Did lawyer breach LSO Rules of Professional Conduct, by falsely accusing me of attempt to evade her obligation to exhaust her administrative remedies?

Question

I am self-representing in Ontario Small Claims Court. Defendant is car dealership. Defendant's lawyer wrote this in Defence.

CLAIMANT FAILED TO EXHAUST ADMINISTRATIVE REMEDIES

34. The Claimant commenced this action in the wrong venue in an attempt to evade her obligation to exhaust her administrative remedies through the Ontario Motor Vehicle Industry Council ("OMVIC"). This evasion is procedurally improper and an abuse of this Honourable Court's process. [My embolding.]

35. The Defendant requests that this action be dismissed as against it, because this action is an abuse of this Honourable Court's process.

36. In the alternative, the Defendant requests that this action be stayed while all administrative remedies and/or appeals are pursued and/or exhausted with OMVIC.

Law Society of Ontario ("LSO")'s Complete Rules of Professional Conduct

[5.1-1 Commentary] [6] When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client's case so as to ensure that the tribunal is not misled.

5.1-2 When acting as an advocate, a lawyer shall not

[I skip a to e. Irrelevant]

(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument, or the provisions of a statute or like authority,

(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal,

7.2-1 A lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of their practice.

My questions

Defendant's lawyer is wrong. Before I commenced lawsuit, I wrote letter to Defendant. Then I complained to OMVIC. OMVIC finally replied that they're closing my complaint, because they can't award damages and they think Defendant will put up a fight. OMVIC recommended me to lawsuit in Ontario Small Claims Court.

OMVIC complaint handlers will try to find acceptable solutions to complaints however they do not have the authority to compel or order a dealer to cancel a contract, return money or carry out repairs; only the courts have such authority. In the rare instance that the Complaints and Inquiries Team is unable to find a suitable solution, consumers may need to consider taking civil action.

I didn't mention OMVIC in my Plaintiff's Claim, because Defendant and their litigator must know, or can find out, OMVIC can't compensate.

1. Why didn't Defendant's lawyer even try ask me if I complained to OMVIC? Why just jump to false accusation?

2. Did Defendant's lawyer violate LSO's Rules of Professional Conduct? Defendant's lawyer has no basis to accuse me of "attempt to evade her obligation to exhaust her administrative remedies" and "an abuse of this Honourable Court's process". These false accusations upset me! They make me look so bad!

Answer 1

Did Defendant's lawyer violate LSO's Rules of Professional Conduct? Defendant's lawyer has no basis to accuse me of "attempt to evade her obligation to exhaust her administrative remedies" and "an abuse of this Honourable Court's process".

Keep in mind that the job of the Defendant's lawyer is to make the matter go away for the Defendant with the least amount of hassle. It is not their job to find out what the truth is.

As you failed to mention your complaint to OMVIC in your Plaintiff's Claim, the easiest path for the lawyer to get their client off the hook is to not do any investigation and just assume you didn't complain to OMVIC and act on that. That appears to be exactly what their defense is based upon.

This is not in breach of the Rules of Professional Conduct that you quoted.

[5.1-1] does not apply, because both parties to the matter are represented. By you and by the Defendant's lawyer.

5.1-2 and (g) are not breached, because the lawyer cannot knowingly misrepresent something of state falsehoods, if they can credibly claim they didn't know about it. By not investigating if you made a complaint with OMVIC, whatever they say about such a complaint cannot be knowingly false.

[7.2-1] has not been breached, because the language used by the lawyer is not uncalled for. Keep in mind that based on your Plaintiff's Claim, the "accusations" (as you describe them) could very well be true. That you know them to be otherwise does not make that the lawyer breached his code of conduct. It also seems to be a fairly standard formulation.

Your best course of action is to stop taking the defense personally and to respond factually with the exchange you have had with OMVIC to prove that you did in fact exhaust all administrative remedies.

Answer 2

Did you do what you are required to do?

From your link, OMVIC advise (and it is probably a legal requirement) that you first send a letter by registered mail and then lodge a complaint. It doesn’t matter that OMVIC can’t order damages, they can help you resolve your dispute with the dealer through negotiation and (usually, I’m not familiar with OMVIC’s process) mediation- under these the dealer might agree to pay compensation (not damages because they aren’t court ordered but money is money). OMVIC may have powers such as making and publishing adverse findings or placing conditions on or even suspending a dealer’s license which may mean that a dealer will make a deal to avoid them.

Again, I’m not familiar with the particular law but exhausting administrative remedies is usually required before judicial action can be commenced. Relieving pressure on the judicial branch (which is relatively expensive to run) and moving it to special purpose tribunals or ADR (which is comparatively cheap to run) is usually a prime aim of this type of legislation. If this is the case then the opposing lawyer is right and the issue of professional misconduct doesn’t arise.

“Complaining to OMVIC” does not mean ringing them up and asking them questions - it means following their mandatory processes which appear to be you attempting to resolve the dispute directly, then sending formal notice by registered post, then lodging a formal complaint. If you didn’t do this then you haven’t “complained”.

Now, where you do have cause for complaint (but not recompense) is the court: most courts are usually pretty good at vetting statements of claim and rejecting one like yours that don’t meet the jurisdictional requirements. However, this is a courtesy they provide, not a service and things are no doubt not operating at their peak right now.

The fact that OMVIC gave you poor or inaccurate advice is neither here nor there. Its not their job to advise you of your legal options: that’s the job of your lawyer or for you to do your own research. Government generally has no liability for incorrect advice.

Answer 3

This is pretty standard lawyering. I don't know much about Ontario's professional-conduct rules, but I'd be surprised if anyone treated this as a serious breach.

The bad news is that you're dealing with an obnoxious lawyer on the other side. The good news is that judges see a million of these clowns every day, and they find this kind of rhetoric exhausting and annoying. As far as the judge is concerned, the lawyer is making himself look bad, not you.

The best course of action for you is to respond as permitted by the rules, focusing solely on the facts and the law, without getting into questions of motives.