[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Deokaran v. Law Society of Ontario, 2023 ONSC 5666
DIVISIONAL COURT FILE NO.: DC-23-413 JR
DATE: 2023-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, GORDON, LOCOCO, JJ.
BETWEEN:
Gabriella Varsha Deokaran
Applicant
– and –
Law Society of Ontario
Respondent
Appearing on her own behalf
Stephen Wishart and Nathan Pendergast, for the Respondent
HEARD at Toronto via Zoom: September 25, 2023
DECISION ON JUDICIAL REVIEW
Overview
[1] On December 24, 2021 the Law Society Tribunal Hearing Division (LSTHD) suspended the applicant’s license to practice law pending her conduct hearing. The LSTHD subsequently issued a costs order with respect to the interlocutory proceeding, ordering the applicant to pay $60,357.96 in costs over a four-year period.
[2] The applicant appealed the interlocutory suspension of her licence and the costs award to the Law Society Tribunal Appeal Division (LSTAD). By decision released June 5, 2023 her appeals were dismissed.
[3] The applicant seeks judicial review of these decisions.
Jurisdiction
[4] The decision of the LSTAD is not a final decision and accordingly there is no appeal available to the applicant under s. 49.38 of the Law Society Act, R.S.O. 1990, c. L.8. In the circumstances, the matter is properly before us as an application for judicial review.
Standard of Review
[5] The applicant submits that she was denied procedural fairness because the decisions under review failed to provide meaningful reasons to justify the decisions made.
[6] As the Supreme Court of Canada confirmed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 2 S.C.R. 653, reasons explain how and why a decision was made and facilitate meaningful judicial review by shedding light on the rationale for the decision. The purpose of the reasons is to demonstrate justification, transparency and intelligibility. Reasons are not to be assessed against a standard of perfection and must be read with sensitivity to the institutional setting and in light of the history and context of the proceedings in which they were rendered.
[7] The applicant also submits that the decisions were not reasonable.
[8] As held in Vavilov the focus of a reasonableness review is to be on the decision actually made including the decision maker’s reasoning process and the outcome. In applying the reasonable standard, the court does not ask what decision it would have made in the place of the administrative decision maker, attempt to ascertain the range of possible conclusions that would have been open to the decision maker, conduct de novo analysis or seek the determine the “correct” solution to the problem. Rather, the reviewing court must consider only whether the decision, including both the rationale for the decision and the outcome to which it led, was unreasonable. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the applicable facts and law that bear upon the decision.
Background
[9] On or about July 9, 2021 the Law Society of Ontario (LSO) served its conduct application on the applicant. The application contained 42 allegations of professional misconduct arising from 12 investigations.
[10] On July 12, 2021 LSO delivered its motion for an interlocutory suspension of the applicant’s license. Initially, the motion was in relation to the 12 investigations that gave rise to its application as well as two ongoing investigations into judicial complaints about the applicant’s conduct. During the course of the motion, three other investigations into the applicant’s conduct were initiated. Accordingly, the LSO’s motion was ultimately in relation to 17 investigations (the two judicial complaints and the three complaints received after the motion was first delivered are referred to herein as the “new complaints”).
[11] The motion for interlocutory suspension was heard over four days. Before the tribunal was the LSO’s written record exceeding 2,400 pages. The LSTHD heard testimony from the LSO investigator Ms. Oliphant, Glenda Perry (a lawyer who had made allegations of misconduct), Stanley Jenkins (counsel at Legal Aid Ontario), Steven Hinkson (a lawyer who was supervising the applicant pursuant to an earlier interim order of the LSTHD), the applicant, Stephen Elwood (an expert in digital forensics called by the LSO), Jessica Freedman (a lawyer who had had dealings with the applicant), and Swetha Kumar (a previous partner of the applicant). The concerns regarding the applicant’s conduct generally related to her dealings with clients, counsel, members of the public and the judiciary. Some of the more serious allegations included improper disclosure of confidential client information, misrepresenting to clients that steps had been taken when they had not, unauthorized use of a Teranet account, commissioning improper affidavits of service, practicing while suspended by sending correspondence to another lawyer using a false name, and making unsubstantiated claims that various opposing counsel acted unethically.
