Jul 5, 2018

Judicial review of law society findings of incivility

Groia v. Law Society of Upper Canada, 2018 SCC 27 (CanLII)

FACTS: G is a lawyer regulated by the Law Society of Ontario, who represented a Bre-X mining executive facing charges under the Ontario Securities Act arising from the Bre-X scandal. G’s client was acquitted after “complex, protracted and exceptionally acrimonious” proceedings. During the first half of the trial, G believed prosecutors were acting wrongly and, repeatedly and in harsh language, accused them of abuse of process. G’s beliefs of prosecutorial misconduct were wrong in law, but the trial judge did not correct him.

After the proceedings concluded, the Law Society, acting of its own motion, commenced disciplinary proceedings against G, charging that he had acted uncivilly. At first instance, the Hearing Panel of the Law Society Tribunal found G guilty of professional misconduct and ordered a two-month suspension and costs.

The Law Society Tribunal Appeal Panel upheld the finding of misconduct but reduced the suspension to one month and decreased the costs award. The Appeal Panel held that a lawyer’s duty of civility required that allegations of prosecutorial misconduct should be made only by a lawyer who is acting in good faith and has a reasonable basis for making the allegation.

G appealed to the Divisional Court, which dismissed the appeal. A 2-1 majority of the Court of Appeal upheld the Divisional Court’s decision. G further appealed to the Supreme Court of Canada.

DECISION: Appeal allowed (Côté J concurring; Karakatsanis, Gascon, and Rowe JJ dissenting).

Justice Moldaver, writing for the majority, held that the standard of review is reasonableness but that the Law Society Appeal Panel’s decision was unreasonable. The majority relied on earlier jurisprudence from the Court to conclude that law society misconduct findings and sanctions are reviewed for reasonableness. Setting criteria for a finding of misconduct and assessing whether a lawyer’s conduct meets those criteria involve the interpretation of the Law Society’s home statute and the exercise of discretion, both of which are presumptively entitled to deference. That presumption is not rebutted here. Assessing whether incivility by a lawyer amounts to professional misconduct lies within the Law Society’s expertise and the fact that the conduct here took place in a courtroom is irrelevant to the standard of review. Courts and law societies enjoy concurring jurisdiction to regulate and enforce standards of courtroom behaviour, and deferential review of the Law Society’s decision does not threaten the independence of the judiciary or a judge’s control over the courtroom.

The majority accepted as reasonable the Appeal Panel’s context-specific approach to assessing whether a lawyer’s behaviour crosses the line into professional misconduct on the basis of incivility. However, they concluded that the Appeal Panel unreasonably applied that test to G’s conduct. Contrary to its own approach, the Appeal Panel used G’s sincerely held but erroneous legal beliefs to conclude that his allegations lacked a reasonable basis. That approach cannot be reasonable. Based on his honest but mistaken understanding of the law, G had a reasonable basis to accuse the prosecutors of misconduct. The prosecutors’ conduct, the fact that the judge did not correct G, and the legal uncertainty that existed at the time about how to raise the issue of abuse of process all led G to act as he did.

Justice Côté in concurring reasons agreed with the majority that the Law Society erred in finding that G had committed misconduct. But in her view the correctness standard of review applied. The Court’s existing jurisprudence does not dictate the standard of review in this case. Although past Supreme Court cases have applied the reasonableness standard to review of professional misconduct decisions of law societies, a critical and dispositive difference in this case is that G’s conduct occurred before a judge in open court. That fact implicates constitutional imperatives about the judiciary’s independence and capacity to control its own process. An inquiry by a law society into a lawyer’s in-court conduct risks intruding on the judge’s role of managing the trial process and therefore the judiciary should have the final say over the appropriateness of a lawyer’s conduct in that sphere. Reasonableness review is inconsistent with that prerogative. Assuming (without deciding) that the Appeal Panel adopted the correct test for professional misconduct, its application of that test to G’s conduct was incorrect.

