COURT OF APPEAL FOR ONTARIO

CITATION: Groia v. The Law Society of Upper Canada, 2016 ONCA
    471

DATE: 20160614

DOCKET: C60520

MacPherson, Cronk and Brown JJ.A.

BETWEEN

Joseph Peter Paul Groia

Appellant

and

The Law Society of Upper Canada

Respondent

Earl A. Cherniak, Q.C. and Jasmine T. Akbarali, for the
    appellant

J. Thomas Curry, Jaan E. Lilles and Andrew Porter, for
    the respondent

Susan Reid and James Cornish, for the Intervener,
    Attorney General for Ontario

Paul J.J. Cavalluzzo and Nadia Lambek, for the Intervener,
    Ontario Crown Attorneys Association

Terrence J. OSullivan, Matthew R. Law and Deborah
    Templer, for the Intervener, The Advocates Society

Cara Faith Zwibel, for the Intervener, Canadian Civil
    Liberties Association

John A. Olah and Eugene Meehan, Q.C., for the Intervener,
    Canadian Defence Lawyers Association

Allan Rouben, Derek Nicholson and Darcy Romaine, for the
    Intervener, Ontario Trial Lawyers Association

Robin Parker and Angela Chaisson, for the Intervener,
    Criminal Lawyers Association

Heard: December 14, 15 and 16, 2015

On appeal from the order of the Divisional Court
    (Justices Sachs, Nordheimer and Harvison Young), dated February 2, 2015, with
    reasons reported at 2015 ONSC 686, affirming decisions of the Law Society
    Appeal Panel, dated November 28, 2013 and March 21, 2014, with reasons reported
    at 2013 ONSLAP 0041 and 2014 ONLSTA 0011; and from the costs order of the
    Divisional Court, dated March 16, 2015, with reasons reported at 2015 ONSC
    1680.

Cronk J.A.:

I.        Introduction

[1]

For almost 220 years, the Law Society of Upper Canada has governed the
    legal profession in the public interest under statutory authority granted to it
    by the legislature of Ontario.  For close to a century, in the exercise of its
    statutory mandate, the Law Society has formed a body of rules governing the
    professional conduct and ethical obligations of lawyers, both inside and
    outside the courtroom.  Lawyers who fail to meet the standards of practice
    established by these rules are subject to the Law Societys complaints and discipline
    processes.  In Ontario, as elsewhere in Canada, it is a privilege to practise
    law, not a right.

[2]

The Law Societys rules seek to ensure that the public of Ontario is provided
    with competent and professional legal services.  The competency and
    professionalism of lawyers is the bedrock on which self-regulation of the legal
    profession rests.

[3]

The Law Societys rules require, as a condition of the privilege of
    practising law, that lawyers conduct be characterized by courtesy, civility
    and good faith in dealing with the courts and all participants in the justice
    system, including fellow lawyers.  For advocates, they also affirm counsels duty
    to resolutely and honourably advance the clients cause, without fear of
    professional jeopardy.  These twin duties lay at the core of our adversarial
    system of justice and the advocates professional and ethical
    responsibilities.  They are also a mainstay of public confidence in the administration
    of justice.

[4]

This

appeal

brings

the

interplay

between

these

foundational

duties

into sharp focus.
It raises
important
    issues about the requirements for professionalism in the conduct of litigation,
    the test for establishing professional misconduct for uncivil behaviour, and the
    roles of the Law Society and the courts in addressing an advocates uncivil
    conduct in court towards opposing counsel.

[5]

The trigger for these inquiries is the appellant Joseph Peter Paul
    Groias challenge to the Law Society Appeal Panels findings of professional
    misconduct against him in relation to his in-court conduct towards opposing
    counsel, together with the associated penalty and adverse costs award imposed
    by the Appeal Panel in light of those findings.  The Divisional Court upheld
    the Appeal Panels decisions and costs award.  Mr. Groia now appeals to this
    court.

[6]

For the reasons that follow, I would dismiss the appeal.  The Appeal
    Panels formulation of the test for incivility in this case was reasonable.  So,
    too, was its conclusion that Mr. Groia engaged in professional misconduct and
    its determination of an appropriate sanction for that misconduct, including its
    costs award.  I also see no basis on which to interfere with the Divisional
    Courts discretionary costs ruling.

II.       Legislative and Regulatory Framework in Brief

[7]

The Law Society was founded in 1797
[1]
as the first regulator of the legal profession anywhere in Canada.  Its
    authority to regulate the legal profession is currently governed by the
Law
    Society Act
, R.S.O. 1990, c. L.8 (the Act), and it licenses and regulates
    all barristers and solicitors in Ontario.

[8]

Section 4.1 of the Act establishes the Law Societys functions.  They
    include the obligation to ensure that all persons who practise law or provide
    legal services in Ontario meet standards of learning, professional competence
    and professional conduct that are appropriate for the legal services they
    provide: s. 4.1(a).  In carrying out its statutory responsibilities, the Law
    Society is required to maintain and advance the cause of justice and the rule
    of law (s. 4.2.1) and to protect the public interest (s. 4.2.3).

[9]

Every barrister and solicitor licensed to practise law in Ontario is an
    officer of the court: s. 29 of the Act. Further, by operation of s. 33, every advocate
    practising law in Ontario is prohibited from engaging in professional
    misconduct or conduct unbecoming a licensee.  The Law Society has the
    discretion pursuant to s. 49.3 to investigate a licensees conduct if it
    receives information suggesting that the licensee may have breached s. 33.

[10]

The Law Society is authorized to make rules of practice and procedure
    regarding proceedings before its disciplinary Hearing and Appeal Panels: s.
    61.2(1) of the Act.
[2]
It is empowered to make by-laws providing for additional powers, duties and
    functions of these tribunals, and for a code of professional conduct and ethics:
    ss. 62(0.1).10 and 62(0.1).46.  The Appeal Panel is authorized to hear appeals
    from a final decision or order, or any costs order, made by a Hearing Panel: O.
    Reg. 167/07, s. 5.

[11]

The term professional misconduct is not defined under the Act.
    However, the Law Societys various conduct rules have defined the term and set
    out the requirements for professional conduct by lawyers, together with
    extensive commentaries regarding those requirements.  Relevant to this case are
    two different iterations of the Law Societys conduct rules: the Law Societys
Professional
    Conduct Handbook, 1998, 2nd ed.
(the 1998 Handbook) (effective January
    30, 1987 to October 31, 2000) and its
Rules of Professional Conduct
introduced in 2000 (the 2000 Rules) (collectively, the Conduct Rules).
[3]

[12]

The 2000 Rules require that lawyers, when acting as advocates, must
    represent the client resolutely and honourably within the limits of the law
    while treating the tribunal with candour, fairness, courtesy, and respect (r.
    4.01(1)).  Further, lawyers must be courteous, civil, and act in good faith to
    the tribunal and with all persons with whom the lawyer has dealings in the
    course of litigation (r. 4.01(6)).  Rule 6.03(1) sets out an identical
    requirement for all persons with whom the lawyer has dealings in the course of
    his or her practice.
[4]
The Conduct Rules relevant to the issues on appeal are set out in Schedule A
    to these reasons.

[13]

These requirements mirror those set out in rr. 5.1-5 and 7.2-1 of the
Model
    Code of Professional Conduct
developed by the Federation of Law Societies
    of Canada in 2009 and the 2001
Principles of Civility for Advocates
and
    the 2009
Principles of Professionalism for Advocates
published by the
    Advocates Society (the
Principles
).  They reflect the collective
    wisdom of the leadership of the bar in Canada that the practice of law be
    characterized by professionalism, including, specifically, by the core
    attributes of courtesy, civility and good faith.

III.       History of Proceedings

[14]

Mr. Groia is a barrister and solicitor licensed by the Law Society to
    practise law in Ontario.  An experienced securities litigation counsel, he defended
    John Bernard Felderhof, a senior officer and director of Bre-X Minerals Ltd.,
    on eight charges of violating the
Securities Act
,

R.S.O. 1990,
    c. S.5 brought in 1999 by the Ontario Securities Commission (the OSC).  The
    charges arose out of the collapse of Bre-X as a result of fraudulent claims
    that it had discovered lucrative gold deposits in Borneo.  Following a lengthy
    trial, Mr. Felderhof was acquitted of all charges.  In November 2009, after the
    trial had concluded, the Law Society initiated disciplinary proceedings against
    Mr. Groia alleging that he had engaged in professional misconduct during his
    defence of Mr. Felderhof.

(1)

OSC Prosecution and Felderhof Trial

[15]

To say that the OSC prosecution against Mr. Felderhof was complex,
    protracted and exceptionally acrimonious significantly understates the
    time-consuming, stressful and confrontational climate that rapidly infected the
    proceeding.

[16]

Almost from the outset, disputes between counsel arose concerning the OSC
    prosecutors compliance with their disclosure obligations under
R. v.
    Stinchcombe
, [1991] 3 S.C.R. 326
and the propriety of their approach to the case, leading to multiple disclosure
    applications before the trial judge and the postponement of the original March 20,
    2000 trial date.  The escalation of these disputes produced a barrage of
    allegations by Mr. Groia of serious prosecutorial misconduct by the OSC
    prosecutors.  These allegations, which the OSC prosecutors vigorously denied,
    precipitated numerous motions and submissions before the trial judge and
    consumed many days of court time.  The nature and gravity of these allegations
    is a central issue on this appeal.

[17]

The first phase of the trial began on October 16, 2000 before Hryn J. of
    the Ontario Court of Justice and lasted 70 days.  As the events during these 70
    days were the focus of the Law Society disciplinary proceedings, it is helpful
    to set them out in brief:

Days

1-16

The
    defence challenged the constitutionality of s. 122 of the
Securities Act
and moved to stay the prosecution on the ground that the OSC prosecutors had
    breached their
Stinchcombe
disclosure obligations.  On day 11, Mr.
    Groia conceded that the defence could not meet the high test for a stay.  The
    trial judge denied the stay motion and made a general order for the OSC to
    comply with its disclosure obligations;

Days 16-25
 Counsel made opening
    statements.  The prosecutions opening lasted eight days, while Mr. Groia
    opened for the defence over two days;

Days  26-38
 The first stage of
    the examination-in-chief of the OSCs first witness, Rolando Francisco;

Days  39-42
 Disputes about
    evidence started to dominate the trial. Counsel presented lengthy submissions
    regarding an OSC motion to admit extensive contested documentary evidence on an
    omnibus basis;

Days

43-52
 Mr. Franciscos direct examination continued;

Days

52-65
 Mr. Franciscos cross-examination started. During the cross-examination,
    numerous heated and acrimonious disputes arose about the admissibility of
    documents. In total, Mr. Francisco was examined-in-chief for 20 trial days and
    cross-examined for 10 days.  On day 65, before his cross-examination concluded,
    he fell ill;

Days  66-68
 The OSC renewed its omnibus document motion.
    As described below, day 67 was the critical day for the OSCs decision to
    seek judicial review mid-trial;

Days 69-70
 At the courts
    direction, due to Mr. Franciscos

illness,

the

examination-in-chief

of the OSCs second witness, Dr. Paul
    Kavanagh, commenced.

[18]

After 70 days of trial, the evidence of the first OSC witness had yet to
    be completed.  The proceeding was frequently interrupted by protracted disputes
    about the admissibility of documents.  By day 70, the toxic nature of the
    dealings between Mr. Groia and the OSC prosecutors was sufficiently pervasive
    as to overtake the orderly and normal progress of the trial.  So much so, that,
    on April 17, 2001, the OSC applied for judicial review in the Superior Court of
    Justice, seeking orders prohibiting the continuation of the trial before the
    trial judge, quashing rulings he had made, and directing that the trial begin
    anew before a different Ontario Court judge (the JR Application).

[19]

The OSC argued that the trial judge had made several serious errors that
    deprived him of jurisdiction and undermined the OSCs right to a fair trial.
    Of particular relevance to this appeal, the OSC maintained that Mr. Groia had
    engaged repeatedly in uncivil conduct in violation of the Conduct Rules and
    that, by failing to control this unacceptable conduct, the trial judge had lost
    jurisdiction.

[20]

By judgment dated October 31, 2002, the application judge, Archie G.
    Campbell J., dismissed the JR Application and remitted the matter back to the
    trial judge for the continuation of the trial:
R. v. Felderhof
, [2002]
    O.T.C. 829 (S.C.J.).  He held that the trial judge had not lost jurisdiction,
    that there had been a degree of excess on each side and that neither side in
    this case has any monopoly over incivility or rhetorical excess: at paras. 257,
    261 and 264.

[21]

The OSC appealed to this court.  Mr. Felderhof cross-appealed on the
    issue of costs.  For unanimous reasons written by Rosenberg J.A., this court
    dismissed the appeal and cross-appeal, concluding that Mr. Groias impugned
    conduct had not impaired trial fairness or prevented the OSC from presenting
    its case and that, as a result, the trial judge had not lost jurisdiction to
    proceed with the trial:
R. v. Felderhof
(2003), 68 O.R. (3d) 481 (
Felderhof
).

[22]

In their reasons, both the application judge and this court commented on
    Mr. Groias conduct during the trial.  The application judge found that, on
    numerous occasions during the trial, Mr. Groias conduct had been improper,
    appallingly unrestrained, unprofessional, inappropriate and extreme.
    In his costs reasons, he held that Mr. Groias conduct justified the bringing
    of the JR Application and that to award Mr. Felderhof his costs would carry
    the wrong message by rewarding [Mr. Groia] for the consequences of his
    unacceptable conduct:
R. v. Felderhof
, 2003 CanLII 41569 (Ont. S.C.J.),
    at para. 21.

[23]

This court agreed, describing Mr. Groias conduct as improper,
    inappropriate and misconceived in law in many instances.  The court held that
    Mr. Groia was not entitled to advance his allegations of prosecutorial
    misconduct unless and until he was prepared to bring a motion for abuse of
    process.  Mr. Groias failure to bring a formal motion, instead purporting to
    put the prosecution repeatedly on notice of what he said the defence intended
    to eventually argue, prolonged the proceedings and provided a further platform
    for [his] excessive and often ill-considered remarks:
Felderhof
, at
    para. 76.

[24]

The second phase of the trial began on March 30, 2004 before the same
    trial judge, but with different prosecutors.  It concluded on July 31, 2007,
    without further incident, with the acquittal of Mr. Felderhof on all charges:
R.
    v. Felderhof
, 2007 ONCJ 345
.
    By the end, the trial had consumed 160 days of court hearing time, spanning almost
    seven years, including the time devoted to the JR Application and the related appeal
    to this court.

(2)

Law Society Proceedings

[25]

On November 18, 2009, the Law Society commenced a discipline proceeding on
    its own initiative
[5]
against Mr. Groia under the Act. In doing so, it relied in significant part on
    Campbell J.s comments about Mr. Groia in his reasons on the JR Application and
    those of this court in
Felderhof
(collectively, the Reviewing Courts
    Reasons).  At no time did the trial judge or the OSC prosecutors complain to
    the Law Society about Mr. Groias conduct.

[26]

The particulars of Mr. Groias alleged misconduct, as set out in the Law
    Societys Notice of Application, focused on events during the 70 days leading
    up to the JR Application  the first phase of the trial.  The Law Society
    asserted that Mr. Groia had engaged in multiple acts of professional misconduct
    in his dealings both with the court and the OSC prosecutors during the trial.  In
    summary, the Law Society alleged that Mr. Groia:

(1)   failed to treat the court with courtesy and respect
    because of his consistent pattern of rude, improper or disruptive conduct;

(2)   failed to act in good faith, and failed to conduct himself
    in a fair, courteous, respectful and civil manner to the court;

(3)   undermined the integrity of the profession by
    communicating with the OSC prosecutors, at various times,  in a manner that was
    abusive, offensive, or otherwise inconsistent with the proper tone of a
    professional communication from a lawyer, contrary to the Conduct Rules; and

(4)      failed to act with courtesy and good faith through
    engaging in ill-considered or uninformed criticism of the conduct of the OSC
    prosecutors at specified times, contrary to the Conduct Rules.

(i)

Hearing Panel Decisions

[27]

The proceeding before the Hearing Panel took place over 19 days between
    August 2011 and April 2012.  Mr. Groia testified and called seven other
    witnesses, most of whom had been involved in the OSC prosecution or Bre-X-generated
    civil litigation.  The Law Society called no witnesses, instead relying on the
    Reviewing Courts Reasons to establish that Mr. Groias alleged conduct
    constituted professional misconduct.  The Hearing Panel held that it would
    amount to an abuse of process to re-litigate the findings of the Reviewing
    Courts.  It ruled that, while it was not bound by the Reviewing Courts
    Reasons, they were admissible before it and could be considered as evidence of
    misconduct by Mr. Groia.

[28]

The Hearing Panel found that Mr. Groias attacks on the OSC prosecutors were
    unjustified and constituted conduct falling below the standards of civility,
    courtesy and good faith required under the Conduct Rules.  It also held that
    Mr. Groias allegations of prosecutorial misconduct were wrong in law and
    that the positions he took on documents were not well-founded in the law of
    evidence or in accord with usual practices in large document cases (at para.
    190).

[29]

Further, in the Hearing Panels view, Mr. Groia did not act in good
    faith in advancing his allegations of prosecutorial misconduct.  Rather, he was
    motivated to disrupt the orderly proceeding of the trial by provoking the
    prosecution and creating the conditions for the trial to collapse under its own
    weight (at para. 135).

[30]

The Hearing Panel concluded that the Law Society had proven all its professional
    misconduct allegations against Mr. Groia:
Law Society of Upper Canada v.
    Groia
, 2012 ONLSHP 0094.  It imposed a penalty of two months suspension
    of his licence to practise law and a reprimand. It also awarded costs of the discipline
    hearing to the Law Society in the amount of $246,960.53, plus interest:
Law
    Society of Upper Canada v. Groia
, 2013 ONLSHP 0059.

(ii)

Appeal Panel Decisions

[31]

Mr. Groia appealed to the Appeal Panel. The Appeal Panel allowed his appeal
    in part. It affirmed the Hearing Panels findings of professional misconduct relating
    to Mr. Groias dealings with the OSC prosecutors (the Conduct Decision).
    However, it varied the length of his licence suspension from two months to one
    month (the Penalty Decision):
Law Society of Upper Canada v. Groia
,
    2013 ONLSAP 0041.  It also reduced the Law Societys costs award from
    $246,960.53 to $200,000:
Law Society of Upper Canada v. Groia
, 2014
    ONLSTA 0011.  It awarded no costs of the appeal hearing.

[32]

The Appeal Panel made four important rulings that framed its review of
    the propriety of Mr. Groias conduct, two of which are challenged by Mr. Groia
    on this appeal.

[33]

First, the Appeal Panel concluded that the Hearing Panel had erred by
    applying the doctrine of abuse of process in respect of the Reviewing Courts Reasons,
    thereby assigning undue weight to them and effectively foreclosing Mr. Groias
    defence.  As a result, the Hearing Panels factual findings attracted no
    deference and, as urged by the parties, the Appeal Panels own review of the
    record was required (at paras. 200-201 and 237).

[34]

Second, in a related holding, the Appeal Panel concluded that the Hearing
    Panels misapplication of the abuse of process doctrine had tainted its adverse
    findings about Mr. Groias motivation in advancing his allegations of
    prosecutorial misconduct.  The Appeal Panel elected to evaluate Mr. Groias
    conduct on the basis that he had acted in good faith and that he had held an
    honest belief in his allegations of prosecutorial misconduct throughout the OSC
    prosecution (at paras. 238 and 332).

