Did lawyer breach Law Society of Ontario Rules of Professional Conduct 7.2-2, by requesting dismiss because I picked another close jurisdiction?

Question

I self-represent in Ontario Small Claims Court. When I filed Form 7A (Plaintiff's Claim) online, I relied Superior Court of Justice map. Screenshot got no "Richmond Hill". Thus I picked Newmarket online.

Defendant's Rambo lawyer wrote this in Defence. I added the link.

THE CLAIMANT COMMENCED ACTION IN THE WRONG JURISDICTION

13. The Defendant requests that this action be dismissed according to Rule 6.01 of the Rules of the Small Claims Court, O. Reg. 258/98.

14. The Claimant commenced action in Newmarket. The Defendant carries on business [I skip address for privacy] Markham, Ontario. The correct jurisdiction is Richmond Hill.

Looks like Defendant's lawyer willfully ignored Rule 6.01(3).

(3) If, when an action is called for trial or settlement conference, the judge finds that the place where the action was commenced is not the proper place of trial, the court may order that the action be tried in any other place where it could have been commenced under this rule. O. Reg. 78/06, s. 8 (1).

1. Why didn't he just request court to amend jurisdiction?

2. Did Defendant's lawyer violate Rule 7.2-2 Law Society of Ontario's Rules of Professional Conduct? Before serving me Defence, he never provided me "fair warning" to amend jurisdiction. I feel he's taking advantage of my inexpertness, by asking the judge to dismiss my action for this issue that clearly is not "going to the merits or involving the sacrifice of a client's rights."

7.2-2 A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights.

Answer 1

Either the lawyer did not breach the rule of "professional" conduct, or the breach is unlikely to trigger sanctions. But it appears that your case would not be materially affected if the court dismisses the case on jurisdictional grounds.

Putting aside the issue of whether a pro se litigant is a legal practitioner, rule 7.2-1 requires from a lawyer "good faith with all persons with whom the lawyer has dealings in the course of justice". The expression "all persons" includes people who are not lawyers. Furthermore, rule 7.2-2 refers to issues "not going to the merits [of the case]". This pertains to your matter insofar as a ruling on jurisdictional grounds does not address the merits of a case.

However, filing a grievance against that lawyer is very unlikely to result in reprimand or sanctions. A lawyer is not supposed to essentially train the adversary or announce the options available to that adversary. Moreover, your description so far does not suggest that the lawyer made any misrepresentations, or committed fraud, or engaged in unlawful conduct.

That being said, dismissal on jurisdictional grounds does not mean that you lost the case. You might still be on time for filing a complaint in the applicable jurisdiction and have your claim(s) decided on the merits.

The fact that you filed suit in the wrong jurisdiction might even toll the statute of limitations, meaning that the countdown for filing suit in [the right] court is paused from the date you filed your complaint in the wrong jurisdiction to the date it was dismissed there on jurisdictional grounds.

Once you file the matter in the proper jurisdiction, you might want to try persuading that court that "the balance of convenience substantially favours holding the trial at another place than those described in subrule(1)" (see rule 6.01). This is known as forum non conveniens. The lack of detail about your case makes it impossible to assess your chances of prevailing on this issue as a matter of equity or by statute.

The important lesson here is that understanding legal concepts, the procedural intricacies of litigation, and the priorities of what to pursue as a litigant is crucial. Your effort of acquainting yourself with procedural rules tells me you can do it.

Answer 2

Their lawyer is not on your side

The power of the court to correct your mistake is discretionary (note the use of “may”). It’s perfectly legitimate for their lawyer to submit that the court should not exercise discretion to your benefit and their detriment.

As to whether he should have done this: yes.

First, 7.2-2 doesn’t apply because you are not a legal practitioner - this rules is about professional courtesy between lawyers. You aren’t one.

Second, this is your fair warning - unfair would be holding it back to the day of the hearing.

Their lawyer has a duty to the Defendant and the court - both are served by having the case dismissed on jurisdictional grounds. Jurisdiction is a fundamental threshold issue for all courts and tribunals - if the court doesn’t have it, then it should be easy to get your suit dismissed.

Of course he’s taking advantage of your lack of expertise. You’re playing with the grown ups now - learn quick or lose. The law has very clear rules that apply to everyone. It’s very fair in that way. Like tennis; but if I take the court against Federer, he’s going to win because he’s better than me! There’s nothing unfair about being better.