Sep 28, 2020

Few Lessons for Regulators from Groia

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

Few decisions were as anticipated by the legal profession as was the Supreme Court of Canada verdict in Groia v. Law Society of Upper Canada, 2018 SCC 27, http://canlii.ca/t/hsb9d. Mr. Groia had been disciplined for incivility for the way in which he had treated the opposing lawyer in a high profile securities prosecution. Mr. Groia had made allegations of prosecutorial misconduct (mostly about disclosure issues), using strong language, throughout much of the trial. The Supreme Court reversed the misconduct finding on the basis that while Mr. Groia was mistaken about the law, he acted in good faith and had some basis for making the assertions (despite his incorrect view of the law).

For regulators of professions other than law, the case will have little significance. The Court affirmed the reasonableness standard of review of findings of professional misconduct and supported an approach that involved considering all of the circumstances. The majority of the Court found that, in the context of this case, it was unreasonable to find that Mr. Groia had crossed the line given his good faith, but erroneous, view of the prosecutor’s disclosure obligations and the circumstances in the particular case (e.g., the conduct of the prosecutor and the relatively passive stance of the judge). A key consideration, which will not apply to most other regulators, was that the conduct occurred in court and was directed at another member of the profession where resolute and fearless advocacy for a client is required. It is doubtful that a court would give that amount of leeway for practitioners advocating in a rude manner for their own clients in other contexts (e.g., a health care setting).

Unfortunately for regulators, this decision may slightly embolden defence counsel to make allegations of prosecutorial misconduct by the regulator. While such allegations are rarely successful, they can significantly increase the costs of misconduct investigations and hearings.