CITATION: Deokaran v. Law Society of Ontario, 2023 ONSC 1702

DIVISIONAL COURT FILE NO.: DC-20-86

DATE: 20230314

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Lederer, Charney JJ.

BETWEEN:

GABRIELLA V. DEOKARAN

Appellant

– and –

LAW SOCIETY OF ONTARIO

Respondent

Gabriella V. Deokaran, Self-Represented

Stephen Wishart, for the Respondent

HEARD at Toronto: February 15, 2023 by video conference

REASONS FOR DECISION

CHARNEY J.:

A. Introduction

[1] By a decision dated August 24, 2018, the Law Society of Ontario Tribunal, Hearing Division, found Gabriella V. Deokaran liable for professional misconduct in failing to reply promptly and completely to Law Society communications in connection with two separate investigations. The Hearing Division suspended her licence to practice law for one month, followed by an indefinite suspension until Ms. Deokaran provided a complete response to the specific Law Society requests for information relating to complaints received by the Law Society: Law Society of Ontario v. Deokaran, 2018 ONLSTH 132.

[2] On January 22, 2020, the Appeal Division of the Law Society Tribunal affirmed the Hearing Division’s decision: Law Society of Ontario v. Deokaran, 2020 ONLSTA 2.

[3] Ms. Deokaran appeals to the Divisional Court pursuant to s. 49.38(b) of the Law Society Act, R.S.O. 1990, c. L.8. She appeals the Appeal Division’s decision upholding the Hearing Division’s decision and the costs awards of $6,000 made by the Hearing Division and $30,000 made by the Appeal Division.

[4] For the reasons that follow, Ms. Deokaran’s appeal is dismissed.

B. Facts

i) Hearing Division Proceedings

[5] In discipline proceedings the Law Society alleged that Ms. Deokaran engaged in professional misconduct in failing to reply promptly and completely to Law Society communications in connection with two separate investigations.

[6] Ms. Deokaran denied the allegations.

[7] There was no dispute at the hearing on August 24, 2018 that the Law Society’s investigator had sent Ms. Deokaran a number of letters requesting information in connection with two outstanding investigations. It also was not in dispute that the final deadline provided to Ms. Deokaran to respond to the allegations was June 11, 2018.

[8] Ms. Deokaran’s position was that she had provided a comprehensive response to the Law Society by letter dated June 11, 2018, which she personally delivered to the Law Society mailroom on that date. This position was advanced in an affidavit signed by Ms. Deokaran and dated August 22, 2018, with a copy of her response materials attached as an exhibit. The affidavit was delivered to the Law Society the same date. This was two days before the hearing.

[9] In response to Ms. Deokaran’s affidavit, the Law Society filed reply material on August 23, 2018, including evidence (in the form of will-says) about its mailroom practices and copies of e-mail exchanges between the investigator and Ms. Deokaran. The Law Society’s position was that Ms. Deokaran did not deliver her response on June 11, 2018, and that the first time Ms. Deokaran claimed to have delivered the material on June 11, 2018 was when she served her affidavit on August 22, 2018. It was also the Law Society’s position that even if the response was delivered on June 11, 2018, it was still inadequate and did not amount to a defence to the allegations.

[10] At the commencement of the hearing on August 24, 2018, Ms. Deokaran’s counsel consented to the filing of the Law Society’s rebuttal evidence and confirmed, on the record and in Ms. Deokaran’s presence, that she had instructed him to proceed and was not requesting an adjournment.

[11] The primary dispute at the hearing was factual. Did Ms. Deokaran deliver her response to the Law Society mailroom on June 11, 2018? The Hearing Division heard evidence on this issue, first from the Law Society investigator and a representative of Ricoh, the company that manages the mail delivery for the Law Society, and then from Ms. Deokaran in the form of her affidavit and the cross-examination on the affidavit.

[12] The Hearing Division rejected Ms. Deokaran’s defence. The adjudicator’s finding of professional misconduct turned on his negative assessment of Ms. Deokaran’s credibility. He concluded that the letter was not delivered to the Law Society as Ms. Deokaran claimed. He also concluded that, even if his conclusion on that issue was incorrect, the letter did not reply completely to all of the requests made by the Law Society in its original communications.

