This semester, one in three 2Ls mooted—tooth and nail, no doubt—on the appeal of Groia v Law Society of Upper Canada, a 2018 Supreme Court of Canada (SCC) case that scrutinized the events of R v Felderhof. I was one of them. Students did not review issues on John Felderhof’s suspected insider trading and mining fraud. Rather, they reviewed the courtroom conduct of Felderhof’s defence counsel, Joseph Groia.
Groia successfully defended Felderhof. However, three years after the trial ended, Ontario’s Law Society of Upper Canada (LSCU) sought disciplinary measures against Groia over his “personal attacks, sarcastic outbursts and allegations of professional impropriety” against the Ontario Securities Commission's prosecutors.1 The LSUC’s Hearing Panel found Groia guilty of professional misconduct, ordering a two-month suspension of his licence and almost $247,000 in costs.2
Groia took his appeal all the way to the top, stirring a fierce debate about the enforcement of courtroom civility and its potential chilling effect on zealous advocacy. Other issues included the significance of Groia’s bona fide accusations of prosecutorial misconduct being unfounded, the trial judge’s failure to rebuke him, and the degree of deference that the Court should extend to law societies. In the end, the SCC ruled 6-3 in Groia’s favour.
After acting as moot counsel for the Law Society in January, it seemed only fair to hear the other side of the story. Straight from the source, Mr. Groia respectfully obliged.
An interview with Joseph Groia
Q: What does zealous advocacy mean to you, and how can one balance it with professionalism?
Zealous advocacy is not rude advocacy. Rather, it is powerful, focused, and courageous. Our job is to get the best possible results for our clients, and we need to be totally dedicated to that cause. Sometimes that means standing up to bullies. Sometimes that means standing up to an unsympathetic judge. As John Felderhof said about me during my LSO hearing, “I’ve been in lots of courtrooms. I hear lawyers say ‘my friend this’, ‘my friend that.’ I hired Joe because I knew that I would have one good friend in the courtroom on my case."
Q: Did you foresee a win in the Supreme Court? Did things go as expected?
No and no. By the time we got to the SCC, the score was 20 to 1 against us. We won with a final score of 23 against 7 for us. I didn’t see how we could overcome the standard of review. I hoped somehow they would say the test was correctness, as then we had a good chance. I never thought we could win the case on a reasonableness standard, but I was delighted to be proven wrong.
Q: From what you have personally seen, how has the SCC decision influenced the attitudes of courts and lawyers?
Absolutely. Most importantly, it has killed the Civility Movement. You will never see another misguided civility prosecution like mine. You will still see them for cases like a lawyer challenging a witness to “step outside and settle this like a man.” There is now a much better and balanced view of civility as an important aspect of good advocacy. Judges are more proactive in calling out bad behaviour, even sometimes using the new protocols to report lawyers to the Law Society. Lawyers are comforted by the fact that unless the Judge is commenting on your advocacy, you are on the right side of the line. Clients are better served because their lawyers, especially criminal defence lawyers, don’t need to be looking over their shoulders.
Q: What would you say to those concerned about aggressive advocacy affecting their reputation within the profession?
They should be delighted if they are known as an aggressive lawyer. That’s why clients will flock to them. What they don’t want is to be known as a rude lawyer. There’s a big difference. If you are dealing with a witness who is being dishonest, you can forcefully call them out. You can say, “I'm suggesting to you that your last statement was a lie.” You can also do the same thing about opposing counsel. But in both cases, you need to be on solid grounds. If you can’t back it up, you are likely in serious trouble. And as much as possible, you need to focus on positions, not personalities.
Conclusion
Groia continues to practice securities litigation at his Toronto firm. He served as a Bencher of the Law Society of Ontario from 2015 to 2023, citing poor governance and a need for new blood as reasons for his withdrawal.3
Citations
1 Groia v Law Society of Upper Canada, 2018 SCC 27 at para 12.
2 Groia v Law Society of Upper Canada, 2018 SCC 27 at para 34.
3 Joseph Groia, “Why I am not running again in the Law Society of Ontario bencher election”, Canadian Lawyer (31 March 2023), online: <https://www.canadianlawyermag.com/news/opinion/why-i-am-not-running-again-in-the-law-society-of-ontario-bencher-election/374855/>.
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