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‘Incivility’ case heads to top court
By Cristin Schmitz
July 01 2016 issue

The Law Society of Upper Canada’s (LSUC) controversial decision to sanction Toronto litigator Joseph Groia for improperly casting aspersions on opposing counsel in court has landed on the Supreme Court’s doorstep in an appeal which asks whether judges or law societies are the final arbiters of lawyers’ courtroom conduct.

The securities lawyer is seeking leave to appeal an Ontario Court of Appeal ruling June 14 which upheld, 2-1, the regulator’s decision below finding him guilty of professional misconduct for unreasonably making unfounded allegations against Ontario Securities Commission (OSC) prosecutors during the high-profile insider trading prosecution of John Felderhof, the former chief geologist of Bre-X Minerals Ltd: Groia v. Law Society of Upper Canada 2016 ONCA 471. The gold mining company collapsed in scandal in 1997, costing shareholders billions.

Groia has been a catalyst for heated discussion within the legal profession about lawyer incivility. It has sparked debate about whether the law society should have prosecuted him, at its own behest, in the absence of a complaint, and about whether the regulator’s move inhibits barristers’ independence, commitment to their clients’ causes, and duty to advocate zealously. The organized bar, including the Criminal Lawyers’ Association, the Advocates’ Society, the Ontario Crown Attorneys Association, and now the Ontario Court of Appeal, have been deeply divided about the case, which could weigh in favour of the top court granting leave.

“We believe the case is worthy of the Supreme Court of Canada’s consideration,” said Cara Faith Zwibel, counsel for the Canadian Civil Liberties Association (CCLA) which intervened to argue that professional disciplinary proceedings should only be brought on the basis of incivility that has caused, or is reasonably likely to cause, a miscarriage of justice.

“While it may look like a case focused on lawyers, the interests at stake are really those of clients and the public interest,” Zwibel explained. “There has been enough debate in the profession about this case [that] it is probably wise for the Supreme Court to provide guidance.”

One novel and overarching issue the Court of Appeal divided over was the standard of curial review applicable to law societies’ decisions to discipline lawyers for in-court behaviour, which rested on sharply differing views about the respective roles of judges and law societies in regulating lawyers’ conduct in court. The majority took a stance deferential to the law society, scrutinizing the law society’s decision through the lens of reasonableness, while the dissent argued the standard is correctness, and thus via judicial review, “the courts remain the final umpires of the propriety of what barristers do in courtrooms.”

Notably, for the profession at large, the panel also split in its 178-page decision over the test for determining when lawyer “incivility” crosses the line into professional misconduct in the context of impugning opposing counsel’s integrity and conduct in court — possibly a matter of first impression at the appellate level in Canada.

The Court of Appeal’s majority upheld as “reasonable and functional” the LSUC Appeal Panel’s test that it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel, unless the allegations are (1) made in good faith and (2) with a reasonable basis.

“The test recognizes that, while advocates may be required to use strong and forceful language to advance the client’s interests, there are limits on what an advocate can say. It recognizes the interests of multiple participants in our justice system, including those who are the targets of uncivil comments,” Justice Eleanore Cronk wrote with the backing of Justice James MacPherson. The majority rejected as “unnecessary and unduly restrictive” the divisional court’s restated test for professional misconduct which layered on the appeal panel’s test — in order to better protect the importance of zealous advocacy — the additional requirement that the uncivil behaviour must have undermined, or had a realistic prospect of undermining, “the proper administration of justice.”

In dissent, Court of Appeal Justice David Brown also rejected the divisional court’s formulation (“too vague”), arguing the test for in-court professional misconduct must “robustly” take into consideration all of the surrounding circumstances of what happened in the courtroom, under the rubric of three main factors: what the barrister did; what the presiding judge did about the barrister’s conduct and how the barrister responded to the directions of the presiding judge; and what effect the conduct complained of had on the fairness of the in-court proceeding, including the ability of the opposing side to present its case. The law society “must demonstrate that the barrister’s conduct would undermine, or would have the tendency to undermine, trial fairness,” he stipulated.

The panel split, too, over whether Groia’s advocacy amounted to professional misconduct. The LSUC appeal panel’s critical findings about his actions — which included repeated unsubstantiated accusations that the prosecution failed to live up to its word on disclosure and on the admission of evidence, and was pursuing a conviction without regard to the fairness of the proceeding — were “amply justified,” the majority held. The majority ruled that the appeal panel was “both reasonable and correct” in concluding that Groia breached “the requirement for professionalism for lawyers, both inside and outside a courtroom, including zealous advocacy accompanied by courtesy, civility and good faith dealings” which “secures the nobility of the profession in which lawyers in this province are privileged to practise.”

