Top court vindicates ‘rude’ Toronto lawyer
Judges say misconduct finding stemming from feisty defence of Bre-X exec was ‘unreasonable’
At last, JoeGroia is a winner. Undoubtedly Toronto’s most prominent “rude” lawyer, Groia had suffered a considerable number of losses over
the last few years as he tried to appeal a Law Society of Ontario finding of “incivility”— being rude and disruptive in court — and a penalty consisting of a one month-suspension and $200,000 in costs.
The finding was upheld by a law society appeal panel. Then it was upheld in Divisional Court. And upheld yet again
at the Ontario Court of Appeal in a split decision.
But Groia, having invested an estimated $2 million in a legal battle closely watched by lawyers across the country, aaand resolute in his belief that he was simply zealously advocating for his client in court, soldiered on.
On Friday, his perseverance paid off. The Supreme Court of Canada, in a 6-3 decision, overturned the professional misconduct finding after declaring it “unreasonable.”
Though they said he could have been nicer in court.
“Although the Supreme Court has said that they are critical of some, or maybe many of the things I did, at the same time … they’ve done something that I think is incredibly important, which is to make it very clear that defence lawyers are entitled to a consider- able amount of latitude in defending t their clients,” Groia told the Star on Friday after reading the top court’s 119- page ruling.
“Except in very rare circumstances — and the court said this is not one of t them — defence lawyers don’t need to be looking over their shoulders if they believe it’s necessary to criticize the prosecutor or accuse the prosecution of acting inappropriately.”
The so-called incivility stems from the first phase, in the early 2000s, of the lengthy trial of Bre-X - Minerals exec- utive John Felderhof.
The minerals company vicepresident had been accused by the Ontario Securities Commission (OSC) of insider trading and other securities charges in one of the largest business scandals in Canadian history. He was acquitted of all charges by a judge in a 600-page decision in 2007.
Groia had frequently made allegations of prosecutorial misconduct, particularly related to issues of disclosure of evidence and admissibility of documents at trial. He described the OSC prosecution as “lazy” and referred to it as “the government,” which the law society later accused him of saying sarcastically, which he denies.
“To be sure, Mr. Groia should not have made his allegations in the sarcastic tone that he sometimes employed,” Supreme Court Justice Michael Moldaver said in Friday’s decision, writing for five of the six judges in the majority. “The tenor of his allegations at times descended into what can fairly be described as ‘petulant invective.’ ” No one ever complained about his conduct to the law society, which regulates the legal profession in Ontario. The regulator began its own investigation after a newspaper report of a Court of Appeal decision in the lengthy Felderhof proceedings.
Groia was convicted of professional misconduct by a law society discipline panel in 2012, and ordered to serve a two-month suspension and pay nearly $250,000 in costs. The finding was upheld, but the penalty lowered to a one-month suspension and $200,000 in costs, in 2013 by a law society appeal panel. The findings were then upheld at two different levels of court in Ontario. Writing for the Supreme Court majority, which includes now retired chief justice Beverley McLachlin, Moldaver endorsed the law society appeal panel’s approach to incivility, finding among other things that it “allows for a proportionate balancing of lawyers’ expressive rights” and the law society’s mandate to regulate the legal profession in the public interest.
However, he wrote that the appeal panel’s decision in the Groia case was unreasonable and was contrary to its own approach on incivility. He noted that part of the appeal panel’s findings were based on the fact that Groia had misinterpreted the law in his allegations of prosecutorial misconduct.
Moldaver said Groia’s allegations were made in “good faith and reasonably based” on his understanding of the law. And while Groia frequently made the allegations during the first phase of the trial, Moldaver noted that the law concerning abuse of process was “underdeveloped” at the time, as it was unclear whether a lawyer should repeatedly raise the allegations during trial or wait until the end.
The trial judge also “chose not to curb” Groia’s allegations during much of the first phase of the trial, but when the judge and higher courts did give him instructions, Groia complied, Moldaver wrote.
“Taking these considerations into account, the only reasonable disposition is a finding that he did not engage in professional misconduct,” Moldaver wrote.
The law society said in a statement that it welcomes the court’s endorsement of its approach to incivility. “This decision upholds the law society’s jurisdiction to regulate the legal professions’ conduct in court,” said the statement.
Justice Suzanne Côté agreed with the five-judge majority that Groia’s appeal should be allowed, but she would have followed a different legal route to get to that result.
In a stinging dissent, Supreme Court justices Andromache Karakatsanis, Clément Gascon and Malcolm Rowe accused the majority of “misstat(ing)” the law society appeal panel’s approach to incivility and of reweighing the evidence in Groia’s case when it should have shown deference to the appeal panel.
“We have a number of concerns about the implications that follow from Justice Moldaver’s reasons,” the three dissenting judges wrote. “Respectfully, we are concerned that they immunize erroneous allegations from law society sanction, validate improper conduct and threaten to undermine the administration of justice and the culture change that this court has called for in recent years.”
Now that Groia won’t be suspended after all, he’ll continue his work not only as a lawyer but as a member of the law society’s board of directors, to which he was elected by more than 3,000 lawyers in 2015. The regulator will also be paying his costs from his discipline proceedings and appeals, as ordered by the Supreme Court on Friday.
“I think it’s going to be an interesting decision, lots written about it, but today, for me, I go back to where this all started, which is when John (Felderhof) hired me in 1997,” Groia said. “And 21 years later, I guess we can finally say the final chapter in the Bre-X case has been written.”