) where a transcript of evidence is required for the appeal, within 60 days after receiving notice that the evidence has been transcribed.

[31] There is no reference in Rule 61.09 to an amended notice of appeal. The time for perfecting an appeal starts to run when the original notice of appeal is filed. Unless the time is extended on a motion under Rule 3.02, the deadlines set out in Rule 61.09(1) continue to run from the filing of the original notice of appeal, not from the filing of an amended notice.

[32] In any event, even if Mr. Isaac’s amended notice of appeal did restart the filing deadline clock, he would have been required to perfect his appeal by the end of June 2021. When his appeal was dismissed, nearly eight months had passed since he filed the amended notice. Mr. Isaac has still not filed any materials for his appeal, and has failed to comply with the deadline he claims should have applied when he filed the amended notice.

Reasonable Apprehension of Bias

[33] Mr. Isaac argues that Justice Corbett is biased against him and, as a result, the decision dismissing his appeal should be set aside. Mr. Isaac argues that Justice Corbett demonstrated bias in two ways:

a. by ruling in his January 19, 2022 dismissal order that Mr. Isaac’s decision to file an amended notice of appeal was a tactical attempt to get around the case management directions; and

b. by dismissing another judicial review application as frivolous, vexatious or an abuse of process.

[34] We are not satisfied that these rulings, individually or collectively, give rise to a reasonable apprehension of bias.

[35] Judges are presumed to act impartially. The burden is on Mr. Isaac to provide compelling evidence that Justice Corbett conducted himself in a way that gives rise to a real or perceived apprehension of bias: Khan v. 1806700 Ontario Inc, 2021 ONSC 1679 (Div. Ct.), at para. 38.

[36] A reasonable apprehension of bias exists when a reasonable, informed person would reasonably conclude it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 46, Summit Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753, at para. 53.

[37] It was open to Justice Corbett to find that Mr. Isaac was trying to extend the time to file materials on his appeal and circumvent the existing case management orders by filing an amended notice of appeal. There was a very long pattern of Mr. Isaac missing the deadlines set by the court to file his appeal materials and failing to pursue his appeals in a timely fashion.

[38] Justice Corbett’s decision to dismiss Mr. Isaac’s other appeal does not give rise to any inference of bias. Justice Corbett gave lengthy, detailed reasons for his ruling on that matter. The fact that a judge rules against a litigant in more than one matter is not, on its own, sufficient to give rise to an apprehension of bias.

[39] In fact, on several occasions, Justice Corbett accommodated Mr. Isaac and gave him additional time to perfect his appeal. Justice Corbett gave Mr. Isaac every opportunity to move his appeal forward so it could be argued on its merits. A reasonable, informed observer could only conclude that Justice Corbett was not biased against Mr. Isaac. Rather, Justice Corbett was simply enforcing his own case management order.

Merits of the Appeal

[40] Mr. Isaac argues that it is in the interests of justice to set aside Justice Corbett’s decision because his appeal has substantial merit. We disagree.

[41] The decision from the LSO Tribunal Hearing Division that gave rise to Mr. Isaac’s appeal to the LSO Appeal Tribunal that was dismissed for delay was a denial of his request for reinstatement. Since that decision, Mr. Isaac was reinstated so the substantive portion of his underlying appeal appears to be moot.

[42] Mr. Isaac also appealed the $3,300 costs order made by the Law Society. We are not persuaded that Mr. Isaac’s appeal from the costs order has sufficient merit to justify setting aside Justice Corbett’s decision. Costs orders are inherently discretionary and are subject to significant deference on appeal. Mr. Isaac has not identified any error that requires review.

[43] For the above reasons, the appeal is dismissed.

Costs

[44] The LSO seeks $7,747.85 in partial indemnity costs. Mr. Isaac argues that the LSO should not be awarded any costs even if successful on this motion. He argues that the LSO is unreasonably frustrating his ability to pursue his appeal on the merits.

[45] We disagree. Mr. Isaac is the one who has caused all the delay in this matter by failing to pursue his appeal with reasonable diligence and by breaching numerous court orders. The LSO is entitled to its costs as the successful party. We find that it would be just and reasonable to award the LSO $4,500 in costs on this motion, all inclusive.

[46] Mr. Isaac is ordered to pay the Law Society $4,500 in costs inclusive of HST and disbursements.

R.M. Pomerance J.

A.D. Kurke J.

B. Davies J.

Date: June 15, 2022