Groia v. The Law Society of Upper Canada; Canadian Civil Liberties Association et al., Intervenors

[Indexed as: Groia v. Law Society of Upper Canada]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Sachs, Nordheimer and Harvison Young JJ.

February 2, 2015

124 O.R. (3d) 1 | 2015 ONSC 686

Case Summary

Professions — Barristers and solicitors — Discipline — Evidence — Judges' comments on lawyer's conduct admissible at that lawyer's disciplinary hearing but not binding on tribunal — Hearing Panel of Law Society erring in ruling that relitigation of judges' "findings" would amount to abuse of process — Doctrine of abuse of process not applying as lawyer was not party to judicial review proceedings in which comments were made — Judges' comments constituting opinions rather than findings of fact.

Professions — Barristers and solicitors — Discipline — Professional misconduct — Appeal Panel finding that lawyer was guilty of incivility which rose to level of professional misconduct during criminal trial — Decision not intruding impermissibly on judicial independence by sanctioning lawyer for conduct that occurred inside courtroom — Uncivil conduct rising to level of professional misconduct where it undermines or has realistic prospect of undermining proper administration of justice — Appeal Panel reasonably concluding that lawyer had committed professional misconduct by impugning integrity of prosecutors without having reasonable basis for doing so — Penalty of one-month suspension and order that lawyer pay costs of $200,000 also reasonable.

The appellant acted for F at his trial on charges of violations of the Securities Act, R.S.O. 1990, c. S.5. During the trial, the Ontario Securities Commission ("OSC") brought an application for prohibition and certiorari on the basis of the trial judge's failure to control the appellant's conduct. The application was dismissed and the matter was remitted to the trial judge to continue the trial. The appellant was denied costs on the ground that his conduct justified the decision of the OSC to bring the judicial review application. The OSC's appeal from the dismissal of its application was dismissed. The trial resumed and F was acquitted. The Hearing Panel of the Law Society of Upper Canada found that the appellant had engaged in incivility during the trial which rose to the level of professional misconduct. The Hearing Panel imposed a penalty of a two-month suspension and ordered the appellant to pay costs in the amount of $246,960.53. The Appeal Panel found that the Hearing Panel had erred in placing undue emphasis on the findings of the application judge and the Court of Appeal in the judicial review proceedings. The Appeal Panel conducted its own independent [page2 ]assessment of the evidence and affirmed the finding of professional misconduct. The Appeal Panel reduced the penalty to a one-month suspension and reduced the costs order to $200,000. The appellant appealed. The Law Society cross-appealed on the issue of the proper use of a judge's comments in disciplinary proceedings and from the reduction of the penalty and costs.

Held, the appeal and cross-appeal should be dismissed.

The Appeal Panel's decision did not improperly intrude on the independence of the judiciary by sanctioning a lawyer for conduct that occurred outside the courtroom.

For uncivil conduct to rise to the level of professional misconduct, the conduct must have undermined, or have had the potential to undermine, the proper administration of justice. The Appeal Panel applied the correct test and reasonably concluded that the appellant had committed professional misconduct by impugning the integrity of the prosecutors without having a reasonable basis for doing so. The penalty imposed by the Appeal Panel and the costs order were also reasonable.

The comments of judges on a lawyer's conduct are admissible at that lawyer's disciplinary hearing based on the same conduct. However, the Hearing Panel erred in concluding that it would be an abuse of process to permit the relitigation of the "findings" of the application judge and the Court of Appeal on the appellant's conduct. The doctrine of abuse of process did not apply as the appellant was not a party to the judicial review proceedings. Moreover, the judges' comments on the appellant's conduct were opinions, not findings of fact. Properly admissible opinions may assist a trier of fact but they are not binding on a trier of fact.

British Columbia (Attorney General) v. Malik, [2011] 1 S.C.R. 657, [2011] S.C.J. No. 18, 2011 SCC 18, 303 B.C.A.C. 1, 414 N.R. 332, 330 D.L.R. (4th) 577, EYB 2011-189560, 2011EXP-1317, J.E. 2011-714, 17 B.C.L.R. (5th) 1, 76 C.B.R. (5th) 56, [2011] 6 W.W.R. 383, 1 C.P.C. (7th) 374; Law Society of Upper Canada v. Coady, [2012] L.S.D.D. No. 56, 2012 ONLSAP 12, distd

Other cases referred to

Canam Enterprises Inc. v. Coles, [2002] 3 S.C.R. 307, [2002] S.C.J. No. 64, 2002 SCC 63, 220 D.L.R. (4th) 466, 296 N.R. 257, 167 O.A.C. 1, 24 C.P.C. (5th) 1, 117 A.C.W.S. (3d) 151, revg (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481, [2000] O.J. No. 4607, 194 D.L.R. (4th) 648, 139 O.A.C. 1, 5 C.P.C. (5th) 218, 101 A.C.W.S. (3d) 806 (C.A.); Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, [2012] S.C.J. No. 12, 2012 SCC 12, 428 N.R. 146, 2012EXP-1231, J.E. 2012-672, EYB 2012-203967, 255 C.R.R. (2d) 289, 34 Admin. L.R. (5th) 1, 343 D.L.R. (4th) 193, 211 A.C.W.S. (3d) 852; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Groia v. Law Society of Upper Canada, [2013] L.S.D.D. No. 186, 2013 ONLSAP 41, varg [2012] L.S.D.D. No. 92, 2012 ONLSHP 94; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20, 223 D.L.R. (4th) 577, 302 N.R. 1, J.E. 2003-713, 257 N.B.R. (2d) 207, 48 Admin. L.R. (3d) 33, 31 C.P.C. (5th) 1, 121 A.C.W.S. (3d) 172; Law Society of Upper Canada v. Groia, [2014] L.S.D.D. No. 43, 2014 ONLSTA 11; Law Society of Upper Canada v. Groia, [2013] L.S.D.D. No. 38, 2013 ONLSHP 59; Law Society of Upper Canada v. MacFarlane, [2009] L.S.D.D. No. 56, 2009 ONLSHP 47; Law Society of Upper Canada v. McSween, [2012] L.S.D.D. No. 15, 2012 ONLSAP 3; [page3 ]Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97, [2000] O.J. No. 4428, 138 O.A.C. 201, 43 C.P.C. (5th) 65, 101 A.C.W.S. (3d) 634 (C.A.); R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819, 235 D.L.R. (4th) 131, 180 O.A.C. 288, 180 C.C.C. (3d) 498, 17 C.R. (6th) 20, 61 W.C.B. (2d) 489 (C.A.), affg [2002] O.J. No. 4103, [2002] O.T.C. 829, 55 W.C.B. (2d) 572 (S.C.J.); R. v. Felderhof, 2003 41569 (ON SC), [2003] O.J. No. 393, 56 W.C.B. (2d) 459 (S.C.J.); R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, J.E. 96-671, 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200; R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251, 118 O.A.C. 1, 132 C.C.C. (3d) 262, 41 W.C.B. (2d) 98 (C.A.); Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, D.T.E. 98T-154, 76 A.C.W.S. (3d) 894; Rondel v. Worsley, [1969] 1 A.C. 191, [1967] 3 All E.R. 993, [1967] 3 W.L.R. 1666 (H.L.); Stevens and Law Society of Upper Canada (1979), 1979 1749 (ON SC), 55 O.R. (2d) 405, [1979] O.J. No. 4546 (Div. Ct.)

Statutes referred to

Law Society Act, R.S.O. 1990, c. L.8 [as am.], ss. 33 [as am.], 49.3 [as am.], (1) [as am.]

Securities Act, R.S.O. 1990, c. S.5, ss. 76 [as am.], 122 [as am.]

Authorities referred to

The Advocates' Society, The Principles of Civility for Advocates (Toronto: The Advocates' Society, 2001)

Code, Michael, "Counsel's Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System" (2007), 11 Can. Crim. L. Rev. 97

LeSage, Patrick J., and Michael Code, Report of the Review of Large and Complex Criminal Case Procedures (Toronto: Ontario Ministry of the Attorney General, 2008)

APPEAL and CROSS-APPEAL from a decision of the Law Society Appeal Panel.

E.A. Cherniak, Q.C., and J. Akbarali, for appellant.

J.T. Curry, J.E. Lilles and A. Porter, for respondent.

C. Zwibel, for intervenor Canadian Civil Liberties Association.

F. Addario and R. Parker, for intervenor the Criminal Lawyers' Association.

T.J. O'Sullivan, M. Law and D. Templer, for intervenor the Advocates' Society.

The judgment of the court was delivered by

[1] NORDHEIMER J.: — Joseph Groia appeals from the decision of the Law Society Appeal Panel dated November 28, 2013.[^1] The [page4 ]order of the Appeal Panel allowed, in part, an appeal from the decision of a Law Society Hearing Panel dated June 28, 2012.[^2] The Appeal Panel upheld the finding of the Hearing Panel that the appellant had engaged in professional misconduct, but not in all of the particulars that the Hearing Panel had found, and not for the reasons that the Hearing Panel had employed. The Appeal Panel reduced the penalty imposed by the Hearing Panel from a two-month suspension to a one-month suspension, and reduced the amount that the appellant was ordered to pay for costs from $246,960.53 to $200,000. The Appeal Panel also set aside a publication ban that had been made permanent by the Hearing Panel. The appellant asks that the orders of the Appeal Panel be set aside and that the charges of professional misconduct against him be dismissed.

[2] The Law Society of Upper Canada cross-appeals from the decision of the Appeal Panel in terms of its reduction of the period of suspension and the reduction in the costs ordered.

[3] The Canadian Civil Liberties Association, the Criminal Lawyers' Association and the Advocates' Society were all granted leave to intervene in this appeal. Their submissions were principally addressed to the possible ramifications that the Appeal Panel's decision might have on the ability of advocates to fulfill their duties to their clients.

Factual Background

[4] Bre-X was a Calgary-based mining company that had grown to a multi-billion dollar company largely based on its claim to have discovered one of the world's largest gold finds in the jungles of Busang, Borneo. Bre-X collapsed after it was discovered that the claim was false. The collapse of Bre-X is said to be the result of one of the largest frauds ever perpetrated in the Canadian capital markets. Canadians and other investors lost over $6 billion.