[13] The Hearing Division found, at paras. 30-31:

The significance of the evidence of the Law Society witnesses about mailroom practices can be summarized as follows. A record is typically generated by Ricoh when a package is delivered to the mailroom. No such record was generated in connection with the June 11 letter. Furthermore, the letter did not surface within the Law Society before it was delivered as part of the Lawyer's affidavit in connection with this hearing. No evidence was submitted to allow me to conclude that a package might have been mislaid once received by Ricoh. The Law Society asks me to infer, based on this evidence, that the letter was never delivered.

The Lawyer’s evidence about the steps she took to deliver the June 11 letter raises a number of concerns. Her affidavit is bereft of details about what time of day she attended at the mailroom, where she left the materials, to whom she spoke (if anyone), and why she did not ask for a receipt. The Lawyer’s e-mail [to the investigator] of June 18 also suggests that the letter had not been delivered – otherwise, why ask for confirmation that the request for a further extension had been denied? And if the Lawyer had just delivered a lengthy set of materials on the deadline but wanted more time to amplify her response, one would have expected that to be spelled out in the e-mail. Instead, the only letter the Lawyer refers to in her e-mail was “your recent letter,” which the Lawyer conceded in her evidence was a reference to the last letter received from Oliphant [the investigator] on May 31, 2018.

[14] With respect to the completeness of the material provided, the Hearing Division found, at paras. 24-25, that the copy of the material provided as an exhibit to Ms. Deokaran’s affidavit did not include the client file or any of the client trust ledgers or supporting documents the Law Society had requested.

[15] The Hearing Division concluded that Ms. Deokaran had committed professional misconduct as alleged.

ii) Appeal Division Proceedings

[16] On appeal, the Appeal Division of the Law Society’s Tribunal upheld the liability and penalty decisions of the Hearing Division.

[17] Ms. Deokaran advanced the following grounds of appeal, 2020 ONLSTA 2, at para. 8:

a. She was denied procedural fairness and was unable to present her best evidence to the Tribunal;

b. An adverse finding of credibility was made in contravention of the rule in Browne v. Dunn;

c. The adjudicator erred by failing to ensure that she was afforded a fair hearing;

d. The adjudicator applied the wrong test in determining whether she had responded to the Law Society in a prompt and complete manner;

e. The Law Society led evidence of a prior suspension after advising the Appellant that it would concede that she had no disciplinary history; and

f. Duty counsel provided ineffective representation, resulting in breaches of natural justice, salient evidence going unchallenged, and an adverse finding of credibility being made against the Appellant.

[18] The Appeal Division heard fresh evidence with respect to the effective assistance of counsel issue, considered each ground of appeal, and set out detailed reasons for rejecting each.

[19] With the exception of subparagraph 17 (e) above, the Appellant raises the same issues in her appeal before this Court. I will outline the Appeal Division’s reasons as I address those issues in this decision.

C. Appeal to Divisional Court – Standard of Appellate Review

[20] The standard of review for appeals under s. 49.38(b) of the Law Society Act was summarized by this Court in Khan v. Law Society of Ontario, 2022 ONSC 1951, at paras. 72 – 77 (footnotes omitted):

Where a ground of appeal raises an issue of law alone, the standard of review is correctness.

Where the ground of appeal raises a question of fact, the appellate court must pay substantial deference to it. Before it may properly interfere, the appellate court must conclude that the submitted error amounts to a “palpable and overriding error”. The word “palpable” means “clear to the mind or plain to see”, and “overriding” means “determinative” in the sense that the error “affected the result”. The Supreme Court has held that other formulations capture the same meaning as “palpable error”: “clearly wrong”, “unreasonable” or “unsupported by the evidence”.

Examples of palpable error include: (a) findings made in the complete absence of evidence (this could also amount to an error in law); (b) findings made in conflict with accepted evidence; (c) findings based on a misapprehension of the evidence; (d) findings of fact, drawn from primary facts, that are a result of speculation rather than inference; and (e) findings of fact based on evidence that has no evidentiary value because it has been rejected by the trier of fact.

Matters of mixed fact and law lie along a spectrum; where the error of the decision-maker can be traced to a clear error in principle, it may be characterized as an error of law and subjected to a standard of correctness; where the legal principle is not readily extricable, then the matter is subject to standard of palpable and overriding error.

In Law Society of Ontario v. Diamond, a post-Vavilov decision, the Court of Appeal held that the question of whether a lawyer engaged in professional misconduct is a question of mixed fact and law reviewable on a standard of palpable and overriding error...