[12] The LSTHD concluded that there were reasonable grounds to believe the applicant posed a significant risk of harm to members of the public and to the public interest in the administration of justice, and that the complaints raised serious concerns as to the applicant’s honesty and integrity, a fundamental tenet of the administration of justice. It held that in the circumstances nothing short of an interlocutory suspension would adequately address the risk of harm.
[13] The LSTHD invited written costs submissions, requiring LSO to file its submissions within 30 days and the applicant to file within 30 days thereafter. The LSO delivered its written submissions on April 13. On May 12 the applicant wrote to the LSTHD seeking, on consent of the LSO, a one-week extension for filing of her submissions to May 24, 2022. On May 18 she emailed the LSTHD requesting a conference to discuss the extension of time and by reply email on that same day the tribunal responded that it had no objection to the one-week extension that had been requested. By the close of business on May 24 no costs submissions had been made by the applicant. On May 25 the applicant e-mailed the LSTHD seeking a further two-day extension. This request was not answered, nor were several other e-mail requests for extensions. On June 2 the file management coordinator for the LSTHD wrote to the parties noting that no costs submissions were received from the applicant. The LSTHD released its costs decision on July 15, 2022.
[14] The applicant’s appeal of the LSTHD decision and the costs decision was heard by the LSTAD on January 26, 2023. Her notice of appeal raised four grounds of appeal: (1) the panel failed to provide adequate reasons; (2) the panel misapprehended the evidence before it; (3) the panel erred by applying the wrong test when imposing the suspension; and (4) the panel failed to consider the alleged bias of the LSO investigator. The costs decision was appealed on the basis that she was denied natural justice. The appeal was dismissed in its entirety by a decision of the LSTAD released on June 5, 2023.
The Issues on Judicial Review
[15] The applicant seeks judicial review of the LSTHD and LSTAD decisions based on grounds:
The LSTHD and LSTAD failed to provide adequate reasons.
The LSTHD failed to consider the applicant’s argument that the LSO’s investigation resulted in a denial of her right to natural justice.
The LSTHD lacked jurisdiction.
There was a reasonable apprehension of bias by the LSTHD and the LSTAD.
The LSTHD breached its duty of procedural fairness to the applicant when it issued its costs decision without submissions from her.
Analysis
Adequacy of the Reasons
[16] The applicant challenges the adequacy of the reasons provided by both the LSTHD and the LSTAD on the bases that: (i) the LSTHD made bold conclusory statements using boilerplate language and without providing their rationale for doing so; (2) the LSTHD and LSTAD failed to consider salient evidence; (3) the LSTHD and the LSTAD failed to consider alleged threats made by Justice Zisman and Justice Zisman’s “dangerous position on recusal motions”; (4) the LSTHD and LSTAD failed to consider “discriminatory statements” toward her in the complaint filed by Justice Clay and “inappropriate behaviour by Justice Clay”;
Use of conclusory statements and failure to provide rationale
[17] We do not agree that the LSTHD failed to provide a rationale for its finding that there was a risk of harm.
[18] The LSTHD correctly noted that: (1) reasonable grounds for believing there is a significant risk of harm to members of the public requires an objective basis for belief based on compelling and credible information; (2) the risk of harm need not be demonstrated on a balance of probabilities; and (3) the harm itself need not be substantial.
[19] The LSTHD then identified many serious concerns with respect to the applicant’s dealing with clients, the public, opposing counsel and third-party organizations and gave specific examples with respect to each. It also identified serious concerns arising from the judicial complaints. The LSTHD recognized the denials made by the applicant but noted they were contradicted by several witnesses. In particular, the LSTHD indicated that the evidence of Ms. Kumar and Ms. Perry had not been impeached notwithstanding their cross-examination alleging revenge as a motive.
[20] Although its finding might have been more eloquently stated, a fair reading of the entire decision makes it clear that the LSTHD had before it strong evidence of an obvious pattern of conduct that would expose the public and the administration of justice to harm.
