Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 6 11 \ AT L A N T I C \ C E N T R A L \ P R A I R I E S \ W E S T REGIONAL WRAP-UP L itigator Joseph Groia is taking his fight with the Law Society of Upper Canada to the Supreme Court of Canada. His discipline case, which was dismissed by the Ontario Court of Appeal in mid-June, has sparked concerns that the proceedings could affect the way trial lawyers defend their clients. Groia told Law Times the case has had a "chilling effect" on advocates. "It's very dif- ficult to put a defence lawyer in a position where he or she has to be looking over their shoulder for fear that the judge is allowing things to unfold, but a regulator wants to come along and second-guess that." Groia, who is now a LSUC bencher, had challenged the regulator's findings of misconduct for incivility against him fol- lowing the Bre-X scandal some 15 years ago. He was appealing a February 2015 Divisional Court decision that dismissed his challenge of a one-month licence suspension and $200,000 in costs to the regulator. He also appealled the Divisional Court's cost decision of $30,000. "The requirement of professionalism for lawyers, both inside and outside the courtroom, including zealous advocacy accompanied by courtesy, civility and good faith dealings, secures the nobility of the profession in which lawyers in this province are privileged to practise," Justice Eleanore Cronk wrote for the majority. "The appeal panel concluded that this requirement was breached in this case." In the 2-1 appeal decision, Justice David Brown penned a strong dissent. He argued while civility is "not merely aspira- tional," in the legal litigation system, Groia's conduct was not professional misconduct. He added the trial judge in the case had already ruled on the complaints the Ontar- io Securities Commission had filed in court and the appeal panel "failed to take into account, in any meaningful way, how the trial judge ruled." "My proposition is a simple one," wrote Brown. "Under our constitution it is the independent judiciary that controls what takes place in a courtroom." Groia said Brown's dissent helped him decide to seek leave. "On the one hand, I'm disappointed that the two judges did not allow the appeal, but I'm also very grateful for Justice Brown's dissent. It gives me a lot of encouragement," he said. Even if he is granted leave and is suc- cessful at the SCC, Groia worries the dam- age has already been done. "I really am concerned that this sends a message that you want to be extremely careful or you'll end up in the same place as Joe Groia did." — ALEX ROBINSON a.robinson@tr.com Bright minds protecting bright ideas since 1893. Committed & accomplished members of the Canadian innovation & legal communities. Toronto • Ottawa • Mississauga ridoutmaybee.com Untitled-4 1 2016-05-12 2:05 PM Groia incivility case heading to SCC

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