The Divisional Court released its reasons
respecting the Law Society of Upper Canada's disciplinary
proceeding against Joseph Groia on February 2, 2015. The Divisional
Court upheld the Law Society Hearing Panel and Appeal Panel
decisions that Groia engaged in professional misconduct during his
defence of John Felderhof against insider trading charges arising
from the Bre-X collapse.
Though the Divisional Court found that the Appeal Panel's
decision was reasonable, it enunciated a different test for
professional misconduct arising from incivility.
First, conduct that is "rude, unnecessarily abrasive,
sarcastic, demeaning, abusive or of any like quality" in that
it "attacks the personal integrity of opponents, parties,
witnesses or of the court" in the absence of good faith or
where the good faith belief is unreasonable is uncivil.
It is not "zealous advocacy". It is also not a
"solitary instance of uncivil conduct".
Second, uncivil conduct is professional misconduct if it
"bring[s] the administration of justice into dispute, or would
have the tendency to do so." The Divisional Court provides the
repeated personal attacks on one's opponents or on the
judge or adjudicator, without a good faith basis or without an
objectively reasonable basis
improper efforts to forestall the ultimate completion of the
matter at issue
actions designed to wrongly impede counsel from the
presentation of their case
efforts to needlessly drag the judge or adjudicator "into
the fray" and thus imperil their required impartiality, either
in fact or in appearance.
It is conduct that "calls into question the integrity of
the court process and of the players involved in it."
The Divisional Court makes clear that these are guidelines, and
is not a closed list of the "entire spectrum" of possible
conduct that might lead to professional misconduct concerns. The
court also made clear that this test deals within court and conduct
outside the courtroom may attract different considerations.
Given the very public nature of this case, I anticipate that
Groia will seek leave to appeal the Divisional Court's decision
to the Court of Appeal for Ontario. Nonetheless, the Divisional
Court's thoughtful discussion of the test for incivility will
likely be the subject of much discussion amongst the
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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