[21] It is well established that procedural fairness is a question of law and therefore the standard of review is correctness: Hutchinson v. Aviva General Insurance Company, 2023 ONSC 1472, at para. 14; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 30; Mission Institution v. Khela, 2014 SCC 24, at para. 79.

D. Grounds of Appeal

[22] The Appellant raises five issues on this appeal that she argued before the Appeal Division and combines them with additional issues to argue a total of seven grounds of appeal. These grounds are:

i. Duty Counsel provided ineffective assistance and the Appeal Division failed to apply the correct test to determine the issue of ineffective assistance of counsel.

ii. The Hearing Division made an adverse credibility finding in violation of the rule in Browne v. Dunn.

iii. The Respondent failed to effect service on the Appellant, contrary to Rule 10.04 of the Law Society Tribunal Rules of Practice and Procedure.

iv. The Appellant was denied procedural fairness.

v. The Hearing Division made credibility findings based on contradictory findings.

vi. The Hearing Division made adverse credibility findings in the absence of relevant evidence.

vii. The Hearing Division applied the wrong test for misconduct.

i) First Ground of Appeal – Ineffective Assistance of Counsel

[23] The Appellant was represented by duty counsel during the hearing. She argues that the conduct of duty counsel amounted to ineffective assistance which resulted in a miscarriage of justice. She also argues that the Appeal Division applied the wrong test to determine the issue of whether she was provided with ineffective assistance.

[24] The Appellant claims that duty counsel failed to review the Law Society’s August 23, 2018 disclosure with her, failed to advise her of its implications, and failed to advise her to seek an adjournment in order to provide a “full answer and defence” to the new material. This resulted in prejudice to the Appellant, deficiencies in the Appellant’s evidence and an adverse finding on credibility.

[25] At the hearing before the Law Society Appeal Division, Ms. Deokaran relied on a fresh evidence affidavit where she claimed that her lawyer failed to:

• present and carefully review the new disclosure with her;
• advise her on the implications of the new disclosure;
• request instructions about an adjournment with respect to the new disclosure;
• advise what type of evidence would be best to adduce to challenge the new disclosure;
• afford the Appellant sufficient time to mobilize evidence to challenge the new evidence, in order to present a full answer and defence; and
• document his interactions with her.

[26] The Appeal Division also received affidavit evidence and heard cross-examination from the duty counsel and his junior who acted for Ms. Deokaran at the first hearing, responding to each of Ms. Deokaran’s allegations.

[27] The Appeal Division panel identified the correct legal test for ineffective assistance of counsel, at para. 69:

Three components or preconditions are required to establish a claim of ineffective assistance by counsel:

1. The underlying facts on which the claim of incompetence is based must be established on a balance of probabilities (the factual component);

2. Incompetent representation must be established (the performance component).

3. The incompetent representation caused a miscarriage of justice (the prejudice component).

See: R. v. G.D.B., 2000 SCC 22, [2000] 1 SCR 520, at para. 26; Gligorevic v. McMaster, 2012 ONCA 115, 109 OR (3d) 321, at para. 66.

[28] The Appeal Division panel held the allegation of ineffective assistance of counsel failed to meet the first component of the test. It found, at para. 86, that the evidence of Ms. Deokaran at the appeal hearing was “false and misleading”. The panel stated, at paras. 70-71:

[T]he issue before us here turns on a question of credibility. To assess the conduct of duty counsel and determine whether he provided effective assistance, we must decide whether the facts support the appellant’s assertion of incompetence; that is, we must decide whether we prefer the appellant’s factual evidence over the evidence of the Law Society.

The appellant makes a number of bald and unsubstantiated assertions about her interactions with duty counsel that are neither supported by the record nor corroborated by any objectively credible documents. Those assertions are flatly and unequivocally denied by duty counsel and his junior. We prefer the fresh evidence of the Law Society to the fresh evidence of the appellant.

[29] The Appeal Division did not simply rely on the affidavit and cross-examination of the duty counsel. It found that the evidence of the duty counsel was consistent with his emails to the Appellant, and consistent with the duty counsel’s remarks on the record at the start of the hearing. For example, on August 16, 2018, duty counsel wrote to the Appellant about the upcoming hearing and specifically told the appellant that she should provide “any evidence” of her attendance at the Law Society mail room on June 11, 2018. The panel stated, at paras. 80 and 82:

Duty counsel had no reason to proceed with the hearing contrary to the instructions or wishes of his client – rather, it would have been simpler and very straightforward to request an adjournment at that time. His conduct in proceeding with the hearing and in dealing with the additional disclosure was reasonable and competent, and in accordance with his instructions from the appellant.

