By PAUL MCLAUGHLIN
Friday, November 30, 2018
On June 1, 2018, the Supreme Court of Canada (SCC) brought a lengthy and expensive case on incivility involving the Law Society of Ontario (LSO) and prominent Toronto defence lawyer Joseph Groia, a Principal of Groia & Company Professional Corporation, to a final conclusion when it declared that previous findings of professional misconduct against him were "unreasonable."
Although the matter focused on Groia's behaviour in a criminal trial that took place in the early 2000s, the SCC's decision "was an important ruling for the profession," says Earl Cherniak of Lerners LLP in Toronto, who represented Groia.
"That's something I almost never say about a ruling but, in this case, I believe it applies. I think the Bar in general is going to take significant heart and confidence from what [Justice
Michael Moldaver wrote] as to how they are able to conduct themselves."
The key issue in this intriguing dispute focused on the often thin line between what constitutes a lawyer's duty of "resolute advocacy," as Justice Moldaver expressed it, and the need for civility in the profession, a ruling that has an impact on all litigators.
"It has sparked a lot of debate and discussion in the profession about civility," says Sarah Armstrong, Vice-chair of the Ontario Litigation Department and Chair of the Arbitration Practice Group at Fasken Martineau DuMoulin LLP in Toronto. "For me, the biggest positive is that it's really got people talking about [lawyers'] tactics and what crosses the line and what doesn't."
The allegations against Groia emerged from his defence of John Felderhof, a Vice President and Chief Geologist for Bre-X Minerals Ltd. of Calgary, a company that perpetrated one of the biggest gold-mining frauds in history. After the fraud was discovered in the late 1990s -- Bre-X was found to have salted samples from a mine in Borneo that it had touted as one of the largest gold sources ever discovered -- the Ontario Securities Commission (OSC) charged Felderhof, not with having participated in the scheme, but with insider trading and failing to have recognized warning signs that it was occurring. In 2007, after a trial that began in 2001, Felderhof was acquitted of all charges.
During the trial, which was rancorous to say
the least, Groia, who is known to be a zealous advocate, alleged prosecutorial misconduct, especially regarding issues of disclosure and admissibility of documents. He was often sarcastic in speaking about the OSC's prosecutors, whom he called "lazy," and he referred to the OSC as "the Government."
In 2009, the Law Society of Upper Canada (as the LSO was then known) initiated disciplinary proceedings against Groia, saying he had engaged in professional misconduct by acting uncivilly during the trial. He was found guilty of being rude and disruptive and ultimately fined $200,000 and assessed a onemonth suspension. Groia appealed but the finding was upheld first in Divisional Court and then by the Ontario Court of Appeal.
When the SCC ultimately ruled in Groia's favour, it sent several clear messages to the profession. One was that a "multi-factorial, contextspecific approach" to determining whether incourt behaviour crosses the line into professional misconduct on the basis of incivility "was appropriate." This wording, as well as the entire decision by the SCC, says Malcolm Mercer, a Partner in McCarthy Tétrault LLP's Litigation Group in Toronto and the new LSO Treasurer, provides "helpful guidance" to the profession. The SCC said that the question of what constitutes civility "is context specific. You have to look at what the lawyer said, the manner and frequency in which it was said and the presiding judge's reaction to it."
The SCC also said that when allegations in court are based on errors in law (such as Groia claiming prosecutorial misconduct), they do not constitute incivility when they are based on good faith. Of greater importance, perhaps to the legal governing bodies, the SCC affirmed that the law societies are the arbiters of what constitutes civility: "Their decisions respecting professional misconduct should be approached with deference."
Cherniak had argued that, "except in certain cases, the law society's jurisdiction should stop at the courtroom door except when the judge complains to the law society [which never happened in Groia] or finds the lawyer in contempt of court.
I made that argument all the way up but no one bought it."
What the SCC did not do, however, was provide an ultimate definition of civility. Terrence O'Sullivan, Senior Counsel at Lax O'Sullivan Lisus Gottlieb LLP in Toronto, who represented
The Advocates' Society at all levels of the Groia case, had hoped it would. "We argued for a broader standard of what constituted civil conduct and we urged the court to find a national standard, from which the national practising Bar could take guidance," he says. "But they chose not to do that."
The SCC did address the question to some degree. In its ruling, it noted that, "To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve."
However, most of the discussions within the profession, as Armstrong suggests, have likely focused on the question of zealous (or resolute) advocacy versus civility. Jeffrey Leon, a Certified Specialist in Civil Litigation at Bennett Jones LLP in Toronto, was part of The Advocates' Society process that led to the development of its Principles of Civility. "I believe you can be courageous, fearless and resolute and still be civil. I don't see them as being mutually exclusive," he says, adding that his view is that Groia, whom he knows and respects, was guilty of the charges.
Leon is concerned, however, that the SCC ruling might be seen by some lawyers as "a get-outof-jail card to do whatever they want in the courtroom. [But] I don't think the courts will interpret it that way and I don't think that's what the Supreme Court intended."
The litigators who are most likely to take the SCC decision as permission to act very aggressively are those who might fall under the description of being a pit bull, the kind of lawyer whose main purpose seems to be to destroy opposing counsel and their clients. "I definitely think some litigators have the impression that they have to be pit bulls, and some clients say that's what they want [in a lawyer]," says Armstrong, "but my experience is that you don't have to be that way to be effective."
Although some senior lawyers agree that it might be unwise and unfair to generalize, they are concerned that some younger lawyers do not
behave as civilly as they should. Tom Curry, Managing Partner at Lenczner Slaght Royce Smith Griffin LLP in Toronto, who represented the LSO in the Groia case (and did not want to comment on it specifically), says that might be a contributing factor to "the perception that the civility discourse is diminishing. [It's] being replaced by a society that's perhaps too busy. I think as the profession has grown and with the rise of social media and other things, that that contributed to ... the disintegration of some of the rules [of conduct]." Curry himself is the recipient of the 2018 Catzman Award for Professionalism and Civility by The Advocates' Society.
Both Curry and Cherniak note that some young lawyers do not have access to the kind of support they had when they were starting out. "I have concerns that people coming up in the profession and doing litigation don't have the benefit of the kind of mentoring and experience I had when I was a young counsel," says Cherniak. "They haven't been exposed to mentoring, either in small firms or as sole practitioners and have no access to advice on how to conduct themselves or how to deal with people who are misconducting themselves."
Curry agrees that mentorship provides "opportunities for younger lawyers to observe other lawyers who have achieved the heights of their profession in terms of the quality of their work while also observing the highest standards of civility."
While the Groia case dealt with behaviour during a trial, most litigators' interactions with opposing counsel, of course, occur outside the courtroom and absent the presence of a judge. "It's in phone calls, written correspondence, examination, discovery," says Armstrong, who has experienced uncivil behaviour at times, although she says the majority of her communications have been professional and courteous. "When counsel conduct themselves [uncivilly in these situations], both parties tend to spend more money on distractions, like scheduling and other unimportant details, rather than on what we have a duty to focus on."
Groia's case took a considerable toll on the defence lawyer, who estimates he spent $2 million on legal fees and lost business combined as he pursued his defence (the SCC awarded him $500,000, from the LSO, toward his costs). He says he's "confident" that a law society "will never again try to prosecute a lawyer for courtroom conduct unless there has been a contempt finding or a judge asks them to do so by way of a complaint referral," a claim the LSO chose not to respond to.
It's impossible to know if the SCC's ruling will affect civility within the profession but to Cherniak, the SCC decision was a "great win for the profession and the public who will need representation by resolute lawyers in the future. They owe Joe a big debt of gratitude."