Ontario's Divisional Court has upheld a one-month suspension imposed on Joe Groia, the Bay Street lawyer accused of "incivility" at the high-profile Bre-X Minerals Ltd. trial 15 years ago.
Mr. Groia successfully defended geologist John Felderhof against insider trading and other securities charges in the Bre-X scandal that shook Bay Street in the 1990s.
Since his client's 2007 acquittal, Mr. Groia has been locked in a battle with the Law Society of Upper Canada over his behaviour at the acrimonious trial, in which two judges later criticized his use of "invective" and "guerrilla theatre."
On Monday, a three-judge panel of the Divisional Court dismissed Mr. Groia's appeal of the one-month suspension he had been given by a Law Society of Upper Canada disciplinary appeal panel.
In a decision written by Justice Ian Nordheimer, the court ruled that it had no "principled basis" to interfere with the suspension, or the decision to demand that Mr. Groia pay $200,000 in the Law Society's legal costs.
In an e-mail, Mr. Groia – who recently announced a campaign to run as a bencher, or member of the governing body of the law society – said he would appeal the decision.
Justice Nordheimer dismissed arguments made by Mr. Groia's lawyer, Earl Cherniak, that the law society should not have any jurisdiction to prosecute lawyers for courtroom behaviour if they have not been sanctioned by the trial judge in question, or that doing so threatens judicial independence.
At the Bre-X trial, Mr. Groia alleged that prosecutors for the Ontario Securities Commission were using a "conviction filter" in deciding on what documents could be admitted as evidence, in an effort to secure a conviction against his client in the high-profile case "at any cost."
His repeated allegations of prosecutorial misconduct were at the centre of the disciplinary action launched by the law society. Mr. Groia and the Criminal Lawyers Association, which intervened in his case before the Divisional Court, argued that sanctioning Mr. Groia would send a "chill" through the defence bar, as defence lawyers seeking to criticize prosecutors would fear being later second-guessed by the law society.
Citing this concern, Justice Nordheimer takes issue with the legal test for "incivility" applied by the law society appeal panel against Mr. Groia, saying it "fails to go far enough to protect the importance of zealous advocacy."
The Divisional Court ruling says that not only must the conduct by "rude, unnecessarily abrasive, sarcastic, demeaning, abusive" but it must also "bring the administration of justice into disrepute, or threaten to do so."
However, Justice Nordheimer still concludes that the law society appeal panel ended up taking all of the above factors into account, and upholds the panel's finding in Mr. Groia's case.
"While this is a much better decision for the public and the profession we believe that there are still important unresolved issues," Mr. Groia said in an e-mail.
The law society appeal panel's 2013 ruling knocked down a 2011 law society disciplinary panel decision that had imposed a two-month suspension and $247,000 in costs.
The Bre-X trial began in 2000, after it emerged in the 1990s that gold drilling results from a mine site in Indonesia had been faked.