Jun 1, 2020

Groia v. LSUC (2016), 352 O.A.C. 210 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JN.020

Joseph Peter Paul Groia (appellant) v. The Law Society of Upper Canada (respondent)

(C60520; 2016 ONCA 471)

Indexed As: Groia v. Law Society of Upper Canada

Ontario Court of Appeal

MacPherson, Cronk and D. Brown, JJ.A.

June 14, 2016.

Summary:

A lawyer was charged with six counts of professional misconduct arising from his trial conduct in defending his client on charges under the Securities Act. The first two counts generally involved discourteous and disrespectful conduct towards the court and the failure to act towards the court in good faith and in a fair, courteous, respectful and civil manner. The last four counts generally involved undermining the integrity of the legal profession by communicating with prosecutors in an abusive and offensive manner and failing to act with courtesy and good faith towards prosecutors. A Hearing Panel of the Law Society of Upper Canada (LSUC) found the lawyer guilty of all six counts of professional misconduct. The lawyer was suspended for two months and ordered to pay $246,960.53 for the costs of the hearing. The lawyer appealed. An Appeal Panel of the LSUC allowed the appeal in part (conduct decision). The lawyer was found guilty of only the last four counts. The suspension was reduced to one month and the costs penalty was reduced to $200,000. The lawyer appealed the finding of professional misconduct and the penalties imposed. The LSUC cross-appealed the penalty reduction.

The Ontario Divisional Court, in a decision reported 330 O.A.C. 202; 2015 ONSC 686, dismissed the appeal and the cross-appeal. The court invited submissions on costs of the appeal and cross-appeal.

The Ontario Divisional Court, in a decision reported [2015] O.A.C. Uned. 259, awarded costs of the appeal to the Law Society fixed in the amount of $30,000, inclusive of disbursements and HST. The lawyer appealed again.

The Ontario Court of Appeal, Brown, J.A., dissenting, dismissed the appeal. The court discussed the applicable standard of review. The court held that the Divisional Court erred by applying the correctness standard of review to the Appeal Panel's formulation of the appropriate test for incivility. The standard of review applicable to the questions at issue on this appeal was the deferential standard of reasonableness. The court rejected the lawyer's argument that trial judges, rather than the Law Society, were best positioned to address in-court incivility by lawyers. The Law Society had jurisdiction to deal with such issues. Also, the views of a presiding trial judge about the propriety of an advocate's in-court conduct did not control the exercise of the Law Society's disciplinary powers. The court discussed the test for what constituted incivility in the professional misconduct sense, holding that the Appeal Panel's test was owed deference. The court rejected an argument by the lawyer that the Appeal Panel was required to address whether his allegations of prosecutorial misconduct constituted constitutional-protected speech (Charter, s. 2(b)) and to factor that consideration into its determination of the proper test for civility. The Appeal Panel did not ignore or discount expressive rights. The Appeal Panel's test for what constituted incivility reflected a reasonable and proportionate limit on both the advocate's expressive freedoms and those of the client. The Appeal Panel's findings of professional misconduct against the lawyer were reasonable. The court rejected the lawyer's argument that the Appeal Panel misapplied its test for incivility and erred in its review of the record. The court stated that to the contrary, its review was comprehensive, its findings were tied directly to the events reflected in the record, and its conduct decision was reasonable. The Appeal Panel's decision on the suspension and its costs award was also reasonable and entitled to deference. The Divisional Court's costs award was also upheld. The majority concluded by stating that "The requirement of professionalism for lawyers, both inside and outside a courtroom, including zealous advocacy accompanied by courtesy, civility and good faith dealings, secures the nobility of the profession in which lawyers in this province are privileged to practise. The Appeal Panel concluded that this requirement was breached in this case. This conclusion, in my opinion, was both reasonable and correct. I would dismiss the appeal. Given the different standards of review and tests for incivility applied by the Appeal Panel and Divisional Court, this appeal engaged issues of significant importance to the legal profession and the public. In my view, guidance from this court on the issues raised was both necessary and appropriate. In the circumstances, I would make no order as to the costs of this appeal".

Barristers and Solicitors - Topic 4005

Relations with other lawyers - General - Courteous conduct (incl. duty of civility) - See paragraphs 87 to 221.

Barristers and Solicitors - Topic 5106

Discipline - General - Professional misconduct defined - See paragraphs 87 to 221.

Barristers and Solicitors - Topic 5182

Discipline - Disciplinary powers - Jurisdiction of disciplinary body - Re in-court incivility - See paragraphs 87 to 221.

Barristers and Solicitors - Topic 5245

Discipline - Procedure - Evidence and proof - See paragraphs 222 to 228.

Barristers and Solicitors - Topic 5385

Discipline - Suspension - For professional misconduct - See paragraphs 229 to 240.

Barristers and Solicitors - Topic 5503

Discipline - Costs - Liability for - See paragraphs 229 to 240.

Barristers and Solicitors - Topic 5582

Discipline - Appeals and judicial review - Standard of review - See paragraphs 49 to 86.

Civil Rights - Topic 1853

Freedom of speech or expression - Limitations on - Regulation - Lawyers' rules of conduct - Rules re civility to other lawyers - See paragraphs 152 to 161.

Counsel:

Earl A. Cherniak, Q.C., and Jasmine T. Akbarali, for the appellant;

J. Thomas Curry, Jaan E. Lilles and Andrew Porter, for the respondent;

Susan Reid and James Cornish, for the intervener, Attorney General for Ontario;

Paul J.J. Cavalluzzo and Nadia Lambek, for the intervener, Ontario Crown Attorneys' Association;

Terrence J. O'Sullivan, Matthew R. Law and Deborah Templer, for the intervener, The Advocates' Society;

Cara Faith Zwibel, for the intervener, Canadian Civil Liberties Association;

John A. Olah and Eugene Meehan, Q.C., for the intervener, Canadian Defence Lawyers Association;

Allan Rouben, Derek Nicholson and Darcy Romaine, for the intervener, Ontario Trial Lawyers Association;

Robin Parker and Angela Chaisson, for the intervener, Criminal Lawyers' Association.

This appeal was heard on December 14, 15 and 16, 2015, before MacPherson, Cronk and D. Brown, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on June 14, 2016, including the following opinions:

Cronk, J.A. (MacPherson, J.A., concurring) - see paragraphs 1 to 243;

D. Brown, J.A., dissenting - see paragraphs 244 to 445.