A long-anticipated decision has finally come to light, a case coined “A Lawyer’s indoor voice”. Joe Groia (“Groia”) has been the center of a landmark case that had acquired its notoriety due to a David and Goliath theme. Groia has been climbing the judicial ladder, fighting against the Law Society’s finding of professional misconduct. Groia’s battle with the law society ended with him in front of the Supreme Court of Canada.
The Genesis of this case starts with Groia representing John Felderhof, a vice president of Bre-X Minerals Ltd., who was facing allegations of insider trading and other securities charges (the “Felderhof case”). Groia had won that case for his client just to find himself in a derivate hearing of his own. During the Felderhof case, there had been a childlike exchange between Groia and the Ontario Securities Commission (OSC) prosecutor. Groia had made personal attacks, sarcastic outbursts, and allegations of professional impropriety made against the OSC prosecutor by Groia.[1] Mr. Naster, the opposing counsel in the Felderhof case, never once castigated Groia for the tone or manner of his submissions or the language used by him.
GROIA’S INDISCRETIONS
To highlight a few comments Groia had made in open court which led to the
investigation:
- Mr. Groia repeatedly commented that he could not enter a document- "because
the Government isn’t prepared to stand by its representations to this Court and because the prosecutors do not live up to their promises.” [2]
- “My friend doesn’t like the fact that he is being held to statements he
made in open court. I am sorry. He made those submissions”.[3].– Sarcastic tone
- “Is my friend ever going to explain to this Court, or God forbid ever apologize to this Court for the
Government’s conduct in this Case?”[4] The Law Society Hearing Panel also relied on correspondence when rendering their decision, such as these:
- “Mr. Groia wrote a letter to the OSC alleging that the prosecution was- ‘operating under a serious misapprehension of its disclosure
obligation[s]’.” [5]
- The OSC prosecutors
responded to the letter offering a- “reasonable supply of blank paper.” [6]- Sarcastic Tone An oversight during the investigation had been that the OSC prosecutors had not been pursued or warned for their responsive uncivil behavior, or they have not been noted to the public. One could honestly speculate that the Law Society is targeting Groia.
Issues
1. Should Joe Groia be held guilty of Professional Misconduct? This was determined by applying the Civility Test, where there was an honestly held belief which had a reasonable basis. When allegations are the root of the misconduct, it asks if the allegations were made in Good faith and have a reasonable basis.
2. What Standard of Review should be applied? Reasonableness vs. Correctness
Courts
Hearing Panel
The Law Society Hearing Panel had found Groia guilty of professional misconduct, suspended his license to practice law for 2 (two) months and ordered him to pay nearly $247,000 in costs. [7]
It is important to note that the Law Society only became aware of the situation through media coverage of the Felderhof trial which leads to an investigation. Once the investigation was complete, the Law Society had brought the proceedings against Groia. The OSC prosecutor had not filed a complaint, and neither did the Superior Court or the Court of Appeal judges. The Law Society does note that on an application for judicial review, both courts had criticized Groia’s behavior. The Law Society unfairly uses these judges notes out of context in their reasoning for their decision. They fail to mention that the judges noted both counsels behavior as uncivil, and that the application to remove the trial judge failed because both judges felt the trial judge had been fair to both parties given the circumstances.
Appeal Panel
On Appeal, the Law Society Appeal Panel had upheld the Hearing Panel’s decision on Groia being guilty of professional misconduct. However, they reduced his suspension to 1 (one) month and costs to $200,000. The Appeal took a contextual approach when assessing Groia’s in-court behavior.
Appel Panel focused on the Groia’s sarcastic use of the word “Government” when describing the OSC lawyers.[8]
Divisional Courts
In 2015, Groia’s appeal was rejected by the Divisional Court upholding the appeal panel’s decision of professional misconduct, and showing deference to the Law Society’s decision. Justice Ian Nordheimer delivered judgement on behalf of the three panel court, finding “the decision of the Appeal Panel that the appellant had engaged in professional misconduct is a reasonable one.”[9]
Nordheimer, along with the entire panel, agreed that the standard of review should be identical to the test laid out in Dunsmuir which is the reasonableness test, showing deference to the expertise of the law society.
