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Top court to hear Groia’s discipline appeal

Thursday, February 16, 2017 @ 7:00 PM | By Cristin Schmitz

Law societies, bar groups and civil libertarians are expected to mass at the Supreme Court next November to argue a crucial question for lawyers, clients and the public interest: Whether and when can regulators discipline lawyers for “incivility” in discharging the duty of zealous courtroom advocacy?

On Feb. 2, Supreme Court Justices Michael Moldaver, Suzanne Côté and Malcolm Rowe granted Toronto securities litigator Joseph Groia permission to appeal a controversial 2-1 Ontario Court of Appeal ruling handed down last June. The lower court upheld a Law Society of Upper Canada (LSUC) decision finding Groia 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.

Groia won an acquittal on the merits for the former chief geologist of gold miner Bre-X Minerals Ltd., which collapsed in scandal in 1997, costing shareholders billions.

The Supreme Court is now tentatively slated to hear Groia’s appeal Nov. 6.

“I can only hope that after my case no other lawyer will need to ever have a similar experience with any law society,” Groia remarked. “I have been raising these important issues now for 10 years and I am grateful that we will have one more chance to get them straightened out.”

Elected by a large number of votes as an LSUC bencher last year, Groia admitted the case is exacting a professional, financial and emotional toll. But the larger principles at stake are more important to him, he said. “While I hope to win, even if I lose, I am determined to have the law made clear that regulators have no business interfering with how trials are conducted, or in causing the civility chill that now exists,” he explained by e-mail.

His counsel, Earl Cherniak of Toronto’s Lerners, said there are “very important issues that affect the public and the profession at stake, one of the most compelling of which is the question of who controls conduct in a courtroom: the trial judge or the regulator?”

Cherniak said the attorneys general will be sent notices alerting them to a potential constitutional question. Is it constitutionally permissible for provincial regulators to discipline a lawyer for courtroom conduct which has not been faulted by the presiding superior court judge (i.e. does this impair the ability of s. 96 judges to conduct proceedings without interference)?

“The Law Society will be interested to hear the views of the Supreme Court,” Law Society spokeswoman Susan Tonkin said by e-mail. She did not have further comment.

Groia’s case galvanized lawyers’ groups to intervene below (not all on the same side), including the Criminal Lawyers’ Association, the Advocates’ Society and the Ontario Crown Attorneys Association. The same groups are expected to seek leave to intervene in the top court, along with possibly the Canadian Bar Association, some law societies and others.

“We are likely to seek leave to intervene,” said Sukanya Pillay, executive director and general counsel of the Canadian Civil Liberties Association. “We believe the issue of freedom of expression in the courts, the ability of counsel to freely express themselves, and the test regarding incivility and what would constitute professional misconduct are all interrelated and important,” she explained by e-mail. “The test for incivility must be clearly articulated so it does not chill freedom of expression in our courts, or constrain counsel’s ability to effectively advocate for the client. It is in the public interest, in our view, to ensure the effective representation of clients, which in turn ensures an effective justice system.”

The profession has been vigorously debating whether the law society should have prosecuted Groia, on its own initiative, in the absence of a complaint to it from anyone, including prosecutors or the presiding judge, and whether the regulator’s prosecution inhibits barristers’ independence, commitment to their clients’ causes and duty to advocate zealously.

The Ontario Crown Attorneys Association, whose members sometimes face allegations of prosecutorial misconduct from defence counsel, argues that although lawyers must vigorously defend their clients in the courtroom, it is unprofessional conduct, subject to law society discipline, to cast aspersions on the integrity of opposing counsel, without reason or good faith.

The Court of Appeal split in its 178-page decision over the test for determining when lawyer “incivility” crosses the line into professional misconduct in that context.

Another 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 starkly different visions of the respective roles of judges and law societies in regulating lawyers’ in-court conduct. The majority deferred to the law society, scrutinizing the regulator’s decision through the lens of reasonableness. The dissenting judge argued the proper standard is correctness, and thus via judicial review, “the courts remain the final umpires of the propriety of what barristers do in courtrooms.”