[35]

Third, Mr. Groia argued before the Appeal Panel that the oversight of an
    advocates in-court conduct is properly within the exclusive domain of the
    presiding judge, save in specific, limited circumstances.  The Appeal Panel disagreed.
    It held that this argument was unsupported by the Act, the Conduct Rules and
    the applicable jurisprudence (at paras. 222-26).

[36]

Fourth, the parties agreed before the Appeal Panel that allegations of
    prosecutorial misconduct impugning the integrity of opposing counsel should not
    be made unless they are advanced in good faith and on a reasonable basis (at
    para. 234).  They also agreed on the appropriate test for assessing when making
    allegations of prosecutorial misconduct or that impugn the integrity of
    opposing counsel can violate an advocates duty to be courteous, civil, and act
    in good faith, constituting professional misconduct.
[6]
The Appeal Panel accepted that the parties agreed test was appropriate in this
    case, describing it at paras. 235-36:

In our view, it is professional misconduct to make allegations
    of prosecutorial misconduct or that impugn the integrity of opposing counsel unless
    they are both made in good faith and have a reasonable basis.  A
bona fide
belief is insufficient; it gives too much licence to irresponsible counsel with
    sincere but nevertheless unsupportable suspicions of opposing counsel.

In addition, even when a lawyer
    honestly and reasonably believes that opposing counsel is engaging in
    prosecutorial misconduct or professional misconduct more generally, she must
    avoid use of invective to raise the issue.  That is, it is unprofessional to
    make submissions about opposing counsels improper conduct, to paraphrase
    Justice Campbell, in a repetitive stream of invective that attacks that
    counsels professional integrity.  [Citations omitted.]

[37]

Before this court, Mr. Groia attacks the Appeal Panels ruling on the Law
    Societys authority to discipline an advocate for uncivil conduct in court and its
    formulation and application of its test for incivility.

[38]

In accordance with the parties joint request, the Appeal Panel
    conducted its own extensive review of the record.  In carrying out this review,
    it identified the main issue for determination as the extent to which zealous
    defence counsel may impugn the integrity of opposing counsel, and make
    allegations of prosecutorial misconduct (at para. 234).

[39]

Given the timing of the acts of misconduct alleged, the Appeal Panels assessment
    of Mr. Groias conduct focused on key events during the first 70 days of the
    Felderhof trial, described above.  The Appeal Panel reviewed the evidence
    relating to these events, and Mr. Groias conduct in relation to each, at
    length.  It concluded that Mr. Groia had engaged in professional misconduct in
    his dealings with the OSC prosecutors in the manner alleged by the Law Society.
[7]

[40]

Specifically, the Appeal Panel held that, although Mr. Groias pre-trial
    conduct was aggressive, it did not constitute professional misconduct (at
    para. 252). Taken alone, Mr. Groias conduct during days 1-16 (including the
Stinchcombe

motion) and during days 39-41 (the OSCs omnibus document motion) also did
    not amount to professional misconduct (at paras. 270 and 274).  However, the
    Appeal Panel held that, starting on day 52 (the first day of Mr. Groias
    cross-examination of Mr. Francisco), Mr. Groia repeatedly attacked the personal
    integrity of OSC prosecutors, made allegations of prosecutorial misconduct
    without a reasonable basis to do so, and accused the prosecutors of reneging on
    their promises (at paras. 280, 285-86, 295, 306, 312 and 316).

[41]

In the Appeal Panels view, taken as a whole, Mr. Groias submissions
    regarding the OSC prosecutors constituted a relentless personal attack on the
    integrity and the
bona fides
of the prosecutors, which included unfounded,
    repeated allegations of deliberate prosecutorial misconduct, none of which had
    a reasonable basis (at paras. 318-24).

[42]

Critically, the Appeal Panel also rejected Mr. Groias claim that his admitted
    statements about the OSC prosecutors could be justified by reason of his duty
    of zealous advocacy towards Mr. Felderhof.  This duty, the Appeal Panel held,
    did not require Mr. Groia to make unfounded allegations of prosecutorial misconduct
    nor did it justify his attacks on the integrity of opposing counsel (at paras.
    327-28).

[43]

Finally, the Appeal Panel concluded that Mr. Groias misconduct had a
    serious adverse impact on the Felderhof trial: i) by causing numerous delays in
    the evidence of the first witness at trial; ii) by distracting the OSC
    prosecutors from the presentation of the evidence; and iii) by forcing the
    trial judge to become involved in many unnecessary disputes (at para. 332).

(3)

Divisional Court Decision

[44]

Mr. Groia appealed the Appeal Panels Conduct and Penalty Decisions and
    its costs award to the Divisional Court.  The Law Society cross-appealed, asking
    that the penalty and costs award imposed by the Hearing Panel be restored.  Neither
    party challenged the Appeal Panels ruling awarding no costs of the appeal hearing.

[45]

The Divisional Court dismissed both the appeal and the cross-appeal:
Groia
    v. The Law Society of Upper Canada
, 2015 ONSC 686 (the Divisional Court
    Decision).  Like the Appeal Panel, it rejected Mr. Groias contention that,
    save in limited circumstances, only the courts can and should oversee an
    advocates conduct in court, including the proposition that there are
    preconditions to the Law Societys exercise of its disciplinary powers regarding
    uncivil, in-court conduct by an advocate.  It upheld the Appeal Panels
    conclusion that there was no reasonable basis for Mr. Groias persistent pattern
    of personalized attacks on the OSC prosecutors and their integrity.

[46]

Importantly, in reaching these conclusions, the Divisional Court held that
    the Appeal Panels test for incivility did not go far enough to protect the
    importance of zealous advocacy (at para. 72).  Consequently, the court
    restated the test by adding the requirement that, in order for in-court incivility
    to constitute professional misconduct, it must be established that the conduct
    at issue is both uncivil and that it undermined, or  [had] the realistic
    prospect of undermining, the proper administration of justice (at paras.
    75-76).

[47]

The Divisional Court went on to conclude that the constituent elements
    of its restated test were not materially different than those employed by the
    Appeal Panel.  Further, the Appeal Panels analysis of the propriety of Mr.
    Groias conduct took all necessary factors into account, including the
    requirement that the relevant conduct might bring the administration of
    justice into disrepute (at paras. 78, 80 and 96).  Because the Appeal Panel
    had applied the correct test, the court had no hesitation in concluding
    that the Conduct Decision, and the Appeal Panels reasons in support of it,
    were reasonable.  The court further concluded that the Appeal Panels Penalty
    Decision and costs award were also reasonable in the circumstances.

IV.      Issues

[48]

As framed by the parties, there are five issues on appeal:

(1)

What
    standards of review apply in this case?

(2)

Did
    the Divisional Court err by upholding the Appeal Panels Conduct Decision?

(3)

Did
    the Divisional Court err in its treatment of the Reviewing Courts Reasons?

(4)

Did
    the Divisional Court err by upholding the Appeal Panels Penalty Decision and
    its costs award in favour of the Law Society?

(5)

Did
    the Divisional Court err by awarding costs of the appeal in that court to the
    Law Society?

V.       Analysis

(1)

Applicable Standards of Review

(i)       Appellate Standard of Review

[49]

The standard of review on an appeal to this court from an appeal to a
    reviewing court of an administrative decision is uncontroversial.  As described
    by Deschamps J. in
Merck Frosst Canada Ltd. v. Canada (Health)
,

2012
    SCC 3, [2012] 1 S.C.R. 23, at para. 247, this court step[s] into the shoes of
    the lower court and focuses on the administrative decision.  In this case, the
    question is simply to ask whether the Divisional Court identified the correct
    standard of review and applied it properly: see
Agriara v. Canada (Public
    Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R. 559, at
    paras. 45-47.

[50]

The Divisional Court held that the correctness standard applied to review
    of the Appeal Panels formulation of the test for incivility in this case and that
    the reasonableness standard applied to its application of the test to the facts
    as it found them and to its Penalty Decision and costs award.

[51]

Mr. Groia concedes that the Penalty Decision and the Appeal Panels costs
    award are reviewable on the standard of reasonableness.  However, he argues
    that these rulings are unreasonable.  In contrast, Mr. Groia submits that the
    correctness standard applies to the Appeal Panels: i) formulation of the test
    for incivility in this case; ii) findings of professional misconduct; and iii)
    approach to the respective roles of the trial judge and the Law Society
    concerning oversight of an advocates uncivil conduct in court.

[52]

The Law Society disagrees.  It maintains that the reasonableness
    standard applies to all the Appeal Panels decisions.

[53]

For reasons I will explain, I agree with the Law Society.  With respect,
    in my view, the Divisional Court erred by applying the correctness standard of
    review to the Appeal Panels formulation of the appropriate test for incivility.
    The Supreme Court of Canadas jurisprudence on judicial review of
    administrative action clearly establishes that the standard of review
    applicable to the questions at issue on this appeal is the deferential standard
    of reasonableness.

(ii)

Appropriate Standard of Review

[54]

To begin, where, as here, a statute provides for an appeal from a
    decision of a specialized administrative tribunal, the applicable standards of
    review are the ones that apply on judicial review, not on appeal:
Mouvement
    Iaïque
québécois v. Saguenay (City)
, 2015 SCC 16, [2015] 2 S.C.R.
    3, at paras. 29, 37-38 and 43.  Consequently, the appropriate standards of
    review in such cases are dictated by administrative law principles related to
    judicial review of administrative action, as articulated by the Supreme Court
    in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190.

[55]

Dunsmuir
emphasizes, at para. 54, that on judicial review of a
    decision of a specialized administrative tribunal interpreting and applying its
    enabling or home statute, the standard of review is presumptively that of
    reasonableness:

Deference will usually result where a tribunal is interpreting
    its own statute or statutes closely connected to its function, with which it
    will have particular familiarity. Deference may also be warranted where an administrative
    tribunal has developed particular expertise in the application of a general
    common law or civil law rule in relation to a specific statutory context.
    [Citations omitted.]

[56]

The Supreme Courts post-
Dunsmuir
jurisprudence
    expressly confirms that the reasonableness standard presumptively applies in
    such circumstances:
Saguenay
, at para. 46;
Alberta (Information
    and Privacy Commissioner) v. Alberta Teachers Association
, 2011 SCC 61,
    [2011] 3 S.C.R. 654, at paras. 30, 34 and 39;
Canadian National Railway Co.
    v. Canada (Attorney General)
, 2014 SCC 40, [2014] 2 S.C.R. 135, at para.
    55;
Canada (Citizenship and Immigration) v. Khosa
, 2009 SCC 12, [2009]
    1 S.C.R. 339, at para.
25;
Commission scolaire de Laval v.
    Syndicat de lenseignement de la région de Laval
, 2016 SCC 8 at para. 32.

[57]

Dunsmuir
also remains the leading case on the meaning of
    reasonableness.  Justices Bastarache and LeBel explained this standard, at
    para. 47, in this fashion:

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.  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 the decision
    falls within a range of possible, acceptable outcomes which are defensible in
    respect of the facts and law.

[58]

The presumption of reasonableness review applies in this case.  The
    questions at issue here concern the Appeal Panels determination whether Mr.
    Groias impugned conduct constituted professional misconduct within the meaning
    of the Act  the Law Societys home statute  and the Conduct Rules, and
    whether the Appeal Panel erred in fashioning an appropriate penalty and costs
    award.  The scope of the Law Societys jurisdiction to discipline lawyers for
    in-court incivility involves an interpretation of the Act and the Conduct
    Rules.    These are matters squarely within the Appeal Panels specialized
    expertise and the Law Societys regulatory mandate under the Act.

[59]

Moreover, existing Supreme Court jurisprudence confirms that the
    presumption of reasonableness applies to decisions of specialized, professional
    disciplinary bodies like the Appeal Panel.
Dunsmuir
holds, at para.
    57, that where existing caselaw establishes the applicable standard of review
    for particular administrative action, an exhaustive standard of review analysis
    is not required.

[60]

In the pre-
Dunsmuir
case,
Law Society of New Brunswick v.
    Ryan
, 2003 SCC 20, [2003] 1 S.C.R. 247, the Supreme Court held that a
    provincial law societys penalty disposition in a disciplinary case was
    entitled to deference.  Justice Iacobucci concluded, at para. 42, that the
    legislator intended that the discipline committee of a provincial law society be
    a specialized body with the primary responsibility to promote the objectives of
    the Act by overseeing professional discipline.   Accordingly, a more
    deferential standard of review than correctness was mandated.

[61]

More recently, the Supreme Court reiterated that reasonableness remains
    the applicable standard of review for decisions of professional disciplinary
    panels.  This is so even where interests under the
Charter of Rights and Freedoms
are engaged:
Doré v. Barreau du Qué
bec
, 2012 SCC 12, [2012]
    1 S.C.R. 395, at paras. 44 and 45.  I note that, also post-
Dunsmuir
,
    the British Columbia Court of Appeal applied
Ryan
in a case, like this
    one, involving a provincial law societys discipline of an advocate for
    unprofessional, in-court conduct.  As in
Ryan
, the court held that the
    reasonableness standard applies to review of the disciplinary decisions of a
    professional regulator:
Goldberg v. Law Society of British Columbia
,
    2009 BCCA 147, 97 Admin. L. R. (4th) 15.

[62]

Thus,
Ryan
,
Doré
and
Goldberg
all
    reinforce the application of the presumption of reasonableness for judicial
    review of a decision of a specialized disciplinary body like the Appeal Panel.
    Although
Ryan
and
Doré
did
    not involve in-court conduct, nothing turns on this point.
Goldberg
did involve an advocates conduct in court.

[63]

I do not accept the argument t
hat,
    in order to properly recognize the judiciarys constitutional responsibility to
    control what takes place in a courtroom, the correctness standard must apply
    where a discipline regulator deals with allegations of professional misconduct
    involving an advocates conduct in a courtroom before a presiding judge.

[64]

Doré
and
Ryan
explicitly hold that regulating a lawyers conduct
    is squarely within the expertise of provincial law societies, attracting the
    reasonableness standard of review.  And, as
Goldberg
recognizes, nothing in the
Doré
or
Ryan
courts holdings confines this principle to only
    those situations where a lawyers alleged misconduct occurs outside a
    courtroom.

[65]

This principle is not
    new.  More than a decade before
Ryan
, the Supreme Court instructed in
Pearlman
    v. Manitoba Law Society Judicial Committee,
[1991] 2 S.C.R. 869 that provincial law societies are best-positioned
    to determine issues of lawyer misconduct and incompetence, that [n]o one is
    better qualified to say what constitutes professional misconduct than a group
    of practising barristers who are themselves subject to the rules established by
    their governing body and that this role is integral to effective
    self-governance of the legal profession:
Pearlman
, at pp. 880, 886-87 and 890 (citations omitted).

[66]

Nor do I see any principled reason
    for drawing a distinction between a lawyers in-court and out-of-court conduct
    for the purpose of determining the appropriate standard of review.  As in
Ryan
,
Doré
,
Goldberg
and
Pearlman
, the issue on this appeal is whether a lawyers
    conduct met the standard of professional conduct required
under the relevant statute and professional conduct
    rules.  Regardless of where the lawyers conduct took place, this
    interpretation of a disciplinary bodys home statute is entitled to deference.
    The same standards of professionalism apply whether a lawyer is in a courtroom
    or outside of one.
Nothing in
Dunsmuir
or its progeny
    deviates from this principle.

[67]

Finally, as I explain later in these reasons, the application of the
    reasonableness standard of review in cases like this one in no way intrudes on a
    presiding judges authority to control the process in his or her courtroom.  If
    anything, recognition of the complementary but differing roles of the courts
    and the Law Society regarding oversight of an advocates in-court conduct frees
    the trial judge to focus on his or her central role  the determination of the
    issues before the court and the management of the trial.

[68]

Contrary to Mr. Groias contention, there is also no basis to conclude
    that the questions at issue in this case come within the recognized exceptional
    categories of cases warranting correctness review.

[69]

Dunsmuir
, at paras. 58-61, identifies a narrow class of questions
    for which correctness remains the applicable standard.  Only two are at issue
    here: true questions of jurisdiction or
vires
and questions of general
    law that are both of central importance to the legal system as a whole and
    outside the adjudicators specialized area of expertise.

[70]

Turning first to the true question of jurisdiction exception, the
    questions on this appeal do not come within this exception as it is
    contemplated under the applicable authorities.  First, this exception has a
    limited reach.  At para. 59 of its reasons, the
Dunsmuir
court
    indicated that jurisdiction within the meaning of this exception is intended
    in the narrow sense of whether or not the tribunal at issue had the authority
    to decide a particular matter.  In such cases, the tribunal must interpret its
    grant of authority correctly or its action will be found to be
ultra vires
or to constitute a wrongful decline of jurisdiction.

[71]

Second, recent Supreme Court jurisprudence instructs that the
    requirement to interpret true questions of jurisdiction narrowly has particular
    significance when the tribunal is interpreting its own home statute.  In
Alberta
    Teachers
,

at para. 34, the Supreme Court indicated:

[U]nless the situation is exceptional, and we have not seen such
    a situation since
Dunsmuir
, the interpretation by the tribunal of its
    own statute or statutes closely connected to its function, with which it will
    have particular familiarity should be presumed to be a question of statutory
    interpretation subject to deference on judicial review.

[72]

Third, the Supreme Court has also expressed serious reservations about
    whether true questions of jurisdiction can even be distinguished as a separate
    category of questions of law: see for example,
McLean v. British Columbia
    (Securities Commission)
, 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 25,
per
Moldaver J., citing
Alberta Teachers
, at para. 37.

[73]

In this case, as I will elaborate further in these reasons, I think it untenable
    to suggest that the Law Society possesses only limited jurisdiction to
    discipline one of its licensees for incivility in court.  The disciplinary
    authority afforded to the Law Society under the Act  oversight of the
    professionalism of licensees  is the foundation for self-regulation of the
    legal profession in Ontario.  The Act casts the Law Societys obligation to
    ensure that lawyers meet appropriate standards of professional conduct as an
    affirmative duty for the protection of the public.  It does not differentiate
    between a lawyers conduct inside a courtroom and his or her conduct elsewhere.

[74]

Similarly, in my view, it cannot be said that the questions on appeal meet
    the test for the questions of central importance to the legal system
    exception to reasonableness review.  This exception relates to questions of
    general law that are
both
of central importance to the legal system
    as a whole
and
outside the adjudicators specialized area of
    expertise (emphasis added):
Dunsmuir
, at para. 60, citing
Toronto
    (City) v. C.U.P.E., Local 79
, 2003 SCC 63, [2003] 3 S.C.R. 77, at para.
    62.  As explained by LeBel and Cromwell JJ. in
Canada (Canadian Human
    Rights Commission) v. Canada (Attorney General)
, 2011 SCC 53, [2011] 3
    S.C.R. 471, at para. 22, correctness review for such questions is required in
    order to safeguard a basic consistency in the fundamental legal order of our
    country.  See also
Saguenay
, at para. 47, citing
McLean
, at
    para. 27.

[75]

I accept that the nature and scope of an advocates professional duties
    in relation to in-court conduct have a significant impact on our adversarial
    system of justice and that the advocates ability to properly discharge those
    duties plays an essential role in fostering public confidence in the
    administration of justice.  For example, a majority of the Supreme Court has recently
    held that a lawyers duty of loyalty to the clients cause is an enduring
    principle that is essential to the integrity of the administration of justice:
Canada (Attorney General) v. Federation of Law Societies of Canada
,
    2015 SCC 7, [2015] 1 S.C.R. 401, at para. 96.