Nordheimer also tackled the debate over the potential chilling effect on zealous advocacy, which he believed was being used as a ‘get out jail free card’ to “further arguments in cases where the facts would not warrant the ultimate relief sought.”[10] The Divisional court refused to engage in the chilling effect argument, although recognizing that ‘crystal clear’ rules sometimes lacks clarity in its application.
Court of Appeal
Justice Cronk’s. judgement had been analogous to the Divisional court decision, where Groia’s appeal had been dismissed. The Court of appeal also agreed that the correct standard of review had been Reasonableness, which was at the core of the Appeal Panel’s functions and specialized expertise.
The only significant difference was that the judgement was not unanimous, where Justice David M. Brown had muddied the waters with his dissent. The Ontario Court of Appeal’s one dissenting judge applied the correctness of review over the reasonableness majority.[11] Justice Brown believed that Judges should be the masters of their own domain, and conduct in those courts fall under their purview.
Justice Brown stated that “courts remain the final umpires of the propriety of what barristers do in the courtrooms.”[12]
Justice Brown’s dissent is crucial as it is adopted in Justice Moldaver’s judgment, excluding the correctness as the Standard of Review. Justice Suzanne Cote delivers a concurring judgment, but unlike Moldaver, reaches the same decision as the majority without cherry-picking arguments.
Supreme Court of Canada
The question before the Supreme Court of Canada was what amounts to incivility, and who decides. This decision would draw the line in the sand on the authority for a lawyer’s in-court conduct: the presiding judge or the Law Society. A central concern in this case revolved around the Chilling effect on resolute advocacy, with the fear that regulators would constantly be looking over prosecutors’ shoulders.
The Supreme Court had made three separate reasoning, Michael Moldaver delivering for the judgement for the majority, Suzanne Cote who delivered a concurring judgement with the majority but applying the correctness standard, and the remaining judges delivering a simultaneous dissent.
The Supreme Court Held: allowed the appeal and set aside the decision of the Appeal Panel with respect to the finding of professional misconduct against Mr. Groia and the penalty imposed. I would award costs to Mr. Groia in this Court and in the courts below, as well as in the proceedings before the Law Society. The complaints against him are dismissed and there is no need to remit the matter back to the Law Society. [13] The Appel Panel’s finding of professional misconduct against MR. Groia was deemed unreasonable. The Court exchange was heavily based on the fact that Groia had made an honest but mistaken understanding of the law of evidence and the role of the prosecutor.
The factor that broke the chains for Groia had been the disregard to the Trial judge’s reaction, and compliance to instructions. The Majority of the Supreme Court disagreed with the Appeal Panel’s method of applying its own Civility test, by not considering the presiding judge’s reaction. Moldaver states “the judge’s passivity cannot be seen as acquiescence, but it should be a relevant contextual factor when evaluating the language and tone that Groai chose to employ.”[14] Noted that certain of Mr. Groia’s comments did not cross the line into professional misconduct, it concluded that this conduct, when considered cumulatively, can be best described as a relentless personal attack on the integrity and the bona fides of the prosecutors. [15]
Considering that co-counsel should be synonymous in the legal field as a co-worker, the Law Society plays a supervisory role to ensure civility. Just as a workplace, workers are given warnings and chances to learn from their mistake. Mistakes are a basic human nature, and the sentiment this court has taken is that one should be allowed to learn from their mistakes, by saying that ‘Hindsight is 20/20, and deeming something unreasonable is an afterthought. This is read along with the a crucial point that Groia had modified his behavior when the trial judge and reviewing courts gave him instructions to do so. Groia was entitled to rely on the judge’s responses (or lack therof) in calibrating his litigation strategy.
The issue of not remitting or returning the matter back the Law Society is that it creates a loophole from the final decision makers which are supposed to be the Law Society.
The foundational reasoning of Moldaver over the unsettled state of law regarding abuse of process was ironically not even raised by Mr. Groia. The irony is Groia heavily relied on the fact that the judge had no issue with his behavior, which cannot be known for certain because omission is not a sign of approval of behavior, but at the same time you have Justice Moldover making an argument on behalf of Mr. Groia, playing a quasi-defence role, where Groia himself never even made in his own defence.