Failure to consider salient evidence
[21] The applicant submits that the LSTHD failed to consider a good deal of evidence pertaining to the complainants Molly Leonard, MT, SG, JF, Ms. Kumar and Ms. Perry.
[22] With respect to the evidence pertaining to Molly Leonard, MT, SG and JF, none of the evidence or argument raised by the applicant before us was argued or raised in her counsel’s closing argument at the hearing. The LSTHD cannot be expected to address issues that were not raised before it.
[23] With respect to the evidence of Ms. Kumar, the applicant submitted that her testimony was impeached when she denied the Land Registry Tribunal’s finding that she lied in her affidavit with respect to the use of her Teranet key. However, a review of the Land Registry Tribunal decision reveals that although there was a finding that Ms. Kumar was in breach of her duty to protect her password, it expressly declined to make a determination that she did so knowingly. Interestingly, that same decision found that Ms. Deokaran was “culpable for having appropriated and used an identity that was not hers in order to gain access to the electronic registration system”.
[24] With respect to Ms. Perry, the applicant disagreed with the finding of credibility made by the LSTHD. The applicant submitted that Ms. Perry’s credibility was impeached when she did not agree that Justice Aston had made a finding of reasonable apprehension of bias when in his decision he stated: “I think that on reflection it would be very difficult for Ms. Deokaran’s client to have confidence in the fact that there was a fair hearing today, so I’m not going to hear either motion”. When this statement was put to Ms. Perry, she quoted a further passage from Justice Aston’s decision in which he stated, “I understand the need for there to be an appearance of fairness, as well as an actual fair result…”. In Ms. Perry’s view this was not the same as there being a reasonable apprehension of bias. Whether or not Ms. Perry was correct, this was one small segment of her evidence and was not raised specifically by her counsel in argument before the LSTHD. It is not reasonable to infer that it would have affected her credibility with respect to the totality of her evidence.
[25] Findings of credibility made by a decision maker who had the opportunity to hear and observe the witnesses is entitled to deference.
The LSO Investigation
[26] The fairness of the LSO investigation was not raised as a substantive issue before the LSTHD. The only reference in her counsel’s argument that pointed to any allegation of unfairness in the investigation was his having questioned Ms. Oliphant about not re-interviewing complainants once she had the applicant’s response to the complaints that indicated ongoing animus between them. He at no time argued that the investigation was unfair or in breach of the applicant’s right to natural justice. The LSTHD cannot be faulted for failing to address arguments that were not advanced before it.
The alleged threats, etc. by Justice Zisman
[27] That Justice Zisman allegedly made threats towards her, or that she had an allegedly “dangerous position with respect to recusal motions” was not argued before the LSTHD. Again, it cannot be expected to address arguments that were not before it.
Conduct of Justice Clay
[28] There was no argument before the LSTHD that Justice Clay made discriminatory statements towards the applicant or that there was inappropriate behaviour by him. Once again, the panel cannot be expected to address arguments that were not advanced before it.
Investigation denied the applicant procedural fairness and natural justice
[29] The applicant submitted that the LSTHD erred in law by failing to consider her argument that Ms. Oliphant’s investigation gave rise to a denial of her right to natural justice.
[30] As noted above, this argument was not made by her counsel before the LSTHD.
[31] To the extent the applicant asks that we find she was denied procedural fairness or natural justice, it is based on her not having had the opportunity to respond to the new complaints prior to the matter being referred by the LSO investigator to discipline counsel. The applicant has pointed to no authority requiring the LSO to complete its investigation prior to bringing its motion for interlocutory relief. The LSO regarded her conduct as sufficiently serious to warrant an application for interlocutory suspension and indicated in its documents that the new complaints were still under investigation. In the circumstances, the LSO was not obliged to await her reply to those complaints before bringing its motion; but procedural fairness and her right to natural justice required that she have a fair opportunity to address those complaints at the hearing of the motion. To that end, the initial interlocutory hearing date of August 3, 2021 was adjourned to September 27, 2021, at the applicant’s request, to allow her that opportunity. On September 23, 2021 the LSTHD entertained a further request for adjournment made by her and put the matter over to October 18, 2021. Notwithstanding these adjournments the applicant did not file any formal response to the new allegations. In the circumstances we do not agree that there has been any denial of procedural fairness or natural justice.