[76]

But this does not mean that defining the scope of the advocates professional
    duties and disciplining advocates is outside the Appeal Panels specialized
    area of expertise.  To the contrary, these questions required the Appeal Panel
    to interpret and apply the Law Societys home statute and its Conduct Rules,
    thereby engaging the Appeal Panels core function and expertise.  See for
    example,
DeMaria v. Law Society of Saskatchewan
, 2015 SKCA 106, 465
    Sask. R. 290, at paras. 12-16, leave to appeal refused, [2015] S.C.C.A. No. 493.
      As a result, even accepting that some of the contested issues regarding the
    Conduct Decision are of central importance to the fair administration of
    justice, there is no question of law that falls outside the Appeal Panels
    specialized expertise.

[77]

I also do not accept Mr. Groias contention that the Appeal Panels application
    of its test for incivility involved questions of law.  Findings of professional
    misconduct, which are fundamentally fact-dependent and discretionary in nature,
    are findings of fact or of mixed fact and law.  In this case, they are rooted
    in the particular factual matrix and contextual circumstances of the OSC prosecution.

[78]

As I have said, it is my opinion that the Divisional Court erred in
    holding that the Appeal Panels formulation of its test for incivility was a
    question of law, reviewable on the correctness standard.  The starting point
    for the Divisional Courts analysis should have been the recognition that the
    Appeal Panels interpretation of the Act and the Conduct Rules, including of
    the behaviour that constitutes professional misconduct and the test to be
    applied in that inquiry, were presumptively entitled to deference on judicial
    review.  It was then necessary for the Divisional Court to determine whether
    this presumption had been rebutted.  It has not been.  Determinations whether a
    lawyer has engaged in professional misconduct are at the core of the Appeal
    Panels functions and squarely within its specialized expertise.

[79]

Finally, Mr. Groias invocation of the correctness standard rests on the
    mistaken premise that: there is no body more aptly suited to determine when
    uncivil conduct has occurred in a courtroom than the judiciary itself, save in
    very limited circumstances, described later in these reasons. This novel proposition
    is premised on an unduly constrained view of the expertise of the Law Societys
    disciplinary tribunals and runs contrary to established jurisprudence.  For
    reasons I will explain, it must be soundly rejected.

[80]

I therefore conclude that the deferential standard of reasonableness applies
    to judicial review of the Conduct Decision.

(2)

Reasonableness of Conduct Decision

[81]

Ryan
furnishes a clear description of the reasonableness
    standard and explains how it should be applied.  At paras. 51 and 55-56,
    Iacobucci J. said:

There is a further reason that courts testing for
    unreasonableness must avoid asking the question of whether the decision is
    correct.
Unlike a review for correctness, there will often be no single
    right answer to the questions that are under review against the standard of reasonableness
.
    For example, when a decision must be taken according to a set of objectives
    that exist in tension with each other, there may be no particular trade-off
    that is superior to all others.
Even if there could be, notionally, a
    single best answer, it is not the courts role to seek this out when deciding
    if the decision was unreasonable
.

A decision will be unreasonable only if there is no line of
    analysis within the given reasons that could reasonably lead the tribunal from
    the evidence before it to the conclusion at which it arrived.  If any of the
    reasons that are sufficient to support the conclusion are tenable in the sense
    that they can stand up to a somewhat probing examination, then the decision
    will not be unreasonable and a reviewing court must not interfere
(see
Southam
,
    at para. 56).  This means that a decision may satisfy the reasonableness
    standard if it is supported by a tenable explanation even if this explanation
    is not one that the reviewing court finds compelling (see
Southam
, at
    para. 79).

This does not mean that every element of the reasoning
    given

must

independently

pass

a

test

for reasonableness.  The question is
    rather whether the reasons, taken as a whole, are tenable as support for the
    decision.  At all times, a court applying a standard of reasonableness must
    assess the basic adequacy of a reasoned decision remembering that the issue
    under review does not compel one specific result
.  Moreover, a reviewing
    court should not seize on one or more mistakes or elements of the decision
    which do not affect the decision as a whole.  [Emphasis added.]

I approach Mr. Groias challenge to the Conduct
    Decision with these principles in mind.

[82]

Mr. Groia challenges the Divisional Courts affirmation of the Conduct
    Decision on numerous grounds.  His central contentions are captured succinctly
    in the following passage from his factum:

If [the Conduct Decision] is allowed to stand, trial judges
    will no longer truly control the proceedings before them, lawyers can no longer
    rely on how trial judges choose to conduct a criminal trial, and clients can no
    longer rely on their lawyers to speak their minds freely in open court, for
    fear that they too will be prosecuted by their regulator. Respect for judges,
    lawyers and the dynamics of a criminal trial will have given way to the [Law
    Societys] ultimate control of the trial process.

[83]

Mr. Groia makes three broad submissions in support of these claims.   First,
    he argues that the Divisional Court and the Appeal Panel erred in their approach
    to the respective roles of the courts and the Law Society regarding oversight
    of an advocates uncivil conduct in court.  He submits that, in most instances,
    the views of a presiding trial judge on the propriety of an advocates in-court
    conduct control whether the Law Society can and should exercise its
    disciplinary powers in respect of such conduct.

[84]

Second, he submits that the Appeal Panel and, to a lesser extent, the
    Divisional Court erred in fashioning their tests for incivility in this case.
    He submits that the Appeal Panel erred in articulating its test by failing to
    properly consider the advocates duties of zealous advocacy and commitment to
    the clients cause.  He also says that both the Appeal Panel and the Divisional
    Court erred by failing to consider, adequately or at all,
Charter
-protected
    expressive freedoms and, further, by adopting tests that fail to provide
    sufficient guidance to the profession regarding the dividing line between
    zealous advocacy and professional misconduct.

[85]

Third, and in any event, Mr. Groia contends that the Appeal Panel erred
    by misapplying its own test and the Divisional Court erred by concluding that
    the Conduct Decision was reasonable.

[86]

I will address these arguments in turn.

(i)         Oversight
    of In-court Incivility

[87]

Mr. Groia maintains that trial judges, rather than the Law Society, are
    best positioned to address in-court incivility by lawyers.  He argues that the
    Law Society cannot, and should not, discipline advocates for their uncivil
    conduct in court except in three limited situations: i) the advocate has been
    subject to a contempt finding; ii) both the trial judges and the advocates
    conduct are subject to disciplinary review; or iii) the trial judge has
    severely criticized the advocates conduct or complained about it to the Law
    Society.  Notably, none of the many interveners before this court supports this
    position.

[88]

The Appeal Panel and the Divisional Court considered and rejected this
    argument.  They were right to do so.  I have no hesitation in concluding that
    Mr. Groias narrow construction of the Law Societys statutory authority to
    discipline lawyers for professional misconduct is unsupportable, both in law
    and in principle.

[89]

First, this argument ignores the plain language of the Act and the Law
    Societys undisputed statutory obligation to govern the legal profession in the
    public interest.  No limiting language, express or implied, qualifies the Law
    Societys duties under ss. 4.1(a) and 4.2.3 of the Act, described above, to
    ensure that practising lawyers in Ontario meet the professional conduct
    standards appropriate for the legal services they provide and to protect the
    public interest.

[90]

The Act also prohibits any Law Society licensee from engaging in
    professional

misconduct

or conduct unbecoming a licensee (s. 33) and,
    as I have said, empowers the Law Society to conduct an investigation into a
    licensees potential professional misconduct (s. 49.3).  As the Divisional
    Court aptly noted, at para. 30, neither provision contains any language
    restricting the Law Societys oversight authority to only the advocates
    conduct outside the courtroom, or to any of the three limited circumstances
    posited by Mr. Groia.

[91]

Mr. Groias limited jurisdiction argument also conflicts with the
    Conduct Rules, which expressly identify the duties of advocates in their
    dealings with all participants in the justice system, the courts and opposing
    counsel alike.  There is no suggestion that the Law Society lacks jurisdiction
    to form such rules.  Nor could there be.  Law Society rules governing the
    conduct of advocates are not new.  They have existed for almost a century.  And
    they have included express requirements for professionalism, including courtesy
    and civility, for many years.  Indeed, as the Attorney General for Ontario and
    other interveners point out, incivility on the part of lawyers is subject to
    discipline by provincial regulatory bodies throughout Canada.  Nothing in the
    Conduct Rules confines their application to the limited situations identified
    by Mr. Groia.

[92]

Nor, in my opinion, is the notion of such constraints on the Law
    Societys oversight powers defensible as a matter of principle.  In
Marchand
    (Litigation Guardian of) v. Public General Hospital Society of Chatham
(2000), 51 O.R. (3d) 97, leave to appeal refused, [2001] S.C.C.A. No. 66, which
    involved uncivil conduct by an advocate towards opposing counsel in the course
    of a trial, this court unequivocally stated, at para. 141: The unprofessional
    conduct of counsel is a matter for the Law Society of Upper Canada.  To the same
    effect is the holding of the British Columbia Court of Appeal in
Goldberg
,
    at para. 52, that the advocate in that case was answerable to [his] Law
    Society for his [in-court]
behaviour
in the
    conduct of the appeals in question (emphasis in original).

[93]

Moreover, the Supreme Court also
recognized
    the role of administrative disciplinary bodies in ensuring civility in the
    legal profession in
Doré
, at paras. 60-66.
Ryan
is even more
    explicit, confirming, at para. 42, that self-regulating disciplinary bodies have
    primary responsibility to oversee professional discipline and, where necessary,
    select appropriate sanctions.  See also
Pearlman
, at pp. 880, 886-87
    and 890.

[94]

Mr. Groia relies on the Supreme Courts recent decision in
Federation
    of Law Societies
, released after the Divisional Courts decision in this
    case, to argue that the state, including the Law Society as a state actor,
    cannot impose duties on lawyers that interfere with their duty of commitment to
    advancing their clients cause.  This, Mr. Groia says, supports the conclusion
    that, save in the three exceptional circumstances described above, the Law
    Society cannot discipline an advocate for in-court zealous defence of the
    clients legitimate interests.

[95]

I disagree.  In
Federation of Law Societies
, a majority of the
    Supreme Court recognized the lawyers duty of commitment to the clients cause
    as a principle of fundamental justice under s. 7 of the
Charter
.  But nothing
    in
Federation of Law Societies
countenances a lawyers breach of his
    or her professional obligations of courtesy, civility and good faith.  Nor does
    it contemplate that chosen regulators of the legal profession can cede to the
    courts their statutory responsibility for identifying those obligations or
    enforcing compliance with them on breach.  Indeed, as I discuss below, in
    addressing another
Charter
value  freedom of expression  the Supreme
    Court has specifically held that a lawyers expressive freedoms do not furnish
    unbridled licence to engage in uncivil conduct:
Doré
, at para. 65.
    Similarly, even the important right to cross-examine, which is protected by ss.
    7 and 11(d) of the
Charter
, must be exercised in a manner consistent
    with the advocates role as an officer of the court and his or her other
    professional obligations:
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R.
    193, at paras. 43-44 and 48.

[96]

There is an additional, critical flaw in Mr. Groias argument.  It rests
    on a misconception of the functions and responsibilities of trial judges and
    those of the Law Society as regulator of the legal profession in Ontario.

[97]

In a judge-alone trial, the trial judge is responsible for the
    determination of the issues raised and the management of the trial.  The Law
    Society is responsible to ensure that all lawyers adhere to the professional
    standards of practice that condition their licence to practise law.  In these
    differing, but complementary roles, both the courts and the Law Society seek to
    protect and enhance the administration of justice.  Although they are allied in
    this salutary objective, each contributes to its achievement in different ways.
    As the
Marchand
court put it, at para. 148:

Just as civility in the courtroom
    is very much the responsibility of counsel, it is also very much the
    responsibility of the trial judge.  It is a shared responsibility of profound
    importance to the administration of justice and its standing in the eyes of the
    public it serves.
[8]

[98]

The Divisional Court recognized the shared, but differing,
    responsibilities of the judiciary and the Law Society with respect to
    incivility in court, stating, at paras. 34-35:

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.

However, the obligations of judges and the obligations of the
    [Law Society], as regulator of the profession, are different.  [Footnotes
    omitted.]

[99]

I agree.  The primary role of trial judges is to decide the contested
    issues and, in so doing, to safeguard the fairness of the trial, including the
    dignity and decorum of the proceeding, in order to strive to ensure a just
    result.  In this, as in other aspects of the conduct of a trial, trial judges
    have a broad discretion to ensure fairness and to see that justice is done  and
    seen to be done:
Lyttle
, at para. 45.  In contrast, in the context
    with which we are concerned, the primary role of the Law Society is to ensure
    the professionalism of its licensees, measured against the standards of
    practice that apply to the entire profession.  These are different roles and different
    inquiries, requiring different expertise and experience.

[100]

I do not suggest
    that trial judges have no authority to control uncivil conduct in their
    courtrooms.  Quite the contrary.  Trial judges are entitled to manage a trial
    as part of their trial management power, founded on the courts inherent
    jurisdiction to control its own processes, in order to ensure that the trial is
    run effectively:
Felderhof
, at para. 43. This trial management power
    extends to the careful exercise of judicial supervision over the tactical and
    other conduct of litigants and counsel before the court:
Krieger v. Law
    Society of Alberta
, 2002 SCC 65, [2002] 3 S.C.R. 374,
per
Iacobucci and Major JJ., for the court, at para. 47.  It follows, in my view,
    that a presiding trial judge, in the exercise of his or her discretion, is
    empowered to take those lawful and reasonable steps that he or she concludes
    are necessary to control uncivil or other unacceptable conduct by all
    participants in open court, including advocates.

[101]

But it is a far
    different thing to argue, as Mr. Groia does, that a trial judges authority to
    supervise and control the progress of the trial and the conduct of its
    participants constrains the Law Societys exercise of its statutory
    jurisdiction to regulate a lawyers in-court conduct in the public interest.
    This unprecedented argument, if accepted, would sanction the abrogation by the
    Law Society of its responsibilities to the public and the legal profession, as
    expressly vested in it by the legislature.

[102]

First, as a
    matter of law, the Law Societys disciplinary authority under the Act is
    unqualified.  And for good reason.  The Law Society is charged with the
    responsibility, acting in the public interest, to ensure the professionalism of
    all those whom it licenses to practise law.  To carry out this mandate, it must
    be equipped to respond to evolving and case-specific instances of
    unprofessionalism by lawyers.

[103]

Second, the
    notion that the courts must have the last or final word in assessing an
    advocates conduct in court rests on a flawed premise: that regulating in-court
    conduct by advocates risks interfering with a trial judges  authority to
    control the trial process.  The Law Societys mandate to ensure that lawyers
    conduct themselves professionally in and out of the courtroom, does not in any
    way conflict with or erode a trial judges trial management power or the
    independent authority of the courts.  As I have indicated, the trial judges
    authority and that of the regulator exist in tandem but are focused on different
    inquiries and are exercised for different purposes.

[104]

And this gives
    rise to a third, important consideration.  The remedies available to the courts
    and the Law Society to address uncivil in-court conduct by an advocate differ
    according to their respective functions.  A finding that the Law Society cannot
    review an advocates in-court conduct, but must defer to the views of the
    presiding trial judge, would mean that an advocate who engaged in professional
    misconduct in court cannot be disciplined for such conduct by his or her
    regulator save at the request  direct or indirect  of the presiding trial
    judge.  This, in effect, would render trial judges the arbiters of whether the
    licences of such advocates should remain unaffected.  There is simply no basis
    for such immunity to review of unethical behaviour by the Law Society.  See for
    example,
Krieger
, at paras. 50-52.

[105]

I also do not
    accept the argument that criticism or complaint by a presiding trial judge
    regarding an advocates uncivil in-court conduct is a necessary prerequisite to
    the Law Societys exercise of its disciplinary powers.  I agree that the views
    of the presiding trial judge regarding the propriety of an advocates in-court
    conduct can and should attract considerable weight by a reviewing disciplinary
    body.  However, they are not dispositive of whether the advocate has engaged in
    professional misconduct.  Indeed, they may not even address this issue, which is
    a question for the regulator, not the courts.

[106]

Nor does a trial
    judges decision not to complain about uncivil conduct in court operate, as a
    matter of law, to displace or alter the Law Societys statutory power to
    enforce standards of professional conduct consistent with its duty to regulate
    its licensees in the public interest.  The Law Societys exercise of its
    jurisdiction over an advocates in-court conduct is not an after-the-fact
    review of   a trial judges decisions about how to manage his or her courtroom.
    Rather, it is a review squarely focused on the advocates conduct and whether
    that conduct falls below the minimum standards of professionalism for advocates
    as set by the Law Society.  As the Law Society put it during oral argument, an
    advocates professional obligations do not bend with the level or intensity
    of a particular presiding trial judges response to incivility.

[107]

To conclude
    otherwise would render the regulation of professional conduct by lawyers
    subject to idiosyncratic variation, with attendant uncertainty and
    unpredictability.  This would advance neither the public interest nor the
    interests of the legal profession.  An advocate is not freed from the
    obligation to comply with the conditions of his or her licence to practise law
    by the simple act of donning his or her gown and entering the fray of a
    courtroom.

[108]

I note also, as
    both the Divisional Court and the Appeal Panel recognized, that there are many
    reasons why a trial judge may elect not to criticize or complain about an
    advocates uncivil conduct in court, including the simple reality that
    refraining from such action in a given case may permit the proceeding to
    advance more efficiently.  Further, some judges are reluctant to intervene
    because intervention might interfere with the appearance of judicial
    impartiality.  The important point is that, just as a presiding judges
    affirmative criticism or complaint  before or after trial  is not a
    precondition to the Law Societys exercise of its disciplinary authority, neither
    is a presiding judges inaction in the face of an advocates uncivil in-court
    conduct an approval of such conduct.

[109]

Accordingly, I
    would reject this ground of appeal.  The Appeal Panels ruling that the views
    of a presiding trial judge about the propriety of an advocates in-court
    conduct do not control the exercise of the Law Societys disciplinary powers
    was reasonable.  It was also correct.

(ii)          Appeal
    Panels Test for Incivility

[110]

Mr. Groia argues
    that the Appeal Panel erred in fashioning its test for incivility: i) by
    failing to properly balance the advocates duty of zealous advocacy with his or
    her duties of courtesy and civility; ii) by failing to take proper account of
    constitutionally-protected expressive freedoms; and iii) by creating a test that
    results in uncertainty and a lack of meaningful guidance for the profession.

[111]

Mr. Groia defends
    the Divisional Courts holding that, for disciplinary purposes, uncivil conduct
    must be conduct that will also bring the administration of justice into
    disrepute, but submits that the Divisional Courts restated test is itself
    flawed to the extent that it also provides that uncivil conduct hav[ing] the
    tendency to bring the administration of justice into disrepute is sufficient
    to constitute professional misconduct.

[112]

For the reasons
    that follow, I cannot accede to these arguments.  In particular, I conclude
    that the Appeal Panels formulation of the test for incivility in this case was
    reasonable.  In my view, it appropriately balanced the importance of zealous
    advocacy with the requirement for courtesy and civility.  Further, in
    fashioning its test, the Appeal Panel properly considered
Charter
-protected
    expressive freedoms.  Finally, the test provides meaningful guidance to the
    profession and, critically, reflects the need to maintain public confidence in the
    repute of the administration of justice.

