Law Times

Law Times • November 26, 2012 J BY YAMRI TADDESE Law Times Law society seeking $250K from Groia NEWS with professional conduct." But Cherniak argued Groia matter, his counsel said during a penalty hearing last week. The law society wants Groia to oe Groia doesn't owe the Law Society of Upper Can- ada money for the hours spent on his disciplinary pick up a $250,000 tab for more than 1,000 hours in lawyer, clerk, and student time. About 750 hours of the total time claimed are lawyer hours. Groia' told the three-person panel that a hearing could have been avoided through a regulatory meeting. The details Cherniak submitted as to why the regulatory meeting couldn't take place are under a temporary publication ban. The law society' s counsel, Earl Cherniak, Curry, requested that e-mail ex- changes between him and Cher- niak regarding a regulatory meet- ing were settlement agreements and should be placed under a publication ban. Although Cherniak denied s counsel, Tom the e-mails contained settlement communications, the panel, chaired by Thomas Conway, said the materials shouldn't be pub- lished until it decides if they're privileged. In June, the panel found Groia guilty of misconduct for his ac- tions during the trial related to the Bre-X Minerals Ltd. fiasco. During his representation of was being singled out as the trial judge in the Bre-X case said both sides had "a degree of excess." That the Ontario Securities against courtroom incivility has already been achieved through wide publicity, the law society' Commission counsel who argued the Bre-X case wasn't prosecuted for incivility "is indicative of the selective nature of the law soci- ety' Cherniak said. "There should not be different sets of rules for the de- fence counsel and prosecutors." Ontario Court Justice Peter s prosecution of Mr. Groia," he added, civility didn't have the same meaning as it does now. In Cherniak' Since a general deterrence mandate will not be advanced from a suspension, he argued. At the time of the Bre-X trial, s should be decided on the stan- dards in place when the miscon- duct occurred. For his part, Curry blasted s view, Groia's penalty Hryn never chastised Groia dur- ing the trial even though the OSC counsel asked him to do so, Cher- niak wrote in his submission. In fact, "since Justice Hryn he said. But Curry argued Groia' tent in attacking the OSC pros- ecutors was a "strategy, a tactic" to bait them into making mistakes. He cited the panel' s conduct," s in- chastised [OSC lawyer Jay Nas- ter] on more than one occasion, it must be assumed that he took no issue with Mr. Groia' the idea that the incivility pen- alty against Groia would create a chilling effect in the profession. The assumption that incivility is required for "zealous and vigorous representation" is false, he said. "He either knew or ought to have known that persistent accu- sations [against the prosecution] Joe Groia is resisting the law society's bid to have him pay $250,000 in costs. were wrong." specific words Groia said during the trial but instead emphasized The panel didn't focus on PAGE 3 ginning of this case to the end of this case, in my submission, has been intended to ensure that they make Mr. Felderhof ' the overall tone of the language he used against the OSC prosecutors. "Their conduct from the be- and his ability to defend him- self as difficult as possible and as miserable as possible, s life during the trial. " " Groia said cember . . . is indicative of the lengths that the commission is prepared to go to avoid having to do any work in this case. 'Let' And their conduct in De- put the burden on Mr. Felder- hof ' s them go through 145 boxes of documents. Let' search through all the chaff.'" The panel has reserved its de- LT cision on Groia's sentence. Groia's "motivation could only s finding that have been to disrupt the orderly proceeding of the trial by provok- ing the prosecution and creating the conditions for the trial to col- lapse under its own weight." Curry also said Groia' geologist John Felderhof between 2000 and 2001, the law society found Groia "communicated with the prosecution in a manner that was intended to be provoca- tive, was in effect offensive, and inconsistent with the proper tone of professional communication." Felderhof was acquitted of all charges aſter a 160-day trial. Curry asked the panel to suspend Groia's licence for two to four months in addition to a reprimand. "The panel found that Mr. Groia's conduct was pervasive and deliberate," Curry said at the hearing last week. "It was a serious finding and it is a serious harm that is created when a licensee fails to comply of wrongdoing, which he openly expressed to the media, should mean remorse cannot be consid- ered as a mitigating factor in his penalty. Groia has a "lack of remorse s denial and insight," Curry said. But that principle infringes on Groia's freedom of speech, said Cherniak, who urged the panel not to consider anything his cli- ent said to the press. "He is entitled to his opinion. . . . You cannot regulate his opin- ion. . . . It' Cherniak. "If he is penalized at all, it should be because of what hap- pened between 2000 and 2001, not 2012." Cherniak also said a suspen- s irrelevant fact," said sion is unnecessary "given that Mr. Groia has been living with this cloud over his head for 11- 1/2 years" and spent weeks away from his practice to prepare his defence. GET THE LATEST ON SMALL CLAIMS COURT PRACTICE NEW EDITION ONTARIO SMALL CLAIMS COURT PRACTICE 2013 MR. JUSTICE MARVIN A. 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