Groia v. Law Society of Upper Canada, (2015) 330 O.A.C. 202 (DC)

• Judge: Sachs, Nordheimer and Harvison Young, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 02, 2015
• Jurisdiction: Ontario
• Citations: (2015), 330 O.A.C. 202 (DC);2015 ONSC 686

Groia v. LSUC (2015), 330 O.A.C. 202 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.033

Joseph Peter Paul Groia (appellant/respondent by cross-appeal) v. The Law Society of Upper Canada (respondent/appellant by cross-appeal) and Canadian Civil Liberties Association, The Criminal Lawyers' Association and the Advocates' Society (intervenors)

(162/14: 2015 ONSC 686)

Indexed As: Groia v. Law Society of Upper Canada

Court of Ontario

Superior Court of Justice

Divisional Court

Sachs, Nordheimer and Harvison Young, JJ.

February 2, 2015.

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. 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 dismissed the appeal and the cross-appeal.

Barristers and Solicitors - Topic 5106

Discipline - General - Professional misconduct defined - A lawyer representing his client at trial on Securities Act charges dealt with the prosecutors in an uncivil, disrespectful and discourteous manner that challenged their professional integrity - Both the Hearing Panel and Appeals Panel of the Law Society of Upper Canada found that his conduct went beyond zealous advocacy for his client and constituted professional misconduct - The lawyer appealed, submitting that the Appeal Panel erred in determining when uncivil conduct crossed the line and constituted professional misconduct - The Ontario Divisional Court dismissed the appeal - The Appeal Panel was owed a high degree of deference on review - The standard of review was reasonableness - The court offered guidelines as to when zealous advocacy crossed the line and became professional misconduct: "It is conduct that attacks the personal integrity of opponents, parties, witnesses or of the court, where there is an absence of a good faith basis for the attack, or the individual counsel has a good faith basis for the belief but that belief is not an objectively reasonable one. ... single instances of such conduct will be less likely to engage the misconduct concern as will repeated instances of the same conduct. ... a solitary instance of uncivil conduct will not, generally speaking, be sufficient to ground a complaint of professional misconduct, unless it is of a particularly egregious form. ... For uncivil conduct to rise to the level that would properly engage the disciplinary process, it must be conduct that, in addition to being uncivil, will also bring the administration of justice into dispute, or would have the tendency to do so. ... It is, therefore, ultimately necessary for a finding of professional misconduct for the uncivil conduct to have undermined, or to have had the realistic prospect of undermining, the proper administration of justice." - The Appeal Panel's decision that the uncivil conduct constituted professional misconduct was reasonable - See paragraphs 46 to 97.

Barristers and Solicitors - Topic 5182

Discipline - Disciplinary powers - Jurisdiction of disciplinary body - A lawyer was found guilty of professional misconduct for his disrepectful, discourteous and uncivil behaviour towards prosecutors during the trial of his client under the Securities Act - The lawyer argued that the Law Society had no jurisdiction to consider issues of professional misconduct arising out a lawyer's conduct during a trial unless: "(i) the presiding judge makes a complaint to the [Law Society] about the lawyer's conduct; (ii) where the asserted misconduct of the lawyer is in conjunction with misconduct by the presiding judge; (iii) where the presiding judge finds a lawyer in contempt; (iv) where there is a judicial finding that the lawyer's conduct has led to a miscarriage of justice" - The Ontario Divisional Court held that the Law Society had jurisdiction to review and sanction the conduct of counsel that occurred in the courtroom in any situation where the Law Society considered it appropriate to do so - In doing so, the Law Society was not interfering with judicial independence - The court stated that "The judiciary and the [Law Society] have their separate responsibilities regarding the conduct of lawyers and I see no realistic harm that can, or should, arise by permitting their parallel application" - See paragraphs 26 to 45.

