Jun 20, 2016

ONTARIO COURT OF APPEAL SUMMARIES (JUNE 13 - 17)

Groia v. The Law Society of Upper Canada, 2016 ONCA 471 (CanLII)

[MacPherson, Cronk and Brown JJ.A.]

Counsel:

A. Cherniak, Q.C. and J. T. Akbarali, for the appellant

T. Curry, J. E. Lilles and A. Porter, for the respondent

Reid and J. Cornish, for the Intervener, Attorney General for Ontario

J.J. Cavalluzzo and N. Lambek, for the Intervener, Ontario Crown Attorneys’ Association

J. O’Sullivan, M. R. Law and D. Templer, for the Intervener, The Advocates’ Society

F. Zwibel, for the Intervener, Canadian Civil Liberties Association

A. Olah and E. Meehan, Q.C., for the Intervener, Canadian Defence Lawyers Association

Rouben, D. Nicholson and D. Romaine, for the Intervener, Ontario Trial Lawyers Association

Parker and A. Chaisson, for the Intervener, Criminal Lawyers’ Association

Keywords: Administrative Law, Regulation of Professions, Lawyers, Discipline, Professional Misconduct, Law Society Act, Rules of Professional Conduct, Rule 4.01, Civility, Judicial Review, Standard of Review, Reasonableness, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190

Facts:

On appeal to this court, Joseph Groia challenges the Law Society Appeal Panel’s findings of professional misconduct against him in relation to his in-court conduct towards opposing counsel. He also appeals the associated penalty and adverse costs award imposed by the Appeal Panel in light of those findings. The Divisional Court upheld the Appeal Panel’s decisions and costs award.

As an experienced securities litigator, Mr. Groia defended John Bernard Felderhof, a senior officer and director of Bre-X Minerals Ltd., on eight charges of violating the Securities Act. In November 2009, after the trial had concluded and Mr. Felderhof was acquitted of all charges, the Law Society initiated disciplinary proceedings against Mr. Groia alleging that he had engaged in professional misconduct while defending Mr. Felderhof.

Disputes arose between counsel in the Felderhof case almost immediately, and Mr. Groia made allegations of serious prosecutorial misconduct by the Ontario Securities Commission (“OSC”) prosecutors. The allegations resulted in several motions and submissions before the trial judge which consumed much of the court’s time. By day 70 of trial, the toxic relationship between Mr. Groia and the OSC prosecutors was sufficiently pervasive as to overtake the orderly and normal progress of the trial.

The OSC prosecutors subsequently brought an application for judicial review, arguing that Mr. Groia had repeatedly engaged in uncivil conduct in violation of the Law Society of Upper Canada’s (“LSUC”) Rules of Professional Conduct, and that, by failing to control this unacceptable conduct, the trial judge had lost jurisdiction and a new trial should be ordered.

While the application judge (and later, the Court of Appeal in a prior decision) both found Mr. Groia’s conduct to be improper, inappropriate and misconceived in law in many instances, they dismissed the judicial review application seeking a mistrial and held that Mr. Groia’s impugned conduct had not impaired trial fairness or prevented the OSC from presenting its case. By the end, the Felderhof trial had consumed 160 days of court time, spanning almost seven years, including the time devoted to the judicial review application and the related appeal.

On November 18, 2009, the Law Society commenced a discipline proceeding against Mr. Groia under the Law Society Act. The Hearing Panel found that Mr. Groia’s attacks on the OSC prosecutors were unjustified and constituted conduct falling below the standards of civility, courtesy, and good faith required under the Rules of Professional Conduct. It imposed a penalty of two months’ suspension of his licence to practise law and a reprimand. It also awarded costs of the discipline hearing to the Law Society in the amount of $246,960.53, plus interest.

