The Supreme Court of Canada (“SCC” or “the Court”) decided a major case on lawyer civility in June 2018 in Groia v Law Society of Upper Canada 2018, SCC 27 [Groia]. The case revolved around a Law Society disciplinary hearing decision from 2013 that would have seen Toronto securities litigator Joseph Groia (Groia) fined and temporarily suspended from practicing law for allegedly antagonistic courtroom conduct. In Groia, the SCC confronted an age-old conundrum of how to balance a lawyer’s expressive rights and duty to resolutely defend their clients with their responsibilities as officers of the court to maintain an atmosphere of civility in the courtroom. Though the enforcement of attorney civility standards is a joint enterprise of courts and Law Societies (for instance, the Law Society in Ontario has a statutory mandate to enforce the Rules of Professional Conduct), the question of what this concurrent jurisdiction means in practice was one the Court had to reason through. In the result, the SCC disagreed with the Law Society Hearing Panel and Appeal Panel that Groia had engaged in professional misconduct.
The post to follow provides some background and procedural history on the case before focusing on what this case says about both the test for incivility and the level of deference owed by reviewing courts to Law Society civility adjudications. In preparing this commentary, I had the opportunity to speak to Joseph Groia. I will be sharing a couple of his points about the standard of review issue arising in Groia. This is an issue of particular interest in the legal community presently, as the SCC heard a trio of appeals last week that will be considered in a broader reform of the administrative law regime (Bell Canada, et al. v Attorney General of Canada;?Minister of Citizenship and Immigration v Alexander Vavilov; and?National Football League, et al. v Attorney General of Canada).
Joseph Groia was defense counsel in an Ontario Securities Commission proceeding related to the Bre-X Minerals Ltd. scandal that rocked Bay Street in the 1990s. (The Bre-X scandal is the largest mining fraud case in Canadian history and revolves around claims about the discovery of gold in Indonesia that turned out to be fake.) Groia won his case and his client, Mr. Felderhof, was acquitted of fraud charges. During the trial, Groia accused the OSC prosecutor on several occasions of prosecutorial misconduct for failing to provide disclosure and (in Groia’s opinion) improperly objecting to the admissibility of evidence. The SCC did not mince words in describing this trial as having “a toxicity that manifested itself in the form of personal attacks, sarcastic outbursts and allegations of professional impropriety” that ground the proceedings to “a near standstill” (Groia,?para 12). The trial judge did not initially reprimand Groia, and the prosecution brought an application for the judge’s removal (see?R v Felderhof, 2002 CarswellOnt 5623 (Ont. SCJ)). While the motion was unsuccessful, afterwards the trial judge made some comments admonishing Groia for his in-court conduct. Groia complied with the direction he received from the bench. Notably, no formal complaints to the Law Society were lodged by the prosecution or the judge against Groia. Rather, disciplinary proceedings against Groia were commenced by the then-named Law Society of Upper Canada (“LSUC”) after an LSUC staff member read about the trial (Groia v Law Society of Upper Canada, 2016 ONCA 471, para 251).
Law Society Disciplinary Proceedings
Both the Law Society Hearing Panel and Appeal Panel found that Groia’s courtroom behaviour amounted to professional misconduct. The initial Law Society panel would have suspended Groia’s law license two months and imposed a $245,000 fine (see?Law Society of Upper Canada v Groia, 2012 ONLSHP 94 (LSUC Hearing Panel)). The Appeal Panel was essentially in agreement, but reduced the suspension to one month and lowered the fine to $200,000 (Law Society of Upper Canada v Groia, 2013 ONLSAP 41 (LSUC Appeal Panel)).
Divisional Court and the Ontario Court of Appeal
Groia further appealed at the Divisional Court level and Court of Appeal. The finding of the Appeal Panel was upheld first at the Divisional Court (Groia v Law Society of Upper Canada, 2015 CarswellOnt 1238 (Ont Div Ct)), and then by the Ontario Court of Appeal (“ONCA”) (Groia v Law Society of Upper Canada, 2016 CarswellOnt 9453 (Ont CA)). Justice Brown’s dissent at the ONCA held that the Appeal Panel’s analysis was flawed because it failed to weigh the trial judge’s assessment of Groia’s conduct. Justice Brown wrote that “The trial judge is the person best placed to determine whether a barrister’s conduct is approaching or has crossed over the all-too-grey line that separates zealous advocacy from impermissible courtroom conduct” (Groia, ONCA, para 418).
