Frequency of allegations was influenced by underdeveloped abuse of process jurisprudence

In course of trial of lawyer G’s client on securities charges, securities commission (OSC) prosecutor, N, acknowledged he had obligation to put all relevant materials before trial judge. G repeatedly accused N of not fulfilling obligation and put N on notice over and over that he was laying groundwork for later abuse of process motion. G ceased making allegations after trial judge eventually directed him to. Decision settling abuse of process procedure was released. After trial, law society hearing panel (HP) found G guilty of professional misconduct in breaching duty of civility and suspended him. Law society appeal panel (AP) considered professional misconduct allegations against G de novo based on record of HP proceedings, including G’s testimony before HP, assumed G made allegations against prosecutors in good faith but that G’s repeated attacks lacked reasonable basis, and upheld HP’s finding. AP, Divisional Court and Court of Appeal considered and rejected contention that law society should only discipline lawyers for uncivil conduct in court in limited situations and found that law society’s mandate did not conflict with trial judge’s trial management power or independent authority of courts. Divisional Court and Court of Appeal found AP’s decision reasonable. G appealed. Appeal allowed; complaints against G dismissed. AP’s approach for assessing Gs’ behavior in courtroom was rational but its finding of professional misconduct was not reasonable in circumstances. Manner in which G made allegations against N was improper but AP accepted that G made allegations in good faith. AP used G’s sincerely held but mistaken legal beliefs as to disclosure and admissibility of documents to conclude that his allegations of prosecutorial misconduct lacked reasonable basis. G’s allegations were made in good faith and were reasonably based and could not reasonably support finding of professional misconduct. It was not open to AP to conclude that G’s allegations lacked reasonable basis because AP failed to account for evolving abuse of process law, trial judge’s reaction to G’s behavior, and G’s response to trial judge’s instructions to stop. Frequency of G’s allegations was influenced by underdeveloped abuse of process jurisprudence and trial judge’s choice not to stop G from repeating allegations throughout first part of trial.

Groia v. Law Society of Upper Canada (2018), 2018 CarswellOnt 8700, 2018 CarswellOnt 8701, 2018 SCC 27, 2018 CSC 27, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gason J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellOnt 9453, 2016 ONCA 471, J.C. MacPherson J.A., E.A. Cronk J.A., and David Brown J.A. (Ont. C.A.).