Divisional Court rejects Groia’s misconduct appeal

Toronto lawyer Joe Groia has lost the latest round of his challenge of the Law Society of Upper Canada’s disciplinary proceedings against him.

Joe Groia has lost the latest round of his challenge of the Law Society of Upper Canada’s disciplinary proceedings against him.In a decision today, the Divisional Court rejected Groia’s appeal of an earlier law society appeal panel decision upholding misconduct findings against him. Writing for a three-judge panel, Justice Ian Nordheimer found “the decision of the Appeal Panel that the appellant had engaged in professional misconduct is a reasonable one.”

The long-running case relates to Groia’s defence of client John Felderhof, a Bre-X officer and director, in proceedings launched by the Ontario Securities Commission. While the court ultimately acquitted Felderhof of insider trading and other charges, the proceedings were particularly acrimonious with lawyers on both sides battling over issues such as disclosure.

Groia, who recently launched his bid to become a bencher of the law society, has vigorously fought the law society proceedings over concerns a crackdown on lawyers’ courtroom conduct and the regulator’s approach to the civility issue would impinge on their ability to fearlessly advocate for their clients.

But in its ruling on the case today, Nordheimer found the appeal panel’s view on what constitutes misconduct was entitled to deference. He also made comments on the concerns about putting a chill on zealous advocacy, particularly when it comes to defence lawyers attempting to make out a case for prosecutorial misconduct.

On that issue, Nordheimer found “the concern over the submission about the chill on zealous advocacy loses much of its impact if the reality is that this zealous advocacy is being used to further arguments in cases where the facts would not, on an objectively reasonable basis, warrant the ultimate relief sought.”

In addition, Nordheimer reminded defence lawyers about their duties as officers of the court in addition to their obligations to their clients.

“In the dauntless pursuit of the interests of one’s client, a lawyer must never forget or ignore this other aspect of his/her duties,” he wrote.

He also addressed Groia’s concern about the need for a clear standard for incivility, rejecting his contention that the appeal panel had failed to provide one.

“The reality is that incivility amounting to professional misconduct does not allow for a fixed definition,” wrote Nordheimer.

Nevertheless, the judge found the appeal panel’s test for measuring potential professional misconduct — that counsel must not impugn their opponents unless they make their allegations in good faith and on a reasonable basis — “fails to go far enough to protect the importance of zealous advocacy.”
For uncivil conduct to rise to the level that would properly engage the disciplinary process, it must be conduct that, in addition to being uncivil, will also bring the administration of justice into disrepute, or would have the tendency to do so."

Nevertheless, Nordheimer ultimately found the appeal panel had applied the correct test and had done so reasonably.

“I am satisfied, reading their reasons fairly and as a whole, that the Appeal Panel considered all of the necessary factors that I have articulated for the proper test to be applied.”

Besides the findings on the misconduct issue, Nordheimer said he had found no basis to interfere with the penalty of a one-month suspension and upheld the costs order of $200,000.

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