[113]

Before
    addressing Mr. Groias specific arguments, it is helpful to first consider the duty
    of courtesy and civility.

(a)
Duty
    of Courtesy and Civility

[114]

It is common
    ground that the concept of civility, as it applies to lawyers, is not easily
    defined.  While the meaning of civility for lawyers may be difficult to
    articulate with specificity, its significance to the proper functioning of our
    judicial system is beyond doubt.  In
Felderhof
, at para. 83, this
    court confirmed its importance to the legal profession, the public and the
    administration of justice:

It is important that everyone, including the courts, encourage
    civility both inside and outside the courtroom.  Professionalism is not
    inconsistent with vigorous and forceful advocacy on behalf of a client and is
    as important in the criminal and quasi-criminal context as in the civil
    context.  Counsel are required to conduct themselves professionally as part of
    their duty to the court, to the administration of justice generally and to
    their clients.  Unfair and demeaning comments by counsel in the course of
    submissions to a court do not simply impact on the other counsel.  Such conduct
    diminishes the publics respect for the court and for the administration of
    criminal justice and thereby undermines the legitimacy of the results of the
    adjudication.

[115]

This courts
    decision in
Marchand
is similarly instructive.  In
Marchand
, the
    court held, at para. 148, that the trial judges failure to satisfactorily
    discharge his responsibility to ensure civility in the courtroom tarnished the
    reputation of the administration of justice and that the facts of that case
    underline[d] the importance being given by leaders of the bench and bar to
    improving civility in the courtroom.
Doré
, too, endorses the need
    for civility by lawyers, describing it, at paras. 65 and 69, as part of the
    publics reasonable and legitimate expectations of a lawyers professionalism.
    None of
Felderhof
,
Marchand
or
Doré
restricts this
    duty to only in-court conduct.

[116]

I pause here to
    address two troubling aspects of the debate before this court about the duty of
    civility.  First, contrary to the tenor of some submissions during oral
    argument, it is wrong to diminish the force of the
Felderhof
courts
    comments about civility, quoted in part above, on the basis that they are
    merely obiter.  In
Felderhof
, at para. 83, the court sought to
    provide guidance on professionalism, for counsel and trial judges alike, in
    particular, about the need for civility both inside and outside the courtroom
    and the obligation of advocates to conduct themselves professionally as part
    of their duty to the court, to the administration of justice generally and to
    their clients.  The courts warning about the need for civility forms an
    integral part of the foundation for its decision.  It is a mistake to discount
    it.

[117]

Second, the
    requirement for civility by advocates has been referred to before this court by
    some as the product of the civility movement.  To the extent that this was
    intended to indicate that the increased emphasis in the profession on civility
    reflects the evolution in contemporary understanding about the meaning of
    professionalism for lawyers, it is unobjectionable.

[118]

But recognition
    of the need for civility by lawyers and its importance to our justice system is
    not simply a trend or a passing reform.  Nor should it be regarded as such.  As
    the commentary to r. 4.01(1) of the 2000 Rules notes, it is also not an empty
    formality because, unless order in the courtroom is maintained through dignity,
    decorum and courtesy, rights cannot be protected.  For this and other
    reasons, a lawyers obligations under the Conduct Rules include the avoidance
    of ill-considered or uninformed criticism of the competence [and] conduct  of
    other lawyers: 2000 Rules, commentary to r. 6.03(1).

[119]

Civility is not
    merely aspirational.  It is a codified duty of professional conduct enshrined
    in the Conduct Rules and, as repeatedly confirmed by the courts, an essential
    pillar of the effective functioning of the administration of justice.  In
    Ontario, at least, its necessity and importance in our legal system is now
    settled law.

[120]

In
Doré
,
    the Supreme Court, at para. 61, citing Michael Code in
Counsels Duty of Civility: An Essential Component of
    Fair Trials and an Effective Justice System
(2007), 11 Can. Crim.
    L. Rev. 97, at p. 101, endorsed this definition of incivility: potent displays
    of disrespect for the participants in the justice system, beyond mere rudeness
    or discourtesy.

[121]

Echoing
Doré
,
    the Appeal Panel noted, at para. 209, that while civility is a useful short
    form, the concept of civility captures many forms of unprofessional
    communications that go well beyond rudeness or lack of courtesy.  Given the
    range of conduct that is captured under the rubric of civility, various courts
    and senior members of the litigation bar have attempted to provide clarity to
    the term and guidance as to the type of behaviour that will constitute uncivil
    conduct by advocates.  It was for this very purpose that the Advocates Society
    developed the
Principles
, referenced above.  The Law Societys commentaries
    to the Conduct Rules also seek to achieve the same ends.

[122]

The Divisional
    Court also attempted to provide guidance on this issue by providing
    non-exhaustive examples of uncivil conduct, at para. 75:

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 uninformed, nasty, personal tirades.

[123]

The Appeal Panel
    did not attempt to provide a comprehensive definition of uncivil conduct.   It
    concluded, at para. 232, that determining when uncivil courtroom communication
    crosses the line is  fundamentally contextual and fact-specific.  I agree
    and would add that the same observation applies to uncivil conduct outside the
    courtroom.

[124]

And it is
    because the question whether an advocates impugned conduct constitutes uncivil
    conduct warranting disciplinary review is a contextual and fact-specific
    inquiry that a precise definition of incivility is elusive and undesirable.
    What constitutes uncivil conduct for this purpose will vary with the
    circumstances in any given case.  Incivility must be given a flexible
    definition, capable of encompassing diverse situations and different contexts.
    What these will have in common is that they will meet the
Doré
definition of incivility: potent displays of disrespect for the participants
    in the justice system, beyond mere rudeness or discourtesy.

[125]

The highly
    contextual and fact-specific nature of incivility necessarily requires affording
    the disciplinary body leeway in fashioning a test that is appropriate in the
    circumstances of the particular case.  The test in a given case will generally
    be reasonable if it focuses on the specific nature of the conduct at issue and
    explains why that conduct requires scrutiny in the context and circumstances in
    which it occurred.  At the end of the day, the relevant question is whether the
    type of proven conduct at issue, in the applicable context and factual
    circumstances, may reasonably and, hence, objectively be said to fall below the
    standard of conduct for advocates that the public and the profession at large
    have a right to expect.

[126]

I turn now to
    Mr. Groias challenge of the Appeal Panels formulation of the test in this
    case.

(b)

Duties of Zealous Advocacy and

Loyalty to the Clients Cause

[127]

Mr. Groia,
    supported by some interveners, asserts that disciplinary action against him for
    his in-court submissions during the Felderhof trial, absent any complaint or
    criticism about his conduct by the trial judge, risks chilling the zealous
    advocacy to which advocates are professionally-bound and poses a threat to the
    independence of the bar, to the detriment of the public.  I would reject these
    assertions.

[128]

First, the duty
    of zealous advocacy.  This duty, like the duty of courtesy and civility, forms
    part of the advocates larger duty of professionalism.  It is a codified
    obligation under the Conduct Rules and a defining element of the advocacy
    tradition in Canada.  As the commentaries to r. 4.01(1) of the 2000 Rules
    explain, it requires that an advocate: raise fearlessly every issue, advance
    every argument, and ask every question, however distasteful that the advocate
    thinks will help the clients case.  It also requires that an advocate endeavour
    to obtain for the client the benefit of every remedy and defence authorized by
    law.

[129]

The courts have
    unreservedly acknowledged that zealous advocacy is fundamental to the
    advocates role.  In
Felderhof
, at para. 84, Rosenberg J.A. stated: Zealous
    advocacy on behalf of a client, to advance the clients case and protect that
    clients rights, is a cornerstone of our adversary system.  Quoting G. Arthur
    Martin,
The Practice of Criminal Law as a
    Career
 in
Professionalism: A Century of Perspectives

(Toronto:
    Law Society of Upper Canada 2002), at p. 93, he added: The existence of a
    strong, vigorous and
responsible
Defence Bar is essential in a free
    Society (emphasis in original).

[130]

Mr. Groias
    position on this appeal, at heart, is that when the advocates duty of zealous
    advocacy conflicts with his or her duty of courtesy and civility, the public
    interest demands that the former must prevail.  The Divisional Court appears,
    at least implicitly, to have accepted this proposition.  Its approach to its restated
    test for incivility was driven by its view of the need to enlarge the
    protections afforded to the duty of zealous advocacy.

[131]

I am unable to
    accept the premise of an inherent collision or competition between the duty of
    zealous advocacy and the duty of courtesy and civility.  This premise misconceives
    the advocates duty of professionalism.

[132]

The duty of
    zealous advocacy must be jealously protected and broadly construed.  But it is
    not absolute and must not be abused.  Nor do the Conduct Rules assign it
    paramountcy.  The Conduct Rules provide for a constellation of obligations that
    together make up the overarching duty of professionalism that conditions the
    privilege of practising law in Ontario.

[133]

The advocates
    duty of professionalism encompasses both the duty of zealous advocacy and the
    duty of courtesy and civility.  Lord Reids famous statement in
Rondel v.
    Worsley
, [1969] 1 A.C. 191, at pp. 227, captures this principle well:

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 clients 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 clients wishes or
    with what the client thinks are his personal interests
.  Counsel must not
    mislead the Court, he must not lend himself to casting aspersions on the other
    party or witnesses for which there is no sufficient basis in the information in
    his possession  [Emphasis added.]

[134]

It bears
    emphasis that these obligations are owed by all advocates and due to all
    participants in the justice system.  As the Supreme Court affirmed in
Lyttle
,
    at para. 66, citing Lord Reids above-quoted comments in
Rondel
, an
    advocates duties are owed not only to the client, but also to the public and,
    hence, to the justice system itself and all its participants.  See also
Doré
,
    at para. 68.

[135]

The Advocates
    Societys
Principles
afford helpful guidance to the profession on this
    issue.  They provide in part:

Advocates must raise fearlessly every issue, advance every
    argument, and ask every question.  At all times, however, they must represent
    their clients responsibly and with civility and integrity.  The duty of zealous
    representation must be balanced with duties to the court, to opposing counsel
    and to the administration of justice.

The proper administration of justice requires the orderly and
    civil conduct of proceedings.  Advocates should, at all times, act with
    civility in accordance with the
Principles of Civility for Advocates
.
    They should engage with opposing counsel in a civil manner even when faced

with

challenging

issues, conflict and disagreement.
    [Footnotes omitted.]

As this court has done on other occasions,
[9]
I endorse these comments.  The
Principles
usefully inform the standard
    of conduct required and expected of advocates.

[136]

That the duties
    of zealous advocacy and courtesy and civility are intended to apply in tandem is
    evident from the language of the 1998 Handbook and the 2000 Rules.  Under both,
    the duty of zealous advocacy is coupled with the stipulation that it must be
    discharged by the lawyer while treating the tribunal with courtesy and
    respect (1998 Handbook, commentary to r. 10) or with candour, fairness,
    courtesy and respect (2000 Rules, r. 4.01(1)).  Thus, the duty of zealous
    advocacy is coextensive with the advocates duty to act with courtesy, civility
    and in good faith.  Both duties are imperatives of true professionalism by
    advocates.

[137]

And it is here
    that Mr. Groias attack on the Appeal Panels test for incivility on the ground
    that his duty of zealous advocacy is overarching founders.  In
Felderhof
,
    at para. 83, this court explicitly rejected the premise of an inherent divide
    between the advocates duty of zealous advocacy and the companion duty of
    courtesy and civility in the conduct of litigation, stating that:
    Professionalism is not inconsistent with vigorous and forceful advocacy on
    behalf of a client.  The court continued, at para. 94, with respect
    particularly to the duties of defence counsel:

But, as officers of the court and as barristers and solicitors,
    defence counsel also have responsibilities to the court and to other counsel
    and they have a duty to uphold the standards of the profession.  As I have
    said, defence counsels obligation to his or her client to fearlessly raise
    every legitimate issue is not incompatible with these duties to the court, to
    fellow counsel and to the profession.

[138]

Felderhof
makes the point, at para. 93, that counsel who are the target of professional
    vilification by their opponents are not obliged to simply deal with it.  The
    often misused adage that a hard fought trial is not a tea party does not license
    abusive and unprofessional behaviour towards opposing counsel.

[139]

The crucial
    point is that all participants in litigation and the public have a legitimate
    right to expect that the advocates duty of zealous advocacy will be tempered
    by the overriding duty to adhere to all the standards of the profession,
    including the duty to act with courtesy and civility and in good faith.  This
    case affords an apt example.  An advocates duty to his or her client does not permit
    the advocate to act unprofessionally.  Nor does it absolve an advocate from
    heeding his duty to the Court and to his fellow solicitors:
R. v. Elliott
(1975), 28 C.C.C. (2d) 546 (Ont. C.A.), at p. 549;
Goldberg
, at para.
    45;
Doré
, at para. 65.

[140]

I acknowledge
    that, on occasion, the fearless and forceful representation of a client may, as
    the Advocates Society put it in its factum, [push] up against the boundaries
    of civility.  Further, and importantly:

Advocates are only human and their patience and judgment may
    occasionally falter.  The same is true for judges, who may occasionally misapprehend
    or overreact to the conduct of counsel in their courtrooms.  Neither advocates
    nor judges should feel unduly constrained by the threat of subsequent
    disciplinary proceedings against counsel.

[141]

For this reason,
    the advocates isolated lapse of judgment or occasional disparaging comment
    about another participant in litigation generally should not be viewed as
    triggering disciplinary action.  But that is not this case.  The Law Society
    disciplinary panels were concerned here with an advocates alleged pattern of making
    unfounded, personalized attacks on the integrity of opposing counsel and baseless
    allegations of prosecutorial misconduct.  The Appeal Panels test was
    specifically designed to address the serious and repetitive nature and manner
    of expression of these allegations.  It is thus essential that the nature of
    the conduct at issue be closely and carefully scrutinized before the test for
    incivility is said to have been met.

[142]

The Appeal
    Panels reasons reveal that it was alert to Mr. Groias duty of zealous
    advocacy and to the need to factor it into the formulation of its test for
    incivility and its conduct analysis.  It confirmed, at para. 7, that by
    undertaking a contextual analysis of all the relevant circumstances surrounding
    Mr. Groias impugned comments at the Felderhof trial, including the important
    public interest that lawyers vigorously and courageously advocate for their
    clients, it sought to ensure that the challenges that confront courtroom
    advocates are fairly taken into account and do not create a chilling effect on
    zealous advocacy.

[143]

The Appeal Panel
    referred at length to the principles set out by this court in
Felderhof
and
Marchand
and to the Supreme Courts holdings in
Doré
about zealous advocacy and civility, among other authorities.  It also
    considered the Conduct Rules, the commentaries to those rules and the
Principles
.

[144]

It went on to caution,
    at para. 211, that civility should not be used to discourage fearless
    advocacy manifested by passionate, brave and bold language.  It then made the key
    point that the misconduct alleged here transcended mere rudeness, excess
    rhetoric or sarcastic remarks and, instead, involved unfounded, direct
    attacks on the integrity of opposing counsel.  It was only after undertaking
    this analysis that the Appeal Panel accepted the parties agreed test.  This
    approach was reasonable and, as I will explain, amply justified by the record
    in this case.

[145]

Mr. Groia relies
    on
Re Clark
,
1995 CanLII 1628 (Ont. L.S.T.), a decision of the
    Benchers of the Law Society, sitting in Convocation, for its comments about the
    importance of protecting the independence of the bar and its statement that, to
    the extent that the duty of zealous advocacy comes into conflict with the duty
    to treat the court with courtesy and respect, the Law Society should be
    reluctant to find that overzealousness constitutes professional misconduct.  In
    my view,
Clark
does not assist Mr. Groia in the circumstances of this
    case.

[146]

Convocations
    decision in
Clark
, like the Appeal Panels fashioning of its test for
    incivility, was highly contextual and fact-specific.  As in
Clark
, the
    Appeal Panel balanced the duty of zealous advocacy with the duty of courtesy
    and civility in light of the facts established on the record.  I have already concluded
    that the Appeal Panel carefully considered the importance of the duty of
    zealous advocacy in crafting its test to ensure that the ability of an advocate
    to resolutely advance his or her clients cause would not be undermined.  Its
    formulation of that test is entitled to deference.  Nothing in
Clark

compels me to a different conclusion.

[147]

It is also
    important to note that
Clark
was decided more than 20 years ago.  Since
Clark
, the legal discourse on professional misconduct arising from
    incivility has evolved. This court's discussion in
Marchand
exemplifies that evolution. In my view, the particular context of
Clark
makes it unsuitable as a benchmark for incivility.  It does not reflect contemporary
    appreciation of the advocates duty of professionalism.

[148]

In all the circumstances
    that I have described, I see no basis on which to fault the Appeal Panel for
    its balancing of Mr. Groias duty to zealously advocate on Mr. Felderhofs
    behalf with his related duty of courtesy and civility, or for its appreciation
    of the need to craft a test for incivility that took proper account of both in
    the context of this case.

[149]

One further
    aspect of Mr. Groias argument on this issue requires mention.  Mr. Groia,
    relying on
Federation of Law Societies
, also argues that the Appeal
    Panels test for incivility interferes with the advocates duty of commitment
    to the clients cause.  Again, I disagree.

[150]

Federation
    of Law Societies
does not hold that the duty of commitment to a clients
    cause is absolute or open-ended.  To the contrary, at para. 93 of its reasons,
    the Supreme Court said:

Committed representation does not, for example, permit let
    alone require a lawyer to assert claims that he or she knows are unfounded
or to present evidence that he or she knows to be false or to help the client
    commit a crime.
The duty is perfectly consistent with the lawyer taking
    appropriate steps with a view to ensuring that his or her services are not
    being used for improper ends
.  [Emphasis added.]

[151]

These comments
    apply with equal force to the advocates duty of courtesy and civility.  To
    paraphrase the Supreme Courts words, the lawyers duty of committed
    representation does not permit, let alone require, a lawyer to breach his or
    her duty of courtesy and civility.  Nor does it preclude the regulators
    establishment and enforcement of that duty.  Rather, the duty of committed
    representation is perfectly consistent with the lawyer taking appropriate
    steps to ensure that his or her advocacy does not breach his or her professional
    obligations.

(c)      Freedom
    of Expression

[152]

Mr. Groia next argues
    that the issue of his expressive freedoms under s. 2(b) of the
Charter
and those of Mr. Felderhof, embodied in Mr. Felderhofs constitutional right to
    make full answer and defence to the OSC charges, are engaged in this case.  He
    submits that, as a result, the Appeal Panel was required to address whether his
    allegations of prosecutorial misconduct constituted constitutionally-protected speech
    and to factor this consideration into its determination of the proper test for
    incivility.  Mr. Groia says that, having failed to do so, the Appeal Panel
    erred.

[153]

I do not accept this
    argument.  In my view, the Appeal Panel reasonably addressed s. 2(b)
Charter
values under the rubric of its consideration of the duty of zealous advocacy.

[154]

Doré
confirms, at paras. 24 and 28, that administrative decision-makers, like the
    Appeal Panel, must act consistently with the values underlying [their] grant
    of discretion, including
Charter
values (citations omitted).  It also
    holds, at paras. 36 and 54, that a disciplinary bodys balancing of freedom of
    speech with a lawyers professional obligations attracts deference.

