Wednesday, June 15, 2016

Court of Appeal Dismisses Groia Appeal with a Powerful Dissent from Brown J.A.

     In reasons for judgment reminiscent of the late Lord Denning's dissent in Miller   v.  Jackson [1977] QB 966 Madame Justice of Appeal Cronk of the Court of Appeal for Ontario dismissed  high profile securities lawyer and now Bencher of the Law Society of Upper Canada, Joe Groia's long awaited appeal.  Cronk J. A. along with MacPherson J.A.(the majority)upheld the Divisional Court's ruling finding Mr. Groia guilty of professional misconduct.

Cronk J.A.:

[1]   For almost 220 years, the Law Society of Upper Canada has governed the legal profession in the public interest under statutory authority granted to it by the legislature of Ontario.  For close to a century, in the exercise of its statutory mandate, the Law Society has formed a body of rules governing the professional conduct and ethical obligations of lawyers, both inside and outside the courtroom.  Lawyers who fail to meet the standards of practice established by these rules are subject to the Law Society's complaints and discipline processes.  In Ontario, as elsewhere in Canada, it is a privilege to practice law, not a right.

The Master of the Rolls
in Miller  v. Jackson (supra):

[1]   In summertime village cricket is the delight of everyone.  Nearly every village has its own cricket field where the young men play and the old men watch.  In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years.  They tend it well.  The wicket area is well rolled and mown.  The outfield is kept short.  It has a good clubhouse for the players and seats for onlookers.  The village team play there on Saturdays and Sundays.  They belong to a league, competing with the neighbouring villages.  On other evenings after work they practice while the light lasts.  Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, he has issued an injunction to stop them.  He has done it at the instance of a newcomer who is no lover of cricket.

J.A. Brown's Powerful Dissent:

     In stark contrast to the majority's Denning-like judgement stands the powerful and thoughtful dissenting judgement of Brown J.A - evoking memories of the dissents written by the late Chief Justice Bora Laskin.  Brown J.A.'s judgment is a judicial masterpiece for several reasons.  First of which is his appreciation and delineation of the underlying facts and context which bring the issue before the court for adjudication.  The following facts from his introduction are crucial to a proper adjudication of the questions which were before the Court of Appeal.  I will reproduce them as is.

[244]   This is a singular case.  The Felderhof trial lasted several years, split into two phases.  Phase One lasted 70 days; Phase two, 90 days.  Neither during nor after the trial did anyone involved in the trial complaint to the Law Society of Upper Canada about Mr. Groia's conduct; not the prosecutors; not the trial judge; not the clients; nor any witnesses. Not one.

[245]   The prosecution, the Ontario Securities Commission ("OSC", did complain about Mr. Groia's conduct, but not to the Law Society.  The OSC complained to the courts.  The prosecution first complained to the trial judge about Mr. Groia's conduct.   The trial judge made several rulings.

[246]   The ruling did not satisfy the prosecution, so it applied to the Superior of Justice arguing, in part, that Mr. Groia's conduct, and what they saw as the trial judge's failure to restrain it, were resulting in an unfair trial.  The prosecution wanted the trial stopped, and a new trial judge appointed. The application judge of the Superior Court of Justice refused to remove the trial judge.

[247]   The OSC appealed to this court.  The appeal was dismissed.

[248]   So, the trial continued to its conclusion - an acquittal of Mr. Felderhof.

[249]   The senior courts to which the prosecutors complained were not silent about Mr. Grois's conduct.  Quite the contrary.  In no uncertain terms they expressed their very strong displeasure. In the language of earlier times, they administered a public shaming to Mr. Groia.  They told Mr. Groia to cut it out and smarten up.  He listened, and he did.  Phase two continued without incident.

[250]   Neither the application judge nor any of the members of this court in R  v. Felderhof (2003) 68 O.R. (3d) 481, complained to the Law Society.  That option was open to them.  That is what the British Columbian Court of Appeal did in R   v.  Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667, 191, B.C.A.C. 223.  But that is not what the courts did in this case.  A public shaming was administered; directions for the remainder of the trial were given; the courts moved on.

[251]   But not the Law Society.  In 2003, a staff member read an article about the Felderhof trial.  A file was opened.  In 2009, after the trial had ended, the Law Society commenced professional misconduct proceedings against Mr. Groia, acting as its own complainant.

[255]   Our disagreement, therefore lies not in the continued importance of civility to the health of Ontario's legal system.  Our disagreement lies in how to determine when a barrister's in-court conduct amounts to professional misconduct because it is uncivil.

[256]   I would allow the appeal for two reasons.  First, in my view, the correctness standard of review applies where a discipline regulator deals with allegations of professional misconduct involving what a barrister did in a courtroom before a presiding judge.