The Appeal Panel affirmed the Hearing Panel’s findings of professional misconduct relating to Mr. Groia’s dealings with the OSC prosecutors but it reduced the length of his licence suspension from two months to one month. On appeal, Mr. Groia attacks the Appeal Panel’s ruling on the Law Society’s authority to discipline an advocate for uncivil conduct in court and its formulation and application of its test for incivility.

Issues:

(1) What standard of review apply in this case?

(2) Did the Divisional Court err by upholding the Appeal Panel’s Conduct Decision?

(3) Did the Divisional Court err in its treatment of the Reviewing Court’s Reasons?

(4) Did the Divisional Court err by upholding the Appeal Panel’s Penalty Decision and its costs award in favour of the Law Society?

(5) Did the Divisional Court err by awarding costs of the appeal in that court to the Law Society?

Holding: Appeal dismissed.

Reasoning:

(1) The deferential standard of reasonableness applies to the entirety of the Appeal Panel’s decisions. As stated by the Supreme Court in Dunsmuir, “a court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v. New Brunswick).

(2) No. Groia makes 3 submissions:

  • The trial judge, and not the Law Society, is in the best position to judge his alleged in-court civility.
  • The Appeal Panel erred in fashioning its test for incivility.
  • The Appeal Panel misapplied the test for incivility to the facts of the case.

The Court of Appeal addresses these submissions accordingly:

  • Oversight of In-Court Civility

This submission ignores the plain language of the Law Society Act and the Law Society’s undisputed statutory obligation to govern the legal profession in the public interest. The Act prohibits licensees from engaging in professional misconduct (s.33) and empowers the Law Society to conduct an investigation into potential misconduct (s.49.3). Ryan, at para 42, confirms that self-regulating disciplinary bodies have primary responsibility to oversee professional discipline and, where necessary, select appropriate sanctions. Groia argued that the recent SCC decision in Federation of Law Societies supports the principle that the state cannot impose duties that interfere with a lawyer’s commitment to advancing their client’s cause. The Court disagrees. The case affirms that the lawyer’s duty of commitment to a client is a principle of fundamental justice under s.7 of the Charter, but nothing in the case tolerates a lawyer’s breach of his or her professional obligations of courtesy, civility and good faith.

The role of trial judges is to decide the contested issues and to safeguard the fairness of the trial, including the dignity and decorum of the proceeding. In contrast, the primary role of the Law Society is to ensure the professionalism of its licensees, measured against the standards of practice that apply to the entire profession. The Law Society’s mandate to ensure that lawyers conduct themselves professionally in and out of the courtroom, does not in any way conflict with or erode a trial judge’s trial management power or the independent authority of the courts. It is not required, nor should it be, that a judge must complain to the Law Society about a lawyer’s in-court conduct in order for an inquiry to be commenced. This would lead to uncertainty in enforcement. Professional obligations “do not bend” with the level or intensity of a particular presiding trial judge’s response to incivility. Accordingly this ground of appeal is rejected.

  • Test for Incivility

The Appeal Panel’s formulation of the test for incivility in this case was reasonable. It appropriately balanced the importance of zealous advocacy with the requirement of courtesy and civility. The Appeal Panel properly considered Charter-protected expressive freedoms. The test provides meaningful guidance to the profession and reflects the need to maintain public confidence in the administration of justice:

Civility

The Court endorses comments made in Felderhof about the importance of civility both inside and outside the courtroom and the obligation of advocates to conduct themselves professionally as part of their duty to the court, to the administration of justice and to their clients. Civility is not merely aspirational, it is a codified duty of professional conduct and an essential pillar of the effective functioning of the administration of justice. The Court endorses the Appeal Panel’s comments on the definition of uncivil conduct, namely that the determination of when conduct crosses the line is “fundamentally contextual and fact-specific” and what constitutes incivility will vary by circumstance.

