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Civil Litigation

SCC's civility decision good news for all lawyers

The Supreme Court of Canada’s decision to toss the professional misconduct case against Joseph Groia is good news for him personally and for the profession generally, Toronto civil litigator Darryl Singer tells AdvocateDaily.com.

The top court’s 6-3 ruling found that a Law Society of Ontario (LSO) reached an unreasonable conclusion when finding that Groia engaged in professional misconduct for incivility exhibited during his representation of a mining executive charged with securities fraud.

“The first thing to say is that it’s a 100-per-cent vindication for Groia,” says Singer, principal of Singer Barristers Professional Corporation. “But I think the reason most lawyers I’ve spoken with are heralding the decision is that it essentially says to keep doing what you’ve always done, which is to advocate resolutely on behalf of your client, and don’t be afraid of doing that.”

Groia’s case dates back to 2004 when he successfully defended his client against a prosecution by the Ontario Securities Commission (OSC). But his own behaviour during the trial, which included repeated criticism of opposing counsel, attracted the interest of the LSO, which ultimately moved forward with a misconduct application against him.    

A law society panel found the lawyer guilty, imposing a one-month suspension and $200,000 fine.

However, a majority of the Supreme Court panel found that while Groia’s accusations against the OSC prosecutors were partly mistaken, he had a reasonable basis for making them. In addition, it found that he complied in toning down his comments after the judge in the case addressed the issue.  

“Trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour,” wrote Justice Moldaver for the majority. “Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.”

Singer says criminal defence lawyers and civil litigators will be particularly pleased by the decision’s emphasis on the importance of resolute advocacy.

“It’s my job to advance every possible argument in my client’s favour, and sometimes that will mean calling out opposing counsel if I have reason to believe they’ve done something wrong,” he says.

Had the decision gone the other way, Singer says it could have sent a “chilling effect” through the profession.  

“It was a pretty close call, and the dissent makes a very persuasive case,” he says. “But it would have been a dangerous precedent because it would have caused problems for younger lawyers who don’t have as much experience thinking on their feet.

“In the context of a courtroom trial, things happen in an instant and you’re not necessarily trying to be objective in the heat of the moment, or stepping back to consider whether your comments will get you in trouble with the law society,” Singer adds.  

Singer, who teaches a professional responsibility class at Osgoode Hall Law School and frequently represents lawyers facing disciplinary proceedings before the Law Society Tribunal, says he’s not sure the case will have a huge impact on future matters due to its unique facts.

However, he’s hoping it will prompt a change in the way the LSO investigates complaints since in Groia’s case, nobody actually complained about his behaviour and the proceedings were only initiated after a staff member at the law society read an account of the trial in a newspaper.      

“From the very beginning, there has been a feeling that the law society overstepped the mark,” Singer says. “In future, they ought not to investigate unless a complaint has been made and let their staff focus on more important things.”

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