Revisiting Civility after Groia

• Author: Duncan Melville
• Position: CFA is a JD candidate at the University of Toronto, Faculty of Law
• Pages: 99-107

APPEAL VOLUME 21

n

99

ARTICLE

REVISITING CIVILITY AFTER GROIA

Duncan Melville*

CITED: (2016) 21 Appeal 99

INTRODUCTION

“Every counsel has a dut y to his client fearlessly to raise e very issue, advance

every argu ment, and ask every question, however dis tasteful, which he

thinks w ill help his client’s case. But, as an ocer of the cour t […] he has an

overriding duty to the cour t, to the standards of his profession, and to the

public, which may and often does le ad to a conict with his client’s wishes.”

— Lord Reid (1967)1

e Rules of Professional Conduct (the “Rules”) requi re practicing lawyers in Ontario to

behave in a civil man ner with clients, opposing counsel, t he public and the courts.2 An

admirable goal i n theory, opponents of the Law Society of Upper Canada’s (“LSUC”)

emphasis of civility fo cus on two main thre ads of argument. First, that c ivility is so

poorly dened to be devoid of meaning. In p articular, opponents ask how lawyer s can

realistica lly balance their obligation to zea lously defend their client with t he duty to act

in a civil manner, and whether t hese duties can coex ist. If so, at what point do lawyers’

actions breach the civi lity obligations under the Rule s? e second thread of argument

is that, even if properly dened , civility adds little value to the profession and ta kes time

away from debates on other more pressing eth ical matters— even wasting judicial t ime

and resources. In contr ast, proponents of civility view it as a n essential aspect of t he

functioning of the leg al system.

e two arguments by cr itics of the civilit y agenda deserve to be revisited in light of the

disciplinar y proceedings aga inst Joseph Groia, related to his succes sful 2007 defence of

former Bre-X ocer John Felderhof.3 Following the 2013 LSUC appeal decision,4 and

the 2015 Ontario Superior Court of Justice decision (“OSCJ Decision”),5 it is now easier

to dene, with precedentia l certainty, when a lawyer’s courtroom behaviour breac hes the

civility obligat ions under the Rules. Whi le the LSUC has favoured unif ormity in the

application of the Rules bet ween solicitors and litigators,6 the cogent arg uments in favour

of requiring litigators to be civ il now appear far weaker w hen applied to the realities of

* Duncan Melville, CFA is a JD candidate at t he University of Toronto, Faculty of Law. Hewishes

to thankProfessor Anita Anand fo r her support on this paper, and encour agement to work on

getting it published . He isalso grateful to the Universit y of Toronto’s Faculty of Law for awarding

an abridged version of this p aper the Nathan Strauss Q.C. Essay Prize in Le gal Ethics.

1 Rondel v Worsely, [1967] 3 WLR 1666 (HL).

2 The Law Society of Upper Canada, Ru les of Professional Conduct, Toronto: Law Socie ty of Upper

Canada, 2000 (amendment s current to September 24, 2015) [LSUC Rules].

3 R v Felderhof, 2007 ONCJ 345, OJ No 2974 [Felderhof].

4 Law Society of Upper Canada v Joseph Groia, 2013 ONSLAP 0041 [LSUC Decision].

5 Joseph Groia v The Law Society of Upper Canada, 2015 ONSC 686, 124 OR (3d) 1 [OSCJ Decision].

6 LSUC Rules, supra note 2.