[5] John Felderhof was a Bre-X officer and director. He was charged by an eight count information dated May 11, 1999 with violations of ss. 76 and 122 of the Securities Act, R.S.O. 1990, c. S.5 for insider trading and authorizing misleading news releases about Bre-X. Mr. Felderhof was the only person ever to be charged in connection with this fraud.

[6] Mr. Felderhof's trial proceeded before Hryn J. in the Ontario Court of Justice. Jay Naster and Ian Smith prosecuted the case [page5 ]on behalf of the Ontario Securities Commission ("OSC"). The appellant acted for Mr. Felderhof. The trial commenced on October 16, 2000. It ended on July 31, 2007, when Mr. Felderhof was acquitted of all charges.

[7] This lengthy trial had a significant demarcation point as a result of an application for judicial review brought by the prosecution in the midst of the trial, as I will describe. In the proceedings before the Hearing Panel and the Appeal Panel, the trial was broken down into two phases. Phase one concerned the events of the first 70 days of the trial, leading up to the application for judicial review to the Superior Court of Justice. Phase two of the trial describes the events from the resumption of the trial in 2005, after the Court of Appeal dismissed the prosecution's appeal from its judicial review application that had, in turn, been dismissed by a judge of the Superior Court of Justice.

[8] It is the events of phase one of the trial that led to the institution of the proceedings by the respondent involving the appellant's conduct. The particulars of the misconduct of the appellant were set out in the notice of application, as follows:

(a) failed to treat the Court with courtesy and respect because of your consistent pattern of rude, improper or disruptive conduct between December 22, 1999 and October 31, 2000, contrary to Rule 10 of the Professional Conduct Handbook, 1999 edition;

(b) failed to act in good faith, and failed to conduct yourself in a fair, courteous, respectful, and civil manner to the Court, between November 1, 2000 and April 5, 2001, contrary to Rule 4.01(1) and 4.01(6) of the Rules of Professional Conduct;

(c) undermined the integrity of the profession by communicating with the prosecutors for the OSC in a manner that was abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer between December 22, 1999 and October 31, 2000, contrary to Rule 13 of the Professional Conduct Handbook, 1999 edition;

(d) communicated with the prosecutors for the OSC in a manner that was abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer between November 1, 2000 to April, 2001, contrary to Rule 6.03(5) of the Rules of Professional Conduct;

(e) failed to act with courtesy and good faith through engaging in ill considered or uninformed criticism of the conduct of the prosecutors for the OSC between December 22, 1999 to October 31, 2000, contrary to Rule 14 of the Professional Conduct Handbook, 1999 edition; and

(f) failed to be courteous, to be civil and to act in good faith toward the prosecutors for the OSC between November 1, 2000 and April 5, 2001, contrary to Rule 6.03(1) of the Rules of Professional Conduct. [page6 ]

[9] The Hearing Panel found that the appellant was guilty of professional misconduct on all six of these particulars. The Appeal Panel found that the appellant was guilty of professional misconduct on particulars (c) through (f). The Appeal Panel did not consider it necessary to address particulars (a) and (b).

[10] In terms of the Felderhof trial, it appears that problems developed between the prosecution and the defence almost from the time that the charges were laid. Prior to the trial, there were serious issues raised by the defence over the disclosure that had been made (or not made). As a result, the appellant brought a motion for particulars and additional disclosure. Those pre-trial proceedings took five days. The motion for additional disclosure was granted.

[11] As I have said, it was phase one of the trial that led to the professional misconduct charges against the appellant. It may be helpful for a full understanding of the various events that occurred in phase one to break down that portion of the trial into its component events. In order to do so, I borrow from the Appeal Panel's reasons, at para. 17:

(a) "Days 1-16 dealt with two motions made by the defence: one was a constitutional challenge to s. 122 of the Securities Act and the other was a motion to stay the proceedings on the basis of the OSC's failure to provide adequate disclosure, as required by Stinchcombe;"

(b) "Days 16-25 consisted of the openings of the OSC and the defence;"

(c) "Days 25-38 comprised the first stage of the examination-in-chief of the OSC's first witness, Rolando Francisco;"

(d) "Days 38-43 consisted mostly of disputes about what documents were admissible and if so, for what purpose;"

(e) "Days 43-52 saw the completion of the examination-in-chief of Mr. Francisco;"

(f) "Days 53-68 consisted of the cross-examination of Mr. Francisco", that was not completed due to the witness' ill health; and

(g) "Days 69 and 70 consisted of the incomplete examination-in-chief of Dr. Paul Kavanagh."

[12] The case against Mr. Felderhof involved an extensive documentary record. There had been pre-trial case management to assist in sorting out issues regarding the admissibility of the [page7 ]documentary record, but by the time of the opening of trial, no agreement on the documents had been reached.

[13] The trial itself was hard fought. The relations between the prosecutors and the appellant were acrimonious. There were many instances where the appellant, in the course of his submissions, made negative comments regarding the conduct of the prosecution, including numerous suggestions of prosecutorial misconduct.

[14] Eventually, the OSC brought an application for judicial review on April 17, 2001. The appellant, on behalf of Mr. Felderhof, brought a counter-application seeking the resumption of the trial.

[15] There were a number of grounds relied upon by the OSC in support of its application for judicial review.[^3] One of the grounds relied upon was the failure of the trial judge to control the appellant's conduct. In this regard, it was specifically argued that that the appellant's conduct violated the respondent's Rules of Professional Conduct. The judicial review application was heard by A. Campbell J. on various dates in November and December 2001. On October 31, 2002, the application judge released lengthy reasons in which he dismissed the application for judicial review and remitted the matter back to the trial judge to continue the trial.[^4] The application judge did not consider it necessary to address the counter-application.

[16] Mr. Felderhof sought his costs of the judicial review application. On February 13, 2003, the application judge released his reasons on costs.[^5] Although Mr. Felderhof had been successful on the judicial review application, the application judge declined to award costs against the OSC. In doing so, the application judge found that the appellant's conduct justified the OSC's decision to bring the judicial review application. More specifically, the application judge said, at para. 21:

To award costs to the defence in this case would be unfair to the prosecution and contrary to the public interest in the administration of justice. The behaviour indulged in by Mr. Groia should be discouraged, not encouraged by an award of costs. To award costs to the defence would carry the wrong message by rewarding him for the consequences of his unacceptable conduct.

[17] The OSC appealed the decision of the application judge to the Court of Appeal. Mr. Felderhof brought a cross-appeal on the [page8 ]issue of costs. The appeal and cross-appeal were heard on June 18 and 19, 2003. By reasons dated December 10, 2003, both the appeal and the cross-appeal were dismissed.[^6]

[18] It should be noted that the application for judicial review brought by the OSC centred around the assertion by the OSC that the trial judge had committed such serious errors in the course of the trial that it deprived him of jurisdiction to continue with the trial. Both the application judge and the Court of Appeal found that the trial judge had not lost jurisdiction. As noted by Rosenberg J.A., in para. 1 of the Court of Appeal's reasons: "Fundamental to its position is the allegation that the trial judge has failed in his duty to curb the uncivil conduct of the [appellant]."

[19] For the purposes of this appeal, I do not consider it necessary to outline in excruciating detail all of the alleged improper conduct of the appellant, in terms of his dealings with the prosecutors, or the corresponding (but perhaps less frequent) improper conduct of the prosecutors. It is unnecessary because the conduct of the appellant has been exhaustively canvassed, not only by the application judge and the Court of Appeal, but also by the Hearing Panel and the Appeal Panel. Another detailed recitation of that conduct would be redundant. There is not now, if there ever was, any dispute over what the appellant said or the number of times that he said it. The question is whether the appellant's conduct amounts to professional misconduct.

[20] That said, it is of some importance to a proper understanding of the issues raised in this appeal to keep in mind the context in which the conduct of the appellant took place. It occurred in the course of a criminal prosecution where the appellant was responsible for the defence of the accused who faced the potential loss of his liberty, if any of the charges were made out. It occurred during the course of a trial where, it is clear, there were serious issues raised by the defence regarding the degree of disclosure that had been made by the prosecution and the manner in which that disclosure had been made.

The Issues

[21] There are four issues raised by this appeal and two issues raised by the cross-appeal. Those six issues are:

(i) does the decision of the Appeal Panel improperly intrude on the independence of the judiciary by sanctioning a lawyer for conduct that occurred inside the courtroom; [page9 ]

(ii) does the decision of the Appeal Panel impose the wrong test for finding professional misconduct arising from the alleged incivility of a lawyer and interfere with the requirement that a criminal defence lawyer zealously defend his/her client;

(iii) did the Appeal Panel err in concluding that the appellant engaged in professional misconduct as that conduct was particularized on the various counts alleged;

(iv) were the penalty imposed and the costs ordered to be paid unreasonable in the circumstances;

(v) did the Appeal Panel err in its conclusion as to the proper treatment of court decisions in terms of their evidentiary value in a proceeding for professional misconduct; and

(vi) did the Appeal Panel err in interfering with the penalty of a two-month suspension and an order to pay costs of $246,960.53 imposed by the Hearing Panel[?]

[22] The first four issues are raised in the appeal. The fifth and sixth issues are raised in the cross-appeal. It will be apparent that the fourth issue in the appeal and the second issue in the cross-appeal are, largely, mirror images of each other.

I. The appeal

[23] The first issue raised by this appeal is the role, if any, that the respondent has to investigate and regulate the conduct of lawyers within the courtroom. It raises an important issue, at least in part, because there has been increasing concern over the last number of years that the conduct of lawyers is becoming less and less civil -- both inside and outside the courtroom. This concern has led to many initiatives directed at reinforcing in the minds of all lawyers the need for civility in their dealings with each other, with the courts, and with the public. For example, in 2001, the Advocates' Society (which is an intervenor in this case) published The Principles of Civility for Advocates, which was revised and reissued in 2009 [as Principles of Professionalism for Advocates].

[24] It is not clear where this increase in incivility comes from. Perhaps it is a result of demands by clients who, completely unfamiliar with what actually constitutes effective advocacy, believe that an aggressive lawyer is an effective lawyer. The more aggressive, the more effective. Given the competition for business, a lawyer may not wish to demonstrate a lack of aggressiveness for fear that such clients will prefer to entrust their matter to other lawyers who mirror the client's perception [page10 ]of the effective advocate. Perhaps it is also the result of the frequent image of lawyers in television shows, and in other media, where actors portray lawyers in a particular fashion unrestrained by any need to represent reality and without any concern for the reputation of the legal system. Good advocacy often does not make good television.

