Yet some of Heenan Blaikie’s partners were growing discomfited by the notoriety of the Bre-X file, and Groia no longer felt the firm was a good fit. “The problem with a lot of big firms is that when times are good, they’re lining up to be the CEO’s best friend,” says Groia, “but when times go sour, they are heading for the hills.”
For Groia, the solution was to establish his own litigation shop, which he did in 2000, specializing in serving CEOs and executives who find themselves in trouble. With six other lawyers on board, Groia’s firm takes up an elegant array of offices—designed with a certain Frank Lloyd Wright panache—on the 11th floor of a Bay Street high-rise that stands in the shadow of Toronto’s bank towers.
In the end, the Felderhof/Bre-X case proved to be both boon and bane to Groia. It established his reputation as a brilliant litigator, but it also led to his war with the law society. Presided over by Justice Peter Hryn, the trial began in a courtroom in Toronto in October, 2000, and soon bogged down.
Groia and the OSC’s prosecutor, Jay Naster, clashed repeatedly about both form and substance. Groia felt he was not getting proper disclosure of relevant documents and began to accuse Naster and the OSC of “prosecutorial misconduct.” At one point, Groia remarked about the OSC that “their promises aren’t worth the transcript paper they are written on. ...” Hryn didn’t upbraid Groia for the objections, but Naster took the attacks personally, saying he was not going to continue to be “berated and be maligned.” Groia is unapologetic about his assaults. “I never called Naster a name,” says Groia. “I said he had taken positions that were not honest or candid, so I attacked his positions.”
“Joe just kept egging it on because he could see it was getting to the guy, and I would have probably done the same,” says journalist Jim Middlemiss. “I think a lot of lawyers would’ve done the same.”
The trial progressed at a glacial pace over 70 days, during which only two witnesses were called. In April, 2001, frustrated by how Hryn was handling matters, including his apparent refusal to rein in Groia, the OSC made the dramatic move of trying to have Hryn chucked off the case.
“The OSC wanted that trial to end because they saw it going badly,” says prominent Toronto lawyer Brian Greenspan, who was hired by Felderhof to work with Groia in battling the OSC’s efforts to have Hryn dumped. As one of Canada’s more aggressive courtroom interrogators, Greenspan had his own reasons for being worried about any precedent that would be created if Hryn were removed.
Groia and Greenspan argued that Hryn hadn’t lost control of the trial, but had made the strategic (and legally correct) decision of not replying to the OSC’s allegations about Groia’s behaviour, feeling it was not germane to the issue at hand and would hurt Felderhof’s case. “It wasn’t the focus of the appeal for us,” says Greenspan. “The focus was that Hryn is making proper judgments and there is nothing about the conduct of counsel that is impacting on the fairness or propriety of the trial.”
In 2002, the Superior Court of Justice ruled against the OSC, saying Hryn could stay. However, the court strongly reprimanded Groia for his conduct, saying that at times it more resembled “guerrilla theatre than advocacy in court,” and that he used “unrestrained invective,” “excessive rhetoric” and “sarcastic attacks.” But the court also said Groia had the right to accuse the OSC of alleged abuses of process and prosecutorial misconduct and that “neither side in this case has any monopoly over incivility or rhetorical excess. ...A hard-fought trial is not a tea party. Prosecutors need thick skins.”
The OSC appealed the Superior Court decision. In 2003, an appeal court upheld the lower court’s ruling, although it too ripped into Groia, saying his rhetoric was improper and his allegations of professional misconduct without foundation.
The trial resumed, although the OSC replaced Naster as prosecutor in the hope that things would proceed more smoothly, which they did. In 2007, Justice Hryn dismissed all charges against Felderhof. Hryn had been convinced by Groia’s arguments and the evidence that alleged red flags indicating the mine was a dud were not so obvious; and that the tampering of ore samples was such a sophisticated operation that it would have been difficult for Felderhof to uncover it. In the end, Hryn praised the lawyers on both sides for their conduct. Not once did he reprimand Groia for his courtroom behaviour. “The defence of John Felderhof was probably the best lawyering I’ve ever done,” Groia says.
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