Wednesday, June 22, 2016

Civility, Public Interest, Courts, Zealousness & Discretion in Groia v LSUC 2016


     The Ontario Court of Appeal recently released its decision in the professional disciplinary proceedings involving lawyer Joseph Groia.   This blog is my initial take on several aspects of the recent Court of Appeal judgment. 

     In summary, the majority of the Court upheld the sanctions earlier imposed by the Law Society of Upper Canada’s disciplinary appeal panel.   Mr. Groia, now an elected bencher of Ontario’s Law Society, has been defending himself against allegations of professional misconduct, including breaches of civility, for the last several years.  These current proceedings resulted from Mr. Groia's conduct as defence counsel in the earlier Felderhof  litigation.

     Before beginning the discussion, below, a few disclosures.  As a lawyer previously employed at Ontario’s Superior Court, I occasionally worked on administrative matters with the dissenting judge in this Court of Appeal case.  Mr. Justice Archie Campbell, who heard a 2002 review of this matter, was also my articling principal in 2001 – 2002, though I had no involvement in these proceedings. Last, the appellant Mr. Groia has been a prominent advocate for his views of the role of civility in Canadian law, and has been an invited guest speaker in a course I have taught at Queen’s University in the past. 

     With all that being said, here are some first impressions and discussion of the Court of Appeal decision.

1.      Whatever the "duty of civility" may be, it does not appear codified in the   Rules of conduct.

     Not surprisingly given the disciplinary subject matter, the word “civility” appears frequently, 136 times, in the judgment.   Both the majority and dissent decisions share the views that “civility” is itself a “codified duty of professional conduct enshrined in the professional rules”. [1]  This assertion may be a little misleading and confused by inaccurate paraphrasing in the judgment itself.

     For example, the majority states, “that lawyers’ conduct be characterized by courtesy, civility and good faith in dealing with the courts and all participants in the justice system, including fellow lawyers”.[2]

     However, the ‘Advocacy’ Rule cited to support this proposition, 4.01 (1), does not use the term “civility”.  The other rules, 4.01 (6) and 6.03 (1), headlined as the ‘Courtesy’ and ‘Courtesy and Good Faith’ Rules respectively, do in fact use the word ‘civil’.  However, neither of the Rules specifically use the term “civility”, as the Court’s paraphrasing of the Rules on this point, quoted above, might suggest. 

     In fact, a word search of the Rules, dozens of sub-rules and interpretive Commentary over 106 pages of the applicable pre-2014 Rules, reveals that the term “civility” never appears.[3]  It could be that the Court meant that it was possible to infer a broader “civility” obligation based on the use of the term ‘civil’ in the 2 sub-rules noted above, and on other related Rules and Commentary.  However, it is misleading to suggest that “civility” or a “duty of civility” was explicitly codified or otherwise “enshrined” in the past Rules of professional conduct for lawyers in Ontario.

2.         The statutory duty to act in the "public interest" post-dates the impugned conduct. 

     The phrase “public interest” appears 19 times in the Court of Appeal judgment.  In fact, the focus on the public value of professional lawyer self-regulation is the starting point for the majority. Paragraph [1] of the majority judgment strikes the theme by stating,  “for almost 220 years, the Law Society has governed the legal profession in the public interest under statutory authority granted to it by the legislature of Ontario.” 

     This statement is problematic in a couple of ways.  First, this emphasis on the "public interest’" in professional legal regulation ignores the complicated role lawyers have played throughout Canadian history. For example, some observe a strong association between the development of the legal profession and the promulgation of at least some public and democratic values.[4]  However, there is a dispute in Canada between those who conclude that the legal profession has also historically sometimes acted in ways that seemed to promote private, elite and state interests.[5]  I noted some examples of these behaviours in my earlier blog on lawyer involvement in Canadian political scandals.
     Second, it is also true that the “public interest” has become an important modern value underlying the regulation of the Canadian Bar.  However, the statutory function of the regulator under Ontario’s Law Society Act was only changed to explicitly reflect this more recent sensibility in 2006.[6]  That is, the Law Society of Upper Canada did not have a clear statutory discretion to act to protect the "public interest" until after the events which gave rise to the disciplinary proceedings against Mr. Groia. 
3.         Where does “civility” apply and who defines it?