[25] Regardless of the genesis of the concern, there is no doubt that it exists. It thus becomes a necessary element, of instilling the need for civility in lawyers, for there to be consequences to the lawyer who does not conduct himself or herself in a professional manner. Put simply, while there is an ongoing need for the carrot of both education and peer pressure to promote civility within the legal profession, there will also be the occasional need for the use of a stick.

(i) Intrusion on the independence of the judiciary

[26] The appellant asserts that the respondent has no jurisdiction to consider issues of professional misconduct arising out of the conduct of a lawyer occurring in the courtroom unless one of four situations is present: (i) the presiding judge makes a complaint to the respondent about the lawyer's conduct; (ii) where the asserted misconduct of the lawyer is in conjunction with misconduct by the presiding judge; (iii) where the presiding judge finds a lawyer in contempt; (iv) where there is a judicial finding that the lawyer's conduct has led to a miscarriage of justice.

[27] Indeed, in his factum, the appellant asserts that the Law Society Act[^7] ". . . does not (and cannot) authorize the LSUC to bring disciplinary proceedings against Mr. Groia for his conduct in the courtroom if Justice Hryn did not complain".

[28] This issue is stated by the appellant in terms of the jurisdiction of the respondent under its governing statute. If this is a true issue of jurisdiction, then the standard of review would be correctness.[^8] If, on the other hand, the issue is the respondent's interpretation of its home statute, then the standard of review is reasonableness.[^9]

[29] Regardless of how the issue is characterized, I do not accept the central contention of the appellant that there are such preconditions to the exercise by the respondent of its statutory [page11 ]duty to regulate the legal profession. I am satisfied that the respondent has jurisdiction to review and sanction the conduct of counsel that occurs in the courtroom in any situation where the respondent considers it appropriate to do so. I see no reason in principle why lawyers, whose conduct as members[^10] of the profession is otherwise entirely within the jurisdiction of the respondent, should be exempt from the jurisdiction of their professional regulator simply because the conduct in issue occurred within a courtroom.

[30] Neither the language in s. 33 nor in s. 49.3 of the Law Society Act, to which the appellant refers, contains any such restrictive language. Section 33 reads simply:

33. A licensee shall not engage in professional misconduct or conduct unbecoming a licensee.

Section 49.3(1) reads:

49.3(1) The Society may conduct an investigation into a licensee's conduct if the Society receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee.

[31] The appellant's submissions, in this regard, are premised on the central contention that to permit the respondent to institute professional misconduct proceedings, other than when one of his four exceptions applies, intrudes on the independence of the judiciary. The appellant extends this central contention to submit that the respondent's institution of proceedings against the appellant, and the subsequent finding of professional misconduct, represents an implied criticism of the trial judge in this case. The appellant says that this implied criticism, if upheld, will cause judges to be concerned that their actions in presiding over a matter may subsequently be found to be at fault by the respondent and thus interfere with the independence, and acknowledged exclusive authority, of a judge to control his or her own courtroom.

[32] I do not accept either of those contentions. I do not see, on the record of this case, any basis for concluding that the finding of professional misconduct regarding the appellant represents any criticism of the trial judge. Indeed, one cannot find, either in the reasons of the two courts on the judicial review application, or in the reasons of the Hearing Panel, or in the reasons of the Appeal Panel, any criticism of the trial judge. Quite the contrary. Insofar as the conduct of the trial judge is mentioned in any of these reasons, his conduct of the trial is lauded, not censured. [page12 ]

[33] In any event, even if the finding of professional misconduct is an implicit criticism of the trial judge, there is no basis for finding that such criticism is either improper or an interference with the independence of the judiciary. The respondent, like any other member of the public, is entitled to criticize the actions of the judiciary as long as it does so responsibly. Criticism does not equate to interference.

[34] I also do not accept the broader proposition advanced by the appellant that permitting the respondent to review the conduct of lawyers in a courtroom involves an inherent interference with judicial independence. There is no doubt that judges have a responsibility to address issues of incivility engaged in by lawyers who appear before them. Indeed, it cannot be expected that the profession, by itself, can deal with problems of incivility if judges do not undertake their fair share of the task.[^11]

[35] However, the obligations of judges and the obligations of the respondent, as regulator of the profession, are different. First, judges generally only deal with incivility as it appears before them in a courtroom. The respondent must deal with incivility in all aspects of the conduct of lawyers, much of which occurs outside of the courtroom. Indeed, many complaints of incivility involve the conduct of lawyers when they correspond with each other or encounter each other outside of the courtroom setting. Those are matters that would normally be reported to the respondent and, in any event, would, in most instances, only fall within the jurisdiction of the respondent to address. The respondent will, therefore, have more exposure to such issues and will, consequently, develop a greater experience with the nature of the conduct and its relative harm. The respondent will thus be better positioned to determine where the line should be drawn between a lawyer's fulfilment of his/her legitimate duties to a client and professional misconduct.

[36] Second, the respondent should not be constrained in its disciplinary duties by the action, or inaction, of a judge. There may be good (and perhaps not so good) reasons why a judge would decline to make a complaint about a lawyer's conduct. This point was well made by the Appeal Panel when they said, at para. 225:

Moreover, there may be many reasons why a trial judge may choose to remain relatively passive in the face of one or both counsels' courtroom incivility, for [page13 ]example, in order to keep the "trial on track," to avoid "entering the fray" or out of a concern that attempts to reprimand counsel may cause an escalation of the behaviour and trigger allegations of judicial bias or unfairness. In sum, the reaction of the trial judge although relevant is not determinative.

[37] The same point was made by A. Campbell J. in his reasons on the judicial review application, where he said, at para. 279:

But it is a matter of judgment in every case whether it is best to intervene, and risk further inflaming a counsel whose zeal exceeds his civility or his judgment, or simply to let the storm pass and then move ahead. It is not the function of the trial judge to intervene constantly and curb every rhetorical excess. Many judges take the view that it is more productive in the long run to give such counsel as much rope as they want, out of concern that constant judicial reaction will simply provoke more rhetoric and further delay.

[38] Further, the only remedies that a judge has to address the conduct of counsel are the power of contempt and, possibly, an adverse award of costs. There will often be very good reasons why a judge would not resort to the extraordinary route of a contempt hearing to address matters of unprofessional or uncivil conduct in the courtroom. The contempt power is akin to a sledgehammer in the arsenal of weapons that can be used to attack the problem of incivility. It should be very much a route of last, not first, resort. And it is very much a route that should only be employed when the conduct of a lawyer is so egregious that no other remedy could effectively address the problem. Indeed, it is the reality that contempt is often too blunt an instrument to deal appropriately, and proportionately, with bad behaviour by lawyers, that led to this court's efforts to formalize a process by which such instances could be referred to the respondent for review and action. It also remains the fact that just because the respondent may choose to review the courtroom conduct of a lawyer does not preclude the presiding judge from doing so and vice versa.

[39] Using awards of costs (sometimes called "wasted costs") to address incivility raises a host of different issues, including the fact that it is rather unfamiliar territory when applied to a criminal proceeding.[^12] I would also question its effectiveness in terms of addressing bad behaviour by lawyers in a courtroom. Images from the O.J. Simpson trial of "side bars" where the presiding judge imposes fines for misconduct by lawyers (including ringing cellphones) do not endear themselves to me as being effective [page14 ]remedies, nor do they do anything to improve the image of the justice system in the eyes of the public.

[40] I note that my core conclusion, in this regard, appears to be consistent with the approach taken by the Court of Appeal in Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, supra, another case that involved uncivil conduct by a lawyer in the course of a trial. In its reasons, while dealing with the issue of the effect that the uncivil conduct of the lawyer may have had on the conduct of the trial, and the impartiality of the trial judge, the court said succinctly, at para. 141: "The unprofessional conduct of counsel is a matter for the Law Society of Upper Canada."

[41] There is another matter that I should address on this point, that is, the appellant's contention that because the trial judge did not complain about the appellant's conduct, or otherwise take action with respect to it, it can be said that the trial judge "approved" of the conduct. I do not see any rational basis upon which one could jump from a failure to complain to a finding of approval. I have already mentioned the various reasons why a trial judge might not want to engage in the issue at the time. After the trial is over, other reasons may impact on whether the trial judge wants to pursue the issue.

[42] On this point, it should also be remembered that, in this case, there was the very salient fact that the judicial review application had taken place. The appellant's conduct had been the subject of reproach by both the application judge and by the Court of Appeal. The trial judge may well have felt that the impact of those comments was a sufficient reprimand, especially given the fact that the trial continued before him in a much different fashion after the judicial review application was completed.

[43] Another important consideration, regarding the trial judge's failure to complain, is the reality, at the time, that judges generally did not feel that a complaint to the respondent about a lawyer's conduct was a useful exercise. This judicial state of mind was commented on in the LeSage/Code report,[^13] where the authors said, at p. 141:

We encountered widespread dismay amongst members of the judiciary, if not outright cynicism, on the subject of LSUC discipline for court room misconduct. There is a widespread perception that the LSUC will do little or [page15 ]nothing in response to these matters. That perception has considerable basis in fact. As a result, the judiciary has simply given up on referring lawyers to the LSUC when they misconduct themselves in the course of criminal proceedings.

[44] If the trial judge held this prevailing view, then that would also explain why the trial judge made no complaint to the respondent regarding the appellant's conduct, assuming that the trial judge would have otherwise been inclined to make a complaint.

[45] In the end result, I find no merit in the appellant's submission that permitting the respondent to exercise the full range of the regulatory function given to it by statute, including reviewing the conduct of lawyers in the courtroom, will interfere with judicial independence. The judiciary and the respondent have their separate responsibilities regarding the conduct of lawyers and I see no realistic harm that can, or should, arise by permitting their parallel application.

(ii) Test for finding professional misconduct arising from alleged incivility

[46] I turn then to the more important issue of the appropriate standard or test to be applied when determining whether a lawyer's conduct has crossed the line from zealous advocacy to professional misconduct.

[47] This issue raises the difficult question: how does one determine the point at which uncivil conduct turns into professional misconduct? Does uncivil conduct by itself amount to professional misconduct or must there be something more?

