The Ontario Divisional Court reminds legal professionals of their professional obligations with respect to advocacy. The single most important task of the litigator is to marshal and present the facts by admissible evidence to prove their case. Lawyers must never knowingly misstate facts. A lawyer must not assert as true a fact that cannot reasonably be supported by the evidence admitted in the record.
In Veerasingam v. Licence Appeal Tribunal, 2024 ONSC 3730 (Div Crt), counsel for the appellant misstated a key fact in the factum that was not supported by the evidence. The Court was less than pleased.
Background
The appellant had been issued a Notice of Proposal from the Ontario Motor Vehicle Industry Council (the “Registrar”) regarding his registration as a motor vehicle salesperson. The Notice of Proposal was issued due to allegations of sexual misconduct. The Licence Appeal Tribunal (“LAT”) upheld the Notice of Proposal, and the appellant was not permitted to sell motor vehicles.
Appeal and Motion to Stay the LAT’s Decision Pending Appeal
The appellant brought an appeal and a motion to stay the LAT’s decision until the appeal could be heard.
The test for a motion for stay pending appeal requires the moving party to prove that (i) there is a serious issue to be heard, (ii) the moving party will suffer irreparable harm if the stay is not granted, and (iii) whether the balance of convenience favours the granting of the stay.
Serious Issue to be Heard
The appellant argued that the serious issue to be appealed was the LAT’s decision to deny his former representative’s oral request for an adjournment of the hearing. The appellant submitted that his previous representative failed to properly prepare for the hearing due to personal reasons and a belief that the matter would settle before the hearing.
The LAT denied the adjournment sought. On its merits, the LAT disbelieved the appellant’s evidence and found that he had misrepresented facts to customers, employers, the police, and while under oath to the Tribunal.
The Divisional Court was not convinced that this was a serious issue for the appeal, but the motion truly turned on the analysis regarding the alleged irreparable harm following a refusal to stay the proposal.
Irreparable Harm
In the factum for the motion, the appellant’s lawyer indicated that the appellant had been properly licenced to sell motor vehicles. This statement was not followed by any citation to the evidence.
The factum then stated that denying the appellant’s request for a stay pending the appeal would cause irreparable harm. The factum stated that he would
“be forced to abandon his license as a motor vehicle salesperson, suffering the loss of goodwill, and a destruction of his client base of existing and potential clients while this appeal is being determined.”
However, in reviewing the appellant’s affidavit, the Court discovered that while the appellant had previously been licenced to sell motor vehicles, he was not licenced at the time that Notice of Proposal was issued. He was in the process of re-applying for his licence.
This fact went to the heart of the motion. If the motion was not granted, the appellant would not suffer irreparable harm as he suggested. He was already unable to continue working as a car salesman because he was not licenced.
Unless stayed pending appeal, the revocation of an existing licence will put a salesperson out of work. A stay of an approval of a regulator’s proposal to refuse a new licence registration does nothing. It continues the status quo.
The whole motion turns on misstating the appellant’s existing position.
Outcome
As the appellant would not suffer irreparable harm should the stay not be granted, the motion was dismissed.
Comments from the Bench
In addressing costs, Justice Meyers wrote that the losing party is typically ordered to pay legal costs to the successful party. However, in this case, counsel for the appellant was directed to provide a copy of the decision to his client. The Court also advised that the appellant should be referred for independent legal advice concerning his potential liability for costs of the motion. The appellant needed independent legal advice “on whether [the lawyer] ought to be required to pay the costs of the motion or to indemnify the appellant for any costs that may be awarded against him.”
Lawyers are required to collect and present facts by admissible evidence to prove their case. The lawyer must never knowingly misstate the facts or state a fact that cannot reasonably be supported by the admissible evidence. This is a professional obligation and an important point of advocacy. There is legal integrity and there is personal integrity. Impairment of either can have devastating consequences on a client’s case and on future cases.