It is hard to criticize the Appeal tribunal for an argument Groia never even submitted as part of his defence. Appeal hearing cannot be expected to exhaust multiple hypotheticals.
Concurring Judgement of Cote
Cote resurrects the Correctness argument that was made in Justice Brown’s dissent in the Crown of Appeal. This concurring judgement is dangerous as it affirms a thought process the Supreme Court has been attempting to dodge, especially the
majority, whose reasoning is oddly similar to this standard.
Cote: “Judicial independence is the cornerstone of Canadian
democracy. It is essential to both the
impartiality of the judiciary and the maintenance of the rule of law”. [16]
RATIO: Civility Test
Test for Professional Conduct, where allegations are:
1. Made in Good Faith: Can’t sanction lawyers for holding a sincere mistaken belief or legal positions, but impugning a lawyer’s reputation must not be made lightly. A lawyer’s reputation and integrity is their most marketable asset. Much of the disagreement stemmed from Groia’s mistaken understanding of the rule of law.
2. Reasonable Basis: This is not mutually dependent on making a legal error, or mistake of law. Reasonable basis is not an exact science.
These two steps in the Civility test are intertwined with sincerity, and the more egregious the mistake, the less reasonable the mistake would be to be sincerely believed.
Moldaver adds a third aspect to the test that requires that judges should take a holistic approach when applying this test, as it should not be a “stand-alone test for professional misconduct.”[17] An analysis should include both contextual and factual approach, which is discussed below in the Application of the Civility Test.
This Test was applied toward Groia challenging opposing counsel’s integrity.
APPLICATION: Moldaver’s Test
1. What did the Lawyer Say? Reference Groia’s Indiscretions. Groia had made repeated personal attacks, sarcastic outbursts, and alleged professional impropriety against the OSC prosecutors.
2. Manner and Frequency- how often was it said (including tone). Groia had submitted that he kept repeating abuse of process allegations because he was setting ground work for Motion at the end and was putting the OSC ‘on Notice’.
3. Trial Judge’s Reaction: A heavy reliance on this factor which came as no a surprise, given that the Supreme Court’s only real evidence of how severe the behavior had been would be to evaluate other colleagues’ (judges) behavior. The reasoning of the majority paying substantial weight on the third criteria is that “it was not until the 57th day of the Felderof trial that the judge first instructed Mr. Groia to simple make ‘the same objection’ when he believed the prosecutors were acting inappropriately.”[18]
The court recognized that in a criminal court, a judge must appear impartial especially when a jury is present, and reprimanding a counsel may prejudice the client. After repeated remarks, the OSC prosecutor asked the trial judge to rule whether Groia’s conduct was improper but the judge took a passive approach.[19] The trial judge’s reaction is so important in the Supreme Court decision solely based on the:
“The trial judge’s failure to admonish Mr. Groia for the manner in which he raised his allegations signaled to Mr. Groia that there was nothing wrong with the way he was impugning the prosecutors’ integrity. It was therefore imperative for the Appeal Panel to consider the trial judge’s reaction when evaluating Mr. Groia’s conduct.” [20]
Later, the OSC failed to bring a successful judicial review application before both the Superior Court and the Court of Appeal to remove the trial judge for failing to intervene in Groia’s uncivil behavior. Both Campbell J. and Rosenberg J.A. both agreed that neither Groia or OSC prosecutors had a ‘monopoly over incivility and rhetorical excess’. Neither judge from their respective courts wanted to appear preferential in these Seesaw disputes among counsel. This begs the question on why the OSC prosecutors’ incivility was not investigated by the Law Society.
Notwithstanding a few indiscretions, Groia complied with the judge’s caution.
Dissent
A dissent delivered by Karakatsanis, Gascon and Rowe JJ had disagreed with not only with the outcome, but also, almost every reason behind their judgement. A major concern was the application of the Reasonableness Standard of Review. Going on to say that “the appeal panel’s mandate permits it to determine “any question of fact or law that arises in a proceeding before it”.[21]
“Moldaver misstates the Appeal Panel’s Approach and reweighs the evidence in order to reach a different result.”[22] Moldaver’s judgement creates a gap of logic, whereby applying the Standard of Review as Reasonableness, deference shown because for “200 years, the legislature has delegated to the Law Society authority to make Rules of Professional conduct and interpret them”[23] falling within the specialized body’s core of expertise.
