Legal Blog

Advocacy

Advocacy is an art, not a science – but it still has rules. Break a rule and you are probably not a very good advocate. Good advocacy, whether written or oral, helps clients win cases. Bad advocacy helps clients lose cases.  That said, depending upon the facts, good advocates can still lose cases and bad advocates can still win cases.

First Rule

Cases are usually won or lost on the facts. The law is normally established; the facts are whatever evidence counsel adduce to the court and then are found as part of the decision to be the facts. We talk about lawsuits, but they should really be known as factsuits. The job of a good advocate is to present all of the admissible facts necessary to support the client’s case.

Second Rule

In an interview about appellate advocacy (i.e. an appeal based on a transcript of evidence adduced at a hearing), one appellate judge said: “It is extremely important that you do not misrepresent the facts. The facts are not always what you want them to be, but they are whatever the trier of fact has found them to be. Equally, do not misrepresent the case law by, for example, giving partial quotes. Make sure that the quotes you provide to the court are accurate and that they represent what you say they say.” In a nutshell: do not attempt to fool the court.

These rules apply equally well to written advocacy (e.g. a factum setting out the facts and law from the point of view of one of the parties, a document that assists the court in coming to a decision). Similarly, they apply equally well to oral advocacy in a hearing.

An example of these rules in action is set out in Veerasingam v. Licence Appeal Tribunal et al 2024 Ont SCJ (Div Ct).

Issues

The Licence Appeal Tribunal (LAT) had upheld the decision of the Ontario Motor Vehicle Industry Council declining to register applicant as a motor vehicle salesperson.  It seems that there were allegations of sexual misconduct against applicant. Applicant appealed the LAT decision to the Divisional Court and then brought a motion to stay the LAT order so that he could act as a motor vehicle salesperson pending the appeal.

To be successful in this motion, applicant had to demonstrate that the appeal established a serious issue and that, if the stay were not granted, he would suffer irreparable harm.

Recapitulation

In nine short paragraphs, the motion judge, Myers J. (normally we do not name the judge in our newsletters, but this quotation is just too juicy for anonymity) set out the first and second rules of advocacy. In the remaining paragraphs of the decision, the judge then demonstrated how applicant and his counsel breached both of them. Those first nine paragraphs follow:

1. “The facts matter.

2. Many lawyers graduate from law school thinking that their cases will be won with erudite advocacy concerning esoteric questions of complex jurisprudence intertwined with contemporary ideals of public policy reform.

3. But as every experienced advocate understands, the reality of life in the trenches of civil litigation is that cases are primarily won or lost on their facts. When the facts suggest that the justice of the case lies a certain way, in the vast majority of cases, the law will support or, at least, will not stand in the way of the just outcome.

4. There are very few cases where judges write that, while they believe the just outcome is “X,” they are constrained by the law to find “Y.”  It happens. But not very often.

5. The primacy of the facts in advocacy leads to two very important and related canons of civil litigation.

6. First, the single-most important task of the litigator is to marshal and present the facts by admissible evidence to prove all necessary technical causes of action (or defence) and to establish the justice and justness of the client’s desired outcome.

7. The second canon is a limitation on the first. It is contained in professional principles of ethics. But it is also a fundamental point of advocacy. The lawyer must never knowingly misstate the facts. A lawyer must not assert as true a fact that cannot reasonably be supported by the evidence admitted in the record.

8. This is not only a professional obligation, but 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.

9. This motion demonstrates how one key fact can make all the difference. It also exposes the folly of misrepresenting the evidence.”

Misrepresentation

Applicant’s counsel knew full well that he had to demonstrate irreparable harm for applicant if applicant had to wait until the appeal hearing. Accordingly, applicant’s affidavit, setting out the facts on which the judge was to rely, stated that applicant “was previously registered as a motor vehicle salesperson … With fourteen plus years of experience as a motor vehicle salesperson, cultivating and fostering a client and customer base, I was previously employed at (dealers name) …” It goes on to say that on or about October 29, 2022, the Registrar issued a notice of proposal “to refuse registration against my registration as a motor vehicle salesperson…” It then attaches the registrar’s notice of proposal. That proposal states that applicant is not currently registered under the Act. He was previously registered from approximately August 20, 2010 until June 6, 2022, when his registration terminated because a motor vehicle dealer no longer employed him.

The judge noted that applicant “fudges” the evidence because he never actually came out and said that, when the allegations of sexual assault became known, he lost his job and therefore had to give up his licence.

The factum submitted on behalf of applicant did not merely fudge the evidence, it misstated it. It said that applicant is (not was) a registered motor vehicle salesperson, obtaining his motor vehicle salesperson registration on or about July 2010. That paragraph did not cite to the affidavit evidence – for good reason. The first part of the statement was not true. Applicant was not at that time a registered motor vehicle salesperson.

The factum then went on to say, “refusing to grant the stay would cause irreparable harm as (applicant) will be forced to abandon his licence as a motor vehicle salesperson, suffering the loss of goodwill, and the destruction of his client base of existing and potential clients while this appeal is being determined.” That was false also; applicant did not have a licence to abandon. At one point he did, but it had been gone for two years.

Result

Given that the registrar’s proposal to refuse a new licence merely continued the status quo of the past two years, the LAT order did not prevent applicant from working; staying its order would still not allow applicant to sell cars because he was already unlicensed. There was no irreparable harm in waiting for the appeal to be heard. Accordingly, the judge dismissed the motion.

But that is not all. The LAT wanted applicant to pay its costs of the motion. This results in two questions: (i) what is the scale of those costs (i.e. should it be the normal partial indemnity or should it be full indemnity) and (ii) should applicant’s counsel pay those costs? Costs are often increased from partial indemnity to full indemnity if the losing party has conducted himself in the application in a manner worthy of censure. Costs are rarely ordered to be paid by counsel, but this can be done if counsel’s conduct during the hearing is worthy of censure.

Costs are still to be determined, but, considering the following statements that the judge made in the reasons for decision, we can anticipate something different from the usual result:

“(Applicant’s) evidence for this motion was cutely written to omit the key detail that he has not been licensed in over two years. But the factum contains overt misrepresentations. The fact that paras. 10 and 32 of the factum do not contain citations to the evidence is highly telling and troubling.

I direct (counsel) to provide a copy of this decision to (applicant). (Applicant) should also be referred for independent legal advice concerning his potential liability for costs of the motion. (Applicant) needs independent legal advice on whether (counsel) ought to be required to pay the costs of the motion or to indemnify (applicant) for any costs that may be awarded against him.”

Advocacy is important; ethics are important.

 

Image courtesy of viarami.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.