[48] It is easy to disapprove of uncivil conduct. Nothing, per se, requires a lawyer in pursuit of the best interests of his/her client to be uncivil. But the concept that a lawyer's conduct will always be above reproach is a somewhat utopian notion that does not match the reality of litigation where emotions often, and naturally, run high. This is especially so when the conduct is reviewed at a later date, removed from the prevailing circumstances, with all of the attendant benefits of hindsight and calm detachment that usually accompany such a review.

[49] It is also easy to have rules of professional conduct that prohibit incivility, but defining what should come within the scope of those rules, and thus invoke possible sanction, without, at the same time, casting a chill on the conduct of lawyers, is another matter. I note, on that latter point, that in the course of his reasons on the appeal from the judicial review application, Rosenberg J.A. said, at para. 96: [page16 ]

Every counsel and litigant has the right to expect that counsel will conduct themselves in accordance with The Law Society of Upper Canada, Rules of Professional Conduct. Those rules are crystal clear.

[50] With respect, the rules may be crystal clear in terms of the words that they use, and the principles that they pronounce, but the application of those rules to any given factual situation do not as easily allow for that same degree of clarity. This is especially so because of the recognized need for, indeed duty of, lawyers to pursue their client's interests with full force and vigour, a reality that presents itself with particular emphasis when it comes to the duty of a criminal defence lawyer to protect the interests of his/her client. After all, it is the accused person who generally faces the most severe form of penalty known to our justice system -- the potential loss of their personal liberty. Mr. Felderhof faced that specific consequence in this case.

[51] It is the role of criminal defence counsel, frequently a most difficult role, to fully and fervently represent those persons accused of criminal offences, recognizing that their efforts will often place them at odds with public sentiments, including a natural desire for retribution. As the intervener, the Criminal Lawyers' Association ("CLA"), said in its factum:

Defence counsel run the risk of unpopularity or misunderstanding about their role more than any other lawyer in the Canadian justice system. One reason is the defence lawyer represents a person accused of distasteful acts. Those charged with crimes are frequently unpopular or outside the "mainstream": the poor, addicted, mentally ill, racial and ethnic minorities.

[52] Another well-known reality is that trials are generally intense, stress-filled events. As has often been said, a trial is not a "tea party". Emotions run high. Much is at stake. The potential for clashes between the participants -- parties, witnesses, lawyers and judges -- is inherent in the nature of the process. Harsh words will often be spoken in the "heat of the battle". Consequently, everyone involved, most certainly the professional participants (i.e., lawyers and judges), must have a certain level of resilience to the impact of badly chosen words, uttered without the time and benefit of quiet reflection.

[53] Nevertheless, there are limits to the allowances that can, and should, be made for the conduct of lawyers under the excuse that the "rough and tumble" is inherent in the nature of our trial process. When the line between excusable excess and professional misconduct is crossed, it should be expected that consequences will follow.

[54] This exercise of line drawing is directly raised by this case. In considering this issue, as with any issue, the context in which it arises is important. I believe that the context, in this [page17 ]case, is simply but effectively captured by the application judge in his reasons on the judicial review application where he said, at para. 261:

This is a hard fought trial and there has been a degree of excess on each side.

And further, at para. 264:

Neither side in this case has any monopoly over incivility or rhetorical excess.

[55] There is no denying the fact that both the judge on the judicial review application, and the Court of Appeal, were critical of the conduct of the appellant in the course of phase one of the trial. One must keep in mind, though, that those criticisms flowed directly from the fact that the conduct of the appellant was one of the grounds for the relief that was being sought by the OSC on the judicial review application. The focus was therefore very much directed at the appellant. The light was shining on him, not on others.

[56] I have already said that I do not accept that a complaint or other action by the presiding judge, regarding a lawyer's conduct before him/her, is or should be a necessary prerequisite for action by the respondent. That is not to say, however, that the opinions of judges who either witness, or are called upon to review, the conduct of lawyers are irrelevant to the process. For example, those opinions may provide the impetus, as was the case here, for the respondent to investigate the conduct of the lawyer, who is the subject of adverse commentary.

[57] This observation then raises the issue as to the use, if any, that reasons of judges that comment on the conduct of lawyers ought to have in the discipline process. For the purpose of continuing with the analysis on the proper test, I will simply say at this point that, in my view, those reasons are admissible in a discipline hearing. The use to which those reasons may be put is a separate issue. I will explain why I reach those conclusions when I come to address the cross-appeal.

[58] The appellant criticizes the Appeal Panel for failing to provide the profession with any "meaningful" definition of civility in the context of a proceeding before a court. The appellant submits that the "contextual analysis" used by the Appeal Panel is "devoid of meaning". The appellant says that this issue is one that transcends the usual fare that confronts the respondent when it comes to discipline matters. Rather, the appellant submits that, in this instance, the conduct raises an issue of such fundamental importance to the law, and to the public interest, that the decision of the Appeal Panel should be reviewed on a standard of correctness. [page18 ]

[59] I do not agree with that submission. The Appeal Panel was engaged in the exercise of the authority that is central to the respondent's role as regulator of the profession. It is recognized that a regulator is particularly well-suited to determining the appropriateness of the conduct of its members. As was observed in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, by Iacobucci J., at para. 31:

Practising lawyers are uniquely positioned to identify professional misconduct and to appreciate its severity[.]

(Citations omitted)

[60] The same point was made in Stevens and Law Society of Upper Canada (1979), 1979 1749 (ON SC), 55 O.R. (2d) 405, [1979] O.J. No. 4546 (Div. Ct.), where Cory J. said, at p. 410 O.R.:

What constitutes professional misconduct by a lawyer can and should be determined by the discipline committee. Its function in determining what may in each particular circumstance constitute professional misconduct ought not to be unduly restricted. No one but a fellow member of the profession can be more keenly aware of the problems and frustrations that confront a practitioner. The discipline committee is certainly in the best position to determine when a solicitor's conduct has crossed the permissible bounds and deteriorated to professional misconduct. Probably no one could approach a complaint against a lawyer with more understanding than a group composed primarily of members of his profession.

[61] I am not unaware that the issues raised in the proceedings involving the appellant have raised matters of significant concern to the profession, including the obligation of lawyers to fearlessly represent their clients. I do not accept, however, that because those broader issues are raised that this court is better positioned to evaluate the impact of the issues raised by this prosecution, than is the Appeal Panel, such that a correctness standard can be properly invoked in our review. Quite to the contrary, it is the very nature of the issues that are raised by this prosecution that puts the respondent's discipline process in the best position to decide the issues raised. As Bastarache and LeBel JJ. said in Dunsmuir v. New Brunswick, supra, at para. 47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

The view of the Appeal Panel on what constitutes professional misconduct is, therefore, entitled to a high degree of deference by this court.

[62] I pause at this juncture to address a point made by the intervenor, the Criminal Lawyers' Association. The CLA [page19 ]provided us with an article that Don Bayne, a respected criminal defence lawyer, had prepared for a CLA conference in 2013 on the subject of the tension between zealous advocacy and incivility. Within that article, the author refers to some data, that he had obtained from the respondent, regarding the nature of civility complaints that the respondent receives. According to the author, the data suggested that a disproportionate number of complaints are filed for alleged civility infractions regarding criminal defence lawyers. The CLA relied on this article to support its submission that the Appeal Panel's decision in this case, if sustained, could cast a "chill" on the passion and dedication with which criminal defence lawyers approach their task in the future.

[63] I would make two comments in response to that submission. First, as the author himself recognized, the data he received is not statistically reliable. Second, and more importantly, if there is an unjustified and disproportionate pursuit of criminal defence lawyers on the issue of incivility, in the context of allegations of professional misconduct, then that is an issue to be addressed with the profession and not with this court. Those lawyers who believe that they are being unfairly singled out should be raising the issue with the governors of the profession and, through them, with the staff who are responsible for the investigation of such complaints.

[64] This entrée leads to two other observations that I would make on the zealous advocacy concern. I recognize that the requirements for a stay of proceedings based on prosecutorial misconduct are high.[^14] I also recognize that, to some extent, criminal defence counsel are obliged to advance a certain level of attack on the conduct of the prosecution in order to satisfy the burden that is cast upon them on such applications. The fact that the requirements are high reflects, of course, the fact that the remedy sought should not be lightly or routinely granted. It should be restricted to the clearest and most egregious cases. However, it is a corollary of those strict requirements that criminal defence counsel should pause and reflect on whether the remedy that they seek can be justified on the facts of the case. In other words, the concern over the submission about the chill on zealous advocacy loses much of its impact if the reality is that this zealous advocacy is being used to further arguments in cases where the facts would not, on an objectively reasonable basis, warrant the ultimate relief sought. [page20 ]

[65] The other point to be made is that criminal defence lawyers are not exempt from the dual role that all lawyers labour under, that is, their duty to their clients and their corresponding duty as officers of the court.[^15] In that regard, it is worth repeating the oft-quoted passage from Rondel v. Worsley, [1969] 1 A.C. 191, [1967] 3 All E.R. 993 (H.L.), where Lord Reid said, at pp. 227-28 A.C.:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests.

[66] In the dauntless pursuit of the interests of one's client, a lawyer must never forget or ignore this other important aspect of his/her duties. Indeed, this companion requirement should serve as a necessary restraint on the lengths to which a lawyer might otherwise go in pursuit of the client's interests. It should operate, effectively, as a governor on conduct and thus help lawyers to avoid crossing the line from simple incivility to professional misconduct.

[67] Returning then to the central issue about the proper standard to be applied for a finding of professional misconduct in the context of a lawyer's in-court conduct, I also do not accept the level of criticism that the appellant directs at what he says was the failure of the Appeal Panel to articulate a clear standard by which counsel can measure their behaviour in order to ensure that they stay on the permissible side of the line. In fairness to the Appeal Panel, the standard to be applied to discern the difference between zealous advocacy and professional misconduct is not one that can be reduced to the equivalent of a scientific or mathematical formula whereby, in any given case, all that one has to do is input the language used and out will come the definitive answer as to its appropriateness. There are simply too many variables involved to suggest that such exactitude can be accomplished through any enunciation of the desired standard. Indeed, as the appellant himself points out, there are a number of court decisions that comment on incivility and [page21 ]attempt to define it but, notwithstanding those efforts, the paradigm definition remains elusive.