The appellant submits that duty counsel should have helped and advised her to “mobilize” evidence to “challenge” the new disclosure. However, it is clear from the facts that this would have been a fruitless endeavour. Even with an adjournment, the appellant could not have changed or “improved” her evidence or invented proofs of service to address the new disclosure.

[30] There is no basis for this Court to interfere with the factual findings of the Appeal Division on this issue. In Farsi v. Da Rocha, 2020 ONCA 92, 444 DLR (4th) 197, the Court of Appeal for Ontario stated, at para. 35:

A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte‑Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, “[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case.”

[31] There is no basis to accept the argument that the Appeal Division made a palpable and overriding error in its credibility findings or findings of fact. The panel gave detailed and careful reasons for the factual findings made. Its findings were neither unreasonable nor arbitrary. Where there was conflicting evidence, the panel was entitled to weigh that conflicting evidence and decide which witnesses or evidence it preferred. The Appellant is asking this Court to reweigh the evidence heard by the Appeal Division.

[32] Once we accept the Appeal Division’s factual findings, there is no basis to conclude that there is any error of law in the application of the legal principles to the facts of this case. The decision to proceed on August 24, 2018 was a strategic decision on the part of Ms. Deokaran and her lawyer. There is no suggestion that Ms. Deokaran had further or better evidence to support her claim that she personally delivered the documents to the Law Society mail room on June 11, 2018. There is no merit to this ground of appeal.

ii) Second Ground of Appeal – Violation of the Rule in Browne v. Dunn

[33] The Appellant argues that the Law Society violated the common law rule in Browne v. Dunn (HL), because she was not given express notice that the Law Society intended to challenge her truthfulness at the hearing, and, she says, she was not cross-examined about whether she had delivered the documents to the Law Society mail room on June 11, 2018, as she claimed.

[34] This argument was first raised in the Hearing Division. The Tribunal rejected the argument, stating, at para. 32:

In argument Mr. Tufman, in a succinct but able submission, pointed out that at no time during the Lawyer’s oral testimony did Law Society counsel directly suggest to her that she had not delivered the letter. While this is true, Law Society counsel did attempt to impeach her testimony in a number of respects, and cross-examined her about the inconsistencies between her affidavit evidence on delivery of the letter and the June 18 e-mail.

[35] The Appeal Division also rejected this argument, explaining that the Appellant did have notice that her evidence was being impeached. The panel stated, at paras. 14-19:

The rule in Browne v. Dunn stems from a scenario where the plaintiff’s witnesses were not given notice that their evidence would be impeached, and were not cross-examined in relation to their evidence. The impeaching evidence was introduced without notice to the plaintiff, after the plaintiff’s case was closed and there was no opportunity to respond to the impeaching evidence. That fact situation is completely different from what occurred at the hearing of this matter.

Here, the hearing was convened specifically to address the allegation that the appellant had failed to respond to the Society. The appellant was fully aware of that allegation – it was the only and core issue of the hearing.

The appellant was also aware of the fact that the Law Society would be tendering evidence from its investigator to support its case. At the hearing of August 24, 2018, the appellant introduced last-minute evidence (an affidavit sworn August 22, 2018) asserting that she had indeed responded. On August 23, the Law Society in turn filed last-minute rebuttal evidence to refute that assertion...

The record shows that the appellant did have notice that her credibility would be impeached. The Law Society had filed its rebuttal material prior to the hearing, and the appellant was aware of the material and had had an opportunity to review it, as we discuss below.

Also, at the hearing, the appellant was cross-examined on the truthfulness of her sworn affidavit. She was directly questioned about the fact that she said, in her August 22 affidavit, that she had responded to the Society on June 11, 2018. She was also questioned about why she had not mentioned this in an e‑mail to the investigator on June 18, 2018.

