APPEAL ALLOWED

Groia v. Law Society of Upper Canada, 2018 SCC 27 – Law of professions – Discipline – Barristers and solicitors

On appeal from a judgment of the Ontario Court of Appeal (2016 ONCA 471) affirming a decision of the Divisional Court (2015 ONSC 686).

G, a lawyer, was hired by F to defend him against charges of insider trading and authorizing misleading news releases brought against him by the Ontario Securities Commission (“OSC”). F’s trial was characterized by a pattern of escalating acrimony and by a series of disputes between G and the OSC prosecutors, which included personal attacks, sarcastic outbursts and allegations of professional impropriety made by G. In particular, the OSC prosecutors and G disagreed over the scope of the OSC’s disclosure obligations and the format of such disclosure, as well as over the admissibility of documents. Much of the disagreement stemmed from G’s honest but mistaken understanding of the law of evidence and the role of the prosecutor. During the trial, despite the frequency and fervor of the dispute, the trial judge initially adopted a hands‑off approach, but he finally directed G to stop repeating his misconduct allegations. G largely followed the trial judge’s directions. Evidentiary disputes were eventually resolved and the trial was completed, with F being acquitted on all charges.

After F’s trial, the Law Society brought disciplinary proceedings against G on its own motion, alleging professional misconduct based on his uncivil behaviour during the trial. A three‑member panel of the Law Society Hearing Panel found G guilty of professional misconduct, suspended his licence to practice law for two months and ordered him to pay nearly $247,000 in costs. On appeal by G, the Law Society Appeal Panel also concluded that G was guilty of professional misconduct, but it reduced G’s suspension to one month and decreased the costs award against him to $200,000. In its decision, the Appeal Panel developed a multi‑factorial, context‑specific approach for assessing whether in‑court incivility amounts to professional misconduct. The Divisional Court upheld the Appeal Panel’s decision as reasonable. A majority of the Court of Appeal dismissed G’s further appeal.

Held (6-3): The appeal should be allowed.

Per McLachlin C.J. and Abella, Moldaver, Wagner and Brown JJ.:

The Appeal Panel’s decision should be reviewed for reasonableness. This Court’s decisions establish that a reasonableness standard applies to law society misconduct findings and sanctions. Moreover, post‑Dunsmuir jurisprudence has firmly entrenched the notion that decisions of specialized administrative bodies interpreting their own statute or statutes closely connected to their function are entitled to deference from courts, and are thus presumptively reviewed for reasonableness. That presumption applies here: the Appeal Panel’s approach to determining when incivility amounts to professional misconduct and its application of that approach in assessing a lawyer’s conduct involve an interpretation of the Rules of Professional Conduct enacted under its home statute and the discretionary application of general principles to the facts before it.

The presumption of deference is not rebutted. Determining when in‑court behaviour amounts to professional misconduct does not fall under the category of questions of central importance to the legal system as a whole and outside the decision‑maker’s expertise, for which correctness review would be appropriate. Although the permissible scope of lawyers’ behaviour is arguably of central importance to the legal system as a whole, it cannot be said that assessing whether incivility amounts to professional misconduct is outside the Law Society’s expertise. To the contrary, Law Society disciplinary tribunals have significant expertise regulating the legal profession, and Law Society disciplinary panels are composed, in part, of other lawyers, who are aware of the problems and frustrations that confront a practitioner. Furthermore, a deferential standard of review does not threaten a trial judge’s power to control his or her courtroom. A trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a Law Society’s disciplinary decision by a different court. The fact that the behaviour occurs in a courtroom is an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it does not impact on the standard of review.

The multi‑factorial, context‑specific approach developed by the Appeal Panel for assessing whether a lawyer’s in‑court behaviour crosses the line into professional misconduct on the basis of incivility is appropriate. First, the Appeal Panel recognized the importance of civility to the legal profession and the corresponding need to target behaviour that detrimentally affects the administration of justice and the fairness of a particular proceeding. At the same time, it remained sensitive to the lawyer’s duty of resolute advocacy — a duty of particular importance in the criminal context because of the client’s constitutional right to make full answer and defence. The Appeal Panel recognized the need to develop an approach that would avoid a chilling effect on the kind of fearless advocacy that is at times necessary to advance a client’s cause.

Second, the Appeal Panel developed an approach that is both flexible and precise. A rigid definition of when incivility amounts to professional misconduct in the courtroom is neither attainable nor desirable; rather, determining whether a lawyer’s behaviour warrants a finding of professional misconduct must remain a context‑specific inquiry that is flexible enough to assess behaviour arising from the diverse array of situations in which lawyers find themselves. Yet, standards of civility must be articulated with a reasonable degree of precision. The Appeal Panel’s approach strikes a reasonable balance between flexibility and precision: it sets a reasonably precise benchmark that instructs lawyers as to the permissible bounds of ethical courtroom behaviour, by articulating a series of contextual factors — what the lawyer said, the manner and frequency in which it was said, and the presiding judge’s reaction to the lawyer’s behaviour — that ought generally to be considered when evaluating a lawyer’s conduct, and by describing how those factors operate when assessing a lawyer’s behaviour.