[68] The reality is that incivility amounting to professional conduct does not allow for a fixed definition. Uncivil words spoken by one lawyer in one case may not cross the line into professional misconduct, whereas similar words spoken by another lawyer in a different case may. While the uncertainty that results from the inability to arrive at a comprehensive definition may be unfortunate, this is not the only area of law where uncertainty exists. Indeed, the uncertainty of law is, in one sense, the bread and butter of lawyers who are constantly called upon to advise clients just because there is such uncertainty. If what is right and what is wrong, what is lawful and what is unlawful, was always clear and certain, it is likely that the population of needed lawyers would be considerably decreased.

[69] This uncertainty does not mean that there are no rules or standards by which lawyers can measure their conduct and thus have some understanding of whether they are potentially embarking on a course that may lead them into difficulty. In fact, the reasons of the Appeal Panel set out a starting point that all parties in this case appear to have agreed upon. The Appeal Panel said, at para. 9:

As we explain in our reasons, counsel must not impugn the motives or integrity of opposing counsel or make allegations of prosecutorial misconduct unless such allegations are made in good faith and have a reasonable basis. We note that, in their oral submissions on appeal, the Appellant, the Respondent and both intervenors agreed that this was the test.

[70] I appreciate that that test is not without its difficulties. The Appeal Panel was legitimately concerned that the bar for a finding of professional misconduct must not be set so high that it would easily allow for improper conduct to be sheltered under a mere "bona fide belief". As the Appeal Panel said, at para. 235:

A bona fide belief is insufficient; it gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions of opposing counsel.

[71] For that very reason, I agree with the Appeal Panel that a good faith belief by counsel should not be sufficient, by itself, to excuse uncivil conduct. However, the corresponding concern is that the bar should not be set too low that it exposes lawyers to the possibility of sanction for simply doing that which it is their duty to do -- to represent their clients as fearlessly and forcefully as necessary to protect their rights, including the very important liberty interests that are so often involved. The "zealous advocacy chill" is not a concern to be ignored or minimized. [page22 ]Indeed, where the interests clash, I would suggest that it is better that zealous advocacy be favoured over the desire for civility. Our justice system can tolerate uncomfortable and unpleasant exchanges in the courtroom much better than we can ever tolerate a wrongful result.

[72] It is that concern that leads me to the view that the test expressed by the Appeal Panel fails to go far enough to protect the importance of zealous advocacy. Consequently, I feel that it is necessary to make an effort to more clearly define the appropriate test to be applied by the respondent in determining whether given conduct crosses the line from uncivil conduct to professional misconduct. I do so with full recognition, as I have already said, that professional misconduct is not going to allow for a hard and fast definition. Any finding of professional misconduct will always be fact specific or, as the Supreme Court of Canada said in Doré v. Barreau du Québec, it is "a fact-dependent and discretionary exercise".[^16] There are, however, some basic principles that can be applied.

[73] I start with the principle that a lawyer's conduct must first be uncivil to invoke the disciplinary process. Zealous advocacy, including the use of language that may be very tough in its expression, is not, by itself, sufficient to open the door to professional misconduct proceedings. Words that are passionate, or the effect of which may sting, may often be necessary to make the required point, or to persuade the adjudicator towards a certain view. It would be contrary to the recognized role of an advocate to formulate a rule that does not recognize that central reality.

[74] Rather, the conduct that engages the incivility concern begins with conduct that it is rude, unnecessarily abrasive, sarcastic, demeaning, abusive or of any like quality. It is conduct that attacks the personal integrity of opponents, parties, witnesses or of the court, where there is an absence of a good faith basis for the attack, or the individual counsel has a good faith basis for the belief but that belief is not an objectively reasonable one. In addition, single instances of such conduct will be less likely to engage the misconduct concern as will repeated instances of the same conduct. In other words, a solitary instance of uncivil conduct will not, generally speaking, be sufficient to ground a complaint of professional misconduct, unless it is of a particularly egregious form. [page23 ]

[75] In my view, however, there must be an additional element attached to the uncivil conduct, in order for it to rise to the level of professional misconduct. For uncivil conduct to rise to the level that would properly engage the disciplinary process, it must be conduct that, in addition to being uncivil, will also bring the administration of justice into dispute, or would have the tendency to do so. It is conduct that calls into question the integrity of the court process and of the players involved in it. It is conduct that risks bringing the administration of justice into disrepute because it is conduct that strikes at the very qualities of what the justice system represents. It is conduct that would make an impartial outside observer question the central tenets upon which the justice system is based. It is the difference between impassioned, but reasoned, disagreements and the uninformed, nasty, personal tirades that too often mark the exchanges we see in political and media exchanges on matters of public importance. It is the hallmark of professionalism that both sides recognize that reasonable people can have strong, but legitimate, disagreements without the need for either side to call into question the honour or integrity of their opponent.

[76] It is, therefore, ultimately necessary for a finding of professional misconduct for the uncivil conduct to have undermined, or to have had the realistic prospect of undermining, the proper administration of justice. Many different kinds of conduct may give rise to this effect. Such conduct will include, but is not limited to, repeated personal attacks on one's opponents or on the judge or adjudicator, without a good faith basis or without an objectively reasonable basis; improper efforts to forestall the ultimate completion of the matter at issue; actions designed to wrongly impede counsel from the presentation of their case; and efforts to needlessly drag the judge or adjudicator "into the fray" and thus imperil their required impartiality, either in fact or in appearance. Of special concern is any such conduct that could ultimately result in a decision that would amount to a miscarriage of justice.

[77] I repeat that my effort to further define the standard or test to be applied is not intended to be exhaustive of the entire spectrum of possible conduct in which a lawyer might engage and that would potentially give rise to professional misconduct concerns. Rather, my effort is intended to hopefully provide a guide against which future situations can be evaluated. I would also repeat that this standard or test is directed at in-court conduct. I recognize that conduct outside of the courtroom may attract different considerations and, thus, a different standard or test.

[78] All of that said, I must add that I do not view my effort to articulate an appropriate test to give rise to any concern that it [page24 ]is materially different, in terms of its constituent elements, than those that were ultimately employed by the Appeal Panel in this case. While I may depart from the enunciation of the proper test, as expressed by the Appeal Panel, in my view, the crucial analysis undertaken by the Appeal Panel in reaching their conclusion took into account all of the necessary factors that I have said ought to be considered.

[79] The appellant moves from his challenge to the standard applied by the Appeal Panel to assert that the Appeal Panel's finding of professional misconduct was unreasonable. The appellant says that the Appeal Panel failed to properly apply its own legal framework, that it was selective in the portions of the record on which it relied for its conclusions, and that, notwithstanding that it eschewed the preclusive approach that it found that the Hearing Panel took, in the end result the Appeal Panel treated the reasons of the judge on the judicial review application as conclusive.

[80] Once again, I find myself in disagreement with the appellant's position. On a fair reading of the Appeal Panel's reasons, I find that they enunciated the appropriate test, that they exhaustively reviewed the record (as they were invited to do by both parties) and that they then gave careful and fair reasons for reaching the conclusion that they did.

[81] The Appeal Panel focused on the test that they had set out earlier in their reasons (and that I have discussed above). The Appeal Panel then spent the next 25 pages of their reasons reviewing in detail the conduct of the appellant during phase one of the trial. In doing so, the Appeal Panel expressly rejected the Hearing Panel's analysis of the appellant's conduct because it found, correctly in my view, that the Hearing Panel had placed undue emphasis on the findings of both the application judge and the Court of Appeal in the judicial review proceedings. Consequently, both the factual and credibility findings of the Hearing Panel were irretrievably tainted by that error such that they could not be safely relied upon.

[82] The Appeal Panel then went on to consider the request, that both sides had made, that they should conduct their own independent assessment of the evidence. The Appeal Panel was naturally concerned that it had not seen the appellant give his evidence, as the Hearing Panel had, and thus was not in a proper position to determine the bona fides of the appellant in terms of his assertions as to his motivations for engaging in the impugned conduct. Consequently, the Appeal Panel, very fairly, concluded that it ought to proceed on the basis that the appellant "held an honest belief in his allegations of prosecutorial [page25 ]misconduct". In other words, the Appeal Panel gave the benefit of the doubt to the appellant in terms of his motivations.

[83] The Appeal Panel then went step by step through phase one of the trial. It excused the appellant's repeated assertion that the prosecution had failed to separate "the wheat from the chaff" as being nothing more than a "colourful reference" to the disclosure obligations of the prosecution.

[84] The Appeal Panel was more concerned about the appellant's repeated assertions regarding the failure of the prosecution to make proper disclosure and what he asserted were the reasons for that failure. The Appeal Panel's concerns in this regard are set out in its reasons, at para. 264:

The submissions outlined above contain a number of disturbing elements. First, as Mr. Groia acknowledges, they accuse the OSC of deliberate prosecutorial misconduct -- attempting to make it impossible for Mr. Felderhof to secure a fair trial and having an animus against the defence and Mr. Felderhof. Second, they accuse the prosecutors of reneging on their commitments. Third, they accuse the prosecutors of being too busy or too lazy to comply with their obligations. Fourth, they insinuate that it is the prosecutors themselves -- rather than the Crown or OSC -- who are at fault. To paraphrase Justice Campbell, it is one thing to suggest that the prosecutor has a wrong view of the scope of his disclosure obligations or that he has failed to fulfill a prosecutorial obligation. It is another to attack his integrity or accuse him of deliberate wrongdoing.

[85] However, once again, the Appeal Panel gave the appellant the benefit of the doubt. After expressing the above concerns, the Appeal Panel concluded that these submissions "standing alone might not amount to professional misconduct".

[86] I will digress slightly, at this point, to address another of the appellant's submissions, that is, that the above finding by the Appeal Panel that the submissions standing alone might not amount to professional misconduct, is the equivalent of a finding that they did not amount to professional misconduct. I do not agree. A plain meaning of the word "might" is "possible".[^17] All the Appeal Panel said is that the conduct might amount to professional misconduct and it might not. Nothing more can be taken from that statement. The Appeal Panel simply decided that they did not need to make that determination in light of their later conclusions.