Zealous Advocacy

Groia had argued, and the Divisional Court accepted, that when the advocate’s duty of zealous advocacy conflicts with his or her duty of courtesy and civility, the public interest demands that the former must prevail. The Court rejects this premise on the grounds that it misconceives the advocate’s duty of professionalism. The duty of zealous advocacy must be protected and broadly construed, but it is not absolute and must not be abused. The duty of professionalism encompasses both the duty of zealous advocacy and civility, and the Rules of Professional Conduct have not placed one over the other.

As per Rondel, an advocate’s duties are owed not only to the client, but also to the public and, hence, to the justice system itself and all its participants. Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client (quoting from Felderhof). Occasionally the fearless and forceful representation of a client may “push up against the bounds of civility”, but an isolated lapse of judgement or occasional disparaging comment in litigation should not be viewed as triggering disciplinary action.

In the case at bar, there were patterns of unfounded and personalized attacks on the integrity of opposing counsel. Federation of Law Societies does not hold that the duty of commitment to a client’s cause is absolute or open-ended. It is perfectly consistent with the lawyer taking appropriate steps to ensure that his or her services are not used for improper ends. This applies with equal force to the duty of courtesy and civility.

Freedom of Expression

Groia argued that the Appeal Panel was required to address whether his allegations of misconduct constituted constitutionally-protected speech and factor this consideration into its determination of the proper test for incivility. The Court rejects this argument stating that the Appeal Panel addressed s.2(b) values under the rubric of its consideration of zealous advocacy. Balancing freedom of expression and the need to ensure civility is a fact-dependant exercise; the question is whether the administrative decision maker has disproportionately and, therefore, unreasonably limited the s.2(b) right.

The Appeal Panel did consider the right to expression and the need to strike a balance between those rights and the lawyer’s professional obligations. They directly quoted Doré on this matter. The Appeal Panel held that zealous advocacy did not require Groia to make unfounded allegations of procedural conduct and impugn the integrity of his opponent. The Court concludes that the Appeal Panel’s test reflects a reasonable and proportionate limit on both the advocate’s freedom of expression and those of the client.

Vagueness

Groia had argued that the test as re-stated by the Divisional Court is vague and ill-defined and creates unreviewable prosecutorial discretion for the Law Society. Groia challenged the court’s finding that the Law Society’s discipline process may be triggered if the conduct at issue “would have the tendency” to bring the administration of justice into disrepute.

The test articulated by the Appeal Panel is a reasonable and functional one that accounts for the contextual and fact-driven nature of a professional misconduct inquiry. The test was owed deference by the Divisional Court. The test is not vague or ill-defined, it satisfies the Supreme Court’s definition of incivility as set out in Doré.

However, the Court rejects the restrictive approach and re-statement by the Divisional Court as it falsely conflates harm to the administration of justice with trial unfairness. The bar for finding trial unfairness is too high for a professional misconduct inquiry. Damage to the administration of justice includes, but is not limited to, compromised trial fairness.

  • Reasonableness of Application of Test for Incivility:

The court rejects Groia’s submission that the Appeal Panel erred by misapplying its test for incivility to the facts of this case. There are two branches to the Appeal Panel’s test for incivility, and the court holds that both branches were satisfied in this case. The Appeal Panel’s findings of professional misconduct against Mr. Groia are reasonable, and therefore, there is no basis for intervention.

The court details numerous examples of Groia’s incivility during trial. Groia’s conduct during his cross-examination of Mr. Francisco was notable. In response to his inappropriate actions on cross-examination, the court held that Groia fundamentally misunderstood the role of the OSC prosecutors and advanced positions on the admissibility of documents that were wrong in law and contrary to the rules of evidence. It was concluded that Groia’s remarks exceeded the boundaries of zealous advocacy and met the test for incivility.

(3) No. It is unnecessary for the disposition of this appeal to resolve the issue of permissible use of the Reviewing Court’s Reasons. The Appeal Panel expressly held that they were to be afforded little weight and that they were not determinative of the professional misconduct allegations made against Groia.