With respect to what the lawyer said, while not a standalone “test”, the Appeal Panel determined that prosecutorial misconduct allegations, or other challenges to opposing counsel’s integrity, cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. Requiring a reasonable basis for allegations protects against unsupportable attacks that tarnish opposing counsel’s reputation without chilling resolute advocacy. However, the reasonable basis requirement is not an exacting standard. It is not professional misconduct on account of incivility to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted. Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the court. The good faith inquiry asks what the lawyer actually believed when making the allegations. In contrast, the “reasonable basis” inquiry requires a law society to look beyond what the lawyer believed, and examine the foundation underpinning the allegations. Looking at the reasonableness of a lawyer’s legal position at this stage would, in effect, impose a mandatory minimum standard of legal competence in the incivility context — this would allow a law society to find a lawyer guilty of professional misconduct on the basis of incivility for something the lawyer, in the law society’s opinion, ought to have known or ought to have done. This would risk unjustifiably tarnishing a lawyer’s reputation and chilling resolute advocacy.

With respect to the frequency of what was said and the manner in which it was said, the Appeal Panel noted that, as a general rule, repetitive personal attacks and those made using demeaning, sarcastic, or otherwise inappropriate language are more likely to warrant disciplinary action. As for the presiding judge’s reaction to the lawyer’s behaviour, when the impugned behaviour occurs in a courtroom, what, if anything, the judge does about it and how the lawyer modifies his or her behaviour thereafter becomes relevant.

Finally, the Appeal Panel’s approach also allows Law Society disciplinary tribunals to proportionately balance the lawyer’s expressive freedom with its statutory mandate in any given case. The flexibility built into the Appeal Panel’s context‑specific approach to assessing a lawyer’s behaviour allows for a proportionate balancing in any given case. Considering the unique circumstances in each case enables Law Society disciplinary tribunals to accurately gauge the value of the impugned speech. This, in turn, allows for a decision, both with respect to a finding of professional misconduct and any penalty imposed, that reflects a proportionate balancing of the lawyer’s expressive rights and the Law Society’s statutory mandate.

Although the approach that it set out was appropriate, the Appeal Panel’s finding of professional misconduct against G on the basis of incivility was unreasonable. First, even though the Appeal Panel accepted that G’s allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous legal beliefs as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis. The Appeal Panel acknowledged that submissions made on the basis of a sincerely held but erroneous legal belief cannot ground a finding of professional misconduct, and accepted that in making his allegations of impropriety against the OSC prosecutors, G was not deliberately misrepresenting the law and was not ill‑motivated. Despite this, the Appeal Panel used G’s legal errors to conclude that he had no reasonable basis for his repeated allegations of prosecutorial impropriety. Such a finding was not reasonably open to the Appeal Panel. Allegations of prosecutorial misconduct based on a sincerely held but mistaken legal belief will be reasonably based as long as they have a sufficient factual foundation. The question for incivility purposes is not whether G was right or wrong on the law; rather, the question is whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation. In this case, they did. G’s legal errors, coupled with the OSC prosecutors’ conduct, provided the reasonable basis for his allegations. Accordingly, based on the Appeal Panel’s own approach, G’s allegations were made in good faith and they were reasonably based.

Second, the other contextual factors in this case could not reasonably support a finding of professional misconduct against G on the basis of incivility. The evolving abuse of process law at the time accounts, at least in part, for the frequency of G’s allegations; the presiding judge took a passive approach in the face of G’s allegations; and G’s behaviour changed in response to the directions of the trial judge. The Appeal Panel failed to account for these contextual factors in its analysis. The only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that G was not guilty of professional misconduct. Because G, in the circumstances of this case, could not reasonably be found guilty of professional misconduct, the complaints against him are dismissed and there is no need to remit the matter to the Law Society.

Per Côté J.:

There is agreement with the majority that the Appeal Panel erred in finding that G committed professional misconduct and that there is no need to remit the matter back to the Law Society.

However, there is disagreement as to the applicable standard of review. The Appeal Panel’s finding of professional misconduct is reviewable on the correctness standard on the basis that the impugned conduct occurred in a courtroom. Applying the approach set out in Dunsmuir, this Court’s existing jurisprudence does not dictate the standard of review in this appeal. The context of this case is different in one critical — and dispositive — respect: the impugned conduct occurred before a judge in open court. The fact that the relevant conduct occurred in a court of law implicates constitutional imperatives about the judiciary’s independence and its capacity to control its own processes, and rebuts the presumption of reasonableness. Correctness review is required because the Law Society’s inquiry into in‑court professional misconduct engages the contours of the constitutional relationship between the courts and government regulators. Judicial independence is, without question, a cornerstone of Canadian democracy. It is essential to both the impartiality of the judiciary and the maintenance of the rule of law. An inquiry by a law society into a lawyer’s in‑court conduct risks intruding on the judge’s function of managing the trial process and his authority to sanction improper behaviour. To protect judicial independence, and the authority of judges to manage the proceedings before them in the manner they see fit, the judiciary — not a regulatory body, a creature of the political branches of government — should have the final say over the appropriateness of a lawyer’s conduct in that sphere. The reasonableness standard of review, which requires judicial deference to a law society’s disciplinary determinations, is inconsistent with this prerogative. Therefore, correctness review is required to ensure proper respect for the judiciary’s constitutionally guaranteed place in our democracy.