[155]

Doré
further
    instructs, at para. 66, that a disciplinary tribunals balancing of the
    competing interests in play  freedom of expression and the need to ensure
    civility in the legal profession  is a fact-dependent and discretionary
    exercise.  Partially for this reason, a high degree of deference is owed by a
    reviewing court to a disciplinary tribunals balancing of these interests.

[156]

Accordingly, where
    an administrative decision-makers treatment of     expressive rights is

at

issue,
    as here, the relevant question is whether the administrative decision-maker has
    disproportionately, and therefore unreasonably, limited [the s. 2(b)]
Charter
right:
Doré
, at paras. 6 and 57.  If, in exercising its statutory
    discretion, the administrative decision-maker has properly balanced the s. 2(b)
Charter
value with the decision-makers statutory objectives, its
    decision will be reasonable:
Doré
, at para. 58.  See also
Loyola
    High School v. Quebec (Attorney General)
, 2015 SCC 12, [2015] 1 S.C.R.
    613, at paras. 3-4, 32 and 37-42.

[157]

The Appeal Panel
    did not ignore or discount expressive rights.  It twice referred in its reasons
    to the relevance of expressive rights and the need to strike a balance between
    those rights and a lawyers professional obligations to his client, the court,
    and other counsel and parties (at paras. 212 and 214).  It expressly considered
Doré
and, at para. 214, quoted from the Supreme Courts instructions that
    freedom of speech must be balanced with the need to ensure civility in the
    profession:
Doré
, at para. 66.

[158]

In its careful
    and detailed assessment of Mr. Groias conduct, the Appeal Panel balanced the expressive
    rights at issue in this case with Mr. Groias professional obligations.  It concluded,
    at para. 328:

[Z]ealous 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.

[159]

These holdings
    are consistent with the principles outlined in
Doré
.
Doré
recognizes, at para. 65, that expressive freedoms are not incompatible with
    professional conduct obligations, including the duty of civility:

Proper respect for these expressive rights may involve
    disciplinary bodies tolerating a degree of discordant criticism.  This does
    not by any means argue for an unlimited right on the part of lawyers to breach
    the legitimate public expectation that they will behave with civility.

See also
Goldberg
, at paras. 57-59.

[160]

The Appeal Panel
    might have said more on this issue.  Nonetheless, when its reasons are read as
    a whole, as they must be, I am satisfied that it reasonably balanced Mr.
    Groias expressive rights and those of Mr. Felderhof with the key objective
    under the Act and the Conduct Rules of ensuring professionalism by advocates,
    including courtesy, civility and zealous advocacy, in the public interest.  As
    the Supreme Court held in
Doré
, at para. 68, lawyers not only have a
    right to speak their minds freely, they arguably have a duty to do so.
    However, in fulfilling that duty, advocates are constrained by their
    profession to do so with dignified restraint.  These comments are apposite
    here.

[161]

I therefore conclude
    that the Appeal Panels test reflects a reasonable and proportionate limit on
    both the advocates expressive freedoms and those of the client.

(d)     Vagueness
    Claims

[162]

Mr. Groias
    vagueness claims focus, although not exclusively, on the Divisional Courts
    restated test.  In his factum, Mr. Groia argued that the restated test is vague
    and ill-defined and that it creates an unreviewable prosecutorial discretion
    for the Law Society.  However, at the appeal hearing, his position on the
    restated test narrowed somewhat.  During oral argument, he challenged only the second
    part of the restated test, that is, the Divisional Courts holding that the Law
    Societys disciplinary process may be triggered if the conduct at issue would
    have the tendency to bring the administration of justice into disrepute.   Several
    interveners also attack the restated test, in whole or in part, on similar
    grounds.

[163]

Apart from any
    complaints about lack of clarity, there are several difficulties with the
    Divisional Courts development of a restated test for incivility.  First, for
    the reasons already given, it was not open to the Divisional Court to
    substitute its own view of the appropriate test because it disagreed with the
    Appeal Panels balancing of the advocates professional duties.  I again
    emphasize that the requisite inquiry was whether the Appeal Panels test was
    reasonable.  Having found that the appropriate standard of review was
    correctness, the Divisional Court did not address this issue.

[164]

Second, based on
    the Appeal Panels reasons, the parties before the Appeal Panel agreed to the test
    ultimately adopted by the Appeal Panel.    In these circumstances, I have
    difficulty accepting that it is now open to Mr. Groia to assert that the Appeal
    Panels formulation of the test was unreasonable or that the test itself is
    otherwise deficient.

[165]

This brings me
    to the merits of the Divisional Courts restated test.  Simply put, the test articulated
    by the Appeal Panel is a reasonable and functional one that accounts for the
    contextual and fact-driven nature of a professional conduct inquiry regarding
    uncivil conduct in court.  Its test was owed deference by the Divisional Court.

[166]

The Appeal
    Panels test provides that it is professional misconduct to make allegations of
    prosecutorial misconduct or that impugn the integrity of opposing counsel,
    unless the allegations are made in good faith and with a reasonable basis.  In
    fashioning this test, the Appeal Panel expressly balanced the advocates duty
    of zealous advocacy with his or her duty of courtesy and civility.  It also
    took account of the need to consider the context for an inquiry regarding allegedly
    uncivil conduct, including: i) the dynamics, complexity and particular burdens
    and stakes of the trial at issue; ii) the nature of the misconduct alleged;
    and iii) the important public interest that lawyers vigorously and
    courageously advocate for their clients (at para. 7).  These were proper and
    necessary considerations.  They were adequately, indeed fully, addressed by the
    Appeal Panel.

[167]

In short, the
    Appeal Panels test was crafted to account for the facts of this case, and the
    interests of all parties to the OSC prosecution, including the public interest
    in the proper functioning of the administration of justice.  In my view, it is
    not vague or ill-defined.  It balances numerous factors and interests and provides
    for a contextual, fact-driven analysis, on a case-specific basis, as to whether
    uncivil conduct of a specified type (unfounded allegations of prosecutorial
    misconduct or that impugn the integrity of opposing counsel), constitutes
    professional misconduct.

[168]

The test
    recognizes that, while advocates may be required to use strong and forceful
    language to advance the clients interests, there are limits on what an
    advocate can say. It recognizes the interests of multiple participants in our justice
    system, including those who are the targets of uncivil comments.  It satisfies
    the Supreme Courts definition of incivility, quoted above, which contemplates
    potent displays of disrespect
for the participants in the justice system
,
    beyond mere rudeness or discourtesy (emphasis added):
Doré
, at para.
    61.

[169]

In contrast, respectfully,
    I regard the Divisional Courts restated test as both unnecessary and unduly
    restrictive.  It is unnecessary because the impact of uncivil conduct on the
    administration of justice is encompassed by the Appeal Panels test and was expressly
    considered by it.

[170]

Consider, for
    example, the Appeal Panels statements, at para. 211, that mandating
    civility protects and enhances the administration of justice and, at para.
    228, that the risk of harm arising from courtroom incivility to either a
    particular proceeding or the justice system as a whole is real.  Later, the
    Appeal Panel added, at para. 230:

The harm to the administration of justice [from in court
    incivility] is even clearer when the unprofessional courtroom communications
    take the form of attacks on the integrity of ones opponent by unjustified and
    unfair allegations of bad faith or a lack of candour or honesty.  Holding
    lawyers accountable for such communications does not simply protect opponents
    from hurt feelings, it avoids disrupting a trial.

[171]

These comments
    accord with this courts observations in
Felderhof
, at para. 83.
    Those observations bear repetition:

Unfair and demeaning comments by counsel in the course of submissions
    to a court do not simply impact on the other counsel.  Such conduct diminishes
    the publics respect for the court and for the administration of criminal
    justice and thereby undermines the legitimacy of the results of the
    adjudication.

[172]

The Appeal Panel
    considered that, under its test for incivility, its evaluation of the propriety
    of Mr. Groias conduct contemplated an assessment of the harm to the
    administration of justice, if any, caused or threatened by the uncivil conduct
    at issue.  It carried out its conduct analysis accordingly.

[173]

The Divisional
    Courts restated test equates harm to the administration of justice with trial
    unfairness.  I reject this unduly restrictive approach.  A requirement for a
    showing of trial unfairness sets the bar too high for a professional misconduct
    inquiry.  Uncivil conduct that falls short of fatally compromising the fairness
    of a trial may nonetheless impede the efficient and orderly progress of the
    trial, tarnishing public respect for and confidence in our justice system in
    the process.  This court effectively said so in
Felderhof
, at para.
    83, quoted above.  As Michel Proulx and David Layton put it in
Ethics and
    Canadian Criminal Law
(Toronto: Irwin Law, 2001), at p. 657: an egregious
    breach of ethics may in some cases have no appreciable effect on the fairness
    of the trial, when appropriate remedies can cure any harm suffered by the
    accused.

[174]

The restatement
    of the Appeal Panels test necessarily implies that, to constitute professional
    misconduct, something more is required when an advocate knowingly and
    deliberately makes unfounded or bad faith comments about participants in the
    justice system.  I would also reject this proposition.  Our justice system
    cannot and should not tolerate such conduct.  Comments that are made in bad
    faith or without a reasonable basis, including those that impugn the integrity
    of opposing counsel, inevitably stain the administration of justice.

[175]

For the same
    reasons, I reject Mr. Groias claim that the Appeal Panels test is deficient
    because it fails to accord proper weight to the
Felderhof
courts
    ruling that Mr. Groias conduct did not result in an unfair trial or prevent
    the OSC prosecutors from presenting their case at trial.

[176]

Damage to the
    administration of justice includes, but is not limited to, compromised trial
    fairness.  Consider, for example, the facts in
Doré
.
Doré
did not involve any issue of hearing or trial unfairness.  But it certainly
    identifies concerns about an advocates duty to avoid erosion of public confidence
    in the administration of justice arising from the advocates unfounded or
    inappropriate criticisms of a trial judge.  Our jurisprudence is replete with
    other examples of where the courts have found that an advocates conduct, or
    that of the state or another participant in litigation, risked undermining the
    integrity and repute of the administration of justice without compromising
    trial fairness.
[10]

[177]

And, contrary to
    Mr. Groias contention, this court made no finding in
Felderhof
that
    his uncivil conduct had no adverse impact on the administration of justice.
    Rather, it held that, despite what it found was Mr. Groias improper rhetoric
    and inappropriate conduct, the prosecution in the Felderhof case was not
    prevented from having a fair trial.  In other words, the exacting test for the
    loss of jurisdiction by the trial judge was not met:
Felderhof
, at
    paras. 79-82, 90, and 99.  It is one thing to conclude that a court has not
    lost jurisdiction due to trial unfairness.  It is another thing to infer from
    that conclusion that no damage to the administration of justice has occurred.

(e)      Conclusion

[178]

I conclude that the
    Appeal Panels test for incivility struck a reasonable balance among the many
    relevant considerations engaged in respect of Mr. Groias conduct.  Its test
    contemplated the
Doré
definition of incivility.  It identified the
    nature of the conduct at issue based on the particular misconduct alleged in
    this case (allegations of prosecutorial misconduct and allegations that impugned
    the integrity of opposing counsel).  It recognized that the impugned conduct
    took place in-court, during the course of a lengthy and hard-fought criminal
    trial.  It also explained why the allegations in question warranted scrutiny:
    to determine whether, in the context and circumstances in which they occurred, the
    allegations were made in good faith and with a reasonable basis.

[179]

Moreover, the
    Appeal Panels reasons for adopting its test for incivility are clear, cogent
    and intelligible.  They amply justify the adoption of the test, which squarely
    falls within a range of possible, acceptable outcomes that are defensible on
    the law and the facts for the delineation of an appropriate test for incivility
    applicable in this case.  To the extent that the Divisional Court held to the
    contrary, it erred.

(iii)

Reasonableness of Application of Test for Incivility

[180]

Mr. Groia argues
    that the Appeal Panel erred by misapplying its test for incivility to the facts
    of this case.  He makes four main arguments.

[181]

First, he
    submits that the Appeal Panel erred by failing to adequately account for the
    reality that [t]here is a natural tension between zealous advocacy and
    incivility.  Second, he renews his submission that the Appeal Panel and the
    Divisional Court erred by failing to recognize that trial judges are best
    equipped to police the line between zealous advocacy and incivility in court
    and that, as a result, the Law Society cannot, and should not, exercise its
    disciplinary authority in respect of such conduct save in limited circumstances.
    Third, he relies on his assertion that the Divisional Court and the Appeal
    Panel failed to properly consider the s. 2(b)
Charter
issues implicated
    in this case.

[182]

I have already
    considered, and rejected, these submissions when addressing the reasonableness
    of the Appeal Panels test for incivility.

[183]

Finally, Mr.
    Groia submits that the Appeal Panels findings of professional misconduct are incorrect,
    unreasonable and not supported by the evidence.  He further says that, in
    making these findings, the Appeal Panel ignored relevant evidence and read the
    record selectively.  Consequently, the Divisional Court erred by upholding the
    Appeal Panels flawed findings.

[184]

In considering
    these submissions, it must be remembered that there are two branches to the
    Appeal Panels test for incivility in this case.  Under the test, professional
    misconduct is established on proof of allegations of prosecutorial misconduct
or
allegations that impugn the integrity of opposing counsel, unless they are: i)
    made in good faith, and ii) have a reasonable basis.  The Appeal Panel
    concluded that both branches of the test were satisfied in this case.  However,
    if the Appeal Panels findings under either branch of the test are reasonable,
    professional misconduct is made out.

[185]

In my opinion,
    the Appeal Panels findings under both branches of the test are amply supported
    by the record before it.  Further, the Appeal Panel cannot be faulted for its scrutiny
    of the record.  It follows that its findings of professional misconduct against
    Mr. Groia are reasonable.  Accordingly, there is no basis for appellate
    intervention.

[186]

It is
    unnecessary to detail in these reasons the extensive review of the record
    undertaken by the Appeal Panel to demonstrate support for these opinions.  The
    following will suffice.

[187]

As I have said, the
    Appeal Panel necessarily was concerned with events that occurred during the
    first phase of the Felderhof trial.  This included a review of the submissions
    of counsel at the pre-trial disclosure motion on December 22, 1999, the
Stinchcombe
motion during days 1 to 16 of the trial, and the OSC motion on days 39 to 42
    for the admission of documents on an omnibus basis.  The Appeal Panel held that,
    viewed individually, Mr. Groias conduct in the course of these motions,
    although problematic in some respects, did not amount to professional
    misconduct.  In other words, standing alone, his conduct did not cross the line
    from zealous, and sometimes aggressive and intemperate, advocacy into
    professional misconduct.  The reasonableness of this holding is not challenged
    on this appeal.

[188]

However,
    commencing on day 52 of the trial, this changed.  To appreciate the
    significance of Mr. Groias conduct on day 52 and following, together with the
    Appeal Panels associated findings, it is important to understand certain of
    the preceding events and the nature of Mr. Groias complaints regarding the OSC
    prosecutors as developed to that date.

[189]

To briefly
    recap, prior to the beginning of the trial, Mr. Groia claimed that the OSC
    prosecutors had failed to discharge their
Stinchcombe
disclosure
    obligations.  This included suggestions by him that the OSC prosecutors were
    reneging on specific disclosure commitments made to the defence.  This theme of
    alleged failure by the OSC prosecutors to disclose relevant documents continued
    during the 16 day-long
Stinchcombe
motion.  Once the trial began,
    disputes about the admissibility of documents dominated the trial.  Mr. Groia
    put the OSC prosecutors to strict proof of all documents while conversely
    taking the position that the defence was able to admit, without the requirement
    of strict proof, any document that the OSC prosecutors had earlier described as
    relevant and authentic during their submissions to the court on the
Stinchcombe
motion.  Also relevant is the fact that, on the first day of trial, an OSC
    spokesperson had said that the OSCs goal was simply to seek a conviction, a
    statement to which Mr. Groia repeatedly returned throughout his submissions
    before the trial judge.

[190]

By day 52 of the
    trial, Mr. Groias complaints regarding the OSC prosecutors approach to its disclosure
    obligations, the admissibility of documents and Mr. Felderhofs right to make
    full answer and defence had undeniably matured into blunt accusations of
    deliberate prosecutorial misconduct.

[191]

The Appeal Panel
    considered Mr. Groias submissions before the trial judge on these issues in
    the context in which they were made and in light of the various motions that
    had been argued during the first 50 days of trial.  It held, at para. 280, that
    Mr. Groia had used his submissions regarding the admissibility of documents as
    a platform to attack the prosecutors, and in particular to impugn their
    integrity, without a reasonable basis to do so.

[192]

As I see it, these
    findings were firmly anchored in the record of the Felderhof trial.  The record
    reveals that, on day 52, a dispute emerged regarding Mr. Groias entitlement to
    cross-examine Mr. Francisco on a document that the witness could not identify
    a letter between two senior officers of a third party, Placer Dome.  Mr. Groia
    argued that, as the letter had been part of documents that the OSC prosecutors
    had earlier identified as relevant and necessary to its case, he was entitled
    to cross-examine Mr. Francisco on the letter without first establishing its
    relevance and undertaking to call a witness to identify the document.

[193]

In his
    submissions on this issue, Mr. Groia said, among other things:

Now suddenly when it suits the defences purpose the Crown
    suddenly has a whole new view of life.  There has been an epiphany thats taken
    place
.

[The OSC prosecutors] told us it was probative.  They told us
    it was relevant.  They told us that met the
Stinchcombe
requirements
    and now they are telling us,
Well, forget what we said then
.  Were
    kind of upset that you didnt agree to do it our way,
so forget all of the
    things we told you about these being relevant and probative.  Dont believe a
    word we said
.  [Emphasis added.]

[194]

Viewed in
    context, the import of these remarks is clear.  Mr. Groia was arguing to the
    court that the OSC prosecutors could not be relied upon to honour their
    assurances and that they were failing to live up to their prior representations
    regarding the relevance and admissibility of documents.  In effect, Mr. Groia maintained
    that the prosecutors were seeking to employ one standard of admissibility and
    relevance for documents useful to the prosecution and another, more onerous and
    shifting standard in respect of documents useful to the defence.

[195]

The situation
    worsened the next day.  It must be remembered that by then  day 53 of the
    trial  Mr. Francisco, the OSCs first witness, was still in the witness box
    and his cross-examination had only just begun.  His testimony had been
    frequently stalled or interrupted while counsel locked horns before the trial
    judge on the admissibility and relevance of various documents.  The trial was
    not progressing efficiently.  To the contrary, it had become deeply bogged down
    and the difficulties in the relations between counsel, by now, were pronounced
    and extraordinarily acrimonious.

[196]

On day 53, Mr.
    Groia again sought to introduce through Mr. Francisco a document that the
    witness had never seen and could not identify.  In the course of his
    submissions that day, Mr. Groia said, among other things:

Only if this court is prepared to say that the word of the
    Government is meaningless, that the representations of the Government are
    meaningless, that the statements of the Government on the record are
    meaningless, that you cant rely on anything the Government says anymore, is
    there any basis for my friend to make the submissions that hes making.