We find in these circumstances the rule in Browne v. Dunn was not violated. The rule in Browne v. Dunn is not applicable where it is “otherwise perfectly clear that [the person being impeached] has had full notice beforehand that there is an intention to impeach credibility of [the] story.” The Divisional Court has recently affirmed that parties who are well aware of the allegations made against them need not be cross-examined on those allegations [Ontario (College of Physicians and Surgeons of Ontario) v. Lee, 2019 ONSC 4294 (Div. Ct.), at para. 78].

[36] The Law Society proceeded first at the trial. The Appellant knew that the Law Society’s position was that it had no record of receiving the Appellant’s letter in its mail room on June 11, 2018, and that it would ask the Tribunal to draw an inference that the letter had not been delivered. The Appellant was specifically asked on cross-examination why, when she emailed the Law Society investigator on June 18, 2018 to inquire about her extension request, she made no reference to having personally delivered the material on June 11, 2018. She was unable to provide an explanation for this omission. This was an important basis for the Hearing Division’s rejection of her claim.

[37] I agree with the conclusions of the Hearing Division and the Appeal Division that there was no unfairness and in these circumstances the rule in Browne v. Dunn was not violated.

iii) Third Ground of Appeal – The Respondent Failed to Effect Service on the Appellant

[38] The Appellant argues that the Law Society failed to comply with Rule 10.04 of the Law Society Tribunal Rules of Practice and Procedure, which were in effect at the time of the original hearing. At the time, Rule 10.04 provided:

For this Rule and Rule 9, service on a licensee using contact information provided to the Law Society under By-Law 8, ss. 3 and 4 shall be deemed effective unless otherwise ordered by the Tribunal.

[39] The Appellant argues that the material served by the Law Society on August 23, 2018 was served on her lawyer’s junior associate without her authorization. She argues that she “did not provide the society with any form authorizing either of the Tufmans to accept service of her legal documents”.

[40] This issue was addressed by the Appeal Division after hearing fresh evidence. The Appeal Division found the following facts, at paras. 23-25:

The facts as agreed to by both parties indicate that the appellant first contacted duty counsel Marek Tufman on or about August 16, 2018 and she and duty counsel subsequently had several phone conversations. Duty counsel advised her on preparing her responding materials, including her affidavit of August 22. They met at duty counsel’s office on August 22, to review and finalize the affidavit.

That same day Mr. Tufman advised Law Society counsel that he was acting as duty counsel for the appellant. The e-mail records before us indicate that, in response to email correspondence from counsel for the Law Society, later that same day the appellant sent an email saying, “Please contact my counsel Mr. Tufman.”

Gregory Tufman, junior counsel from Mr. Tufman’s office, filed an affidavit outlining his role in the proceedings. He met with Law Society counsel on August 23, 2018 for the purpose of mutually acknowledging the receipt of the materials which had been previously exchanged. Counsel for the Society then forwarded multiple e-mails to the office of duty counsel, containing additional disclosure, that same afternoon and evening. Gregory Tufman subsequently forwarded those documents to the appellant. [Emphasis added.]

[41] The Appeal Division concluded that Mr. Tufman was authorized to act as counsel for Ms. Deokaran, and that his junior associate was therefore authorized to accept service on her behalf. The Appeal Division states, at paras. 34-35:

Thus, according to the Rule and the commentary, we find that counsel for the Law Society was obliged to communicate only with duty counsel, regardless of whether or not a Form 4 had been filed. Also, we have no difficulty with the fact that duty counsel’s junior, Mr. Gregory Tufman, assisted and took instructions from his principal in this matter, as is normal in a busy law office.

Accordingly, we find that the appellant was not self-represented, as she claims. We find that the appellant’s allegation of procedural unfairness with respect to service of the motion materials is unfounded.

[42] Having advised counsel for the Law Society that she was represented by counsel, the Law Society did not infringe any rule when it served its material on August 23, 2018 on the Appellant’s counsel’s law office. There is no merit to this ground of appeal.

iv) Fourth Ground of Appeal – Appellant Denied Procedural Fairness

[43] The Appellant makes several arguments that the Hearing Division denied her procedural fairness and the right to make full answer and defence:

[44] Her first argument is that the Law Society failed to serve her with its reply material at least 10 days before the hearing, contrary to Rule 19 of the Tribunal’s Rules of Practice and Procedure, which provides:

19.01(1) In a proceeding, the Society, as a party, shall make such disclosure to the subject of the proceeding as is required by law and, without limiting the generality of the foregoing, the Society shall provide to the subject of the proceeding, not later than ten days before the hearing on the merits of the proceeding,

(a) a copy of every document upon which the Society intends to rely as evidence and the opportunity to examine any other relevant document;

(b) a signed witness statement for every witness or, where there is no signed witness statement for a witness, a summary of the anticipated oral evidence of the witness; and

(c) a list of witnesses that the Society intends to call.