[257]   Second, the Appeal Panel's Conduct Decision cannot survive review on either a correctness or reasonableness standard.  Although the Appeal Panel stated ar paras 225 and 233, that it would assess the member's conduct in the context of "the dynamic, complexity and particular burdens and stakes of the trial, " including the reaction of the trial judge to the member's conduct, the analysis actually conducted by the Appeal Panel failed to take into account, in any meaningful way, how the trial judge ruled on the complaints by OSC about Mr. Groia's conduct and how Mr. Groia responded to the trial judge's rulings on those complaints.  In brief, the Appeal Panel examined Mr. Groia's conduct as if only two people were present in the courtroom - Mr. Groia and the prosecutor.  The Appeal Panel ignored the third person - the trial judge - and failed to give any meaningful consideration to his rulings about Mr. Groia's conduct in its assessment of whether that conduct amounted to professional misconduct.  That, in my view, rendered the Conduct Decision both incorrect and unreasonable.

The Framing of the Issue:

     A court can not properly adjudicate an issue like the one raised in the Groia case unless it properly captures the very essence of the legal question before it.  In the parlance of reviewing courts in days gone by - the review court must ask itself the right question in order to provide the proper answer. This is what the learned justice said on this vital point:

[265]   Mr. Groia captured the essence of the question that lies at the heart of this case in the opening sentences of his factum:

"Whose responsibility is it to run a trial in a Canadian court - the trial judge or the Law Society of Upper Canada ?  Who determines the boundaries of acceptable courtroom behaviour - judges or regulators ?

[266]  Those are the key questions to ask.  The factor that drives the analysis in this case is the location of the impugned conduct - a courtroom.

[267]  In my view, the finding that Mr. Groia had committed professional conduct for statements he made in court should be reviewed on the correctness standard.  My proposition is a simple one.  Under our Constitution it is the independent judiciary that controls what takes place in a courtroom.  In the context of a regulators's inquiry into a barristers in-court conduct, that principle translates into the application of a correctness standard of review.  By employing a correctness standard, the judiciary maintains its ultimate control over the courtroom by having the "last word, so to speak, on whether a barrister's in-court conduct merits professional misconduct sanction.


[465]   Taking into consideration all three elements of the test for determining whether a barrister's in-court conduct amounts to professional misconduct, I conclude that the Appeal Panel erred in finding that Mr. Groia had engaged in professional misconduct.

[436]   A hard-fought, high-profile criminal trial saw inappropriate submissions and allegations by Mr. Groia over the course of several days in Phase One.  The trial judge responded to the prosecution's complaints about the inappropriate conduct.  He ultimately directed Mr. Groia to stop making allegations of prosecutorial misconduct.  Mr. Groia complied with the trial judge's rulings.  This court then gave strong directions to both the trial judge and Mr. Groia about how to deal with the disputed evidentiary and abuse of process issues during the balance of the trial.  This court found that the fairness of Phase One of the trial had not been compromised by Mr. Groia's conduct and the prosecution was not prevented from having a fair trial.  At the same time, this court administered a "public shaming" to Mr. Groia.  He mended his ways during the balance of the trial.  The remaining 90 days of the trial proceeded without incident.

[437]   And, no one involved in the trial or the judicial reviews complained to the Law Society about Mr. Groia's conduct.

[438]   Great weight must be given to Mr. Groia's compliance with the direction of the courts and to the fact that his conduct did not affect trial fairness.  When that is done, and when the circumstances of the Felderhof trail are looked at in their entirety, I conclude that Mr. Groia did not engage in professional misconduct contrary to the Rules of Professional Conduct.  Consequently, I conclude that the Appeal Panel erred in determinging that he did.

[438]   My colleague concludes that a reasonableness standard of review applies.  Even using that standard, I would grant the appeal.


     This issues raised by the Groia case are easily the most significant questions of law and policy faced by both the legal profession and the public they serve to date.  This case clearly deserves to be heard by the Supreme Court of Canada.


*The Law Society was created in 1797 to regulate the legal profession in the British colony of Upper Canada.  The Law Society has continued to retain its original name, even though Upper Canada ceased to exist as a political entity in 1841. The Society governed the legal profession in the coterminous Canada West from 1841 to 1867, and in Ontario since confederation in 1867. (Wikipedia the free encyclopedia)

In 1884, William Douglas Balfour, a Liberal MLA for Essex South introduced a bill in 1884 which authorized Delos Rogest Davis, the son of a former slave, to practice law in Ontario.  Mr. Balfour also supported the vote for women and the admission of women to the practice of law.

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