[One of the OSC prosecutors] got 231 exhibits in without a lot
    of fuss and muss, in my submission, about those kinds of issues.  Hes not
    happy about it, because its hard work.  Well, thats too bad, Your Honour.
    Prosecutions are supposed to be hard work and they are supposed to be done in a
    manner that accords with the rules of law

And if the Government now is suddenly saying, You cant rely
    on our word anymore, that you cant rely on the fact that weve given you these
    documents as part of our
Stinchcombe
obligation and we only gave them
    to you because we got them from Placer Dome  so were going to have to
    consider, now that Mr. Groia is being a bad boy, were going to have to
    consider whether thats still going to be the basis of proceeding, then Your
    Honour, Ive got to tell you, I dont know how I can proceed, because I thought
    I could count on what I was being told.

You cant do anything in this case as the defence, Your Honour,
    without the Government wanting to take some other advantage or get some other
    document in.

[197]

The Appeal Panel
    found, at para. 285, that these remarks, among others, directly attacked the
    integrity of the OSC prosecutors by alleging that they could not be relied upon
    to keep their word and that they were lazy and incompetent.  In the Appeal
    Panels view, these statements harkened back to Mr. Groias earlier allegations
    of prosecutorial misconduct and had no factual foundation.

[198]

Further, Mr.
    Groias quoted comments cast the OSC as the Government and sought to persuade
    the trial judge that the OSC prosecutors could not be trusted (at para. 286).
    The Appeal Panel concluded in this regard: We see nothing wrong with the use
    of [the] word [Government] standing alone to describe the OSC; we see
    everything wrong with its use as a way of casting aspersions on opposing
    counsel without a reasonable basis (at para. 286).

[199]

In my view, this
    interpretation of the sting of Mr. Groias statements is eminently reasonable.
    The Appeal Panels findings were rooted in the words admittedly spoken by Mr.
    Groia on day 53 and in the evidence of events to that point in the trial.
    However, Mr. Groia argued before the Appeal Panel, as he does before this
    court, that the OSC prosecutors conduct and their positions concerning the
    admissibility of documents furnished a legal and ethical basis for his attacks
    on them.

[200]

This argument
    cannot stand.  Mr. Groia fundamentally misunderstood the role of the OSC
    prosecutors and advanced positions on the admissibility of documents that were
    wrong in law and contrary to the rules of evidence, as described by this court
    in
Felderhof
, at para. 73:

Defence counsel is wrong to assert that because the prosecution
    concedes a document is relevant and authentic he is entitled to tender it to
    any witness without regard to whether the witness knows anything about the
    document.  A document may be relevant and authentic but counsel seeking to
    question a witness on the contents of the document must be able to demonstrate,
    if challenged, the admissibility of the witnesss answer.  Further, simply
    because a document is relevant and authentic does not mean it is admissible
    without regard to the rules of evidence, especially the hearsay rule.

[201]

The court
    continued, at para. 79:

[T]he prosecution is not duty bound to introduce all possible
    documents in examination of its witness and is not acting improperly in
    objecting to the admission of inadmissible evidence.  As the application judge
    said (at para. 33), "it is inappropriate to attack a prosecutor for
    seeking a conviction. To do so, demonstrates a misunderstanding of the vital
    distinction between a prosecutor who improperly seeks nothing but a conviction
    and a prosecutor who properly seeks a conviction within the appropriate limits
    of fairness".

[202]

There can be no
    doubt, in my opinion, that Mr. Groias remarks on day 53 exceeded the
    boundaries of zealous advocacy and met the test for incivility.  The content
    and tenor of his words directly impugned the honesty of the OSC prosecutors,
    their even-handedness and integrity as officers of the court, and their
    commitment to their fundamental duties, as ministers of justice, to trial
    fairness and impartiality.  The Appeal Panels findings regarding Mr. Groias
    conduct on day 53 are far from unreasonable.

[203]

Unfortunately, the
    matter did not end there.  Mr. Groias attacks on the integrity and
    trustworthiness of the OSC prosecutors continued, unabated.  On days 55-57, his
    submissions to the trial judge included the following pointed, and disparaging,
    comments about the OSC prosecutors:

So you are now hearing the Government say we have changed our
    mind.  Mr. Groia doesnt want to play by our rules, so were going to take our
    ball and go home.
And so essentially I cant prove this document because
    the Government isnt prepared to stand by its representations to this Court
.

Well, the Governments promises arent worth the transcript
    that they appear to be written on
.

Since they dont live up to their promises, then I dont
    think I have a basis to tender the document
.

When is the Crown going to accept the fact that they are
    prosecuting a case?
Why do they stand before this Court and continually
    whine about how unfair it is that the law in this country says if you want to
    prosecute Mr. Felderhof you must do so in accordance with certain fundamental
    rules
.
They didnt care about those rules when they stood in front
    of this court house and said they were simply here to seek a conviction
.
    [Emphasis added.]

[204]

Then, on day 58
    Mr. Groia said: I am heartened to see that Your Honour is no more able to get
    a straight answer out of the prosecutor than the defence has been.  And, on
    day 66:

I mean, its just  its the most nonsensical proposal from a
    Government prosecutor that one could imagine.  What do you make of that?
What
    kind of proposal is that from a prosecutor who claims at least that he wants to
    conduct this trial in a responsible fashion
?  [Emphasis added.]

[205]

These statements
    were improper and offensive.  They involved allegations of serious
    prosecutorial misconduct.  They are capable of only one interpretation: Mr.
    Groia was alleging that the OSC prosecutors were reneging on their promises to
    counsel and their representations to the court, that they were attempting to
    improperly circumvent the applicable rules of evidence, that they were not
    being candid with the court, and that they were not to be trusted.

[206]

I again
    emphasize that all this was occurring while the OSCs first witness, Mr.
    Francisco, was still under cross-examination.  By day 65, he had been in the
    witness box for more than 31 days.  The time consumed by counsels disputes and
    Mr. Groias unrelenting assaults on the propriety of the OSC prosecutors
    conduct kept a witness waiting interminably to complete his testimony.

[207]

This was not
    without consequence.  Counsel for Mr. Francisco described the adverse impact on
    his client of the continuing delay and disruptions to the trial on day 58:

My client over the break has advised me that he is not feeling
    well. The stress of this case is taking its toll on him. The constant in and
    outs of the court room and the uncertainty of when this is all going to be
    completed. He had visited his physician yesterday and had his blood pressure
    taken. He has a high blood pressure condition He is under great stress again
    this morning with what transpired this morning and he is not well enough to
    continue today.

[208]

The adverse
    impact on Mr. Francisco did not stop after day 58. Counsel for Mr. Francisco again
    described this impact in eloquent and moving terms in his submissions to the
    court on day 65:

Mr. Francisco has been here for some 31 days giving evidence.
    He has done his very best to assist the Court with his recollection of the
    events that are in issue in this case.  He would like to finish his evidence
    and is hoping to be available tomorrow and, as of the moment, that is certainly
    his intention.  I will advise my friends at the end of the day as to whether or
    not his condition remains such that he can testify tomorrow.  I know he has
    been here many days where there has been a lot of debates about admissibility
    of documents or admissibility of evidence and I would ask Your Honour and
    counsel to consider ways and means of doing that without the necessity of Mr.
    Francisco to be in the witness box, either by resolving these matters as best
    you can today with the time available.  But the concern I have is that the
    cross-examination has now been on for two weeks.  Before that the examination-in-chief
    went over a month.  And Mr. Francisco, his health is suffering.  Counsel have
    to represent their own clients interests.  Its the Court that protects the
    witness and I ask Your Honour to consider the interests of Mr. Francisco and
    devise with counsel a way and a means of finishing this witnesss evidence in
    the time allotted it would because if it  I really am asking to speak to you
    on this because I am concerned about his health and I want the Court to be
    aware of it and I would ask the Court to protect him, to protect his interests
    because in my submission, I dont feel that he is being accorded the kind of
    consideration that ought to be given to him.  He has testified at length.  He
    is being used as a means of putting documents in by both counsel that normally
    would not happen in the way it has happened and as a result he has to sit in
    the box and read documents that he hasnt even authored, or in some instances
    even received, with a view to adducing evidence or not adducing evidence.  I
    would ask then the Court to please protect my clients interests

[209]

The Appeal Panel
    was alert to this important issue, stating at para. 313:

Finally, we note that on Day 58 counsel for Mr. Francisco
    raised concerns about whether he could be excused for the day while the
    submissions regarding evidentiary matters continued.  This came in the context
    of the witness asking Mr. Groia when he could return and receiving the response,
    Next week I would suggest, Mr. Francisco. We will be a while.  Over the next
    few days it was apparent that the lengthy hearing, and frequent delays, were in
    fact taking a toll on the health of this witness, who was unable to testify for
    periods of time.

[210]

It is against
    this backdrop that the Appeal Panel concluded, at paras. 318-22, 324 and 332:

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. Groias vehement and very lengthy attacks on the prosecutors.

These attacks were personal in nature.  Taken together, in
    context, over the course of this lengthy trial, it is very clear that they were
    decidedly personal.

These attacks were aimed at the integrity of the prosecutors,
    by repeatedly asserting that they had broken their promises and could not be
    relied on to do what they represented to the court and were, in a word, untrustworthy.

These attacks also included numerous allegations of deliberate

prosecutorial

misconduct:

that the
    prosecutors intended to win at all costs, that their conduct offended the
    ethical principle that the duty of the Crown is not to seek a conviction, that
    they were deliberately putting the evidence though a conviction filter, and,
    most troubling, that they were intentionally acting so as to ensure that Mr.
    Felderhof did not obtain a fair trial.

Nothing the prosecutors did justified this onslaught.  These
    attacks on their integrity and
bona fides
did not have a reasonable
    basis.

Likewise, we conclude that Mr. Groia had no reasonable basis on
    which to attack either the integrity of the prosecutors or their motives.  The
    prosecutors had not promised that they would introduce all relevant documents,
    regardless of the rules of evidence.  They were under no obligation to call
    evidence favourable to the defence.  They had not resiled from their promises.
    Their positions on evidentiary issues were not improper and were often correct.

[A]ccepting that Mr. Groia was not deliberately misrepresenting
    the law and was not ill-motivated, we are nevertheless satisfied that Mr.
    Groias misconduct had a serious adverse impact on the trial, by causing
    numerous delays in the evidence of the trials first witness, by distracting
    the prosecutors from the presentation of the evidence, and by forcing the trial
    judge to become involved in many unnecessary disputes.

[211]

Having reviewed
    the relevant parts of the record, described in part above, I conclude that
    these critical findings were amply justified.  Mr. Groias remarks on the days
    in question, quoted above, were uncivil and discourteous and exceeded even the
    most broadly defined reasonable boundaries of zealous advocacy.  They struck,
    without a reasonable basis, at the heart of the OSC prosecutors duties to the
    court, to opposing counsel and to the administration of justice  in short, at
    their most basic duties as ministers of justice and officers of the court.
    They also affected the orderly progression of the trial and the dignity of the
    proceedings and contributed to the delay in the completion of the testimony of
    the first witness at trial.

[212]

Trials are not
    just about the resolution of the immediate dispute between the parties.  They
    are also about the trial judge, the witnesses, court staff, the appropriate use
    of court resources, and the public.  And courtrooms are not just places where
    advocates and judges come to work.  They are the communitys chosen forum for public
    dispute resolution and the administration of the criminal law.  In short,
    trials in our courtrooms engage the public interest in its multiple
    dimensions.  Advocates have responsibilities to the court, their client and the
    administration of justice.  The propriety of an advocates in-court conduct
    must be assessed under the Act and the Conduct Rules with this consideration at
    the forefront.  I have no doubt that what occurred in this case, if viewed by
    an informed and objective member of the public, could only have diminished
    public confidence in the administration of justice.

[213]

As I have
    attempted to emphasize, Mr. Groia began making allegations of deliberate
    prosecutorial misconduct on the first day of the trial.  He repeatedly returned
    to these allegations throughout the proceeding.  When he began his
    cross-examination of Mr. Francisco, on day 52, he forcefully renewed his
    attacks on the integrity of the OSC prosecutors.  Nothing the trial judge did
    or said stopped Mr. Groia from repeatedly making unfounded allegations of
    prosecutorial misconduct or comments that impugned the integrity of the OSC
    prosecutors.

[214]

Consider that,
    on day 61, the trial judge told Mr. Groia to refrain from making allegations
    unless they were based on a different factual foundation.  On day 65, he intervened
    when Mr. Groia again began to allege prosecutorial misconduct.  But even this
    did not deter Mr. Groia from making inappropriate and offensive remarks on day
    66, set out above.  By then, regrettably, the pattern had been set.

[215]

I note that Mr.
    Groia submits that, in assessing the propriety of his submissions about the OSC
    prosecutors, the Appeal Panel ignored evidence from the trial transcripts and
    from the participants in the proceeding before the Hearing Panel, including the
    testimony of Brian Greenspan and Nicholas Richter.

[216]

I am unable to
    accept this submission.  The Appeal Panel made clear that it had reviewed the
    trial transcripts from the first phase of the Felderhof trial, and the defence
    evidence led at the hearing before the Hearing Panel.  It stated, at para. 238:
    we have conducted our own assessment of Mr. Groias submissions during the [Felderhof]
    proceedings in light of their context,
including his explanations and those
    of his witnesses
 (emphasis added).

[217]

The Appeal
    Panels conduct analysis supports this statement.  In its reasons, the Appeal
    Panel summarized Mr. Groias explanations for his conduct and outlined, at
    length, his submissions before the trial judge during pre-trial motions and phase
    one of the Felderhof trial.  The Appeal Panel indicated, at para. 241:

Our summary [of Mr. Groias submissions] follows our own
    comprehensive review of the transcripts, together with summaries prepared by
    the parties to these proceedings.  We have reviewed Mr. Groias remarks in
    their context, often by relying on Mr. Groias own explanations in the course
    of the hearing panel proceeding.

[218]

I see no basis
    on which to conclude that the Appeal Panel did not do precisely what it said it
    had done.

[219]

Mr. Groias real
    complaint on this issue is that the Appeal Panel did not accept, and discuss in
    detail in its reasons, his explanations for his conduct and the testimony of
    his witnesses before the Hearing Panel relating to those explanations.  This is
    not a basis for concluding that the Conduct Decision is unreasonable.  There
    can be no serious suggestion that the Appeal Panels reasons fail to meet the
    sufficiency of reasons standard set out in
Newfoundland and Labrador
    Nurses Union v. Newfoundland and Labrador (Treasury Board)
, 2011 SCC 62,
    [2011] 3 S.C.R. 708,
Baker v. Canada (Minister of Citizenship and
    Immigration),
[1999] 2 S.C.R. 817
and related cases.

[220]

The Appeal Panel
    had considerable latitude to determine how much of the trial record and of the
    record before the Hearing Panel had to be reviewed in its reasons to support
    its professional misconduct findings.  Those findings, in the end, flowed
    directly from Mr. Groias admitted submissions before the trial judge.  It was
    his own words, in the context and circumstances in which they were uttered,
    that established his professional misconduct.  Having reviewed the evidence led
    by Mr. Groia before the Hearing Panel, I see nothing in the testimony of his
    witnesses that endorses or approves the type of remarks made and the rhetoric
    used by him in his above-quoted submissions at the Felderhof trial.

[221]

I therefore
    reject Mr. Groias contention that the Appeal Panel misapplied its test for
    incivility and erred in its review of the record.  To the contrary, its review
    was comprehensive, its findings were tied directly to the events reflected in
    the record, and its Conduct Decision was reasonable.

(3)      Reviewing Courts Reasons

[222]

The parties and
    several interveners put in issue the proper use of the Reviewing Courts Reasons
    by the Law Society disciplinary panels.

[223]

Mr. Groia,
    supported by some interveners, argues that the Reviewing Courts Reasons were
    not admissible before the Hearing and Appeal Panels for proof of professional
    misconduct.  In the alternative, Mr. Groia submits that even if the Reviewing
    Courts Reasons were admissible, the Appeal Panel erred by attaching undue
    weight to them and by treating certain of the statements contained in them regarding
    his conduct as dispositive of the allegations of professional misconduct made
    against him.

[224]

The Law Society
    disagrees.  It submits that the Reviewing Courts Reasons were admissible
    before the Hearing and Appeal Panels under both the normal rules of evidence
    and the Law Societys
Rules of Practice and Procedure
.  It contends that
    the Reviewing Courts Reasons were highly relevant evidence that were
    admissible, not simply for narrative value, but as proof that: i) Mr. Groias
    positions at the Felderhof trial regarding the role of the OSC prosecutors and
    the admissibility of documents were wrong in law; and ii) there was no
    reasonable basis for Mr. Groias personal attacks on the OSC prosecutors.

[225]

As I mentioned
    earlier, the Appeal Panel concluded that the Hearing Panel had erred by holding
    that it would be an abuse of process to allow Mr. Groia to relitigate the
    Reviewing Courts findings.  It held, for reasons it explained, that the
    Reviewing Courts Reasons, although admissible, should be given limited weight
    in the circumstances of this case.

[226]

The Divisional
    Court agreed.  In its view, the Reviewing Courts Reasons were admissible
    before the Appeal Panel under r. 24.08 of the Law Societys
Rules of
    Practice and Procedure
and under the traditional rules of evidence as part
    of the narrative of the case.  Further, the Reviewing Courts Reasons were
    entitled to limited weight because Mr. Groia had not been a party to the JR
    Application and because neither Reviewing Court had addressed whether Mr.
    Groias conduct amounted to professional misconduct.

[227]

It is
    unnecessary for the disposition of this appeal to resolve the issue of the
    permissible use of the Reviewing Courts Reasons.  The Appeal Panel expressly
    held that they were to be afforded little weight and that they were not
    determinative of the professional misconduct allegations made against Mr.
    Groia.  The Appeal Panels reasons confirm that, in fact, it did not treat the
    Reviewing Courts Reasons as dispositive of the issues before it.  Instead, the
    Appeal Panel conducted an independent review of the record, outlined above, and
    drew its own conclusions regarding the propriety of Mr. Groias conduct in
    light of the Act and the Conduct Rules.

[228]

Nor, contrary to
    Mr. Groias contention, did the Appeal Panel assign undue or improper weight to
    the Reviewing Courts Reasons in assessing whether Mr. Groias conduct
    constituted professional misconduct under the Act and the Conduct Rules.  The
    Appeal Panels references in its conduct analysis to the Reviewing Courts
    Reasons were limited to statements of law and/or policy relating to Mr. Groia's
    legal errors on the issues of admissibility of documents (at paras. 277-79 and
    310), and prosecutorial misconduct and the role of the OSC prosecutors (at paras.
    290-94). The Appeal Panel specifically noted, at para. 280, that these legal errors,
    on their own, could not form the basis of a finding of professional misconduct.

(4)

Appeal Panels Penalty Decision and Costs Award

[229]

Mr. Groia argues
    that the Divisional Court erred in holding that the Appeal Panels imposition
    of a one-month licence suspension was reasonable.  He argues that the Appeal
    Panels Penalty Decision was arbitrary and based on unsupportable findings of
    fact: that Mr. Groias conduct amounted to professional misconduct; that his
    conduct had a serious adverse impact on the Felderhof trial; and that his
    conduct was the impetus for the JR Application.

[230]

These factual
    findings, as I have already concluded, were open to the Appeal Panel on the
    record.  They established that Mr. Groias conduct was neither trivial nor
    spontaneous.  To the contrary, it was serious and persistent.  Further, on the
    Appeal Panels findings, it had a significant negative impact on the progress
    of the Felderhof trial, opposing counsel and Mr. Francisco.

