Legal Feeds Blog

Monday, 23 July 2012 13:48

Groia files notice of appeal

Calling one aspect of the disciplinary decision against him “an absurd result” and “an error of law that urgently requires correction,” Joe Groia today filed his notice of appeal of last month’s civility ruling against him by the Law Society of Upper Canada.

Joe Groia claims the LSUC panel made 'a serious error of law' in the discipline findings against him.

In his notice, Groia is asking to set aside the June 28 finding of professional misconduct against him in relation to his handling of the defence of former Bre-X Minerals Ltd. vice chairman John Felderhof on allegation of insider trading and issuing false or misleading statements. Those proceedings, which featured fierce legal debates between Groia and prosecutors for the Ontario Securities Commission, resulted in critical judicial comment in obiter against Groia that sparked the law society’s disciplinary action for incivility.

Among his criticisms of the LSUC ruling, Groia counters the law society’s assertions that he was attempting to relitigate allegations made against him during those earlier court proceedings by trying to defend himself against the charges of professional misconduct. The hearing panel, the notice of application asserts, acknowledged that Groia wasn’t actually a party to those earlier court proceedings since they related to Felderhof’s trial.

The panel, he alleges, “made a serious error of law by creating a new and unprecedented basis for its finding that there would be an abuse of process if the lawyer was permitted to defend the allegations in this proceeding,” the appeal notice states.

“It created a new and unprecedented legal fiction of a ‘party in substance.’ In effect, the panel concluded that the lawyer, as a ‘party in substance,’ was abusively relitigating the issues that had been before the courts by defending himself in these proceedings. This conclusion resulted in the failure of the panel to consider and give effect to the defence mounted by the lawyer and was a failure of natural justice.”

As a result, the appeal notice alleges, the panel assumed Groia had the right to appeal the court rulings at the Supreme Court of Canada and that he should have done so even though it would have placed him in a conflict of interest in relation to his client.

“This is an absurd result and is an error of law that urgently requires correction,” the notice states.

Among other criticisms, the notice alleges deficiencies in the way law society staff handled the case and takes several shots at the hearing panel.

“Just as the law society staff did not read the transcripts before charging the lawyer, the panel appears to have primarily cut and pasted their reasons from the factum of the law society and the decisions of [late] justice [Archie] Campbell and [Ontario Court of Appeal] Justice [Marc] Rosenberg. Almost none of the lawyer’s evidence about the conduct of the Felderhof trial was considered in the reasons. The reasons could have been written before the hearing began.”

The notice also makes repeated reference to the broader issue of civility versus lawyers’ duty to defend their clients with vigour. It raises alarm, for example, about the panel’s finding that, as an officer of the court, he had an overriding duty to ensure trial took place fairly and efficiently and in an atmosphere of calm.

“The lawyer had no such ‘overriding’ duty, nor does any counsel,” the appeal notice asserts. “There can be no more alarming statement than for a law society to suggest that there is now an overriding duty on any defence counsel to sacrifice his or her client’s substantive or procedural rights on the altar of ‘efficiency’ and calmness.’”

Groia is seeking four results from the appeal: dismissal of the LSUC’s 2009 notice of application against him; an order that he didn’t engage in professional misconduct; that a new hearing take place in the alternative before a different panel; and costs to him.

Common issues don’t have to outweigh individual ones, court rules

Common issues don’t have to outweigh individual ones in order for a class action to be the preferable procedure, the Ontario Superior Court has ruled.

In a decision in Barwin v. IKO on July 19, Justice Deena Baltman had the task of certifying a class action related to allegedly defective shingles. Ottawa resident Kevin Barwin, the representative plaintiff, complained his organic shingles had begun leaking, falling apart, and breaking down 12 years after installing them. Alberta corporation IKO Industries Ltd. had manufactured them.

While 2,000 putative class members have contacted class counsel, the defendants opposed certification in part on the basis that individual issues would outweigh and overwhelm the common ones. Those individual issues, they argued, included determining which shingles failed because of a defect and which ones failed due to other causes; calculating pro-rated labour expenses that would vary by homeowner; and which shingles would be the replacement since the company is no longer making organic ones.

Baltman, however, took issue with those assertions. “As our Court of Appeal noted in Cloud v. Canada (Attorney General), the drafters of the [Class Proceedings Act] specifically rejected the requirement that common issues predominate over the individual issues in order for the class action to be the preferable procedure,” she wrote.

“The critical question to be asked ‘is whether, viewing the common issues in the context of the entire claim, their resolution will significantly advance the action.’ In my view, the answer her is undoubtedly ‘yes.’”

In doing so, Baltman referred to the conclusions of an expert retained by the plaintiffs who suggested that, despite the defendants’ assertions that there were many different shingle designs over the years, the results of his analysis showing problems with them were consistent across product lines. None of the allegations have been proven in court.

In the end, Baltman certified the class action and rejected the notion that another procedure would be preferable. “Moreover, any notion of judicial economy would be destroyed if each potential class member were required to proceed individually against the defendants and prove the same negligence and consumer protection claims,” she wrote.

“Multiple proceedings and the consequent waste of judicial resources is now a huge concern not just in the central west region of Ontario — one of the busiest in Canada — but throughout the country.”