[45] The Appellant’s complaint in this regard relates to the service of the Law Society’s reply material on August 23, 2018. She argues that the last-minute reply evidence and witness list deprived her of the opportunity to properly respond to and answer the Society’s new evidence.

[46] The Appeal Division dismissed this argument, finding that her counsel confirmed at the hearing that his instructions were to proceed with the hearing and not request an adjournment. Accordingly, any potential violation of Rule 19 was waived by the Appellant at the hearing.

[47] This ground of appeal is directly related to the ineffective assistance of counsel ground. There is no dispute that the Appellant’s counsel advised the Tribunal, in the Appellant’s presence, that his instructions were to proceed with the hearing and not request an adjournment. Once the Appellant’s ineffective assistance of counsel argument is rejected, her appeal on this ground must also be rejected. Had the Appellant requested an adjournment and been denied that request, she would have an argument that she was denied procedural fairness. Having indicated through counsel that she was prepared to proceed without an adjournment, she cannot now rely on Rule 19 to object to the fairness of the process.

[48] Her second argument was that she was not advised of the particulars of the complaint against her. This argument, like the previous argument, is also related to her ineffective assistance of counsel argument. She alleges that her lawyer failed to inform her of these particulars, even though they were provided to him by the Law Society. Given the factual findings of the Appeal Division in relation to the ineffective assistance of counsel argument, this ground of appeal must also be rejected.

[49] In any event, given her affidavit of August 22, 2018, where the Appellant claimed that she personally delivered the requested material to the Law Society on June 11, 2018, it is difficult to understand how she can now allege that she did not know the allegations against her or the case she had to meet.

v) Fifth Ground of Appeal – Improper Finding of Credibility: Contradictory Findings

[50] This ground of appeal appears to be based on questions that the adjudicator asked counsel for the Law Society during counsel’s closing submissions.

[51] Quoting from the transcript of the proceedings, the Appellant argues that the adjudicator made “findings” during the hearing, and that these “findings” were contradicted by his reasons for decision. For example, during the closing submissions of Law Society counsel, the adjudicator states in relation to the Appellant’s June 18, 2018 email: “So I’m not sure – I’m just not sure I can draw a lot from the email”.

[52] The Appellant argues that this “finding” is inconsistent with the Tribunal’s conclusion at para. 31 of its decision, which makes reference to the June 18, 2018 email.

[53] As I read the transcript, the adjudicator made no such contradictory “findings” during the proceeding. The adjudicator was expressing uncertainties and asking questions - exploring with counsel the significance of the evidence and what inferences might or might not be available. Questions and musings from the adjudicator are not “findings”. Adjudicators frequently ask questions or “think out loud” during counsel’s submissions. This is part of the process of adjudication that leads to a finding. The findings are contained in the written reasons of the Tribunal. There are no contradictory findings in the written reasons, and there is no merit to this ground of appeal.

vi) Sixth Ground of Appeal – Improper Finding of Credibility

[54] The Appellant argues that the Hearing Division erred by making adverse findings of credibility based on the lack of detail in her affidavit regarding her claim to have delivered the letter to the Law Society mail room on June 11, 2018. The Tribunal stated, at para. 31:

Her affidavit is bereft of details about what time of day she attended at the mailroom, where she left the materials, to whom she spoke (if anyone), and why she did not ask for a receipt.

[55] She argues that the Tribunal could not make adverse findings against her because she was never asked these questions on cross-examination.

[56] This is really just a restatement of the Appellant’s Browne v. Dunne argument (the second ground of appeal) and must be rejected on the same basis.

[57] The failure of the Appellant to provide any details to support her claim was one of the factors that the Tribunal relied on when it made its decision. The Tribunal weighed the Appellant’s claim to have delivered the package against the Law Society’s evidence regarding its mail room practices and the records typically generated when a package is delivered. Weighing the competing evidence, which included the Appellant’s June 18, 2018 email that made no reference to her having delivered the material to the Law Society the week before, the adjudicator found the Appellant’s evidence wanting. This was a factual finding he was entitled to make, and there is no basis for this Court to interfere with that finding of fact.

vii) Seventh Ground of Appeal – The Legal Test for Misconduct

[58] The Appellant’s final ground of appeal is that the Tribunal erred in evaluating whether she committed professional misconduct by failing to respond to the Law Society.