     A major point of contention in the decision is the extent to which the trial judge managed, or failed to manage, lawyer behaviour in the courtroom.  In this respect, the majority and dissent differ on their view of the respective roles of the Law Societies and the Courts to oversee in-court lawyer conduct.  The majority states that this is not a novel question (para 239), and the regulator’s authority to discipline lawyers for in-Court behaviour is well established.  
     For his part, Justice Brown in dissent accurately points out (paras 264 – 267) that some of the legal precedents cited in support of the majority proposition,[7], dealt only with out-of-court behaviour and might therefore be distinguishable on this basis.  Like the rule in real estate, Justice Brown says, what matters is "location, location, location".  
     In this case, the dissent's point is that within proceedings in Court, it is the constitutionally protected independent role of judges to manage lawyer behaviour.  I think this an important distinction that is likely to be relevant in an appeal.  It also underscores a related observation about the role of the Courts in recognizing and defining what the  “civility” obligation is in the first place.   
     In reading the impugned language employed by Mr. Groia, many laypeople might find his words and behaviour quite mild, compared to a colloquial understanding of what more generally constitutes public perceptions of “incivility”.  I frequently have law students ask me, by contrast, what is the scope of the “civility” obligation in law?  Some are perplexed to discover it is only better understood by reference to sources external to Law Society conduct Rules. 
      In this decision, "civility" is further defined by reference to jurisprudence, or to a document of the Advocates’ Society, the Principles of Civility for Advocates (paras 13 & 135).  It may seem odd that in arguing for a substantial public role for the Law Society to regulate lawyer conduct as a matter of “civility”, Courts often rely largely on their own jurisprudence to better define it.  Alternatively, the content of the “civility” obligation is sometimes defined by reference to a policy document, not from the legal regulator, the legislature, or from another public body, but rather from a private professional lawyers’ organization.
     In any event, the Court was disinclined to accept the argument that the definition of “civility” is vague  or ill-defined (paras 162 - 177), and instead suggested that its determination is highly contextual and "fact-driven" (para 164). As a matter of fact, it is worth noting, as the dissent points out, the quantum of incivility seems quite low, judging by the number of such proceedings before Law Societies.  In the last few years, there have been only 11 proceedings to actually regulate “civility” as a matter of lawyers’ professional conduct in Canada (para 305).

4.                  There is no duty of "zealous" advocacy recognized in Ontario’s professional rules.
     Like the use of the term “civility”, noted at the start, the Court of Appeal frequently refers to and incorporates the term “zealous” to describe advocacy before the Court.  To be fair, this is likely in part because it appears as an aspect of the appellant’s submissions.  In this respect, the word “zealous” appears 51 times in the judgment and the Court frequently, 20 times, uses the term the "duty of zealous advocacy", (eg para 42). 

     However, like the term “civility”, the word “zealous” also does not occur in Ontario’s professional conduct Rules.   More accurately, the phrase and obligation, at r. 4.01 (1), is to represent a client “resolutely”.  There is I think, a substantial distinction between the 2 terms, ‘resolute’ and ‘zealous’, as well as perhaps some inferential import in the choice of the Law Society not to employ the older term in its formal Rules.  Though used by Mr. Groia, reliance by the Court on the term "zealous" and its distinction from "resolute" advocacy was not addressed in the judgment, and may also reflect the continued influence of historical models of lawyering in modern Canadian legal culture.

5.      No discretion shall go untrammelled?

     As a final point, the majority assertion that the authority of the Law Society to enforce disciplinary standards in the public interest is “unqualified” (para 102), should give some pause.  If the Court means that there are no apparent restrictions within the legislation, that is one thing.  However, the general public law in Canada has followed instead the proposition, set out more than 50 years ago in the landmark case of Roncarelli v Duplessis, that there is no such thing as an unqualified or absolute discretion in Canadian law.  Ultimately, clarification of this point, and the others raised above, may have to await further consideration on a possible appeal.*


     Those are a few initial thoughts on this significant decision, which seems a likely candidate for further consideration before the Supreme Court.  Some may have surmised that my overall view is sympathetic to the conclusions of Justice Brown’s dissent in Groia, if not the totality of that reasoning.  Justice Brown’s reasons turn on an understanding of what may or may not be the appropriate role of the individual official in regulating participants to proceedings as a matter of judicial independence that, in my opinion, deserves some further consideration.  

     However, I also think the Ontario Court of Appeal, both majority and dissent, missed a chance to more explicitly consider the interrelation between judicial independence and its natural complement, the principle of an independent Bar, which does not receive much direct consideration in the judgment.  In the end, that will be the subject of a future blog, but will have to wait for another day.

Update: On February 2, 2017, the Supreme Court of Canada announced it had granted leave to appeal this Ontario Court of Appeal decision.

[1] At paragraphs 119, 128 and adopted by the dissent at paragraph 254.

[2] At paragraph 3, my emphasis.

[3] It does appear once in the bibliography of the pre-2014 Rules, in reference to an article from the 1970s.

[4] See, for example Wes Pue’s article, “Death Squads and ‘Directions over Lunch’” in In the Public Interest, The Report and Research Papers of the Law Society of Upper Canada’s Task Force on Rule of Law and Independence of the Bar (Toronto: Irwin Law Inc, 2007).

[5] See, for example, Michael Mandel’s work, The Charter of Rights and the Legalization of Politics in Canada, rev ed (Toronto: Thompson Education Publishing, 1994).

[6] Law Society Act, RSO 1990, c L8 as amended by SO, 2006 ch 21 Sched C, s 7, which added a duty to act to protect the public interest at 4.2 (3), effective May 1, 2007.

[7] Inter alia, Doré v Barreau du Quebéc, 2012 SCC 12, [2012] 1 SCR 395; Law Society of New Brunswick v Ryan, 2003 SCC 20, [2003] 1 SCR 24.7

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