Barristers and Solicitors - Topic 5245

Discipline - Procedure - Evidence and proof - A lawyer representing his client at trial on Securities Act charges dealt with the prosecutors in an uncivil, disrespectful and discourteous manner that challenged their professional integrity - Both the Hearing Panel and Appeals Panel of the Law Society of Upper Canada found that his conduct went beyond zealous advocacy for his client and constituted professional misconduct - In a judicial review application (and appeal from that decision), the judges commented on the lawyer's conduct - The Ontario Divisional Court held that the reasons of the judges commenting on the lawyer's conduct were admissible in the subsequent disciplinary hearing - However, the opinions of the judges in proceedings in which the lawyer was not a party, and where his conduct constituted professional misconduct was not in issue, were not irrefutable evidence of professional misconduct - The doctrine of abuse of process did not apply to make the Hearing Panel bound by the opinions - Rule 24.08 of the LSUC's Rules of Practice and Procedure made the transcript and reasons of the court decisions admissible, but, as opinions, they were not determinative - See paragraphs 120 to 141.

Barristers and Solicitors - Topic 5385

Discipline - Suspension - For professional misconduct - A lawyer representing his client at trial on Securities Act charges dealt with the prosecutors in an uncivil, disrespectful and discourteous manner that challenged their professional integrity - Both the Hearing Panel and Appeals Panel of the Law Society of Upper Canada found that his conduct went beyond zealous advocacy for his client and constituted professional misconduct - 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 - An Appeal Panel of the LSUC allowed the lawyer's appeal in part, finding him 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 penalties imposed - The LSUC cross-appealed the penalty reduction - The Ontario Divisional Court dismissed the appeal and cross-appeal - Professional regulators were in the best position to determine the appropriate penalty for a breach of their profession's standards and regulations - The Appeal Panel considered and properly weighed the relevant facts - There was no error warranting appellate interference - See paragraphs 107 to 119.

Barristers and Solicitors - Topic 5503

Discipline - Costs - Liability for - [See Barristers and Solicitors - Topic 5385 ].

Barristers and Solicitors - Topic 5582

Discipline - Appeals and judicial review - Standard of review - [See Barristers and Solicitors - Topic 5106 ].

Cases Noticed:

R. v. Felderof (J.B.), [2002] O.T.C. 829 (Sup. Ct.), refd to. [para. 15, footnote 4].

R. v. Felderof (J.B.), [2003] O.T.C. 114 (Sup. Ct.), refd to. [para. 16, footnote 5].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 68 O.R.(3d) 481 (C.A.), refd to. [para. 17, footnote 6].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 28, footnote 8].

Marchand v. Public General Hospital Society of Chatham et al. (2001), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), refd to. [para. 34, footnote 11].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 59].

Stevens v. Law Society of Upper Canada (1979), 55 O.R.(2d) 405 (Div. Ct.), refd to. [para. 60].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 64, footnote 14].

Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.), refd to. [para. 65].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146, refd to. [para. 72, footnote 16].

Law Society of Upper Canada v. McSween, [2012] L.S.D.D. No. 15 (App. Panel), refd to. [para. 101].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 104].

R. v. Valentini (D.) et al. (1999), 118 O.A.C. 1; 43 O.R.(3d) 178 (C.A.), refd to. [para. 112].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 114].

Law Society of Upper Canada v. MacFarlane, [2009] L.S.D.D. No. 56 (Hearing Panel), refd to. [para. 116].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 51 O.R.(3d) 481 (C.A.), refd to. [para. 124].

British Columbia (Attorney General) v. Malik et al., [2011] 1 S.C.R. 657; 414 N.R. 332; 303 B.C.A.C. 1; 512 W.A.C. 1, refd to. [para. 126].

Law Society of Upper Canada v. Coady, [2012] L.S.D.D. No. 56 (Hearing Panel), refd to. [para. 133].

Authors and Works Noticed:

Code, Michael, Counsel's Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System (2007), 11 Can. Crim. L.R. 97, pp. 119 to 122 [para. 39, footnote 12].

LeSage, Patrick J., and Code, Michael, Report of the Review of Large and Complex Criminal Case Procedures (2008), p. 141 [para. 43, footnote 13].

Counsel:

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

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

C. Zwibel, for the intervenor, Canadian Civil Liberties Association;

F. Addario and R. Parker, for the intervenor, The Criminal Lawyers' Association;

T.J. O'Sullivan, M. Law and D. Templer, for the intervenor, The Advocates' Society.

This appeal and cross-appeal were heard on January 8-9, 2015, at Toronto, Ontario, before Sachs, Nordheimer and Harvison Young, JJ., of the Ontario Divisional Court.

On February 2, 2015, Nordheimer, J., delivered the following judgment for the Court.