(4) No. The Appeal Panel engaged in a balanced and fair assessment of Groia’s circumstances and conduct when fashioning an appropriate penalty. Its penalty is entitled to considerable deference on the reasonableness standard. No error in principle in the challenged costs award has been demonstrated, nor has any reason to depart from the general rule that the reasonable costs of investigating and conducting a discipline proceeding should not be borne by the profession as a whole where a determination adverse to the defending lawyer has been made. Appellate intervention is precluded in these circumstances.

(5) No. The discretionary costs ruling cannot be set aside unless it is tainted by an error in principle or was plainly wrong. Neither was the case here.

Dissent- Brown J.A.

Holding: The appeal should allowed.

Issues:

(1) Did the Divisional Court apply the correct standard of review?

(2) How should the Law Society Act’s by-laws be interpreted to ascertain when uncivil in-court conduct amounts to professional misconduct? How should this interpretation be applied to the case at hand to determine whether Groia had breached the by-laws and engaged in professional misconduct?

(3) Did the Divisional court err in upholding the Appeal Panel’s finding that Groia was guilty of professional misconduct for incivility?

(4) Did the Divisional Court err in finding that the Appeal Panel accounted for the effect of barrister’s conduct on trial fairness?

(5) Should the appeal be granted on a reasonableness standard?

Reasoning:

(1) Yes. The standard of review is correctness. Existing jurisprudence has not determined the degree of deference afforded to legal disciplinary panels reviewing lawyer conduct in-court. The absence of a privative clause in the Law Society Act suggests a lower standard of deference to the decisions of the Law Society, but this is not determinative. There are limits on the choices legislatures can make concerning the courts, and the responsibility for monitoring courtroom conduct should remain with the judiciary. This responsibility reinforces that the proper standard of review in this instance is correctness. The judiciary is also better situated to determine what conduct is acceptable, and has greater institutional skill in this area than Law Society regulators.

Given that Groia’s alleged misconduct occurred inside a courtroom, the standard of review should be correctness. This ensures that the judiciary has the final say over whether a lawyer’s in-court conduct was unacceptable and warranted a finding of professional misconduct. As the complaints dealt with in-court conduct, the standard review is not determined by considering the legislature’s intent when delegating powers to the regulatory body. Instead, the constitutional independence of the courts must be considered. If the judiciary is to make the final determination on whether a lawyer’s conduct amounted to misconduct, then the standard of review must be correctness. Under the reasonableness standard it is too difficult for the judiciary to review determinations of misconduct made by the reviewing body.

(2) The nature of both questions requires the deferential reasonableness standard of review. However, a contextual analysis may rebut the presumption of reasonableness review for questions involving the interpretation of the home statute (McLean v. British Columbia (Securities Commission)). The context of this case makes it one of the exceptional cases which rebut the general presumption. The standard of review analysis is determined by the contextual reality that the member’s impugned conduct took place in a courtroom. Any interpretation and application of the home statute to Groia’s conduct has implications about who has the ultimate say in what conduct by counsel before the courts is acceptable. Therefore, the correctness standard applies to the judicial review or appeal of a decision of a legal discipline committee on the question of whether the conduct of a barrister in a courtroom before a presiding judge constitutes professional misconduct. Under the correctness standard, the courts retain the final word on the propriety of what barristers do in courtrooms.

An inquiry into whether a barrister’s in-court conduct amounts to professional misconduct takes into account three main factors:

  1. What the barrister did.
  2. What the presiding judge did about the barrister’s conduct and how the barrister responded to the directions of the presiding judge.
  3. 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 first factor requires examination into the following:

  1. the nature of the conduct complained about;
  2. where and when the conduct occurred;
  3. the duration of the conduct;
  4. the reason for the conduct, including whether the barrister was reacting to provocation from the other side.

The second factor requires asking several questions:

  1. Did any participant in the hearing complain to the presiding judge about the barrister’s conduct?
  2. Did the presiding judge issue any direction to the barrister to limit or cease the conduct complained of?
  3. Did the presiding judge impose any sanction on the barrister for the conduct?
  4. Did the barrister comply with any directions given or sanction imposed by the presiding judge?

