Incivility Finding Upheld by Court of Appeal

In Groia v. The Law Society of Upper Canada, 2016 ONCA 471 the issue was balancing the duty of lawyers to be civil against the duty of lawyers to be fearless advocates: During a hotly contested hearing related to the Bre-X mining scandal, a lawyer made repeated comments that were characterized as “rude, unnecessarily abrasive, sarcastic, demeaning, abusive or … that attacks the personal integrity of opponents, parties, witnesses or of the court, where there is an absence of a good faith basis for the attack”. The Court of Appeal upheld the finding of professional misconduct in this case. It stated that such a hearing “is a contextual and fact-specific inquiry [such] that a precise definition of incivility is elusive and undesirable”. The Court also held that there is no conflict between the duty to be a zealous advocate and to be civil. The Court also saw no breach of the freedom of expression protections contained in the Canadian Charter of Rights and Freedoms given this fact-specific approach to the allegations.

The Court of Appeal sidestepped the issue of how a discipline panel can use the reasons for decision of a court in making a finding of professional misconduct. The Court of Appeal indicated that it was clear not much weight was put on those reasons so nothing much turned on the hearing panel considering the Bre-X judge’s reasons.

The Court of Appeal also found the penalty (a one month suspension) and the costs award ($200,000) as being reasonable in the circumstances and warranting deference by the courts.

There was a dissenting judgment based primarily on an assessment of whether, in the context of this case, including the trial judge’s rulings, the conduct of Mr. Groia was really unprofessional.

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