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Tim Wilbur

Is civility code for exclusivity?

Joe Groia has a long history of making enemies. He appeared on our cover in 2008, and he was as combative then as he is now. That story examined how Canadian securities regulators have a shoddy record of prosecuting corporate fraud. Groia had worked at the Ontario Securities Commission in the eighties, where his reputation for aggressive enforcement had ruffled a lot of powerful feathers.

But Groia still emitted a confident air in 2008, after a victory over his former employer for his client, John Felderhof. Felderhof was the former head geologist for Bre-X Minerals who had been engulfed in a gruelling eight-year legal battle with the OSC on charges of insider trading and fraud. Groia’s combative style has served him well on the defence side as well, but he likely created even more enemies.

Who would have guessed that Groia would be back on our cover nine years later after this victory had come back to bite him? 

Groia’s latest battle is against the legal establishment itself — or, more specifically, the Law Society of Upper Canada. The legal regulator says Groia was uncivil when he represented Felderhof. Groia says that he was just being a zealous advocate for his client. Now it is headed to the Supreme Court.

Like many battles, however, the rhetoric doesn’t always explain what is really at stake. In Groia’s case, is he only being disciplined to punish him for being rude or do his enemies have other motivations?

Many critics of the LSUC’s approach contend that civility, while sounding like a laudatory goal, is often used as a way to exclude unwanted members from a group. University of Ottawa professor Adam Dodek argues that notions of civility have long been used to exclude groups such as women and minorities from the profession.

While Groia is not visibly from an outsider group, his approach at the OSC was to take on many powerful companies. Large institutions, and the lawyers they hire, have a long memory for those who take them on. Groia clearly strayed outside the polite Canadian establishment that doesn’t rock the boat.

Groia made many of his opponents uncomfortable, and he himself admits that he could have used different words. It was likely not always a pleasant experience being on the receiving end of his zealous advocacy. In fact, many of the best defence lawyers stay pleasant and calm and still manage to represent their clients highly effectively. 

But by going after Groia for being uncivil, is the LSUC’s battle simply encouraging lawyers to work better together, or is it sending another message about who is in and who is out and what happens when you are not part of the group?

It is now up to the SCC to grapple with this question and decide how Groia’s long-fought battle with many of his enemies will end. 


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