[87] The Appeal Panel then reviewed the submissions that the appellant had made regarding the prosecution's "omnibus [page26 ]document motion" and found that those submissions did not "cross the line".

[88] The next issue was the Placer Dome document that the appellant had attempted to cross-examine the prosecution's first witness on. It was a document that the witness was not a party to and could not identify. An argument ensued as to whether the document was admissible. While the Appeal Panel concluded that the appellant's position on the admissibility of this document was legally incorrect, it also concluded that that was not a basis on which a finding of professional misconduct could be made. Nonetheless, it did express its concern over the manner in which the submissions had been made. The Appeal Panel said, at para. 280:

Our concern is that Mr. Groia appears to have been using those submissions as a platform to attack the prosecutors, and in particular to impugn their integrity, without a reasonable basis to do so.

[89] The next issue was similar. It involved the J.P. Morgan document. Again, this was a document that the appellant attempted to cross-examine the prosecution's witness on. Again, it was a document that the witness was not a party to and could not identify. However, the trial judge allowed the document to be made an exhibit because it went to Placer Dome's state of mind, which might be relevant to an issue in the trial. The prosecution then suggested that, if that document was admissible, there were a large number of other documents that might be admissible on the same basis. This contention led to a lengthy argument between counsel in which the appellant made certain submissions of a similar character that had troubled the Appeal Panel before. In that regard, the Appeal Panel said, at para. 285:

These submissions, in our view, directly attack the integrity of the prosecutors, by alleging that they cannot be relied upon to keep their "word" and are lazy and incompetent. They tie back to and amplify on the submissions made earlier, particularly during the Stinchcombe motion. Further, they have no factual foundation.

[90] The Appeal Panel then addressed another repeated assertion that the appellant had made against the prosecution and that was that they had made their disclosure decisions by utilizing what the appellant called a "conviction filter". After reviewing a number of the submissions that the appellant had made along these lines, the Appeal Panel said, at para. 290:

We note that these are just highlights. The tenor of Mr. Groia's submissions as a whole were sarcastic and biting; he chastised the prosecutors, for having a "convict at all costs" approach. [page27 ]

[91] The Appeal Panel then continued to address some other issues including the impact of the appellant having chosen to adopt the word "Government" to refer to the prosecution -- a decision that the Appeal Panel said was not offside, if used to describe the OSC in its role as prosecutor, but was unacceptable if used [at para. 286] "as a way of casting aspersions on opposing counsel without a reasonable basis".

[92] After its complete review of the record -- a review that, I repeat, both parties had asked that the Appeal Panel undertake -- the Appeal Panel then reached its conclusions. The Appeal Panel found, at para. 318:

Taken as a whole, the submissions we have excerpted can best be described as a relentless personal attack on the integrity and the bona fides of the prosecutors. It is important to emphasize that the examples we have selected provide some flavour, but it is difficult to convey the cumulative effect of the unabated repetition over the course of 10 hearing days of Mr. Groia's vehement and very lengthy attacks on the prosecutors.

[93] Contrary to the submissions of the appellant, the Appeal Panel did not fail to consider the effect of its conclusions on the duty of lawyers to zealously defend their clients. The Appeal Panel expressly addressed this issue, at para. 328:

In the context of this trial, zealous advocacy did not require Mr. Groia to make unfounded allegations of prosecutorial misconduct. Zealous advocacy did not dictate that Mr. Groia improperly impugn the integrity of his opponents. Zealous advocacy did not require Mr. Groia to frequently resort to invective in describing opponents who were trying to do their jobs.

[94] The Appeal Panel ultimately concluded that the appellant's overall conduct had crossed the line and did amount to professional misconduct.

[95] The standard of review regarding the test to be applied for a finding of professional misconduct is correctness. That is, the Appeal Panel must have applied the correct test in reaching its conclusion. However, the standard of review for the Appeal Panel's application of that test, to the facts of the case that was before them, is one of reasonableness. If the correct test was applied, then the central issue before this court is whether the Appeal Panel's conclusion is a reasonable one. The standard for determining reasonableness was described by the Supreme Court of Canada in Dunsmuir, where Bastarache and LeBel JJ. said, at para. 47:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether [page28 ]the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[96] I appreciate that the test that the Appeal Panel used in reaching its finding was not stated in the same terms that I have set out above. Nevertheless, I am satisfied, reading their reasons fairly and as a whole, that the Appeal Panel considered all of the necessary factors that I have articulated for the proper test to be applied. The Appeal Panel assumed that the appellant had a good faith belief in the accusations that he made regarding prosecutorial misconduct. The Appeal Panel considered whether there was an objectively reasonable basis for those accusations and found that there was not. The Appeal Panel also determined that the conduct of the appellant had interfered with the proper progress of the trial, had interfered with the prosecutors' ability to present their case, and had resulted in unfairness to the witnesses that had been called -- principally the prosecution's first witness. The Appeal Panel, therefore, addressed the requirement that I have identified of conduct that might bring the administration of justice into disrepute. All of the required factors were considered.

[97] Having found that the Appeal Panel applied the correct test, I have no hesitation in concluding that the Appeal Panel's decision, and reasons, meet the standard of reasonableness. The Appeal Panel thoroughly reviewed the record and articulated in great detail the statements that the appellant had made during the course of phase one of the trial and the concerns that they raised. The Appeal Panel expressed, in a fair, rational and understandable way, why they ultimately concluded that the appellant's conduct amounted to professional misconduct. To use the language of Dunsmuir that result "[fell] within a range of possible, acceptable outcomes which are defensible in terms of the facts and law" and the route that the Appeal Panel took to reach that result was justifiable, transparent and intelligible.[^18]

(iii) Particulars of professional misconduct alleged

[98] Two issues are raised by the appellant regarding the ultimate findings of professional misconduct. The first issue relates to the finding of professional misconduct on particulars 3(1)(c) and 3(1)(e), both of which allege conduct that is contrary to the Professional Conduct Handbook, 1999 Ed. [page29 ]

[99] On this first issue, the appellant says that the Professional Conduct Handbook, 1999 was in effect from January 20, 1987 to October 31, 2000. The current Rules of Professional Conduct came into effect on November 1, 2000. The trial in R. v. Felderhof commenced on October 16, 2000. According to the appellant, the conduct, that the Appeal Panel found amounted to professional misconduct, did not cross that line until February 27, 2001. The appellant therefore submits that, since the Professional Conduct Handbook, 1999 was no longer in effect, it cannot be applied to find misconduct by the appellant.

[100] I do not accept that submission. As the Appeal Panel found, the conduct of the appellant was an ongoing matter. It was not a single event that constituted professional misconduct. Rather, it was the cumulative effect of the conduct that led the Appeal Panel to conclude that the appellant had engaged in professional misconduct. That conduct began when the Professional Conduct Handbook, 1999 was in effect and those were the governing rules that were the appropriate rules to apply to that portion of the appellant's conduct. I should note that the effect of those rules is not materially different from the current Rules of Professional Conduct.

[101] Further, the Law Society has consistently held that particulars provided in a notice of application for a disciplinary proceeding are not to be treated as if they were counts in a criminal indictment. Rather, the purpose of the particulars is to provide the lawyer with sufficient notice of the conduct that is being alleged against him as giving rise to the discipline charges. For example, in Law Society of Upper Canada v. McSween, [2012] L.S.D.D. No. 15, 2012 ONLSAP 3, the Appeal Panel said, at para. 37:

The second issue is more easily addressed. This appeal panel has repeatedly held that particulars are not to be treated as counts in a criminal indictment . . . . This means, among other things, that the failure to plead the most applicable rule will not preclude a finding of professional misconduct, as long as the licensee has had a fair opportunity to respond to the substance of the allegations being made.

(Citations omitted)

[102] The second issue arises from particulars 3(1)(d) and 3(1)(f) that allege breaches of [former] rule 6.03(5) [current rule 7.2-1] and [former] rule 6.03(1) [current rule 7.2-4] of the current Rules of Professional Conduct. The appellant says that the respondent cannot rely on those rules for findings of professional misconduct because, according to the appellant, those rules do not apply to in-court conduct. [page30 ]

[103] Rule 6.03(1) reads:

6.03(1) A lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.

Rule 6.03(5) reads:

6.03(5) A lawyer shall not in the course of professional practice send correspondence or otherwise communicate to a client, another legal practitioner, or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.

[104] I do not accept the appellant's assertion that these two rules do not apply to in-court conduct. There is nothing in the wording of either of these rules that so restricts their application. Rule 6.03(1) refers to "all persons" with whom the lawyer has dealings "in the course" of his practice. The conduct of the appellant during the course of phase one of the trial was directed towards the prosecutors and it was part of the appellant's practice as trial counsel. I do not see any reason to interpret the rule other than in accordance with using the words in their grammatical and ordinary sense: Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21. The fact that the accusations that the appellant made about the conduct of the prosecutors were technically made to the presiding judge, and not directly to the prosecutors, does not change either the result or the effect. A person can be discourteous and uncivil towards another person both directly and indirectly. In this case, there was no doubt as to who was the target of the appellant's accusations.

[105] The same analysis applies to rule 6.03(5). That rule refers to conduct "in the course of professional practice" and it refers to "or otherwise communicate" to another legal practitioner. Again, the plain wording of the rule would apply to the conduct of the appellant as directed towards the prosecutors in the course of his professional practice as trial counsel.

[106] I do not see any error, therefore, on either of the bases put forward by the appellant, in the conclusions of the Appeal Panel that all four particulars were made out.

(iv) Penalty and costs

[107] As I mentioned at the outset, the Hearing Panel imposed a penalty of a two-month suspension and ordered that the appellant pay $246,960.53 in costs. The Appeal Panel concluded that the errors, that the Hearing Panel had made in its approach to the central issue, sufficiently tainted their reasons on the penalty phase that those reasons were not entitled to deference. [page31 ]In particular, the Appeal Panel concluded that the findings that the Hearing Panel relied upon, for imposing a more severe penalty, were tainted by their error regarding the use to which the reasons of the reviewing courts could be put and, thus, could not stand. The Appeal Panel also found that the Hearing Panel had made serious errors regarding the proper factors to be considered in assessing the appropriate penalty. The Appeal Panel, therefore, undertook their own analysis and, in the end result, decided that a one-month suspension was the appropriate penalty to impose in the circumstances.

