CITATION: Joseph Groia v. Law Society of Upper Canada, 2014 ONSC 6026
DIVISIONAL COURT FILE NO.: 162/14
DATE: 20141016
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JOSEPH PETER PAUL GROIA
Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
– and –
The Advocates’ Society and the Criminal Lawyers’ Association
Proposed Interveners
A. McKinnon & J. Akbarali, for the appellant
T. Curry, for the respondent
T. J. O’Sullivan, for the proposed intervener, The Advocates’ Society
R. Parker, for the proposed intervener, the Criminal Lawyers’ Association
HEARD at Toronto: September 2 & October 15, 2014
REASONS FOR DECISION
NORDHEIMER J.:
[1] The Advocates’ Society and the Criminal Lawyers’ Association both seek leave to intervene in this appeal. On August 26, 2014, Associate Chief Justice Marrocco made an order, pursuant to r. 13.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, designating me as the judge to hear and determine all motions for leave to intervene in this proceeding.
[2] Before turning to the actual motions, I will briefly set out the relevant principles applicable to these motions. I should also note that neither the appellant nor the respondent opposed either of the motions to intervene. I should further note that, on an earlier occasion, I made an order granting the Canadian Civil Liberties Association leave to intervene in this appeal, again with no opposition from the parties.
The principles
[3] Rule 13.02 is the relevant rule applicable to these motions. It reads:
Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.
[4] I do not believe that there is any dispute respecting the principles that are applicable to these motions. I would summarize those principles as follows:
(i) the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.).
(ii) where the intervention is in a Charter case, usually at least one of three criteria is met by the intervener: it has a real substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or it is a well-recognized group with a special expertise and a broadly identifiable membership base: Bedford v. Canada (Attorney General) (2009), 2009 ONCA 669, 98 O.R. (3d) 792 (C.A.).
(iii) the submissions to be offered by the proposed intervener must be useful and different from those of the parties: R. v. Finta, [1993] 1 S.C.R. 1138.
(iv) the threshold for granting intervener status in a public interest or public policy case is lower than it is for a private interest case: Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.).
(v) in Charter cases, it is recognized that it is important for the court “to receive a diversity of representations reflecting the wide-ranging impact of its decision”: Ontario (Attorney General) v. Dieleman (1993), 16 O.R. (3d) 32 (Gen. Div.).
(vi) the fact that the proposed intervener is not indifferent to the outcome of the appeal is not a reason to deny it the right to intervene: Oakwell Engineering Ltd. v. Enernorth Industries Inc., [2006] O.J. No. 1942 (C.A.).
[5] With those principles stated, I turn to the individual motions.
A. The Advocates’ Society
[6] The Advocates’ Society was established in 1963 as a province-wide professional association for trial and appellate lawyers in Ontario. It is a not for profit corporation that currently represents over 5,000 advocates in Ontario as well as in other provinces. It engages in advocacy education, legal reform, the protection of the rights of litigants, the protection of the public’s right to representation by an independent bar and the promotion of access to, and improvement of, the administration of justice. As it may relate to the issues in this appeal, The Advocates’ Society has demonstrated a strong commitment to the promotion of civility and professionalism in the legal profession including the publication of the Principles of Civility for Advocates in 2001. In 2009, it published the Principles of Professionalism for Advocates.
[7] If granted intervener status, The Advocates’ Society will make submissions on two specific issues:
(i) the circumstances under which the reasons of judges in prior proceedings are admissible in a disciplinary proceeding against a lawyer and the purposes for which they may be admissible.
(ii) if such reasons are admissible, the principles that should guide the weight to be assigned to those reasons.
B. Criminal Lawyers’ Association
[8] The Criminal Lawyers’ Association (“CLA”) is a non-profit organization founded in 1971. It comprises over 1,000 criminal defence lawyers practising in the Province of Ontario as well as having associate members across Canada and in the United States. The objects of the CLA are to educate, promote and represent the membership on issues relating to criminal and constitutional law. The CLA presents educational workshops and seminars on a regular basis and annually holds a Fall Convention and Education Program.
[9] If granted intervener status, the CLA will make submissions on two basic issues. One is with respect to the factors that ought to be taken into account in determining when “zealous advocacy in the criminal context crosses the line into actionable professional misconduct”. The other is the appropriate use to which a professional body, such as the respondent, can put court decisions in terms of proof of professional misconduct.
Conclusion
[10] I am satisfied that both The Advocates’ Society and the Criminal Lawyers Association should be granted leave to intervene in this proceeding. Admittedly there is a degree of overlap between the two on the issue of the use of court decisions in professional misconduct proceedings. However, it is not clear that these two organizations will be offering the same perspective on this issue.
[11] In any event, this appeal raises important issues regarding the role and conduct of advocates when engaged in their professional responsibilities before a court or other adjudicative bodies. It will be of assistance to this court to have the perspective of these two recognized organizations of advocates on the possible implications and ramifications of the issues raised in this appeal.
[12] I therefore grant intervener status to The Advocates’ Society and the Criminal Lawyers Association on the following conditions:
(i) the interveners will accept the record as prepared by the parties and not add to it or adduce further evidence or raise new issues;
(ii) the factum of each intervener will be limited to fifteen pages;
(iii) each intervener will have thirty minutes to make its submissions subject to the direction of the panel hearing the appeal;
(iv) the interveners will make every reasonable effort to avoid duplicating the submissions of any of the parties or each other;
(v) the interveners will comply with the schedule to be ordered by the court for the delivery of all materials, and;
(vi) each of the interveners will not seek, nor will they be subject to, any award of costs including the costs of these motions.
[13] I should make it clear that these conditions also apply to the other intervener, the Canadian Civil Liberties Association.
NORDHEIMER J.
Date of Release:
CITATION: Joseph Groia v. Law Society of Upper Canada, 2014 ONSC 6026
DIVISIONAL COURT FILE NO.: 162/14
DATE: 20141016
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JOSEPH PETER PAUL GROIA
Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
REASONS FOR DECISION
NORDHEIMER J.
Date of Release: