Law Times

Page 4 NEWS August 5, 2013 Law Times • Groia's appeal accuses LSUC of 'abuse of process' BY Julius Melnitzer For Law Times T he appeal factum filed on behalf of Toronto lawyer Joe Groia, convicted of professional misconduct and accused of "abuse of process" for defending himself by a Law Society of Upper Canada disciplinary panel, alleges that some of the ruling's conclusions themselves amount to such an abuse. More particularly, the panel concluded Groia's attempt to defend himself on the disciplinary charges was an abusive attempt to relitigate findings already made by the court. The factum calls that conclusion a "remarkable" one that amounts to an "abuse of process." However that may be, there's some irony in the strong language used by Groia's lawyers, Earl Cherniak and Jasmine Akbarali of Lerners LLP's Toronto office, in describing the actions of the quasi-judicial panel given that his conviction turned on his allegedly uncivil conduct in court. Following the June 2012 ruling, the LSUC suspended Groia for two months and ordered him to pay $250,000 in costs. It found he had been uncivil in his successful defence of John Felderhof in connection to the collapse of Bre-X Minerals Ltd., the company at the centre of the largest mining fraud in Canadian history. Groia appealed to the law society appeal panel and Lerners filed its appellant's factum on July 24, 2013. The factum pulls no punches in its criticism of the substantive failings of the decision of the panel that convicted Groia. It alleges, among other things, that the panel "failed utterly to grapple with the tension between incivility and vigorous advocacy and the impact that this has on the independence of the bar." But Stan Fisher, a resident arbitrator at Toronto's Arbitration Place who spent five decades as a commercial litigator in Ontario, believes that the key issue for the appeal panel and any courts that hear subsequent appeals will be one of due process as the hearing panel relied on adverse comments made by the Superior Court integrity have provoked from Mr. and the Divisional Court about Groia Naster a sometimes excessive nega"as evidence of misconduct" in the distive response," Campbell observed. ciplinary proceedings. "An atmosphere of mutual distrust Fisher is intimately familiar with the between counsel pervades the trial. case, having been co-counsel in the R. No opportunity is lost to bicker and v. Felderhof matter before the Ontario squabble. No opportunity is lost to Court of Appeal, a witness at Groia's repeat, at great length, arguments and hearing on the role those proceedings positions cherished stubbornly by should play in the disciplinary hearing, each side. The heated disagreements and a "good friend" to Groia. go well beyond disputed issues of fact "The panel treated the obiter comand law.  Counsel cannot even agree ments of Justice [Marc] Rosenberg in on the preliminary order in which the Court of Appeal as somehow or othevidence should be led in order to er akin to issue estopped, and that can't provide a proper foundation for the be right," says Fisher. In their factum, Cherniak and Ak- 'It's certainly my hope that Joe is successful at reception of later evidence." In Fisher's view, Campbell got it right. barali say that treating the reasons as the end of the day,' says Edward Greenspan. "Campbell felt there was enough evidence of misconduct "was a clear abdication of the panel's duty to the profession to inde- fault to go around," he says. "These guys were battling it out." pendently review and assess the evidence before it." DoThe OSC appealed to the Court of Appeal, which dising so, Groia's lawyers allege, was also contrary to the law missed the appeal. Rosenberg, however, was also critical society's own Rules of Practice and Procedure. The impugned reasons came in the context of pro- of Groia's conduct but noted Hryn hadn't attempted to ceedings brought by the Ontario Securities Commission restrain him, as he was entitled to do. For his part, however, Rosenberg also recognized the to have the trial judge, Peter Hryn of the Ontario Court of Justice, removed from the case because of unfavour- difficult context in which Groia's conduct occurred. "This able evidentiary rulings and what the OSC claimed was was a complex case involving experienced counsel who took very different views about the role of the prosecutor Hryn's failure to restrain Groia's conduct. Justice Archie Campbell of the Ontario Superior Court and the rules of evidence," he wrote. It's a situation many counsel have encountered and it's dismissed the OSC's application. He was critical of Groia for, among other things, his "excessive rhetoric" but he also probably why Groia has so many prominent supporters confirmed Groia's right to make allegations of prosecutori- among the bar. "It's certainly my hope that Joe is successful at the al misconduct. Campbell further observed that there had been "no monopoly over incivility and rhetorical excess" end of the day," says renowned criminal lawyer Edward and followed with several examples related to the conduct Greenspan of Toronto's Greenspan Partners LLP. Whatever the outcome, Fisher hopes the appeal panel is of OSC prosecutor Jay Naster, who now acts as a defence mindful of the far-reaching potential of the case. lawyer with Toronto's Rosen Naster LLP. "It's very important that the panel bear in mind the Campbell, however, was careful to put his observations policy effect of this decision on the role of barristers in any in context. "Mr. Groia's unrestrained attacks on Mr. Naster's hard-fought criminal or civil proceedings," he says. LT Part-time, Executive LLM program for corporate counsel and practising lawyers Information T Faculty of Taught by U of Session Wednesday, December together with top Law professors, 7, 2011 5:30 - 7:00 pm Friday, December 9, 2011 8:00 - 9:30 am international faculty from U of T School of Management MIT-Sloan Faculty of Law, Faculty Lounge 78 Queen's Park, Toronto and Please feel free to drop in anytime during these hours. expert practitioners. No registration required. EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. GLLM_LT_July8_13.indd 1 www.lawtimesnews.com 13-07-03 10:51 AM

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