Groia’s Success at the Supreme Court
Finally, after two levels of proceedings at the Law Society and two appeals in court, Groia found success at the SCC. Justice Moldaver, a former criminal defence lawyer, attracted a majority of the Court’s judges to his view that Groia’s conduct did not amount to professional misconduct and that the Law Society’s decision should be reviewed on a deferential standard of reasonableness. Three judges in dissent would have dismissed the appeal on the main ground that the Appeal Panel’s decision was reasonable and therefore there was no basis for the SCC to overturn it. To do as the majority did, the dissent reasoned, is to misapply reasonableness review – they claim Justice Moldaver provided his own views on the approach to judging alleged attorney incivility and “fundamentally misstat[ed]” the Appeal Panel’s approach (Groia, para 177). Justice C?té, concurring with the majority, would have applied the standard of correctness rather than reasonableness.
Understanding the SCC’s Ruling
Tensions Between Resolute Advocacy and Civility
In its decision, the Court recognized that trials are “often hard fought” and are “not tea parties” (Groia, paras 3 and 99). It is clearly virtuous – and arguably obligatory – lawyerly conduct to “raise fearlessly every issue, advance every argument and ask every question, however distasteful” to advance a client’s interests within the boundaries of the law (Groia, para 73). This is especially true in the criminal context, where liberty interests are at stake and the client has a constitutional right to make full answer and defence (Groia, para 62).
At the same time, the Court also recognized that significant downsides attach to zealous advocacy that crosses the line into inappropriateness (the test for which is discussed below). The Court noted that incivility can prejudice a client’s case, distract the trier of fact’s attention from substantive issues, and negatively impact on other justice system participants as well as public confidence in the administration of justice (Groia, paras 64-67 and 117). Justice Cronk of the ONCA aptly noted that “civility is not merely aspirational. It is a codified duty of professional conduct enshrined in the Conduct Rules” (Groia, ONCA, para 119).
The Test for Incivility Amounting to Misconduct
The SCC said in Groia that the line between resolute client advocacy and sanction-worthy incivility depends on the circumstances the case. Incivility “capture[s] a range of unprofessional communications”?(Groia, para 36). In applying a multi-factorial, context-specific test, attention should be given to such factors as what was said, the manner and frequency in which it was said, and how the judge reacted (Groia, paras 36 and 121). The Court noted that “speech is not sacrosanct simply because it is uttered by a lawyer,” underscoring that lawyers do not have a license to say whatever they wish in court. Allegations that the prosecutor engaged in misconduct or an abuse of process will amount to defence counsel misconduct when they are not made in good faith nor with a reasonable basis (Groia, para 88). Legal error on the attorney’s part, however, should not form the basis for a misconduct finding in this context, as this risks creating unwarranted damage to the lawyer’s reputation and because defence lawyers play an “integral role” in holding justice system participants accountable by “raising reasonable allegations” (Groia, para 91).
Application of the Test in Groia
The context-specific, SCC-certified test the Court gave us in Groia is hardly a bright-line standard. This flexibility can be beneficial, but it will not be straightforward to apply. The point is underscored by the fact that three of the SCC judges applied the same test as the majority and arrived at a different conclusion about the reasonableness of the Law Society’s decision. The majority held that Groia’s behaviour had a reasonable basis. For the majority, it was germane that the trial judge did not correct Groia’s mistaken legal position, and that the law in the area was in an evolving state (Groia? para 8). Given its findings that Groia had a reasonable basis for his allegations, the majority found it unreasonable for the Appeal Panel to have made a finding of professional misconduct.
Standard of Review
In Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], the SCC developed the contemporary approach to standard of review. Certain questions that come before administrative tribunals necessitate deference from reviewing courts and do not lend themselves to one specific, particular result, but rather to several possible reasonable conclusions?(“reasonableness review”) (Dunsmuir, para 47). On other issues, administrative decision-makers must enter the “right” decision or the court may substitute its own judgment (“correctness review”)(Dunsmuir, para 50) . Despite the intuitive simplicity of this binary system, the Dunsmuir scheme is anything but clear in practice.
