Litigator Joe Groia was back in court this past week to challenge the Law Society of Upper Canada’s findings of misconduct for incivility against him following the Bre-X scandal some 15 years ago.
Seeking to overturn a February 2015 Divisional Court decision that dismissed his challenge of a one-month licence suspension and $200,000 in costs to the regulator. He also appealled the Divisional Court’s cost decision in the matter, which added another $30,000.
Groia’s counsel argued that the penalties levied against him were arbitrary, lacked “meaningful explanation” and “intelligible reasons” and asked they be overturned.
They further argued that in denying his appeal earlier this February, the Divisional Court erred when it when it failed to consider that Groia’s conduct was never criticized by the trial judge and in applying a new misconduct test in making its determination.
“The Divisional Court established a new test for when uncivil conduct amounts to professional misconduct. This test is satisfied when such conduct ‘calls the administration of justice into disrepute,’” wrote Groia’s legal team, led by Earl Cherniak of Lerners LLP, in its factum.
“The new but vague test, and its application by the Divisional Court, creates an unreviewable prosecutorial discretion in the hands of the LSUC, and results in uncertainty and lack of meaningful guidance for lawyers, who are now at the whim of their regulator.”
The case has prompted an ongoing debate around what exactly constitutes incivility in the courtroom. It has turned into a tug of war on where to draw the line between the need to allow for zealous advocacy by fearless counsel and the importance of civil communication in the courtroom.
Groia’s factum said that question, as well as the question of who determines the boundaries — a trial judge or the regulator — are at the core of the appeal.
“The result in this case is a tragedy for the public interest, the legal profession and for Mr. Groia. If his conviction is allowed to stand, trial judges will no longer truly control the proceedings before them, lawyers can no longer rely on how trial judges choose to conduct a criminal trial, and clients can no longer rely on their lawyers to speak their minds freely in open court, for fear that they too will be prosecuted by their regulator,” the factum of appeal states.
“Respect for judges, lawyers and the dynamics of a criminal trial will have given way to the LSUC’s ultimate control of the trial process.”
Groia’s tone and behaviour during his late-1990s defence of John Felderhof, the former Bre-X Minerals Ltd. vice chairman, were the basis for the finding of professional misconduct against him. Following a June 2012 disciplinary ruling, the LSUC suspended Groia for two months and ordered him to pay $250,000 in costs. He appealed and in November 2013, the society’s appeal panel cut Groia’s suspension in half, but agreed with the hearing panel that his behaviour during the Bre-X trial was out of line. It also reduced the costs award against Groia to $200,000.
He appealed to the Ontario Divisional Court in February of this year, but that was dismissed with $30,000 in costs ordered paid to the LSUC, and he turned to the Court of Appeal to challenge that ruling. In the Divisional Court hearing, a request by the LSUC seeking the original penalties against Groia be reinstated was also dismissed.
At the court of appeal, the LSUC, led by Thomas Curry of Lenczner Slaght Royce Smith Griffin LLP, argued that while a lawyer has “a duty to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case” it must be done “by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing.
“Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality, because, unless order is maintained, rights cannot be protected,” the LSUC stated in its factum, requesting the court dismiss the appeal with costs.
In terms of the test used by the divisional court, LSUC’s counsel argued it was “inconsistent with the weight of authority concerning the deference owed to the regulator engaged in a line drawing exercise such as this.”
“There was no basis for the Divisional Court to interfere with the formulation of the test for courtroom incivility on the record before it. The Appeal Panel was owed deference on the point.”
A list of interveners, including the Advocate’s Society, Attorney General of Ontario, Canadian Civil Liberties Association, the Canadian Defence Lawyers Association, Ontario Crown Attorney’s Association, and the Ontario Criminal Lawyers Association participated as well, requesting the court reverse the decision. Although they too disagree on certain points of the civility debate.
The AG, OCAA, and CDL agree the new misconduct test from the Divisional Court is an “unworkably high standard.” The TAS and CCLA stand by the test, although the CCLA argues it was misapplied in Divisional Court.
“The important issues that divide the parties and the interveners require adjudication by this court,” the interveners stated in their reply factum. “However, it is Mr. Groia who has paid a terrible price in this case: by his financial commitment to continue to defend Mr. Felderhof long after his ability to pay legal fees ran out; in the damage to his reputation; and by placing his career and livelihood in jeopardy to mount a defence to the charges when the LSUC argued that it was an abuse of process for him to even try to do so.
“By defending himself, he vindicated the right of all trial counsel to defend themselves from similar LSUC allegations of incivility and abuse of process. This conviction truly cries out for reversal,” the interveners stated.
Media representatives and counsel for the LSUC declined to comment as did Groia and his counsel until there is a decision.