Furthermore, the dissent argues implies that ignorance is being used as a shield when saying “prosecutorial misconduct should not be shielded from professional sanctions because of the lawyer’s own incompetence.”[24]
Finally, the dissent goes down a hypothetical, whereby stating that this decision will lead to outrageous beliefs held by lawyers to satisfy reasonable belief/basis for allegations that the law society will lose all authority with incivility by cloaking accusations behind subjective belief.
“Moldaver’s reasons may immunize erroneous allegations from the Law Society sanction, validate improper conduct and threaten to undermine the administration of justice.”[25]
This is all Conjecture, and has no basis for such speculation to be made to such a degree, going so far by even saying “the Supreme Court has validated Groia’s behavior.”[26]
The dissenting judges also lack in their reasoning any acknowledgement of the Law Society’s conduct into investigating Groia, just as the majority.
Opinion
This creates a lacuna gap that was once filled by Dunsmuir, by contradicting the application of the reasonableness standard, because deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable.[27]
Supreme Court’s task is to resolve very controversial or contested areas of the law, or at the very least be deferential to the inherent decision makers. This decision does not create a guideline, more so a maze; whereby the majority contradicts the very standard of review it applies, and the dissenting judges deflect to hypotheticals.
Moldaver’s response to the Appeal Panel’s decision was “based on its own findings, including that Mr. Groia’s allegations were made in good faith, it was not reasonably open to the Appeal Panel to conclude that Mr. Groia was guilty of professional misconduct on account of incivility.”[28]
Paraphrased, Moldaver basically told the Appeal Panel, given the steps and thought processes you followed, you landed on the wrong conclusion. Moldaver’s judgment oddly resembles the characteristics of the correctness standard, by implying that specialized tribunal had made a mistake.
Enough, or nonexistent was the discussion of the Law Society investigating into Groia’s conduct on their own volition based on media reports. A good deal of deference should be given to the Law Society investigations, but not when they rely on gossip. Investigations would have higher accountability if they responded to public reports of a lawyer’s conduct, or other members of the Law Society or profession.
The ideal position the majority should have been to deem this case an exceptional circumstance. Moldaver’s halfway reasoning undermines the legal precedent revolving around the Standard of Review in Dunsmuir.
CASES
R v Felderhof, 2007 ONCJ 345, 244 C.C.C. (D) 97
Law Society Hearing Panel, 2012 ONLSHP 94
Law Society Appeal Panel, 2013 ONLSAP 41
Groia v. The Law Society of Upper Canada; Canadian Civil Liberties Association et al., Intervenors [Indexed as: Groia v. Law Society of Upper Canada], 124 O.R. (3d)
Groia v. Law Society of Upper Canada, [2016] O.J. No. 3094
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC
[1] Groia v. Law Society of Upper Canada (2018) SCC 27, summary
[2] Groia v. Law Society of Upper Canada (2018) SCC 27, para. 299 A.P.
[3] Groia v. Law Society of Upper Canada (2018) SCC 27, para. 299 A.P.
[4] Groia v. Law Society of Upper Canada (2018) SCC 27, para. 299 A.P.
[5] Groia v. Law Society of Upper Canada (2018) SCC 27, para. 13
[6] Groia v. Law Society of Upper Canada (2018) SCC 27, para. 13
[7] Law Society Hearing Panel, 2013 ONLSHP 59
[8] Groia v. Law Society of Upper Canada (2018) SCC 27, 203
[9] Groia v. Law Society of Upper Canada, 124 O.R. (3d) 1 para 142
[10] Groia v. Law Society of Upper Canada, 124 O.R. (3d) 1 para 64
[11] Groia v. Law Society of Upper Canada, [2016] O.J. No. 3094 para 244
[12] SCC para 41; para 313 in Court of Appeal
[13] SCC 161
[14] SCC 158
[15] Scc 205
[16] SCC 167
[17] SCC 82
[18] SCC 151
[19] SCC 149
[20] SCC 153
[21] SCC 193
[22] SCC 213
[23] SCC 214
[24] SCC199
[25] SCC 219
[26] SCC 222
[27] SCC 180
[28] SCC 138