The three dissenting judges agreed with the majority that reasonableness is the applicable standard of review and that the Law Society Appeal Panel reasonably set out a contextual approach to determine whether a lawyer’s courtroom conduct constitutes professional misconduct. However, those judges disagreed with the majority on the outcome. In their view it was open to the Law Society to adopt the approach it did and find G guilty of misconduct. They found that the Appeal Panel’s reasoning was nuanced and flexible, and responsive to the particular factual matrix in which it is applied – an approach that flowed directly from the Appeal Panel’s thorough consideration of the rules, related commentary, and the jurisprudence. In their view, the Appeal Panel’s conclusion that there was no foundation for G’s allegations against the prosecutors was open to it and flowed directly from the Panel’s thorough consideration of the evidence. The dissenting judges accused the majority of effectively reformulating the Appeal Panel’s approach in a manner that is inappropriate on reasonableness review. The majority’s approach effectively creates a mistake of law defence: a lawyer will have a “reasonable basis” for allegations of misconduct anytime his beliefs as to the law — if they were correct — would create such a basis. But the Appeal Panel explicitly rejected the idea that whenever a lawyer’s accusations are based on an honestly held belief in the law, they necessarily have a “reasonable basis”. It is not a respectful reading of the Appeal Panel’s reasons to articulate a novel test for professional misconduct, then fault the Panel for failing to apply it.

The dissenting judges expressed several concerns with the potential impacts of allowing G’s appeal, including undermining the administration of justice. Through their enabling legislation, law societies are given authority to sanction lawyers who commit professional misconduct and, in turn, promote efficiency in the justice system. They should be empowered to do that, not undermined through second-guessing by the courts. Their decisions respecting professional misconduct should be approached with deference.

COMMENTARY: The Supreme Court’s decision in this appeal finally concludes a lengthy saga that was closely watch by the legal community due to its implications for lawyer regulation and the point at which lawyers’ courtroom conduct could constitute grounds for professional misconduct findings.

For the broader administrative and regulatory law community, the case is of interest as yet another chapter in the Supreme Court’s fractured substantive review jurisprudence, with the judges dividing on both the applicable standard of review and the application of the reasonableness standard.

There can be no doubt that the Groia case was a challenging one for the Court; the sheer number and nature of the various interveners speak to the passionate views and debates within the legal community about whether Mr Groia’s conduct ought to have been disciplined as professional misconduct, or whether that regulatory response will have a detrimental chilling effect on fearless advocacy. In addition to the reasonable disagreement on those questions within the litigation community, the Court had to grapple with its own jurisprudence calling for deferential review of professional misconduct decisions by law societies.

In that context, the majority’s application of reasonableness review is somewhat contorted. They appear not to have wanted to depart from Law Society of New Brunswick v Ryan[1] and Doré[2] in accepting that the reasonableness standard is appropriate, yet their application of the standard reads as disguised correctness. As the dissenting judges point out, the majority essentially reformulates the Appeal Panel’s test and then finds the Appeal Panel’s decision unreasonable for failing to meet that test. One is always tempted to question the conclusion that a decision is unreasonable after it has been upheld by two courts (in this case a unanimous three-judge panel of the Divisional Court and two Court of Appeal judges) and three fellow Supreme Court judges.

We suggest that the more transparent approach if the majority was uncomfortable upholding the Appeal Panel's decision is that followed by Brown JA at the Court of Appeal and Côté J – to apply the correctness standard and overturn the decision on the basis that it was incorrect. Justice Côté’s reasons articulate compelling reasons why the correctness standard ought to apply. The correctness standard could have been adopted by distinguishing misconduct decisions relating to in-court conduct, as Justice Côté did, or by reconsidering Ryan. There is reason to question whether the reasonableness standard is appropriate in respect of law society decisions where there is a statutory right of appeal – can it really be said that law societies have greater expertise than courts regarding issues of lawyer conduct?

The Supreme Court has indicated that it will reconsider the framework for substantive review in a trilogy of cases set to be heard in late 2018.[3] One can hope that the next era of substantive review will be marked by the consistency and coherence that has thus far been elusive.

[3] The Court made these rare comments as part of its judgment granting leave to appeal.

To receive bi-monthly updates on the latest major administrative and regulatory law cases from across Canada, sign up for the Stockwoods LLP Administrative & Regulatory Law Case Review by contacting alicec@stockwoods.ca.