Court File and Parties

CITATION: Deokaran v. Law Society Tribunal and Law Society of Ontario, 2023 ONSC 5432

DIVISIONAL COURT FILE NO.: 460/23 452/23

DATE: 20230926

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: GabriellA VARSHA deokaran, Applicant AND: Law Society Tribunal and Law Society of Ontario, Respondents

AND BETWEEN

GABRIELLA VARSHA DEOKARAN, Applicant AND LAW SOCIETY OF ONTARIO, Respondent

BEFORE: O’BRIEN J.

COUNSEL: Gabriella Deokaran representing herself Cynthia Pay and Lisa Mallia for the Law Society Tribunal Stephen Wishart for the Law Society of Ontario

HEARD at Toronto: by telephone case conference on September 12, 2023

ENDORSEMENT

Overview

[1] This endorsement provides my reasons for dismissing these two judicial review applications pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 following a joint case conference in both matters. As further detailed below, the decisions Ms. Deokaran seeks to judicially review are interim decisions made by the Law Society of Ontario and the Law Society Tribunal pending a conduct hearing scheduled to start in November 2023. The applications are therefore premature and must be dismissed.

[2] In the first decision, dated June 5, 2023, the Tribunal Chair, Malcolm Mercer, scheduled the conduct hearing to start on November 20, 2023, over Ms. Deokaran’s objection that she could not attend a hearing in November for religious reasons. She alleges that he was biased and denied her procedural fairness by conducting his own research on what he understood to be her religious belief. Her notice of application also states that she has the right to advance her defence at the Tribunal in an environment free of racism and sexism and in an environment that promotes equality and respect for all religions.

[3] The second decision Ms. Deokaran seeks to judicially review is found in a letter of July 21, 2023 (wrongly dated 2022) from counsel for the Tribunal. The letter relates to a complaint Ms. Deokaran made to the Tribunal about Mr. Mercer. The letter noted that Ms. Deokaran had repeatedly raised a request that Mr. Mercer be recused from further decision-making on her case. It stated that Mr. Mercer continued to be involved in her matter but would not preside at her case. The letter communicated the Tribunal’s conclusion, reached in consultation with Vice-Chair Peter Wardle, that further action would be postponed on Ms. Deokaran’s complaint against Mr. Mercer until Mr. Mercer’s involvement in her case had been completed.

[4] In her notice of application arising from this letter, Ms. Deokaran also impugns the decision of the Law Society to forward the complaint she made to it against Mr. Mercer to the Tribunal instead of processing it itself. She further alleges that the Tribunal should not have permitted Mr. Mercer to continue as an adjudicator on her file once she started a complaint against him. She alleges that the Tribunal decision to postpone the complaint does not respect Charter values because it perpetuates Mr. Mercer’s discriminatory actions.

Process Leading to r. 2.1.01 Decision

[5] I reached my decision to dismiss these matters under r. 2.1.01 following a case conference in these matters. Ms. Deokaran had the opportunity to respond to the issues leading to the r. 2.1.01 dismissal both in-writing and orally before I reached my decision.

[6] Prior to the case conference, the case management judge issued directions stating that preliminary issues would be discussed at the case conference, along with other matters. She asked the parties to provide their positions including on any preliminary issues prior to the case conference. In their positions, both the Law Society and the Law Society Tribunal submitted that the applications were premature. The Law Society expressly asked the court to dismiss the matters under r. 2.1. The Tribunal also raised the question of whether decisions under the Tribunal complaint process, such as a decision to put a complaint on hold, were susceptible to judicial review.

[7] In Ms. Deokaran’s responding email, she first asked for an extension to provide her position on the issues raised. She sent a subsequent email objecting to the participation of the judge assigned to the case conference, as a result of which the conference was rescheduled at a later date before me. Before the case conference, by her email dated August 22, 2023, Ms. Deokaran provided written submissions of over one page single-spaced addressing the preliminary issues.

[8] At the case conference, I provided Ms. Deokaran the opportunity to make oral submissions on the issues raised by the parties, including the prematurity issue, the issue of the decisions being subject to judicial review, and the r. 2.1 request. In her written and oral submissions, Ms. Deokaran submitted:

1. She has the right to seek relief from this court regardless of whether the applications are in respect of final decisions or there are other appeal routes available because the right to a fair hearing must always render a decision invalid.

2. The Court should intervene to preserve the integrity of the administration of justice by ensuring respect for Charter values.

3. These applications would not fragment the hearing before the Tribunal because the hearing has not yet started.

4. There is no other remedy available to her for a breach of her rights.

5. The order of the Law Society to forward the complaint to the Tribunal rather than processing it itself was a final order.

[9] At the conclusion of the conference, I advised the parties that I had decided to dismiss the applications pursuant to r. 2.1.01 with reasons to follow. Rule 2.1.01(2) authorizes the court to make a determination under r. 2.1.01 in a summary manner. While r. 2.1.01(3) provides a procedure for written submissions, the procedure applies “unless the court orders otherwise.” In this case, I decided there would be little benefit to proceeding with the r. 2.1.01(3) process, since Ms. Deokaran had already provided both written and oral submissions on the questions underlying the request to dismiss.

Reasons for Dismissing Applications Pursuant to r. 2.1.01

[10] Rule 2.1.01 allows the court, on its own initiative, to stay or dismiss a proceeding where it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. The application of r. 2.1 is “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, [2015] O.J. No. 5692, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598, [2023] O.J. No. 3997, at para. 6.

