That loud whirring you heard earlier this week? It was the sound
of Ontario's 50,000 (or so) lawyers collectively printing the
169-page, 445-paragraph decision in Groia v The Law
Society of Upper Canada. The case has been
breathlessly reported on by newspapers, bloggers and the legal press, so the facts should be
well known. Joseph Groia, a Bencher of the Law Society of Upper
Canada and a leading barrister, was disciplined in
2012 for uncivil conduct during his defence of Bernard
Felderhof on quasi-criminal charges of violating Ontario's
Securities Act. The trial, which lasted 160 days over
seven years, and included a mid-trial appeal (on Groia's
uncivil conduct), was, in the words of Justice Cronk,
"complex, protracted and exceptionally acrimonious".
Felderhof was acquitted. Subsequently, the Law Society commenced a
discipline proceeding against Groia, alleging that his conduct
during the trial was rude, improper and disruptive—in a word,
he was uncivil.
The Law Society hearing panel found that Groia's conduct
was, indeed, uncivil. It suspended him for two months and ordered
him to pay the Law Society's legal fees. Groia appealed. The Appeal Panel
upheld the finding of misconduct, but on different grounds.
It reduced his suspension to one month and marginally reduced the
Law Society's costs award. Groia appealed to the Divisional
Court, which upheld the Appeal Panel's decision. Groia
appealed again—in a 2-1 decision, the Court of Appeal again
upheld the Appeal Panel's decision. Groia has already announced
his intention to apply for leave to appeal to the Supreme Court of
The core issue in dispute? If a lawyer is being uncivil in
court, does the Law Society have any jurisdiction if the presiding
judge hasn't sanctioned the lawyer? According to the majority,
yes. Though judges can control uncivil behaviour, they don't
have the "last or final word"—the Law Society has
an unqualified right to discipline lawyers for misconduct,
including in-court incivility. The test for incivility, which was
formulated by the Appeal Panel and upheld by the Court of Appeal,
is: "to make allegations of prosecutorial misconduct or that
impugn the integrity of opposing counsel unless they are both made
in good faith and have a reasonable basis" and "to make
submissions about opposing counsel's improper conduct... in a
'repetitive stream of invective' that attacks that
counsel's professional integrity." The Court of Appeal
rejected Groia's submission that a lawyer's duty of zealous
advocacy trumps his duty of courtesy and civility if those two
This was a 2-1 decision. Justice Brown dissented on almost every
issue. He would apply a different test for in-court civility, one
that focuses on what the lawyer did, what the judge did and how the
lawyer responded and the effect of the lawyer's conduct on the
fairness of the trial. In his view, the Appeal Panel should have
considered how the trial judge responded to Groia's conduct.
The trial judge, in Justice Brown's words, took the
"middle ground": he neither strongly intervened or
declined to intervene. Further, after the mid-trial appeal (where
Groia was admonished for his conduct), the rest of the trial
proceeded without incident: "They told Mr. Groia to cut it out
and smarten up. He listened, and he did. Phase Two continued
The Supreme Court may have the final word, but the lesson here?
Litigation isn't a trial by combat. The duty to zealously
advance our client's interests cannot compromise our duty to be
civil to our "friends" and to the court. At the very
least, we cannot attack opposing counsel's integrity using
invective and strong language to advance our client's case, no
matter how high the stakes.
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