No jurisdiction to consider Part 2 of the Test under [section 49.27](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l8/latest/rso-1990-c-l8.html) of the [Law Society Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l8/latest/rso-1990-c-l8.html)
[32] Section 49.27 of the Law Society Act and rule 21.01 of the LST’s Rules of Practice and Procedure require that two criteria be satisfied before the LSTHD can make an interlocutory order suspending or restricting the manner in which a licensee may practice law or provide legal services: (1) there are reasonable grounds for believing that there is a significant risk of harm to members of the public, or to the public interest in the administration of justice, if the order is not made; and (2) there are no less restrictive measures that would adequately protect the public interest.
[33] The applicant submits that the LSTHD provided no reasons for its decision on the first criterion and was therefore without jurisdiction to consider the second.
[34] As noted above, we are satisfied that the reasons of the LSTHD are sufficient on the issue of whether there was a significant risk of harm to members of the public or to the public interest. That finding having been made, the LSTHD properly considered the second criterion.
[35] The applicant also challenges the finding of the LSTHD on the second criterion. She submits that it was improper for it to have considered her failure to involve her supervisor in the dealings she had with Legal Aid Ontario (LAO) because she was acting on her own behalf in a personal appeal from a decision of the LAO to the Divisional Court. However, the concern was not that she undertook an application for judicial review of an LAO decision without consulting her supervisor. It was that her communications with LAO concerning the application and its date for hearing was “at best inaccurate and at worst deliberately misleading”, and occurred while she was under supervision. The consideration of this evidence, along with all of the other evidence, to conclude that there are serious concerns as to her honesty and integrity was not unreasonable.
Is there a reasonable apprehension of bias?
[36] The applicant alleges a reasonable apprehension of bias because the LSTHD and the LSTAD failed to consider any of the evidence presented by her and failed to consider the authorities cited by her.
[37] We disagree. A fair reading of the decisions indicates that the evidence and authorities provided by the applicant were given consideration. There is no evidence to support a finding of a reasonable apprehension of bias.
The costs decision
[38] The LSTHD, in its decision of March 18, 2022, directed the LSO to provide its cost submissions within 30 days (by April 18) and the applicant to respond within 30 days thereafter (by May 18). Submissions were to be limited to three pages exclusive of dockets and/or authorities. The applicant was provided with the LSO’s cost submissions on April 13, 2022. On May 12, 2022 the applicant requested and was granted an extension to May 24. She thereafter made several email requests to the LSTHD asking to schedule a conference to discuss further extensions of time.
[39] Although it would have been preferable for the LSTHD to have answered the applicant’s e-mail requests we cannot find that she was denied procedural fairness or natural justice. As noted by the LSTAD, “She simply chose not to file any response before a deadline that had already been extended once by the panel. Furthermore, she chose not to request a further extension until after the (extended) deadline had run. Finally, when she did submit her untimely e-mail, she chose to submit no affidavit, but made only a bare request with an unsworn averral as to her difficulties obtaining material from her former counsel what would purportedly be relevant to the issue of the Law Society’s costs, for reasons that remained unstated.”
Conclusion
This application for judicial review is dismissed. Costs are awarded to the respondent in the amount of $4,000 all inclusive.
H. Sachs, J.
R.D. Gordon, J.
R. Lococo, J.
Released: November 14, 2023
CITATION: Deokaran v. Law Society (Ontario), 2023 ONSC 5666
DIVISIONAL COURT FILE NO.: DC-23-413 JR
DATE: 2023-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, GORDON, LOCOCO, JJ.
BETWEEN:
Gabriella Varsha Deokaran
Applicant
– and –
Law Society of Ontario
Respondent
DECISION ON JUDICIAL REVIEW
Released: November 14, 2023