No breach of procedural fairness where a lawyer had an opportunity to provide submissions on costs, but did not do so

The Respondent Law Society’s Tribunal imposed an interim suspension on the Applicant, Ms. Deokaran, and ordered costs against her from that hearing. The Law Society’s Appeal Division denied her appeal. Ms. Deokaran was unsuccessful in applying for judicial review of these two decisions.

Administrative law – Decisions reviewed – Law Societies – Permits and licences – Judicial review – Jurisdiction – Bias – Procedural requirements and fairness – Barristers and solicitors – Professional misconduct – Suspension

Deokaran v. Law Society of Ontario, [2023] O.J. No. 5103, 2023 ONSC 5666, Ontario Superior Court of Justice, Divisional Court, November 14, 2023, H.E. Sachs, R.D. Gordon and R.A. Lococo JJ.

The Applicant lawyer (Ms. Deokaran) was disciplined by the Respondent, Law Society of Ontario (the “Law Society”).

On July 9, 2021, the Law Society served its conduct application on Ms. Deokaran, containing 42 allegations of professional misconduct arising from 12 investigations. On July 12, 2021, the Law Society delivered its motion for an interim suspension of her license to practice. The motion related to the 12 investigations and two judicial complaints. Also, during the motion, three other investigations were initiated. The motion was heard over four days by the Law Society’s Tribunal.

During the hearing, the Tribunal heard evidence from multiple witnesses, including an investigator, an expert in digital forensics, a supervisor, and a partner of Ms. Deokaran. The written record for the hearing exceeded 2,400 pages. The more serious allegations included: improper disclosure of client information, misrepresentations to clients, commissioning improper affidavits of service, and practicing while suspended.

The Tribunal decided that nothing short of an interim suspension would adequately address the risk of harm to the public. The Tribunal then invited written submissions relating to costs. The Law Society made submissions. Ms. Deokaran received an extension of time but then did not end up providing written submissions relating to costs (even after her deadline expired). The Tribunal then made a costs decision in July 2022, ordering Ms. Deokaran to pay $60,357.96 over a four-year period.

Ms. Deokaran appealed the Tribunal’s decision to the Law Society Tribunal Appeal Division (“Appeal Division”). The Appeal Division heard the appeal in January 2023. The Appeal Division dismissed her appeal in June 2023.

Ms. Deokaran applied for judicial review of the Tribunal’s decision and Appeal Division’s decision. She relied on several grounds including: the decisions did not provide adequate reasons, the Tribunal failed to consider her natural justice argument, the Tribunal lacked jurisdiction, there was a reasonable apprehension of bias in both hearings, and the Tribunal breached its duty of procedural fairness when it issued its costs decision.

The Ontario Superior Court of Justice considered the application for judicial review.

The court held that the reasons were adequate even though they could have been worded better.

The court held that the fairness of the Law Society’s investigation was not adequately raised before the Tribunal so the Tribunal could not be faulted for failing to address it.

The court held the Tribunal had jurisdiction to impose an interim suspension.

The court held there was no reasonable apprehension of bias by the Tribunal or the Appeal Division.

The court held the Tribunal did not deny procedural fairness by rendering its costs decision without receiving submissions from Ms. Deokaran.

The court dismissed Ms. Deokaran’s application for judicial review, and awarded costs of $4,000 to the Law Society.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at smarcinkow@harpergrey.com.

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