His remarks were “uncivil and discourteous and exceeded even the most broadly defined reasonable boundaries of zealous advocacy,” said Justice Cronk. “They struck, without a reasonable basis, at the heart of the OSC prosecutors’ duties to the court, to opposing counsel, and to the administration of justice.”

Justice Brown agreed the appeal panel was correct that Groia “used inappropriate language and impugned the integrity of the prosecutors without foundation” while making allegations of prosecutorial misconduct. But looking at the trial circumstances in their entirety, it was neither correct, nor reasonable, to find him guilty of misconduct, he urged. “A hard-fought, high-profile criminal trial saw inappropriate submissions and allegations by Mr. Groia over the court of several days in phase one. The trial judge responded to the prosecution’s complaints about that inappropriate conduct,” Justice Brown stressed. “He ultimately directed Mr. Groia to stop making allegations of prosecutorial misconduct. Mr. Groia complied with the trial judge’s rulings…This court found that the fairness of phase one of the trial had not been compromised by Mr. Groia’s conduct and the prosecution was not prevented from having a fair trial,” he wrote. “Great weight must be given to Mr. Groia’s compliance with the directions of the courts and to the fact that his conduct did not affect trial fairness.”

On the issue of the standard of review applicable to law societies’ discipline decisions on in-court behaviour, Justices Cronk and MacPherson said trial judges and law societies play complementary roles in regulating conduct in the courtroom, and, applying the Dunsmuir analysis and recent Supreme Court jurisprudence on lawyer regulation, the majority held the lens of reasonableness had to be used to scrutinize the decision of the LSUC’s Appeal Panel, a specialized disciplinary body.

But citing the constitutional interplay between the executive and judicial branches of government, Justice Brown argued in dissent that the standard of correctness applies to curial review of regulatory decisions on in-court lawyer conduct and, in that context, the role of law societies is, in effect, subordinate to that of judges, who are the masters of their courtrooms under the Constitution. “The judiciary’s constitutional responsibility for what goes on in its courtrooms points to the application of a standard of correctness so that the judiciary retains the last word, so to speak, about what happens in its courtrooms,” he explained. “If the reviewing court disagrees with the discipline tribunal’s conclusion, it would be free to substitute its own opinion.”

The Court of Appeal’s majority upheld the appeal panel’s penalty of one month’s licence suspension and its order that Groia pay the law society $200,000 for costs. Justice Brown would have allowed Groia’s appeal and slapped the law society with $280,000 in legal costs: $50,000 for the appeal; $200,000 for the costs of the hearing panel; and $30,000 for Groia’s unsuccessful appeal to divisional court.

University of Calgary law professor Alice Woolley, president of the Canadian Association for Legal Ethics, argues in an e-mail the issues in the case merit the Supreme Court’s consideration.

Justice Brown’s dissent is “a game changer,” she said, that “introduces squarely into the debate on courtroom civility the role of the trial judge, and how the lawyer responded to the trial judge, [and] it makes the case about lawyer regulation and judicial independence in a way that has been argued before, but never so well articulated.”

Woolley, who was called as a defence expert at the law society’s first-level discipline hearing, added, “It also shows the problem with the actual result in Groia because, as Justice Brown makes clear, while Groia may have expressed himself rudely, the trial judge dealt with [incivility] issues that arose, and Groia responded appropriately and respectfully to direction from the trial judge, and nothing Groia, or the judge, did affected trial fairness.”

Groia’s counsel, Earl Cherniak of Toronto’s Lerners, confirmed his client will seek leave, but neither he nor Groia commented on the case.

Law society spokeswoman Susan Tonkin said the regulator will consider its options on the leave application once it is filed. “The law society is pleased that the majority of the court reaffirmed the important role of the law society in regulating in-court conduct, and the importance of both civility and zealous advocacy,” she said by e-mail.

Paul Cavalluzzo of Toronto’s Cavalluzzo Shilton, counsel for the intervener Ontario Crown Attorneys Association whose members periodically face allegations of prosecutorial misconduct from defence counsel, noted that such icons of the criminal law bar as G. Arthur Martin and Austin Cooper never strayed into incivility when zealously defending their clients.

“The Crown attorneys agreed that lawyers have to vigorously defend their client in the courtroom, however…there are limits on that, and when you come to casting aspersions on the integrity of opposing counsel, without reason or good faith, that by definition is unprofessional conduct which should be disciplined,” Cavalluzzo said.

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