Per Karakatsanis, Gascon and Rowe JJ. (dissenting):

There is agreement with the majority that reasonableness is the applicable standard of review. The simple fact that a lawyer’s behavior occurs in the courtroom does not deprive the Law Society of its legitimate role in regulating the profession nor does it justify heightened judicial scrutiny. There is also agreement with the majority that, in articulating a standard of professional misconduct, the Appeal Panel reasonably set out a contextual approach which will vary according to the particular factual matrix in which it is applied.

However, the majority’s disposition in this appeal is disagreed with. The Appeal Panel’s decision was reasonable and there is no basis to interfere. Accordingly, the appeal should be dismissed. The majority fundamentally misstates the Appeal Panel’s approach to professional misconduct and reweighs the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes the Court’s judgment for that of the legislature’s chosen decision maker. Where, as here, the standard of review analysis leads to the application of reasonableness, deference is not optional. Deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable. It follows that a reviewing court also cannot supplement the decision maker’s reasoning for the purpose of undermining it. Neither may a court reweigh evidence or contextual factors considered by the decision maker. At all times, the starting point of reasonableness review is the reasons for the decision under review. There is no basis on this record to interfere with the Appeal Panel’s decision. Its analysis was cogent, logical, transparent and grounded in the evidence.

A reviewing court should give effect to the Appeal Panel’s decision to adopt an approach with both subjective and objective considerations (i.e. to require good faith and a reasonable basis for allegations of prosecutorial misconduct or that impugn the integrity of an opponent). It was open to the Appeal Panel to consider both the factual and legal bases for the allegations at issue, and to conclude that there was no reasonable basis in fact or in law for G’s allegations. The Appeal Panel’s mandate permits it to determine any question of fact or law that arises in a proceeding before it. As such, the Appeal Panel was entitled to consider whether there is a reasonable basis for the allegations. Reasonableness, as opposed to good faith, implies consideration of whether the allegations, objectively, had a legal or factual basis. The Appeal Panel’s approach is justified by the serious consequences that irresponsible attacks can have on opposing counsel’s reputation as well as the public perception of the justice system. Collapsing the subjective and objective elements of this approach restricts the Appeal Panel’s ability to assess the reasonableness of legal submissions to determining whether the lawyer was acting in good faith. It was open to the Appeal Panel to hold that a lawyer who erroneously alleges prosecutorial misconduct or impugns the integrity of opposing counsel should not be shielded from professional sanction because of his or her own incompetence.

In determining whether G’s allegations crossed the line into professional misconduct, the Appeal Panel applied its expertise and decided how to assess the evidence as a whole. It was open to the Appeal Panel to weigh the evidence in the way it did. Its findings were amply supported by the record, as were its conclusions on the cumulative effects of G’s conduct. Ultimately, the reasons supported the Appeal Panel’s conclusion that G was engaged in professional misconduct. Both the evidentiary foundation and the logic of the reasons were sound. The decision was justifiable, intelligible, and transparent and fell within the range of reasonable outcomes.

The Appeal Panel’s decision also proportionately balanced the value of freedom of expression with its mandate to ensure that lawyers conduct themselves professionally. The Appeal Panel was alert to the importance of lawyers’ expressive freedoms and the critical role of zealous advocacy in our system. In order to ensure that these principles were limited no more than necessary, the Appeal Panel adopted a contextual approach that took into account the dynamics of the courtroom setting. It was reasonable for the Appeal Panel to conclude that in the context of this trial, zealous advocacy did not require G to make unfounded allegations of prosecutorial misconduct, to impugn the integrity of his opponents or to frequently resort to invective when describing them.

There are a number of concerns about the implications that follow from the majority’s decision: they immunize erroneous allegations from sanction by the Law Society, validate improper conduct and threaten to undermine the administration of justice and the culture change that the Court has called for in recent years. Moreover, setting aside the decision of the Appeal Panel has the potential to undermine the ability of law societies to promote the efficient resolution of disputes. Law societies are important actors in the culture change that is needed. Their decisions respecting professional misconduct should be approached with deference.

Reasons for judgment: Moldaver J. (McLachlin C.J. and Abella, Wagner and Brown JJ. concurring)

Concurring Reasons: Côté J.

Dissenting Reasons: Karakatsanis, Gascon and Rowe JJ.

Neutral Citation: 2018 SCC 27

Docket Number: 37112

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17113/index.do