He has been called a “pit bull” with witnesses and was chastised by a judge for using “guerrilla theatre” in his successful defence of the man at the centre of the Bre-X Minerals Ltd. gold scandal a decade ago.
But on Thursday, minutes after Bay Street lawyer Joe Groia took an oath and started testifying at a Law Society of Upper Canada hearing where he is accused of “incivility” during the Bre-X trial, his voice suddenly quavered and fell silent, and his eyes reddened with tears.
The stakes for Mr. Groia, 56, are high. His reputation, and his ability to practise law, are on the line. He faces anything from a reprimand to the revocation of his licence if a three-member Law Society panel finds he violated the profession’s rules.
Several times in the first hour of his testimony, when Mr. Groia’s lawyer, Earl Cherniak, had asked him to describe his early career, Mr. Groia’s voice shook or cracked, and he took long pauses, exhaling slowly.
The emotion came first as he told the panel about getting a job at the Ontario Securities Commission – the very watchdog he would later face off against in the Bre-X case – in 1985. While with the OSC as a special counsel and then as its director of enforcement, he earned a reputation for tenacity, taking on some of the biggest names on Bay Street, before returning to private practice in 1990.
“I’ve always thought of it as dying and going to litigation heaven,” he said, his voice failing him again as he described seeking a settlement with legendary litigator John Robinette, who was then at the end of his career.
Mr. Groia regained his composure for the rest of the day, the first of several days he will be in the witness chair in this Osgoode Hall hearing room. For much of the day, Mr. Groia explained the context around the intense legal wrangling over documents in the lead up to John Felderhof’s trial, which started in 2000. Later, he began going through the transcript of the first few days of the trial.
It was repeated clashes over more than one million pages of documents that drove much of the trial’s bitterness. Mr. Groia accused the OSC of failing to live up to its obligations to provide all relevant documents to Mr. Felderhof’s legal team, and of engaging “prosecutorial misconduct” by taking a “win-at-any-cost” approach.
In his testimony, Mr. Groia cited a letter from an OSC investigator instructing a potential expert-witness geologist not to focus on the question of who tampered with the gold samples, but to instead focus on whether Bre-X employees should have known something was wrong.
“I was dumbstruck when I read that. ... They had no interest in finding out who was the person or persons who perpetrated this terrible fraud on the Canadian marketplace,” Mr. Groia told the panel.
Mr. Groia also discussed an exchange of sharply worded letters with OSC lawyers over the disclosure issue. In one, the OSC accused him of going on a “fishing expedition,” although the trial judge, Mr. Justice Peter Hryn, would later side with Mr. Groia and order the OSC to hand over hundreds of boxes of additional documents.
Mr. Groia did acknowledge that he might have worded an October, 2000, letter to the OSC – a letter singled out in criticism of his conduct – a little differently, by deleting the use of the word “shocking” to describe the OSC’s “disregard for our client’s rights.”