[231]

The Appeal Panel
    also took mitigating factors into account when crafting an appropriate penalty.
    It stressed, in particular, that Mr. Groia had no prior discipline history,
    that he had not engaged in similar misconduct since the Felderhof trial, and
    his acknowledgement that he would do it differently and choose different
    words if he had a chance.  It also considered those cases relied upon by Mr.
    Groia to support his claim that a fit penalty was a reprimand.

[232]

In my view, the
    Appeal Panel engaged in a balanced and fair assessment of Mr. Groias circumstances
    and those surrounding his conduct when fashioning an appropriate penalty.  Its
    Penalty Decision is entitled to considerable deference on the reasonableness
    standard: see
Ryan
, at para. 42.  On the Appeal Panels findings, I
    agree with the Divisional Court that the imposition of a brief licence
    suspension cannot be said to be unreasonable or unjustified.  Consequently,
    there is no basis for appellate interference with the licence suspension
    imposed by the Appeal Panel.

[233]

Mr. Groia also
    argues that the Appeal Panels varied award of the costs of the proceeding
    before the Hearing Panel amounted to an additional and unwarranted penalty.  As
    I have explained, the Appeal Panel reduced the costs awarded to the Law Society
    by the Hearing Panel from $246,960.53 to $200,000.  Mr. Groia says that this
    reduction was arbitrary and that, given the novel and public importance of the
    issues raised before the Hearing Panel, no costs should have been awarded.

[234]

I disagree.  No
    error in principle in the challenged costs award has been demonstrated, nor has
    any reason to depart from the general rule that the reasonable costs of
    investigating and conducting a disciplinary proceeding should not be borne by
    the profession as a whole where a determination adverse to the defending lawyer
    has been made.

[235]

Moreover, the Appeal
    Panels discretionary costs reduction was based on Mr. Groias success before
    the Appeal Panel in arguing, among other matters, that the abuse of process
    doctrine did not apply and that the Hearing Panel had erred in holding to the
    contrary.  The reduction in costs ordered by the Appeal Panel clearly operated
    to Mr. Groias benefit.

[236]

The Appeal
    Panels ruling on costs is also entitled to deference.  Like the Divisional
    Court, I conclude that the reduced costs of the Hearing Panel proceeding awarded
    by the Appeal Panel were reasonable.  In these circumstances, appellate
    intervention is precluded.

(5)

Divisional Courts Costs Award

[237]

Mr. Groia also
    challenges the Divisional Courts $30,000 award of costs to the Law Society.
    He renews his submission, made before the Divisional Court, that the novel and
    public interest issues raised in this case militated in favour of awarding no
    costs of the proceedings before the Divisional Court.

[238]

The Divisional
    Court considered this argument.  It accepted that some measure of public
    interest was engaged, but concluded that this alone did not distinguish this
    case from any number of other appeals that raise important legal issues:
Groia
    v. The Law Society of Upper Canada
, 2015 ONSC 1680, at para. 5.

[239]

This
    discretionary costs ruling cannot be set aside unless it is tainted by an error
    in principle or was plainly wrong:
Hamilton v. Open Window Bakery Ltd.
,
    2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.  The Divisional Court considered
    Mr. Groias argument that costs should not be awarded because of the public
    interest and novel issues raised, and rejected it.  It did not err in principle
    in doing so.  Nor can I say that its costs award was plainly wrong.

[240]

Accordingly, I would
    uphold the Divisional Courts costs award.

VI.      Disposition

[241]

The requirement
    of professionalism for lawyers, both inside and outside a courtroom, including
    zealous advocacy accompanied by courtesy, civility and good faith dealings, secures
    the nobility of the profession in which lawyers in this province are privileged
    to practise.  The Appeal Panel concluded that this requirement was breached in
    this case.  This conclusion, in my opinion, was both reasonable and correct.  I
    would dismiss the appeal.

[242]

Given the
    different standards of review and tests for incivility applied by the Appeal
    Panel and Divisional Court, this appeal engaged issues of significant
    importance to the legal profession and the public.  In my view, guidance from
    this court on the issues raised was both necessary and appropriate.  In the
    circumstances, I would make no order as to the costs of this appeal.

[243]

I do not wish to
    conclude these reasons without expressing the courts appreciation to all
    counsel.  The court was greatly assisted by the thorough and thoughtful
    submissions advanced by counsel.

Released:

JM                                                     E.A.
    Cronk J.A.

JUN 14 2016                                     I agree
    J.C. MacPherson J.A.

Brown J.A. (dissenting):

I.

Introduction

[244]

This is a singular case. The Felderhof
    trial lasted several years, split into two phases. Phase One lasted 70 days;
    Phase Two, 90 days. Neither during nor after the trial did anyone involved in
    the trial complain to the Law Society of Upper Canada about Mr. Groia's
    conduct: not the prosecutors; not the trial judge; not the clients; nor any
    witness. No one.

[245]

The prosecution, the Ontario
    Securities Commission (OSC), did complain about Mr. Groias conduct, but not
    to the Law Society. The OSC complained to the courts. The prosecution first
    complained to the trial judge about Mr. Groias conduct. The trial judge made
    several rulings.

[246]

The rulings did not satisfy the
    prosecution, so it applied to the Superior Court of Justice arguing, in part,
    that Mr. Groia's conduct, and what they saw as the trial judges failure to
    restrain it, were resulting in an unfair trial. The prosecution wanted the
    trial stopped, and a new trial judge appointed.

The application judge of the
    Superior Court of Justice refused to remove the trial judge.

[247]

The OSC appealed to this court.
    The appeal was dismissed.

[248]

So, the trial continued to its
    conclusion  an acquittal of Mr. Felderhof.

[249]

The senior courts to which the
    prosecutors complained were not silent about Mr. Groias conduct. Quite the contrary.
    In no uncertain terms they expressed their very strong displeasure. In the
    language of earlier times, they administered a public shaming to Mr. Groia.
    They told Mr. Groia to cut it out and smarten up. He listened, and he did.
    Phase Two continued without incident.

[250]

Neither the application judge nor
    any of the members of this court in
R. v. Felderhof
(2003), 68 O.R. (3d) 481, complained to the Law
    Society. That option was open to them. That is what the British Columbia Court
    of Appeal did in
R. v. Dunbar, Pollard, Leiding and Kravit
, 2003 BCCA 667, 191 B.C.A.C. 223. But that is not
    what the courts did in this case. A public shaming was administered; directions
    for the remainder of the trial were given; the courts moved on.

[251]

But not the Law Society. In 2003,
    a staff member read an article about the Felderhof trial. A file was opened. In
    2009, after the trial had ended, the Law Society commenced professional
    misconduct proceedings against Mr. Groia, acting as its own complainant.

[252]

The Law Society Hearing Panel and
    Appeal Panel found that Mr. Groia had engaged in professional misconduct for
    his uncivil and unprofessional courtroom submissions and statements during the
    Felderhof trial. The Divisional Court dismissed Mr. Groias appeal from the
    Appeal Panels findings of misconduct, penalty and costs.

[253]

My colleague would uphold those
    results. I must respectfully disagree with much of her analysis and with her
    result. I would grant Mr. Groias appeal.

[254]

This is a dissent, so my task is
    to identify where I disagree with my colleagues analysis and why. However, b
efore explaining the where and the why, I wish to
    stress that I agree, unreservedly, with her description of the role civility
    plays in our litigation system. Specifically, I agree with the view she expresses
    at para. 119:

Civility is not merely aspirational.  It is a codified duty of
    professional conduct enshrined in the Conduct Rules and, as repeatedly
    confirmed by the courts, an essential pillar of the effective functioning of
    the administration of justice.  In Ontario, at least, its necessity and
    importance in our legal system is now settled law.

[255]

Our disagreement, therefore, lies
    not in the continued importance of civility to the health of Ontarios legal
    system. Our disagreement lies in how to determine when a barristers in-court
    conduct amounts to professional misconduct because it is uncivil.

[256]

I would allow the appeal for two
    reasons.  First, in my view, the correctness standard of review applies where a
    discipline regulator deals with allegations of professional misconduct
    involving what a barrister did in a courtroom before a presiding judge.

[257]

Second, the Appeal Panels Conduct
    Decision cannot survive review on either a correctness or reasonableness
    standard. Although the Appeal Panel stated, at paras. 225 and 233, that it
    would assess the members conduct in the context of the dynamics, complexity
    and particular burdens and stakes of the trial, including the reaction of the
    trial judge to the members conduct, the analysis actually conducted by the
    Appeal Panel failed to take into account, in any meaningful way, how the trial
    judge ruled on the complaints by the OSC about Mr. Groias conduct and how Mr.
    Groia responded to the trial judges rulings on those complaints. In brief, the
    Appeal Panel examined Mr. Groias conduct as if only two people were present in
    the courtroom  Mr. Groia and the prosecutor. The Appeal Panel ignored the
    third person  the trial judge  and failed to give any meaningful
    consideration to his rulings about Mr. Groias conduct in its assessment of
    whether that conduct amounted to professional misconduct. That, in my view,
    rendered the Conduct Decision both incorrect and unreasonable.

II.

The Structure of this
    Dissent

[258]

Let me set out the sequence my
    analysis will follow. First, I will review the general principles governing
    standard of review analysis. Second, I will apply those principles to the
    present appeal and explain why a correctness standard applies.

[259]

Third, I will articulate the
    correct test for a professional discipline inquiry into the in-court conduct of
    a barrister, and then assess the test actually formulated by the Appeal Panel
    against that standard.

[260]

In my view, the Appeal Panel
    failed to give any meaningful consideration to how the trial judge ruled on the
    complaints by the OSC about Mr. Groias conduct and how Mr. Groia responded to
    the trial judges rulings on those complaints. Accordingly, I will spend some
    time reviewing the record of the Felderhof trial from Day 52 to Day 70 to
    examine the rulings of the trial judge and Mr. Groias response to them.

[261]

Next, I will examine the Conduct
    Decision, on both correctness and reasonableness standards, concluding that the
    appeal should be allowed, and the allegations against Mr. Groia dismissed.

[262]

I will end by briefly addressing
    the issue of the use the Appeal Panel could make of the Reviewing Courts
    Reasons, on which I agree with my colleagues analysis, and the issue of costs.

III.

Standard of Review: The
    General Principles

[263]

My colleague concludes, at para.
    62, that the reasonableness standard of review applies to the Conduct Decision
    because the Supreme Court of Canada decisions in
Law Society of New
    Brunswick v. Ryan
, 2003 SCC 20, [2003] 1
    S.C.R. 247
and
Doré v. Barreau
    du Quebéc
, 2012 SCC 12, [2012] 1 S.C.R. 395
reinforce the application of the presumption of
    reasonableness for judicial review of a decision of a specialized disciplinary
    body like the Appeal Panel. In her view: Although
Ryan
and
Doré
did not involve in-court conduct, nothing turns on this point.

[264]

With respect, I could not disagree
    more. In my view, everything turns on this point. In the words of the old real
    estate saw, what drives the analysis in this case  both on the standard of
    review and the elements of the test for misconduct  is location, location,
    location.

[265]

Mr. Groia captured the essence of
    the question that lies at the heart of this case in the opening sentences of
    his factum:

Whose responsibility is it to run a trial in a Canadian court
    the trial judge or the Law Society of Upper Canada? Who determines the
    boundaries of acceptable courtroom behavior  judges or regulators?

[266]

Those are the key questions to
    ask. The factor that drives the analysis in this case is the location of the
    impugned conduct  a courtroom.

[267]

In my view, the finding that Mr.
    Groia had committed professional misconduct for statements he made in court
    should be reviewed on the correctness standard. My proposition is a simple one.
    Under our Constitution it is the independent judiciary that controls what takes
    place in a courtroom. In the context of a regulators inquiry into a
    barristers in-court conduct, that principle translates into the application of
    a correctness standard of review. By employing a correctness standard, the
    judiciary maintains its ultimate control over the courtroom by having the last
    word, so to speak, on whether a barristers in-court conduct merits
    professional misconduct sanction.

(1)

The Standard Applied by the Divisional Court

[268]

The question for this court is
    whether the Divisional Court, as the reviewing court, identified the
    appropriate standard of review and applied it properly:
Kanthasamy
    v. Canada (Citizenship and Immigration)
,
2015
    SCC 61, [2015] 3 S.C.R. 909, at para. 42. As my colleague notes, the Divisional
    Court applied the correctness standard to review the Appeal Panels formulation
    of the test for professional misconduct and the reasonableness standard to the
    Appeal Panels application of the test to the facts. In my view, because the
    barristers conduct at issue took place during a court proceeding, the
    correctness standard applies to both the review of the test and to its
    application.

(2)

The Importance of Context for the Standard of Review Analysis

[269]

As the Supreme Court of Canada
    repeatedly has emphasized, the relationship between tribunals and courts is
    context-specific. The degree of deference courts should give to tribunals is
    shaped by the factual context of the matter, as well as by the questions
    considered and determined by the tribunal.

[270]

The standard of review describes
    the dynamics of one facet of the political relationship between the courts, on
    the one hand, and the legislature, the executive and their delegated agencies,
    on the other. Standard of review analysis operates as a form of self-restraint
    by the judiciary on its ability to interfere with decision-making by such
    delegated authorities.

[271]

Standard of review analysis
    usually addresses the degree of deference the court should accord to the
    particular decision of a tribunal. As put by Justice David Stratas, the issue
    concerns the intensity of

review of a tribunals decision: The
    Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and
    Consistency, (17 February 2016), at p. 14, online: Social Science Research
    Network, <http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2733751>.

[272]

Identifying the degree
    of deference typically turns on ascertaining the intention of the legislature
    respecting the work allocated to its delegated decision-maker because the
    notion of deference is rooted in part in a respect for governmental decisions
    to create administrative bodies with delegated powers:
Canada
    (Attorney General) v. Mossop
, [1993]
    1 S.C.R. 554, at p. 596,
per
LHeureux-Dubé J., dissenting. As put by the
    Supreme Court in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 29:
    [W]hen a reviewing court considers the scope of a decision-making power or the
    jurisdiction conferred by a statute, the standard of review analysis strives to
    determine what authority was intended to be given to the body in relation to
    the subject matter.
In
Doré
, the Supreme Court stated, at para.
30: [J]udicial review should be guided by
    a policy of deference, justified on the basis of legislative intent, respect
    for the specialized expertise of administrative decision-makers, and
    recognition that courts do not have a monopoly on adjudication in the
    administrative state.

[273]

The judicial task
    of understanding legislative intent is done within the context of the courts
    constitutional duty to ensure that public authorities do not overreach their
    lawful powers:

Dunsmuir
, at para. 29. In conducting a
    judicial review analysis, [t]he
judge is
    on the outside of the administration looking in:
Dunsmuir
, at para. 123,
per
Binnie J.,
    concurring.

[274]

A distinctive
    feature of this appeal is that while the reviewing courts may well be standing
    on the outside of the administration[s] [regulator] looking in, here, the
    regulator was inquiring into conduct that took place within a courtroom, the
    preserve of an independent branch of our government  the judiciary:
Ocean
    Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and
    Licensing Branch)
, 2001
    SCC 52, [2001] 2 S.C.R. 781, at paras. 23 and 30. Here, the regulator was not
    considering where a pipeline should run, or whether entitlement to social
    benefits had been established. Instead, the regulator was examining conduct
    that occurred within the daily workplace of the judiciary.

[275]

That distinctive
    context of this case forces us to recall that limits do
exist on the ability of legislatures to allocate the
    power to decide an issue or matter to entities other than the courts.  As
    Binnie J. notes in
Dunsmuir
, at
    paras. 126-27:

It should not be difficult in the course of judicial review to
    identify legal questions requiring disposition by a judge.  There are
    three basic legal limits on the allocation of administrative discretion.

Firstly, the Constitution restricts the legislators ability to
    allocate issues to administrative bodies which
s. 96
of the
Constitution Act, 1867
has allocated to the courts.  The logic of the constitutional limitation
    is obvious.  If the limitation did not exist, the government could
    transfer the work of the courts to administrative bodies that are not
    independent of the executive and by statute immunize the decisions of these
    bodies from effective judicial review.  The country would still possess an
    independent judiciary, but the courts would not be available to citizens whose
    rights or interests are trapped in the administration.

[276]

Mr. Groia points to such limits to
    argue that the Law Society lacks the jurisdiction to review what barristers do
    in courtrooms, except where (i) the barrister has been subject to a contempt
    finding, (ii) both the trial judges and barristers conduct are subject to
    disciplinary review, or (iii) the trial judge has severely criticized the
    barristers conduct or complained about it to the Law Society.

[277]

I do not accept his argument, put
    that way. The
Law Society Act
proscribes a licensee from engaging in professional misconduct. The Act gives
    the Law Society the power to determine whether a licensee has breached that
    proscription: ss. 33, 34 and 49.3. Some licensees practise as barristers. Part
    of their professional work occurs in the courtroom. On the face of the statute,
    the Law Society has the jurisdiction to investigate a barristers in-court
    conduct, and Mr. Groia has not challenged the constitutionality of that
    statutory scheme.

[278]

But, to acknowledge the statutory
    jurisdiction of the Law Society to inquire into a barristers in-court conduct
    does not lessen the significance of the location of that conduct. A barristers
    in-court conduct is conduct that occurs in the workplace of an independent
    judiciary. That distinctive fact means the standard of review analysis in the
    present case cannot be driven by the typical quest to ascertain the
    legislatures intent regarding the Law Societys disciplinary powers.

[279]

Instead, the
    standard of review analysis must be alive to the constitutional implications of
    where the subject-matter of the regulators inquiry took place. J
ust
because the
    legislature intends to give authority to a tribunal does not mean that courts
    must give unlimited effect to that intention where the legislature enters an
    arena into which it, and its delegates, must go with a deferential, subordinate
    attitude  the workplace of the judiciary. The courts constitutional
    independence casts a strong shadow over how judicial review is to be conducted
    in this case, particularly in respect of the degree of deference the court should
    accord to the Law Societys decision as the statutory regulator of a
    barristers in-court conduct.

[280]

In practical
    terms, deciding whether a correctness or a reasonableness standard applies will
    determine which branch of government has the final say on the questions at
    issue.  If a correctness standard applies, the court has the last word in
    answering the question because the court will decide whether it agrees with
    the determination of the decision maker; if not, the court will substitute its
    own view and provide the correct answer:

Dunsmuir
, at para. 50. By contrast, where the
    reasonableness standard applies, under the
Dunsmuir
paradigm it is very difficult
    although not impossible  for a court to interfere with an administrative
    decision.

[281]

At issue, then,
    in this case is the question of who has the last word in deciding whether Mr.
    Groias conduct before the trial judge justifies professional sanction: the
    court, or a tribunal exercising powers delegated by the legislature?

IV.

Standard of Review: The Principles Applied

(1)

The Two-Step Analysis

[282]

The standard of review analysis
    involves two steps.  First, a court must ascertain whether the jurisprudence
    has already determined in a satisfactory manner the degree of deference to be
    accorded to a particular category of question.  Second, where the first inquiry
    proves unfruitful, courts must proceed to an analysis of the factors making it
    possible to identify the proper standard of review:
Dunsmuir
, at para. 62.

(2)

The Existing Jurisprudence

[283]

In my view, the existing
    jurisprudence has not already determined, in a satisfactory manner, the degree
    of deference to be accorded to decisions involving the particular category of
    question raised by this appeal  whether the conduct of counsel in a courtroom
    in the presence of a judge amounts to professional misconduct.

