Toronto Star

Bre-X lawyer back for more in fight over ‘incivility’ charge

More court battles for man who got client acquitted after scandal

- RACHEL MENDLESON STAFF REPORTER

The legal community is closely watching the latest round in Bre-X lawyer Joe Groia’s battle to defend himself against a controvers­ial charge of “incivility,” which is raising fundamenta­l questions of judicial independen­ce and freedom of speech.

In Ontario Divisional Court on Thursday, Groia’s lawyer framed the case as an opportunit­y to preserve the right of all lawyers to vigorously defend their clients without fear of reprisal from an “overzealou­s” profession­al regulator.

“No lawyer wants to be the next Joe Groia,” lawyer Earl Cherniak told the panel of three judges.

“Groia (has) defended his prosecutio­n, not only for his own sake, but also in the public interest in the profession.”

The judicial review follows nearly five years of legal wrangling over charges of profession­al misconduct by the Law Society of Upper Canada, which took issue with Groia’s behaviour in the early stages of the insider-trading trial of former Bre-X geologist John Felderhof.

A mining company, Bre-X Minerals announced a promising find of gold in Indonesia in 1995, sending its stock price soaring. But the samples were found to be fraudulent — the largest mining fraud in Canadian history, driving the company into bankruptcy.

The hard-fought, high-profile case ended with Felderhof’s acquittal. But in defending his client against the Ontario Securities Commission (OSC), the law society alleged Groia had displayed “incivility” a “consistent pattern of rude, improper or disruptive conduct” — charges he has been fighting ever since.

Alaw society disciplina­ry panel found Groia guilty in 2012 and issued a two-month suspension and ordered him to pay nearly $250,000 in legal fees.

Although an appeal panel cut down the suspension and the legal bill in 2013, the finding was upheld.

The law society’s criticisms of Groia’s behaviour includes his characteri­zation of the OSC as “the government” and “lazy,” among other descriptio­ns.

On Thursday, society lawyer Tom Curry, who prosecuted Groia at the disciplina­ry hearing, argued, “It is important that this court speak to the role that the self-regulator plays” when a lawyer “crosses the line . . . No matter where one might draw the line, Groia unfortunat­ely but enthusiast­ically strode over it.”

However, Cherniak argued that the law society oversteppe­d its authority, in part because the profession­al regulator initiated an investigat­ion on its own. The law society did not receive complaints about Groia’s behaviour from any party involved, including the trial judge, Justice Peter Hryn, Cherniak said.

At the disciplina­ry hearing, Cherniak said the law society “called no witnesses, not even the prosecutor­s who were said to be the object of the (law society’s) complaint” against Groia. Cherniak ar- gued that the law society is “secondgues­sing the trial judge,” whose duty it is to control lawyers’ behaviour in the court and impose sanctions — or complaint to the law society — if necessary.

The judges on the panel challenged this point, describing the main sanction judges have at their disposal — citing a lawyer for contempt — as a blunt instrument.

Felderhof’s trial was acrimoniou­s, and led the securities commission to apply to the Ontario Court of Appeal for a new trial judge. That court criticized Groia but the applicatio­n was dismissed.

In his submission­s to the judicial review, Cherniak noted that appeal court Justice Archie Campbell observed that “neither side in this case (had) any monopoly over incivility or rhetorical excess.”

Cherniak, who finished his submission­s on Thursday, told the court, “There is something terribly wrong with the picture we just drew.”

But Curry countered, “The narrative advanced by Groia is inaccurate, selective and highly sanitized and stands at odds with the historical record of proceeding­s.”

The law society continues with its submission­s on Friday.

 ?? CARLOS OSORIO/TORONTO STAR ?? Joe Groia is accused of "incivility," which could have major implicatio­ns for the way that lawyers defend their clients.
CARLOS OSORIO/TORONTO STAR Joe Groia is accused of "incivility," which could have major implicatio­ns for the way that lawyers defend their clients.

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