“There is a reasonable apprehension of bias arising from the fact that partners and associates at Mr. Wardle’s firm, Wardle Daley Bernstein LLP, regularly represent the Ontario Securities Commission as prosecutors and are closely involved in proceedings at the OSC and that Wardle LLP also regularly represents the Law Society of Upper Canada as prosecutors in discipline proceedings,” wrote Groia’s counsel, Earl Cherniak, in a June 5 notice of motion.
Groia is gearing up for his appeal of professional misconduct findings against him last year in relation to his courtroom tactics on behalf of John Felderhof on criminal charges stemming from the Bre-X Minerals Ltd. fiasco. The LSUC has been taking Groia to task for courtroom incivility as he aggressively challenged OSC prosecutors during his defence of Felderhof. A hearing panel recently suspended Groia for two months and ordered him to pay costs of $246,960. But Groia is appealing both the merits decision and the penalty with a hearing scheduled for Sept. 9 and 10. The penalty is on hold pending the appeal, and Wardle is one of five LSUC benchers assigned to hear the matter.
In his notice, Groia suggests the LSUC’s “prosecution of the lawyer has been and remains of continued interest to the OSC.” The notice then notes Wardle Daley Bernstein’s work as outside counsel for the OSC, including prosecuting cases on its behalf. In addition, an associate at Wardle’s firm reportedly assisted with the Bre-X prosecution, according to the notice of motion. “Given these circumstances, there can be no doubt that Wardle LLP and its partners and associates have a great deal of knowledge about the parties involved in the proceedings and an ongoing interest in the litigation and the result,” wrote Cherniak.
“Whatever Mr. Wardle’s own involvement may have been, a reasonable person properly informed would conclude that his firm’s connection to its client, the OSC, is deep, current, and multilayered. As the Wardle LLP firm owes duties of loyalty to its client, the OSC, this places Mr. Wardle in a clear and compelling conflict of interest.”
Besides the OSC issue, the notice also raises concerns about Wardle’s firm’s representation of the LSUC at tribunal hearings and in court. “A reasonable person would be concerned that the firm’s duty of loyalty to both clients could influence Mr. Wardle’s views on this appeal,” wrote Cherniak.
The LSUC has scheduled a hearing on the recusal motion for July 3. Wardle has refused to recuse himself, the notice of motion notes. Legal Feeds was unable to reach Wardle for comment by press time.