An ambiguous aspect of the?Dunsmuir?scheme highlighted in Groia and elsewhere is that the standard of review has been known to be flexible when a court wants to reach the right result without changing the law. Joe Groia is now a Bencher for the Law Society. In correspondence with this author, he observed that courts have on occasion lessened the import of correctness with a margin of deference (Mission Institution v Khela, 2014 SCC 24, para 89) and made reasonableness more rigorous (Attaran v Canada (Attorney General), 2015 FCA 37, para 14). In another example, the trial court in Vavilov v Canada (Citizenship and Immigration),  2 FCR 39, 2015 FC 960 (CanLII) used correctness and Vavilov lost (Vavilov, FC, para 22), then the Federal Court of Appeal (Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132, para 40) used reasonableness and he won. These are counterintuitive results given that Vavilov should be more likely to win on the less deferential correctness review.
As Groia explained to me, “I never thought we would win on a reasonableness review.” Yet win he did. It is not surprising that in Groia, the dissent found the majority’s application of the reasonableness standard to be a form of disguised correctness. In particular, the dissent argued that a true reasonableness analysis should not involve what was in effect a reweighing of the evidence before the Law Society. Justice C?té, who picked up Justice Brown’s dissent at the ONCA that the correctness standard should explicitly apply, centred her analysis on the fact that the Groia matter took place in a courtroom. According to Justice C?té, the Law Society could impinge on the fundamental principle of judicial independence by threatening “ex post punishment even where the trial judge offered the lawyer no indication that his or her conduct crossed the line” (Groia, para 168). Justice Moldaver did not think this was so, writing that “a?trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court” (Groia, para 55).
While the limits of regulating the profession could certainly be seen as a matter of central importance and lead to a correctness analysis under the Dunsmuir framework, Justice Moldaver’s position appears to be well supported in the case law (Groia, para 43). It is also worth mentioning that the similar exercise of reviewing judicial discipline of in-court conduct has consistently given rise to a reasonableness standard of review.
Given that the Court applied a contextual test for incivility, it is important to note potential limits of what the Groia decision may mean for other cases. The Court held that the duty of resolute advocacy is especially salient in the criminal law context (Groia, para 74). Certainly, criminal trials are not “tea parties” (Groia,?para 3).?In civil or family contexts, the importance of civility might be given more weight. One hopes, in any setting, that this catchy “tea party” phrase is not trotted out to rationalize abusive conduct. This is especially salient for off-the-record conduct, where the value of civility cannot be overstated.
Regarding the standard of review, as we have seen in Groia and Vavilov, it seems that at present it is being applied to reach what courts consider the right result. Groia, again in correspondence, shared that when he teaches his case, he says “if I am ever made King for a day, I intend to do away with Dunsmuir and make all Courts use the correctness standard on matters of law because of Rule of Law concerns I have for our legal system.” The lively debate that animated the SCC last week with Vavilov and the standard of review trilogy did not offer any definitive evidence of where the law will move, and it is unclear if Groia will get his wish.
There is some support for a single standard, but other configurations are possible. It has been suggested that a more contextual approach might be best, one featuring a spectrum rather than fixed categories (see Lorne Sossin). As Lorne Sossin notes, a spectrum may ultimately allow the Court to be more transparent about what it is doing.
While I believe that the majority in Groia in fact did reach the right result, the dissent’s concern about “exacting criticism” masquerading as reasonableness review certainly has merit (Groia, para 180). For one thing, it is arguably problematic if the SCC is submitting their judgment “for that of the legislature’s chosen decision maker” without acknowledging this (Groia, para 177).?Perhaps it will be possible in future for the Court to arrive at the right result without needing to engage in such intellectual acrobatics. Such a renovation would be desirable to the extent that it makes the Court’s reasoning more intelligible. This outcome could increase the user-friendliness of the Court’s judgments to lawyers and the general public and better facilitate access to justice.