This factor rests on the proposition that judges are responsible for managing courtrooms to ensure procedural fairness and justice according to the constitutional principle of judicial independence. To avoid second-guessing the presiding judge’s response to the barrister’s conduct, when considering whether the barrister’s in-court conduct falls to the level of professional misconduct, the Law Society must pay careful attention to and give deference to any rulings the presiding judge made concerning the misconduct alleged, together with the barrister’s response to those judicial rulings.

The third factor requires considering whether the barrister’s conduct undermined, or threatened to undermine, trial fairness.

Parties may have agreed on one element of the test to determine whether in-court conduct amounts to professional misconduct, but the parties disagreed on other elements. Justice Brown differs with the majority’s disagreement with the Divisional Court’s “add-on.” Assessing when advocacy crosses the line from permissible zealousness to impermissible professional misconduct not only requires inquiring into the nature of the barrister’s conduct but also into its permissible degree of excess. This measure requires the regulator’s professional misconduct inquiry to include a consideration of the impact of the barrister’s conduct on the proceeding. This factor of the inquiry should focus more clearly on the impact of the barrister’s conduct on the proceeding in which it occurred. Therefore, when inquiring into whether a barrister’s in-court conduct constitutes professional misconduct, a discipline tribunal must assess whether the conduct is not only uncivil, but also whether it undermined, or threatened to undermine, the fairness of the trial or other court proceeding in which it took place.

The Appeal Panel’s test for in-court professional misconduct gave effect only to the first factor of the above factors and, consequently, was incomplete. A critical flaw in the test formulated and applied by the Appeal Panel and the Divisional Court was that it ignored, in any meaningful way, how the trial judge dealt with the prosecution’s complaints about Groia’s conduct.

(3) Yes. The Divisional Court, like the Appeal Panel, failed to give enough consideration to the measures taken by the Felderhof trial judge to address his conduct and to how Groia responded to the trial judge’s instructions regarding his conduct.

A review of the records shows that the trial judge did not ignore the prosecution’s complaints. He simply took a different approach to addressing the issue. His approach was not the road of strong intervention but it also was not a path of complete non-intervention.

As well, the record shows that Mr. Groia complied with the directions given by the trial judge. Compliance with instructions is the most material fact in the professional misconduct analysis. Further, after the Court of Appeal’s decision was released regarding Groia’s conduct, the trial resumed in a much more orderly fashion. This indicates further compliance.

A standard of perfection regarding counsel’s conduct is unreasonable because of the considerable emotion that trials generate amongst their participants. The trial judge is the person best placed to determine whether a barrister’s conduct is approaching or has crossed over the line that separates zealous advocacy from impermissible courtroom conduct. Therefore any regulatory review that fails to consider how the trial judge reacts to a barrister’s conduct, and how the barrister responds to judicial direction, ignores a necessary and critical element of the context in which the analysis of the barrister’s conduct must take place.

Failing to take into account Groia’s responses to judicial directions is an error of law.

(4) Yes. The Divisional Court accepted the Appeal Panel’s finding that Groia’s conduct interfered with the prosecutors’ ability to present their case. The Appeal Panel failed to consider the finding of the appellate court that the conduct did not prevent a fair trial or hearing.

Also, the Appeal Panel’s finding that Groia’s conduct caused a “serious adverse impact” to the prosecution’s first witness was wrong. It is the job of the trial judge to ensure the witness is treated fairly by both counsel. The trial judge was alive to the need to ensure this.

(5) Yes. Although the Appeal Panel’s decision-making process was transparent and intelligible, its reasons lacked the justification necessary to meet the reasonableness standard. This is because it failed to make meaningful inquiries into the key factors of what the courts did about the barrister’s conduct and how the barrister reacted as well as the effect of the barrister’s conduct on trial fairness.

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