Toronto lawyer nears end of ‘incivility’ legal saga
Joe Groia still fighting ruling of rude conduct during Bre-X trial
As Joe Groia puts it, people don’t hire a lawyer because they’re nice and polite.
“Clients hire lawyers because they believe that the lawyer is all that stands between them and disaster.” He would know. The Toronto securities lawyer has been embroiled in a decade-long battle with the Law Society of Upper Canada, the body that regulates the legal profession in Ontario, over his “incivility” conviction — basically being rude and disruptive in the courtroom at the trial of his former client, Bre-X Minerals executive John Felderhof.
Groia was suspended for two months and ordered to pay nearly $250,000 (later reduced to one month and $200,000).
He has yet to actually serve the suspension, as he has fought that penalty at every level of court — spending far more than the $200,000 he was ordered to pay by the Law Society Tribunal after his disciplinary proceedings.
By his own estimate, he’s spent nearly $1 million of his own money and another $1 million in his firm’s time and resources.
Groia is now at the very end of the road in his fight to overturn his conviction and suspension. He is asking for permission to appeal to the Supreme Court, hoping Canada’s top court — unlike the courts below it — will see things his way.
His case has pitted those in the legal profession and academia, who say defence lawyers must be zealous advocates in order to protect their clients’ best interests, against those who say it’s crucial that a forceful defence be properly balanced against courtesy and respect. But why should the public care? “I think clients have become quite concerned about whether they’re getting the best defence possible,” Groia told the Star in a recent interview in the boardroom of his downtown office. “If I had allowed the law society to steamroll over me, what it would have meant is that any time any lawyer went into the courtroom, she needed to be looking over their shoulder.
“Because if they got criticized, they run the risk of the law society saying you’re guilty of misconduct. I don’t think the public is well served by having their advocate looking over their shoulder. I think if you talk to anybody about my case, there’s already been a chill. Who wants to be the next Joe Groia? Nobody.”
Groia was convicted by a law society disciplinary panel in 2012 for conduct that had taken place in the courtroom during the first phase of Felderhof’s lengthy trial in the early 2000s. Groia was found to have displayed a “consistent pattern of rude, improper or disruptive conduct.”
Among the society’s criticisms of his behaviour include his characterizations of the Ontario Securities Commission (OSC) prosecution as “the government” and “lazy.” Groia always maintains he was zealously defending his client. He said he was accused of using the term “the government” sarcastically, which he denies.
“Maybe another lawyer would have handled it differently, but I promised John I was going to do my very best to represent him,” Groia said. “If that meant I’d end up 16 years later trying to go to the Supreme Court, well, that’s the price I have to pay.”
The minerals company vice-president had been accused by the 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.
“Mr. Felderhof retained the applicant because he wanted an aggressive lawyer and someone who could understand geological data; Mr. Felderhof knew his prosecution would be a complicated one and that his liberty, fortune and reputation were all at stake,” reads part of Groia’s factum (written submission) arguing for leave to appeal to the Supreme Court.
At one point during the trial, the OSC sought the removal of the trial judge, Peter Hryn, “for, among other things, an alleged failure to control the uncivil conduct of (Groia),” according to the factum.
The OSC’s application was heard by Superior Court Justice Archie Campbell, who dismissed it and said neither side in the case had “any monopoly over incivility or rhetorical excess.” The OSC then appealed to the Court of Appeal, but that was also dismissed, in 2003, and Felderhof went on to be acquitted by Hryn in 2007.
Groia says no one ever complained to the law society about his conduct during the trial — not his client, not the prosecution and not the judge. He says the regulatory body began its investigation based on a newspaper report of the Court of Appeal’s 2003 reasons.
He says the law society maintained that it was an “abuse of process” for Groia to even defend himself at his disciplinary hearing.
An appeal panel of the Law Society Tribunal upheld his incivility conviction in 2013, but reduced the suspension and amount of money he had to pay. The finding was upheld at the Divisional Court and Court of Appeal.
While a majority of Ontario’s top court found against Groia last spring, he took comfort in the dissenting opinion of Justice David Brown.
The judge found that the law society failed to take into account, “in any meaningful way,” the fact that Groia had complied with Hryn’s rulings on his conduct during the Bre-X trial, and also complied when the OSC complained to the higher courts.
The regulator has argued Groia’s case should not be heard by the top court.
“Although trial judges have the responsibility and authority to control courtroom proceedings, Mr. Groia is wrong to assign the exclusive responsibility for the conduct of trial lawyers to them,” the law society says in its factum at the Supreme Court.
Born in Toronto’s west end to a bellman at the Royal York Hotel and a post office employee, Groia has been trying cases for nearly 40 years.
After obtaining his law degree at the University of Toronto, he started out at the firm of future Supreme Court Justice Ian Binnie before ending up at the OSC for a few years in the 1980s, where he became head of enforcement.
“I got blacklisted on Bay Street,” he said.
“When I went to the commission in 1985, it had a reputation for being a toothless tiger . . . We took the OSC and set it on a path where it was going after some major players on Bay Street.”
The married father of two moved back into private practice in 1990 as the first litigation lawyer hired by Heenan Blaikie when the firm was starting up in Toronto. He began defending Felderhof while still there before opening his own firm. When not working on cases or teaching, Groia spends much of his time on two other areas of interest, one of which is winemaking. His Niagara region winery is called 16 Mile Cellar, where his wife, Susan, serves as president. Its motto is “zealous winemaking.”
Names for the wine include two that Groia said are words that have “perhaps been the most meaningful in my life:” civility and incivility.
“I can tell you that they’re very well perceived at the law society,” he said with a smirk.
That’s because the other area in which Groia spends a lot of time is as a bencher of the law society, in other words, a member of its board of directors. He has brought his wines to serve at dinners for new benchers.
His election by thousands of Ontario lawyers as a bencher last year while his incivility appeal was still moving through the courts is a curious chapter in his legal saga.
On the one hand, Groia brings a unique perspective to the table. On the other, it presents the law society with a bit of a dilemma: If Groia loses at the Supreme Court and has to finally serve his one-month suspension, does he have to temporarily step down as a bencher? The law society answer is yes, while Groia believes otherwise.
“I have to say that once my case is over, however it turns out, I’ll go away and take some time to think about the lessons that I have learned. I’d like to think that, even now, the law society is never going to do to another lawyer what they did to me.”
“I’d like to think that, even now, the law society is never going to do to another lawyer what they did to me.” JOE GROIA