[108] The Appeal Panel then invited the parties to make written submissions on whether their reasons, both on the main issue and on the penalty, gave rise to any basis to revisit the costs ordered by the Hearing Panel. Written submissions were delivered by the parties and, after reviewing them, the Appeal Panel gave additional reasons in which they reduced the costs to be paid by the appellant to $200,000.[^19]

[109] On the subject of penalty, I begin with the basic premise, that is well recognized, that professional regulators are in the best position to determine what the appropriate penalty is for a breach of that profession's standards and regulations. For ease of reference, I repeat a portion of the quotation that I set out above from Law Society of New Brunswick v. Ryan, by Iacobucci J., at para. 31: "First, the Discipline Committee has greater expertise than courts in the choice of sanction for breaches of professional standards."

[110] The Appeal Panel gave considered reasons for its conclusion that a reprimand was not the appropriate penalty to impose in this case. They placed particular reliance on the fact that the professional misconduct involved accusations of intentional prosecutorial misconduct -- a very serious accusation. The Appeal Panel considered previous cases to the extent that they were of any assistance to the issue that was before them. They also properly weighed the appellant's response to the allegations of professional misconduct and also the impact that the judicial criticism of his conduct had had.

[111] On this issue, I do not agree with the respondent (cross-appellant) that the Appeal Panel erred in failing to give suitable deference to the Hearing Panel's determination of both the penalty and the costs order. I agree with the Appeal Panel that the Hearing Panel's reasons on the penalty reflect their earlier error [page32 ]in terms of the treatment of the reasons of the reviewing courts. I also agree with the Appeal Panel that the Hearing Panel erred in their conclusion that the appellant lacked insight into his conduct and had failed to express remorse. In particular, the Hearing Panel committed a serious error when they said, in their reasons on penalty,[^20] at para. 57:

These constitute the very unusual circumstances where his attitude towards his misconduct demonstrates a substantial likelihood of future misconduct. In this case, the lack of remorse constitutes an aggravating factor.

[112] The appellant's lack of remorse, in the circumstances of this case, cannot be treated as an aggravating factor. To do so represents a fundamental misapplication of the principles outlined in R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.), at para. 82. It is also difficult to see how the Hearing Panel could have reached a conclusion that the appellant's misconduct demonstrated a "substantial likelihood of future misconduct" when there had been no such misconduct by the appellant in the ten years since the events of the Felderhof trial and the appellant had an otherwise unblemished discipline record as a lawyer.

[113] The Hearing Panel's reasons on penalty failed to meet the standard of reasonableness, that is, justification, transparency and intelligibility. The Appeal Panel was therefore entirely justified in addressing the penalty afresh.

[114] In the end result, I cannot find any basis to interfere with the conclusion that the Appeal Panel reached on penalty. While I might not have reached the same conclusion, that is not the question. Just as there must be a principled basis for interfering with the imposition of a sentence imposed by a judge, so too must there be a principled basis for interfering with a penalty imposed by a tribunal. I repeat the words of the Supreme Court of Canada, albeit in the sentencing context, from R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, where Lamer C.J.C. said, at para. 90:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

[115] I then turn to the order for costs. As I noted earlier, the Appeal Panel invited additional submissions from the parties on the issue of costs after the parties were advised of the Appeal Panel's conclusion on the findings of professional misconduct [page33 ]and the penalty to be imposed. The Appeal Panel accepted that Mr. Groia was successful in defeating the core position taken by the respondent in his hearing, namely, that the findings of the application judge and of the Court of Appeal were sufficient, by themselves, to prove the professional misconduct charge. The Appeal Panel therefore concluded that some reduction in the costs was warranted given their finding that the respondent's position on the abuse of process doctrine "materially contributed to the costs of the proceedings". The Appeal Panel ultimately reduced the costs order by almost $50,000.

[116] Before this court, the appellant submits that the Appeal Panel's reduction in the costs order was "arbitrary" and that the Appeal Panel gave "no intelligible reasons" for the reduction. The appellant submits that the Appeal Panel failed to consider the relevant factors in determining an order for costs as set out in Law Society of Upper Canada v. MacFarlane, [2009] L.S.D.D. No. 56, 2009 ONLSHP 47. The Hearing Panel, in that case, set out eight factors that should be considered, at para. 37:

Using this foundation and the case law of this tribunal, the general principle is that the financial burden of prosecuting a licensee should not rest on the profession generally. That said, the following non-exhaustive list of additional considerations may be taken into account by the Panel in exercising its discretion:

(a) the complexity of the proceeding;

(b) the importance of the issues;

(c) the duration of the hearing;

(d) the conduct of any party that shortened or unnecessarily lengthened the proceeding;

(e) settlement offers or other appropriate attempts to resolve the matter;

(f) whether any party took improper, vexatious or unnecessary steps in the proceeding;

(g) the licensee's financial circumstances and ability to pay;

(h) any hardship that would result from a costs order.

The appellant places specific reliance on the importance of the issues; the conduct of the respondent; and the costs already borne by the appellant. The latter factor, I assume, is intended to invoke the hardship factor.

[117] The Appeal Panel did not expressly refer to each of these factors but they were not required to do so. Costs orders involve the quintessential exercise of discretion. The Appeal Panel considered various factors, including the importance of the issues, the interest of the profession in the issues raised, the impact [page34 ]that the abuse of process issue had on the length of the proceedings, the evidence that was unnecessary along with the evidence that was still necessary in light of that issue and other matters. The Appeal Panel correctly directed themselves to determine an amount for costs that was fair and reasonable in all of the circumstances.

[118] Having noted what the appellant argued on this point, I should also note what was not argued. The issue of this being a test case, while argued before the Hearing Panel, was apparently not raised before the Appeal Panel and was certainly not raised before this court. Neither was any argument that this proceeding raised novel issues nor that this proceeding was in the nature of public interest litigation. None of those recognized considerations on the appropriate determination of a costs order are therefore matters that this court need address.

[119] In the end result, the appellant's argument boils down to a submission that important issues are raised in this case and, consequently, no costs should have been ordered. Many proceedings raise important issues but that fact alone does not normally result in a departure from the usual rule that costs follow the event. The appellant has not pointed to any error in principle in the Appeal Panel's approach to the costs order. Absent such an error, there is no basis for this court to interfere with the exercise of the inherent discretion that rested in the Appeal Panel when it came to the determination of costs.

II. The cross-appeal

[120] The cross-appeal raises the question of the proper use, if any, to which the reasons, of the judge on the judicial review application, and of the Court of Appeal on appeal of that decision, may be put in a proceeding for professional misconduct. As I said above, in my view, the reasons of judges commenting on the conduct of a lawyer are admissible at that lawyer's disciplinary hearing regarding the same conduct. I will now explain why I reach that conclusion.

[121] The cross-appeal also raises the reasonableness of the penalty imposed but I have already addressed that issue in my consideration of the issues raised on the appeal.

(v) Admissibility and proper use of reasons of a court

[122] Dealing with the use to which reasons of a court may be put in a disciplinary proceeding of the type involved here, I agree with the Appeal Panel that the Hearing Panel erred in seemingly considering the reasons to be irrefutable regarding the issue that was before them for determination. I reject, as the Appeal [page35 ]Panel did, the conclusion that the Hearing Panel reached, as set out at para. 96 of its reasons:

While the panel is not bound by those findings, to permit their re-litigation in the circumstances would, in our opinion, amount to an abuse of process. The panel therefore concludes that the reasons for decision of the Superior Court and the Court of Appeal are admissible and can be considered as evidence of misconduct.

[123] I will say, on this point, that the interpretation and application of the doctrine of abuse of process raises a question of law of central importance to the legal system falling outside the expertise of the panels and, thus, the appropriate standard of review is correctness, both for the decision of the Hearing Panel and the decision of the Appeal Panel. The respondent (cross-appellant) agrees that this is the proper standard of review.

[124] There is no basis for the conclusion that the doctrine of abuse of process applies to the contents of the reasons of the application judge or the Court of Appeal. Abuse of process in this context was defined in Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481, [2000] O.J .No. 4607 (C.A.), where Goudge J.A. said, at para. 55:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.[^21]

[125] The appellant was not a party to the proceedings on the judicial review application. His conduct was but one factor upon which the OSC relied for the relief that it sought. Further, the issue before the courts on the judicial review application was not whether the appellant had engaged in professional misconduct. It was whether the trial judge had lost jurisdiction by failing to do more to address the appellant's conduct. There is no denying that both the application judge and the Court of Appeal made adverse comments on the conduct of the appellant but they did so in relation to the question that was before them. That question was not the same as the question that was before the Hearing Panel.

[126] The Hearing Panel also erred in its application of the decision in British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657, [2011] S.C.J. No. 18. The fundamental finding in Malik was set out by Binnie J., at para. 7: [page36 ]

In my view, for the reasons that follow, a judgment in a prior civil or criminal case is admissible (if considered relevant by the chambers judge) as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues. It will be for that judge to assess its weight. The prejudiced party or parties will have an opportunity to lead evidence to contradict it or lessen its weight (unless precluded from doing so by the doctrines of res judicata, issue estoppel or abuse of process).

[127] I have already said that the doctrine of abuse of process does not apply in this case. It is clear that the parties are not the same -- the appellant was not a party to the judicial review proceedings. However, the Hearing Panel found that the appellant was a party in substance. The Hearing Panel said, at para. 92:

Perhaps, as a matter of form, Mr. Groia was not a party to the proceeding and did not participate in the mooting of the civility issue, but as a matter of substance, the evidence does not support this conclusion.

[128] In my view, there is no legal foundation for this finding by the Hearing Panel. Absent a situation where a party is a "front" or a "straw man" for the actual party, I do not know of any legal basis for distinguishing between a party in form and a party in substance. The simple fact of the matter is that the appellant was not a party to the judicial review application. Nor would I conclude that the appellant was a "participant" in the context that that term is used in Malik. To qualify as a participant, in the sense that the decision in Malik contemplates, the issue raised in the judicial review application must be similar to the issue raised here. The appellant was obviously present at the events that gave rise to the judicial review application, but, for the reasons I have already given, any participation that he had in those events was not for the purpose of defending against professional misconduct allegations. As I have also already explained, the two courts were not engaged in the professional misconduct question. There was, therefore, no legal basis for applying the principle established by Malik to this case.