[11] In this case, Ms. Deokaran’s applications were patently premature. This court has repeatedly emphasized the longstanding principle that it will not intervene in administrative proceedings unless there are exceptional circumstances. Further, if there is an adequate alternative remedy, the courts should not intervene before the administrative proceeding has run its course: Volochay v.College of Massage Therapists, 2012 ONCA 541, 111 O.R. (3d) 561, at paras. 68-70; Sudbury and District Health Unit v. Ontario Nurses’ Association, 2023 ONSC 2419, [2023] O.J. No. 2454, at para. 11.

[12] Here, both applications arose from interim decisions in Ms. Deokaran’s ongoing conduct proceedings at the Tribunal. The Tribunal has not yet had a chance to complete its process. The hearing is yet to take place before the Hearing Division of the Tribunal. Once that is complete, Ms. Deokaran would have a right of appeal to the Tribunal’s Appeal Division. She also would have a right of appeal from a final decision of the Appeal Division to this court.

[13] There are no extraordinary circumstances that would justify the fragmentation of proceedings in this case. Raising a human rights or Charter issue does not constitute an extraordinary circumstance: Kustka v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2325, [2023] O.J. No. 1733, at para. 31. Moreover, in the circumstances of this case, it appears Ms. Deokaran did not complete the process Mr. Mercer offered for her to pursue her human rights claim. In his June 5, 2023 endorsement, Mr. Mercer allowed Ms. Deokaran to file evidence in support of her claim that the hearing should not proceed for religious reasons. He stated that the scheduling of the hearing starting November 20 was “subject to adjustment if accommodation is shown to be required.” There is no indication on the record, nor was it suggested in submissions, that Ms. Deokaran ever pursued this opportunity.

[14] There is also no procedural unfairness that constitutes an extraordinary circumstance to justify fragmenting the proceeding. Characterizing an issue as a question of jurisdiction or denial of procedural fairness does not automatically create “exceptional circumstances” warranting early judicial intervention: Volochay at para. 67; Sudbury and District Health Unit, at para. 14.

[15] Indeed, in all the circumstances, it is important that this matter move forward. The history shows that Ms. Deokaran has caused numerous delays of the Tribunal proceeding. As described in further detail in Mr. Mercer’s pre-hearing conference endorsement, the proceeding was started over two years ago. The history of delay includes Ms. Deokaran’s counsel being removed from the record because they had not been able to contact her, Ms. Deokaran’s previous adjournment requests, Ms. Deokaran’s failure to provide a disclosure request as directed, and a recusal motion Ms. Deokaran initiated (which led to an adjudicator electing to recuse herself). At the pre-hearing conference before Mr. Mercer, Ms. Deokaran sought to schedule several further motions. Mr. Mercer did not allow these motions to delay the hearing of the application. He concluded his review by stating that “Ms. Deokaran’s approach has frustrated, and is frustrating, expeditious and efficient decision-making.”

[16] Ms. Deokaran relies on People First of Ontario v. Porter, Regional Coroner Niagara, 1992 7462 (ON CA), 6 O.R. (3d) 289 and Gage v. Ontario (Attorney General), 1992 8517 (ON SCDC), [1992] O.J. No. 696. Those cases were decided on their particular facts and do not undermine the principle that this court will only interfere in an ongoing administrative proceeding in extraordinary circumstances. In People First, the Court of Appeal found it appropriate to allow an appeal with respect to a ruling on production at a coroner’s inquest, even though the inquest was still underway. Though it decided to correct the coroner’s error in the particular circumstances of the case, it also stated at para. 7: “We agree entirely with the Divisional Court that it is undesirable to interrupt inquests with applications for judicial review. Whenever possible, it is best to let the inquest proceed to its resolution and then perhaps, if circumstances dictate, to take judicial proceedings.”

[17] In Gage, the public commissioner had failed to give a police constable notice of a board of inquiry review of his alleged misconduct. This court referred to the “obvious” and “fundamental unfairness” of requiring the police constable to proceed through a hearing in the circumstances. It expressly found the case to constitute “one of those exceptional cases” where the court should exercise its inherent jurisdiction to interfere prior to the completion of the administrative proceedings.

[18] It is evident on the face of these applications that they do not fall within the type of exceptional circumstances found in those cases. There is no manifest procedural unfairness that would justify fragmenting the Tribunal proceedings.

[19] Ms. Deokaran also submits that the decision of the Law Society not to proceed with her complaint against Mr. Mercer, but instead direct the complaint to the Tribunal, constituted a final decision. I do not view the decision as final, since the complaint was directed to the Tribunal, where it has been put on hold but has not been finally disposed of. If viewed in isolation, the Law Society’s decision not to proceed with the complaint itself (but instead transfer it), does not constitute the exercise of a “statutory power of decision” under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 and, therefore, is not susceptible to judicial review: PC Ontario Fund v. Essensa, 2012 ONCA 453, [2012] O.J. No. 2908, at paras. 11-12; Patel v. The Law Society of Ontario, 2022 ONSC 7146, [2022] O.J. No. 5711, at para. 7.

[20] In dismissing the applications under r. 2.1.01, I take into account not only that Ms. Deokaran has failed to exhaust her remedies before the Tribunal, but also that she will have another opportunity to seek review by this court. After the conclusion of her conduct hearing and any appeal to the Appeal Division, it will remain open to Ms. Deokaran to initiate an appeal in this court to make the same allegations that are found in her current applications.

Disposition

[21] Overall, the applications are premature. There are no extraordinary circumstances that would justify this court interfering in the Tribunal’s processes at this stage. The applications are doomed to fail, and I therefore dismiss them pursuant to r. 2.1.01.

O’Brien J.

Date: 20230926