In an 88-page decision released today, the appeal panel agreed Groia’s conduct during his successful defence of Bre-X Minerals Ltd. geologist John Felderhof was out of line and constitutes a professional misconduct, but it took issue with how the hearing panel determined the appropriate penalty.
“...In our view, the penalty analysis by the hearing panel contains errors of principle as well as conclusions tainted by its misapplication of the abuse of process doctrine,” appeal panel chair Linda Rothstein wrote.
A judge who heard a judicial review in the Bre-X trial chastised Groia for repeatedly leveling accusations at the prosecution. The hearing panel had found that the judge’s remarks count as a finding of professional misconduct and that by defending himself against that finding, Groia was attempting to “re-litigate” an issue that has already been determined.
“In our view, the hearing panel erred in law in reaching this conclusion,” Rothstein said, adding the jurisprudence “does not suggest that a non-party participant in a prior judicial decision is a party as a matter of substance to that decision.”
Groia’s counsel Earl Cherniak said his client is happy with that conclusion.
“Mr. Groia is gratified in the extreme by the panel’s reversal of the absurd finding by the hearing panel that defending himself amounted to an abuse of process, and that obiter comments in the courts were binding on the hearing panel,” he said in a written statement to Legal Feeds. “This is a victory for all lawyers, who should never have to face such a hurdle.”
But Cherniak also said Groia is disappointed the appeal decided to uphold the finding of professional misconduct against him and that he is “studying the reasons carefully with a view to appeal to the Divisional Court.”
He added: “He continues to believe that his conduct in the defence of Mr. Felderhof was well founded and necessary to the defense, given the unfair prosecution and conduct of and by the Ontario Securities Commission both before and during Phase 1 of the trial.”
Cherniak also said the trial judge in the Bre-X trial never criticized Groia’s conduct although he was “in the best position to judge its propriety.”
At the misconduct hearing, the law society had sought a suspension ranging from two to four months while Groia asked for a reprimand only.
“In our view, taking into account all the relevant factors, this is not a reprimand case,” Rothstein wrote in a ruling that detailed the events of the months-long Bre-X trial. “Rather, we conclude that a one-month suspension is justified and appropriate in light of the relevant factors.”
The appeal panel also disagreed that Groia’s lack of remorse was an aggravating factor in the penalty analysis. Although it’s true that Groia didn’t show remorse, that’s not surprising given his position before the hearing panel, Rothstein said.
She added: “...We are concerned that the hearing panel’s reasoning can be seen to be suggesting that a more serious penalty was appropriate because Mr. Groia zealously defended the law society’s prosecution.”
The appeal panel has asked for written submissions from the parties on whether the hearing panel’s errors justify reducing the $250,000 cost award ordered against Groia.