[59] All parties agree that the applicable test to determine whether a licensee has engaged in professional misconduct by failing to respond to the Society’s correspondence is that enunciated in Law Society of Upper Canada v. Ghobrial, 2014 ONLSHP 5, at para. 8:

Evaluating whether a licensee committed professional misconduct by failing to respond to the Law Society is straightforward. The issue is whether the licensee was sent correspondence requesting a reply, and acted in good faith to provide a complete and prompt response. The question of whether the response was complete and prompt must be determined by the adjudicator based on all the circumstances, including how the requests were expressed and what was required in order to fulfil them. Although the investigator may set deadlines or express the view that a response was incomplete, the decision on these issues is one for the panel; merely missing a deadline does not amount to failing to provide a prompt response.

[60] The Appellant submits the adjudicator misapplied the test from Ghobrial. She argues he misunderstood the task of evaluating whether delivery of the responses was “prompt” in all the circumstances, focusing instead on whether the Appellant had delivered the responses by the final June 11, 2018 deadline. Further, the adjudicator did not consider whether the Appellant made good faith attempts to provide complete responses.

[61] The Appellant relies on comments made by the adjudicator during counsel’s closing submissions to demonstrate the adjudicator’s misunderstanding of Ghobrial. In these comments the adjudicator notes that if he finds that the Appellant did not deliver the requested material on June 11, 2018, then this means that the Appellant did not deliver the material until she filed her affidavit on August 22, 2018, two days before the hearing. He indicates that previous tribunal decisions have determined that providing a partial response two days before the disciplinary hearing does not qualify as a prompt response. Taken in context, these comments do not demonstrate any misunderstanding on the part of the adjudicator.

[62] In his reasons, the adjudicator correctly summarized the test from Ghobrial, at para. 27:

Evaluating whether a licensee committed professional misconduct by failing to respond to the Law Society is straightforward. The issue is whether the licensee was sent correspondence requesting a reply, and acted in good faith to provide a complete and prompt response. The question of whether the response was complete and prompt must be determined by the adjudicator based on all the circumstances, including how the requests were expressed and what was required in order to fulfill them.

[63] Having concluded that the Appellant did not deliver the material to the Law Society on June 11, 2018, the adjudicator concluded that the Appellant did not reply promptly and completely to the Law Society’s request for information with respect to the two investigations.

[64] The Appeal Division rejected this ground of appeal, finding, at paras. 60-61:

We find that the adjudicator properly applied the Ghobrial test. The adjudicator found, on the balance of probabilities, that the appellant’s representations about the delivery of the responding package to the Law Society were neither credible nor made in good faith. Indeed, he found that the appellant had “blatantly attempted to mislead” the adjudicator and had insinuated that the investigator was at fault.

We find that the adjudicator made no reviewable errors in this regard. The adjudicator’s finding on credibility is entirely reasonable, based on the evidence before him, on the balance of probabilities, and should be accorded deference.

[65] This is not a case where the licensee missed the deadline by a few days but demonstrated good faith efforts to respond promptly. The adjudicator found that the Appellant did not provide the requested material on June 11, 2018, and only provided a partial response on the eve of the disciplinary proceeding, falsely claiming that she had delivered the material two months earlier.

[66] I agree with the Appeal Division that the adjudicator properly applied the Ghobrial test to the facts found, and this ground of appeal must be rejected.

E. Conclusion

[67] For the above reasons, Ms. Deokaran’s appeal is dismissed with costs fixed at $4,000 as agreed by the parties

Charney J.

I agree

Backhouse J.

I agree

Lederer J.

Released: March 14, 2023

CITATION: Deokaran v. Law Society of Ontario, 2023 ONSC 1702

ONTARIO

SUPERIOR COURT OF JUSTICE

Divisional Court

BETWEEN:

GABRIELLA V. DEOKARAN

Appellant

– and –

LAW SOCIETY OF ONTARIO

Respondent

REASONS FOR DECISION

Backhouse, Lederer, Charney JJ.

Released: March 14, 2023