[129] Notwithstanding that conclusion, however, I am nonetheless of the view that the reasons of the Superior Court, and of the Court of Appeal, were admissible in this case. They were admissible on two bases.

[130] The first basis is statutory. The Rules of Practice and Procedure of the Law Society of Upper Canada provide, in rule 24.08, as follows:

24.08(1) At a hearing, a transcript of a hearing before an adjudicative body may be admitted as evidence.

(2) At a hearing, the reasons for decision of an adjudicative body may be admitted as evidence. [page37 ]

Simply put, rule 24.08 expressly allows the reasons of the application judge and of the Court of Appeal to be admitted as evidence.

[131] That said, I agree with the appellant that the fact that the reasons are admissible does not make them determinative of the facts contained therein. In particular, I agree with the appellant that rule 24.07 of the Rules of Practice and Procedure cannot be relied upon for the latter proposition. Rule 24.07 reads:

24.07(1) Specific findings of fact contained in the reasons for decision of an adjudicative body in Canada are proof, in the absence of evidence to the contrary, of the facts so found if,

(a) no appeal of the decision was taken and the time for an appeal has expired; or

(b) an appeal of the decision was taken but was dismissed or abandoned and no further appeal was taken.

(2) If the findings of fact mentioned in subrule (1) are with respect to an individual, subrule (1) only applies if the individual is or was a party to the proceeding giving rise to the decision.

Rule 24.07(2) precludes any findings of fact contained in the reasons from being proof of those facts because the appellant was not a party to the judicial review proceeding, as I have already discussed.

[132] In any event, I do not consider the comments made by the application judge or by the Court of Appeal to be findings of "fact" such that rule 24.07 could be relied upon to give those reasons any conclusive effect, as urged by the respondent. It is not a "fact" that the appellant's conduct was uncivil during phase one of the trial. It was the "opinion" of the application judge, and of the Court of Appeal, that the appellant's conduct was uncivil. Properly admissible opinions may assist a trier of fact but they are not binding on a trier of fact. Opinions have no preclusive effect on what must be the required factual finding, even when the opinion expresses a view on the ultimate issue.

[133] It is the point that the reasons of the application judge, and of the Court of Appeal, regarding the appellant's conduct are opinions, and not facts, that distinguishes this situation from the one that presented itself in Law Society of Upper Canada v. Coady, [2012] L.S.D.D. No. 56, 2012 ONLSAP 12. The findings made by various courts that were relied upon by the respondent in prosecuting the case against Ms. Coady were different in kind from the findings upon which the respondent relies here. Putting aside the obvious distinguishing feature that Ms. Coady was a party to many of the proceedings in question, in Coady, the courts had made rulings such as, for example, that a given piece of litigation was frivolous, vexatious or an abuse of process [page38 ]thus leading to its dismissal. These were legal conclusions akin to findings of fact. It was therefore appropriate for the Hearing Panel in Coady to conclude that permitting Ms. Coady to attack those rulings would be to permit an improper collateral attack on the courts' findings. Any reliance on Coady in this case fails to appreciate the fundamental difference in the effect of the reasons of the courts between these two cases.

[134] The second basis for finding the reasons of the application judge, and of the Court of Appeal, admissible is the normal rules of evidence. The reasons are properly admissible to define the issue for determination along with the context in which it arises. They are admissible on this basis just as the transcript of phase one of the trial was admissible. The reasons are relevant documents that are part of the narrative of the case.

[135] In my view, the above analysis leads to two conclusions. One is that the findings made by the Hearing Panel cannot be safely relied upon because of their misapplication of both the doctrine of abuse of process and the decision in Coady. The respondent asserts that the Hearing Panel's reference to the doctrine of abuse of process does not mean that the Hearing Panel actually used the reasons of the application judge and of the Court of Appeal to preclusive effect. The respondent says that a reading of the totality of the reasons of the Hearing Panel does not lead to that result.

[136] I do not agree with the respondent on this issue. Rather, I agree with the Appeal Panel that the Hearing Panel's reasons are tainted by their apparent belief that the reasons of the application judge and of the Court of Appeal were, if not conclusive, sufficiently persuasive that it left very little room for the appellant to manoeuvre around them in order to avoid their effect.

[137] I also agree with the Appeal Panel that the reasons of the application judge and of the Court of Appeal were entitled to "limited weight, in the unusual circumstances of this case".[^22] I do so for two principal reasons. The first reason flows from the earlier point that the appellant was not a party to the judicial review proceedings. Consequently, the appellant had no opportunity before either the application judge or the Court of Appeal to give evidence in support of his conduct or to provide explanations for it.

[138] Further, the issues were different. As I earlier mentioned, the appellant's conduct was but one of the bases upon which the OSC sought to disqualify the trial judge. There were [page39 ]reasons why it was in the best interests of Mr. Felderhof, in resisting the judicial review application, not to shine too bright a light on the conduct issue. Indeed, the appellant called evidence, through Brian Greenspan, who was lead counsel on the judicial review application, that the interests of Mr. Felderhof on the judicial review application did not coincide with addressing, excusing or explaining away the appellant's conduct. In my view, the Hearing Panel failed to give adequate consideration to this central point and to this evidence.

[139] The second reason is that neither the application judge nor the Court of Appeal was being asked to make any determination whether the appellant's conduct did, or did not, amount to professional misconduct. That issue was not before either court nor would either court be the appropriate place for that determination to be made. As I set out above, the Court of Appeal had already expressed the view, in Marchand, that the task of determining professional misconduct lay with the respondent, not with the courts.

[140] Both courts expressed their concerns and opinions regarding the appellant's conduct. They were entitled to do so. Indeed, to a limited degree, they were required to make some comment on the appellant's conduct given the issue that was before them, i.e., the assertion that the trial judge had lost jurisdiction for this and other reasons. Those concerns and opinions cannot, however, simply be lifted from the context of those reasons and dropped into this context and thus find that the respondent has reached its objective of proving a charge of professional misconduct. To do so would result in the court having done indirectly what the court could not do directly, that is, make a finding of professional misconduct. It would also ascribe a conclusion to both courts that neither court actually reached.

[141] I do part company with the Appeal Panel on one aspect of this issue. I include, in the above conclusion, the reasons of the application judge in denying costs to Mr. Felderhof on the judicial review application. There are a great many things that can be done by counsel that may weigh on the appropriate disposition of costs. Many tactical decisions that counsel make on behalf of a client, including what is pleaded or not pleaded, what evidence is called or not called, what offers are accepted or not accepted, what strategic course is taken or not taken, may ultimately have an adverse effect on costs of a motion or application or trial. The fact that the application judge concluded that the appellant's conduct was a reason to deny Mr. Felderhof the costs of his successful resistance of the judicial review application, again, cannot be equated to an effective finding of professional misconduct. If it were otherwise, the door to findings of professional [page40 ]misconduct would be opened very wide indeed.

Conclusion

[142] For these reasons, I conclude that the decision of the Appeal Panel that the appellant had engaged in professional misconduct is a reasonable one. The Appeal Panel's conclusion regarding the penalty to be imposed is entitled to deference. There is no principled basis for this court to interfere with the penalty of a one-month suspension. The Appeal Panel's determination on the costs order is entitled to the same deference. There is similarly no principled basis for this court to interfere with the costs order.

[143] The appeal is dismissed.

[144] The parties may make written submissions on the costs of this appeal. The respondent shall file its written submissions within 15 days of the date of these reasons. The appellant shall file his written submissions within 15 days thereafter. No reply submissions are to be filed without leave of the court. Neither party's submissions shall exceed ten pages in length. Pursuant to the terms of the orders granting them leave to intervene, none of the intervenors are to be entitled to, or to be subject to, an award of costs. Accordingly, no costs order is made with respect to them.

Appeal and cross-appeal dismissed.

Notes

[^1]: Groia v. Law Society of Upper Canada, [2013] L.S.D.D. No. 186, 2013 ONLSAP 41.

[^2]: Law Society of Upper Canada v. Groia, [2012] L.S.D.D. No. 92, 2012 ONLSHP 94.

[^3]: More specifically, the application was framed in the extraordinary remedies of prohibition, to stop the trial judge from proceeding, and certiorari, to quash the rulings and other work already done.

[^4]: R. v. Felderhof, [2002] O.J. No. 4103, [2002] O.T.C. 829 (S.C.J.).

[^5]: R. v. Felderhof, 2003 41569 (ON SC), [2003] O.J. No. 393, 56 W.C.B. (2d) 459 (S.C.J.).

[^6]: R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481, [2003] O.J. No. 4819 (C.A.).

[^7]: R.S.O. 1990, c. L.8.

[^8]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, at para. 59.

[^9]: Dunsmuir, at para. 54.

[^10]: Now referred to as "licensees".

[^11]: This shared responsibility was also noted by the Court of Appeal in Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97, [2000] O.J. No. 4428 (C.A.), at para. 148.

[^12]: For a useful discussion of the application of costs orders to deal with incivility see Code, Michael, "Counsel's Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System" (2007), 11 Can. Crim. L. Rev. 97, at pp. 119-22.

[^13]: Hon. Patrick J. LeSage and Michael Code, Report of the Review of Large and Complex Criminal Case Procedures (Toronto: Ontario Ministry of the Attorney General, 2008).

[^14]: See, for example, R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98.

[^15]: On this point, the famous speech by Lord Brougham in his defence of Queen Caroline that "An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client" does not correctly reflect the proper dimensions of the professional obligations of a lawyer.

[^16]: 2012 SCC 12, [2012] 1 S.C.R. 395, [2012] S.C.J. No. 12, at para. 66.

[^17]: For example, a definition of "might" from the Oxford Dictionary of English is "used to express possibility or make a suggestion".

[^18]: Dunsmuir, at para. 47.

[^19]: Law Society of Upper Canada v. Groia, [2014] L.S.D.D. No. 43, 2014 ONLSTA 11.

[^20]: [2013] L.S.D.D. No. 38, 2013 ONLSHP 59.

[^21]: While Goudge J.A. was in dissent in the Court of Appeal, the Supreme Court of Canada subsequently expressly approved of his reasons: 2002 SCC 63, [2002] 3 S.C.R. 307, [2002] S.C.J. No. 64.

[^22]: Reasons of the Appeal Panel, at para. 201.

End of Document