An Ontario court has denied an appeal from veteran securities lawyer Joe Groia seeking to overturn findings of professional misconduct against him in a securities fraud trial.
In a split decision, the Court of Appeal for Ontario turned down Groia’s appeal of a Divisional Court decision that upheld a disciplinary ruling against him stemming from alleged violations of the legal profession’s rules regarding civility in the courtroom. The alleged violations occurred while Groia was defending former Bre-X Minerals Ltd. geologist John Felderhof against fraud charges in a case brought by the Ontario Securities Commission (OSC). After a lengthy trial, Felderhof was ultimately acquitted.A Law Society panel found that Groia violated its rules with his in-court conduct towards opposing counsel from the OSC in the Felderhof trial. The Divisional Court upheld the panel’s decisions, which Groia then appealed.
In a two-to-one ruling, the appeal court has now upheld the Divisional Court’s decision and dismissed the appeal. The majority opinion finds that the Law Society panel’s test for incivility “was reasonable,” as was its conclusion that Groia engaged in professional misconduct. The Court of Appeal also upheld the Law Society panel’s sanction for the misconduct.
“The requirement of professionalism for lawyers, both inside and outside a 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,” the majority said in its ruling. “The appeal panel concluded that this requirement was breached in this case. This conclusion, in my opinion, was both reasonable and correct.”
However, in a dissenting opinion, Justice David Brown concluded that the appeal should be upheld. The dissent notes that the OSC complained to the courts during the trial, but that it did not complain to the Law Society about Groia’s conduct.
“The senior courts to which the prosecutors complained were not silent about Mr. Groia’s conduct. Quite the contrary. In no uncertain terms they expressed their very strong displeasure,” the dissent says. “They told Mr. Groia to cut it out and smarten up. He listened, and he did.”
“[T]he appeal panel failed to take into account, in any meaningful way, how the trial judge ruled on the complaints by the OSC about Mr. Groia’s conduct and how Mr. Groia responded to the trial judge’s rulings on those complaints,” it notes. “That, in my view, rendered the conduct decision both incorrect and unreasonable.”
“Great weight must be given to Mr. Groia’s compliance with the directions of the courts and to the fact that his conduct did not affect trial fairness. When that is done, and when the circumstances of the Felderhof trial are looked at in their entirety, I conclude that Mr. Groia did not engage in professional misconduct,” Justice Brown’s dissent says.
“I conclude that the appeal panel was incorrect and unreasonable in finding Mr. Grioa had engaged in professional misconduct. I would allow the appeal, set aside the decision of the appeal panel, and dismiss the complaints against Mr. Groia,” Brown’s dissent concluded.
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