The Test for Uncivil Conduct in Litigation

February 09, 2015

The Divisional Court released its reasons respecting the Law Society of Upper Canada's disciplinary proceeding against Joseph Groia on February 2, 2015. The Divisional Court upheld the Law Society Hearing Panel and Appeal Panel decisions that Groia engaged in professional misconduct during his defence of John Felderhof against insider trading charges arising from the Bre-X collapse.

Though the Divisional Court found that the Appeal Panel's decision was reasonable, it enunciated a different test for professional misconduct arising from incivility.

First, conduct that is rude, unnecessarily abrasive, sarcastic, demeaning, abusive or of any like quality in that it attacks the personal integrity of opponents, parties, witnesses or of the court in the absence of good faith or where the good faith belief is unreasonable is uncivil.

It is not zealous advocacy. It is also not a solitary instance of uncivil conduct.

Second, uncivil conduct is professional misconduct if it bring[s] the administration of justice into dispute, or would have the tendency to do so. The Divisional Court provides the following examples:

• repeated personal attacks on one's opponents or on the judge or adjudicator, without a good faith basis or without an objectively reasonable basis
• improper efforts to forestall the ultimate completion of the matter at issue
• actions designed to wrongly impede counsel from the presentation of their case
• efforts to needlessly drag the judge or adjudicator into the fray and thus imperil their required impartiality, either in fact or in appearance.

It is conduct that calls into question the integrity of the court process and of the players involved in it.

The Divisional Court makes clear that these are guidelines, and is not a closed list of the entire spectrum of possible conduct that might lead to professional misconduct concerns. The court also made clear that this test deals within court and conduct outside the courtroom may attract different considerations.

Given the very public nature of this case, I anticipate that Groia will seek leave to appeal the Divisional Court's decision to the Court of Appeal for Ontario. Nonetheless, the Divisional Court's thoughtful discussion of the test for incivility will likely be the subject of much discussion amongst the profession.