[284]

The seminal case concerning the
    standard of review applicable to legal disciplinary panels is
Ryan
, in which the Supreme Court adopted a reasonableness
    standard to review a sanction imposed for professional misconduct. Although
Ryan
was decided in the pre-
Dunsmuir
era, its approach was followed in
Doré
where the court stated, at para. 45: It seems to me
    that applying the
Dunsmuir
principles results in reasonableness remaining the applicable review standard
    for disciplinary panels.

[285]

Neither
Ryan
nor
Doré
examined what impact would result on the standard of review analysis from
    the fact that the conduct of the lawyer took place before a judge in open
    court.  The conduct at issue in
Ryan
was the lawyers failure to carry out services for his client and then
    lying to his clients to cover-up his failure. Also, in
Ryan
the lawyer admitted his misconduct, so the case only
    considered the appropriate sanction.

[286]

Doré
did involve the
    conduct of a lawyer towards a judge, but not in open court. Following a court
    appearance, the lawyer had written a highly critical letter to the judge.
    Significantly, the judge passed the letter along to his chief justice who, in
    turn, sent the letter to the Syndic du Barreau, leading the Syndic to file the
    complaint against its member:
Doré
, at paras. 11-13.

[287]

Counsel referred us to two
    Divisional Court cases which applied the
Ryan
reasonableness standard, but both involved
    out-of-court conduct, specifically sexual misconduct:
Law Society of
    Upper Canada v. Evans
(2008), 91 O.R. (3d)
    163;
Igbinosun v. Law Society of Upper Canada
(2008), 239 O.A.C. 178.

[288]

Finally, in
Goldberg v.
    Law Society of British Columbia
, 2009 BCCA
    147, 92 B.C.L.R. (4th) 18, the British Columbia Court of Appeal applied the
    reasonableness standard to its review of the law societys finding of
    professional misconduct based on the lawyers in-court conduct during an
    earlier appeal in
Dunbar
. During
    the course of four appeals heard together, the lawyer had alleged that the
    appellants former counsel had failed to provide them with effective
    representation at their trials. The appeal court in
Dunbar
rejected those allegations, condemning them as
    groundless and irresponsible. Significantly, the court referred the lawyers
    conduct to the law society, stating, at para. 343:

We would ask counsel for the
    Crown, Mr. Sweeney, to draw these reasons to the attention of the Law Society
    of British Columbia, the Legal Services Society, or any other body who might
    reasonably have an interest in controlling and preventing the conduct we have
    described.

[289]

In
Goldberg
, the British Columbia Court of Appeal followed
Ryan
and
Dunsmuir
concluding, at para. 37, that reasonableness was the appropriate test
    for this case, without further analysis.

[290]

In neither
Doré
nor
Goldberg
did the courts advert to the unique inter-institutional considerations
    that arise when a state regulator reviews conduct which takes place in a
    courtroom, the workplace of the independent judiciary. I think the reason they
    did not is clear: in both cases the courts had called upon the state regulator
    to conduct an inquiry into the lawyers conduct.  In this case, no judge
    invited the Law Society to conduct an inquiry into Mr. Groias conduct.

[291]

The circumstances of this case
    differ markedly from those in
Ryan
,
Doré
and
Goldberg
, necessitating an examination from first principles
    of how the inter-institutional relationship between an independent judiciary
    and a government regulator affects the selection of the appropriate standard of
    review.

(3)      Examining the Standard of Review Factors

(i)       The Existence of a Privative Clause

[292]

The first factor in a standard of
    review analysis involves ascertaining whether the legislature has limited the
    scope of review of a tribunals decision through the inclusion of a privative
    clause in the tribunals home statute. A privative clause may evidence a
    legislatures intent that an administrative decision maker be given greater
    deference and that interference by reviewing courts be minimized:
Dunsmuir
, at para. 52.

[293]

But, the analysis is not
    symmetrical. The absence of a privative clause may carry less weight than the
    presence of one. In
Ryan
, the
    Supreme Court discounted the absence of a privative clause in the New Brunswick
    Law Societys home statute because [t]he
specialization of duties intended by the legislature may warrant
    deference notwithstanding the absence of a privative clause: at para. 29.

[294]

The privative clause in the
Law
    Society Act
is a hybrid one  any party
    other than the Law Society may appeal a decision of the Appeal Division on any
    grounds, but the Law Society may appeal only on a question that is not a
    question of fact alone, except in the case of a cost order: ss. 49.39(1)-(2).
    Although this privative clause suggests a low standard of deference to the
    decisions of the Law Society,
Ryan
compels the consideration of other factors which may suggest a higher
    degree of deference.

(ii)      Comparative Institutional Expertise

[295]

The existence of a discrete and
    special administrative regime in which the decision-maker has special expertise
    may indicate that courts should defer to the tribunals decisions:
Dunsmuir
, at para. 55. This factor requires measuring the
    expertise of the tribunal relative to that of the reviewing court on the issue
    in question:
Ryan
, at para. 27.

[296]

The policy reasons underlying the
    need for an examination of comparative institutional expertise were explained
    in
Dunsmuir,
at para. 49:

As Mullan explains, a policy of
    deference recognizes the reality that, in many instances, those working day to
    day in the implementation of frequently complex administrative schemes have or
    will develop a considerable degree of expertise or field sensitivity to the
    imperatives and nuances of the legislative regime: D. J. Mullan, Establishing
    the Standard of Review: The Struggle for Complexity? (2004), 17

C.J.A.L.P.

59, at p.
    93.

[297]

Building on Professor Mullans
    analysis, the Supreme Court in
Doré
, at paras. 47 and 54, flagged the attributes of administrative tribunals
    relevant to the issue of comparative expertise: their skills, expertise and
    knowledge in a particular area; their privileged situation as regards the
    appreciation of the relevant facts; and their proximity to the facts of the
    case.
In the
Dunsmuir
paradigm, deference requires respect for the
    legislative choices to leave some matters in the hands of administrative
    decision makers because of reasons of superior institutional expertise and
    different institutional roles within the Canadian constitutional system.

(a)

Limits Placed on Legislative Choice when Dealing
    with What Takes Place in a Courtroom

[298]

In his concurring reasons in
Dunsmuir
, Binnie J. cautioned that our constitutional system
    places limits on the choices legislatures can make vis-à-vis the courts.
    Legislatures cannot strip s. 96 courts of their subject-matter jurisdiction.
    Nor, in my view, can legislatures remove from the courts  s. 96 or statutory
    their primary responsibility for ensuring that counsel who appear before them
    act in an appropriate manner to ensure trial fairness. The legislative choice
    to leave some courtroom-related matters in the hands of administrative
    decision-makers must respect
the different roles
    of the courts and administrative bodies within the Canadian constitutional
    system.

[299]

Courts  both s. 96 courts and provincial
    courts  bear the primary responsibility for managing the adjudicative
    processes and for monitoring how litigants and their counsel use them. That
    responsibility necessarily follows from the principle of judicial independence.
    As stated by the Supreme Court in
R. v. Anderson
, 2014 SCC 41,
[2014] 2 S.C.R. 167,
at para. 58:

Superior courts possess inherent jurisdiction to ensure that
    the machinery of the court functions in an orderly and effective manner:
R.
    v. Cunningham
, [2010] 1 S.C.R. 331, at para. 18;
Ontario v.
    Criminal Lawyers Association of Ontario
, [2013] 3 S.C.R. 3, at para.
    26. Similarly, in order to function as courts of law, statutory courts have
    implicit powers that derive from the courts authority to control its own
    process:
Cunningham
, at para.18. This jurisdiction includes
    the power to penalize counsel for ignoring rulings or orders, or for
    inappropriate behaviour such as tardiness, incivility, abusive
    cross-examination, improper opening or closing addresses or inappropriate attire.
    Sanctions may include orders to comply, adjournments, extensions of time,
    warnings, cost awards, dismissals, and contempt proceedings.

See also:
R. v. Snow
(2004), 73 O.R. (3d) 40 (C.A.), at para. 24.

[300]

In
Anderson
, the Supreme Court observed, at para. 59, that
    deference is not owed to counsel who are behaving inappropriately in the
    courtroom. And in
Felderhof
,
    this court stated, at para. 40:

Whatever may have been the case in the past, it is no longer
    possible to view the trial judge as little more than a referee who must sit
    passively while counsel call the case in any fashion they please It would
    undermine the administration of justice if a trial judge had no power to
    intervene at an appropriate time and, like this trial judge, after hearing
    submissions, make directions necessary to ensure that the trial proceeds in an
    orderly manner. I do not see this power as a limited one resting solely on the
    court's power to intervene to prevent an abuse of its process. Rather, the
    power is founded on the court's inherent jurisdiction to control its own
    process.

[301]

Civility is one aspect of
    counsels conduct in a courtroom. The obligation on judges to enforce civility
    was stressed by this court in
Marchand (Litigation guardian of) v.
    Public General Hospital Society of Chatham
(2000), 51 O.R. (3d) 97, at para. 148:
Just as civility in the courtroom is very much the responsibility of
    counsel, it is also very much the responsibility of the trial judge. It is [a]
    shared responsibility of profound importance to the administration of justice
    and its standing in the eyes of the public it serves.

[302]

The Law Society submits that its
    mandate to govern lawyers in the public interest requires it to enforce
    standards for professional behaviour, including professional behaviour in the
    courtroom. I do not quarrel with that proposition. But, that is not what this
    appeal is about. As I mentioned earlier, at issue is not the jurisdiction of
    the Law Society to review how a barrister acts in a courtroom.  Rather, the
    question is: when the Law Society does review a barristers courtroom conduct,
    what standard of review should a court apply to the regulators decision? The
    judiciarys constitutional responsibility for what goes on in its courtrooms
    points to the application of a standard of correctness so that the judiciary
    retains the last word, so to speak, about what happens in its courtrooms.

(b)

Comparative Institutional Skills

[303]

On the issue of comparative
    institutional skills, one must ask the following question, using the words of
    Professor Mullan: As between the courts and the Law Society, which institution,
    through its working day to day, has developed the greater field sensitivity
    to the imperatives and nuances of what constitutes acceptable conduct in a
    courtroom?

[304]

I think simply posing the question
    provides the answer. Although the hearing and appeal panels of the Law Society
    contain some members who are experienced  indeed, highly skilled  litigators,
    discipline panels do not work day to day to maintain in the courtrooms of our
    province appropriate standards of conduct by counsel. The judiciary does.

[305]

Professor Alice Woolley offers
    some indirect empirical support for this conclusion. In a 2013 update to her
    earlier article, Does Civility Matter? (2008) 46 Osgoode Hall L.J. 175, Professor
    Woolley wrote that a review of the disciplinary record from the common law
    provinces from 2007 through 2012 disclosed only 10 disciplinary decisions
    addressing civility, to which must be added the
Doré
matter in Quebec: Uncivil by Too Much Civility?:
    Critiquing Five More Years of Civility Regulation in Canada (2013) 36 Dal.
    L.J. 239, at pp. 243-44. Against these 11 cases, one can only imagine the
    thousands of cases which passed through the courts during the same period of
    time, each requiring, in its own way, efforts by the presiding judge to manage
    the adjudicative process, including counsels conduct.

[306]

I recognize that in
Ryan
the Supreme Court concluded the regulators
    discipline committee had greater expertise than courts in the choice of sanction
    for breaches of professional standards because law society discipline committee
    members
may be more intimately acquainted with the
    ways that these standards play out in the everyday practice of law than judges
    who no longer take part in the solicitor-client relationship.  Practising
    lawyers are uniquely positioned to identify professional misconduct and to
    appreciate its severity: at para. 31. While that may be true of questions
    concerning a lawyers out-of-court conduct  the issue in
Ryan
 the
    same cannot be said of the question of appropriate standards for in-court
    conduct.

[307]

I certainly recognize that some
    individual judges strive more vigorously than others to maintain appropriate
    standards of conduct in their courtrooms. However, when considering the
    selection of the appropriate standard of review, we are not concerned about how
    individual judges act, or how individual tribunal members act; we are concerned
    about comparative institutional expertise. In my view, the institution
working day to day with the issue of counsels
    in-court conduct is the judiciary. This workplace reality gives courts greater
    comparative institutional expertise than law society regulators on the question
    of appropriate in-court conduct by barristers.

(iii)     The
    Nature of the Question

[308]

The questions before the Hearing
    and Appeal Panels were two-fold: (i) the interpretation of by-laws made under
    the
Law Society Act
to ascertain
    when uncivil in-court conduct amounts to professional misconduct; and (ii) the
    application of the resulting interpretation to the specific facts of the case
    to determine whether Mr. Groia had breached the by-laws and engaged in
    professional misconduct. The first question is a question of law, calling for
    the interpretation of a provision in the tribunals home statute or regulation.
    The second question is one of mixed fact and law.

[309]

Current standard of review
    jurisprudence holds that the nature of both those questions attracts the
    deferential reasonableness standard. An administrative decision-makers interpretation
    of its home or closely-connected statutes is presumed to be a question of
    statutory interpretation subject to deference on judicial review:
Alberta
    (Information and Privacy Commissioner) v. Alberta Teachers Association
, 2011 SCC 61,
[2011] 3 S.C.R. 654,
at para. 34. Questions of mixed fact and law contain
    fact-intensive elements which suggest a high degree of deference:
Ryan
, at para. 41;
Dunsmuir
, at para. 164,
per
Deschamps J., concurring.

[310]

But, presumptions can be rebutted,
    and exceptions always exist to any general rule. Certain categories of
    questions  even when they involve the interpretation of a home statute
    warrant review on a correctness standard. These include questions of general
    law of central importance to the legal system as a whole and outside the
    adjudicators specialized area of expertise, and true questions of
    jurisdiction:
Dunsmuir
, at
    paras. 59-60. But, those are not the exceptions at play in this appeal.

[311]

More to the point for the purposes
    of this appeal, a contextual analysis may rebut the presumption of
    reasonableness review for questions involving the interpretation of the home
    statute:
McLean v. British Columbia (Securities Commission)
, 2013 SCC 67,
[2013] 3 S.C.R. 895,
at para. 22. As Rothstein J. wrote in
Rogers
    Communications Inc. v. Society of Composers, Authors and Music Publishers of
    Canada
,
2012 SCC 35, [2012] 2 S.C.R.
    283, at para. 16:

ATA

and

Dunsmuir

allow for the exceptional

other

case to rebut the
    presumption of reasonableness review for questions involving the interpretation
    of the home statute.

[312]

In my view, the
    context of this case rebuts the general presumption and makes it one of the
    exceptional cases. Although this appeal involves the interpretation of the
Rules
    of Professional Conduct
 part of a home statute  and their application to
    Mr. Groias conduct, what determines the standard of review analysis is the
    contextual reality that the members impugned conduct took place in a
    courtroom, the workplace of the independent judiciary. Any interpretation and
    application of the home statute to Mr. Groias conduct has implications about
    who has the ultimate say in what conduct by counsel before the courts is
    acceptable or not  the courts or the legislatures delegated decision-maker.
    Because the nature of those questions engages the contours of the
    constitutional relationship between the courts and government regulators, a
    correctness standard of review applies.

(4)      Conclusion on the Standard of Review

[313]

For those reasons, I conclude that
    the correctness standard applies to the judicial review (or appeal) of a
    decision of a legal discipline committee on the question of whether the conduct
    of a barrister in a courtroom before a presiding judge constitutes professional
    misconduct. Adopting the correctness standard of review for in-court conduct
    does not oust the jurisdiction of the Law Society to entertain and decide
    complaints about a members in-court conduct.  A correctness standard, however,
    gives the courts the final word on whether a barristers in-court conduct
    amounts to professional misconduct. If the reviewing court disagrees with the
    discipline tribunal's conclusion, it would be free to substitute its own
    opinion.  In other words, under the correctness standard, the courts remain the
    final umpires of the propriety of what barristers do in courtrooms.

V.       Identifying
    the Test for In-Court Professional Misconduct

(1)

The Challenges in Formulating a Test

[314]

As the Divisional Court
    recognized, formulating a test to determine when uncivil conduct in the
    courtroom in the defence of an accused would amount to professional misconduct
    is a difficult task.

[315]

First, as the Divisional Court
    noted, at para. 67, too many variables are involved in the activities that
    unfold in a courtroom to craft a standard possessing the exactitude of a
    scientific or mathematical formula. The Appeal Panel also recognized, at para.
    233, that the assessment of conduct by a barrister must be fact-specific: In
    assessing the context of courtroom communications, it will be important to
    consider the dynamics, complexity and particular burdens and stakes of the
    trial.

[316]

Second, the interests at stake in
    a criminal trial are extraordinarily serious, with the conviction of the
    accused possibly resulting in the loss of his or her liberty. The image of
    defence counsel as standing between the accused individual and the power of the
    state is not a fanciful one; it is the living reality of the contemporary
    criminal trial courtroom. As described by the Divisional Court, at para. 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, 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.

[317]

The task of identifying when
    zealous courtroom advocacy on behalf of an accused crosses the boundary into
    professional misconduct must never lose sight of what is at stake in a criminal
    proceeding.

[318]

The challenges in articulating a
    test are matched by the challenges in applying any test to alleged misconduct.
    By its nature, a professional discipline proceeding is an exercise in the
    retrospective examination of counsels conduct by those who were not present
    when the conduct occurred and who lack the ability to re-create, with precision
    and certainty, exactly what took place. A discipline review is largely
    transcript-based, restricting the reviewers ability to understand the sense
    and nuance of the moment. Retrospective transcript-based reviews contain
    inherent limitations which can produce an artificial understanding of what took
    place in the courtroom, and which risk turning the review into an exercise in
    Monday-morning quarterbacking.

(2)

The Key Elements
    of a General Test

[319]

Those difficulties and
    challenges necessitate formulating and applying a test for in-court
    professional misconduct that robustly takes into consideration all the
    surrounding circumstances of what happened in the courtroom. That is
    accomplished, in my view, by ensuring that any inquiry into whether a
    barristers in-court conduct amounts to professional misconduct takes into
    account three main factors:

(i)

What the barrister did;

(ii)

What the presiding
    judge did about the barristers conduct and how the barrister responded to the
    directions of the presiding judge; and

(iii)

What effect the conduct
    complained of had on the fairness of the in-court proceeding, including the
    ability of the opposing side to present its case.

(i)

What the Barrister Did

[320]

The first factor  what the barrister
    did  requires examining several matters: (i) the nature of the conduct
    complained about; (ii) where and when the conduct occurred; (iii) the duration
    of the conduct; and (iv) the reason for the conduct, including whether the
    barrister was reacting to provocation from the other side.

(ii)

What the Presiding Judge
    Did

[321]

The second factor  what the
    presiding judge did about the conduct in issue  requires asking several
    questions: (i) Did any participant in the hearing complain to the presiding
    judge about the barristers conduct? (ii) Did the presiding judge issue any
    direction to the barrister to limit or cease the conduct complained of? (iii)
    Did the presiding judge impose any sanction on the barrister for the conduct?
    (iv) Did the barrister comply with any directions given or sanction imposed by
    the presiding judge?

[322]

The importance of this factor
    rests on the simple proposition that under the constitutional principle of
    judicial independence, it is judges who are responsible for managing our
    nations courtrooms to ensure that the proceedings are fair and that justice is
    done in the particular case. At the core of the principle of judicial
    independence lies the power of the court to control its own process:
MacMillan
    Bloedel Ltd. v. Simpson
, [1995] 4 S.C.R.
    725, at para. 33. As this court stated in
Snow
, at para. 24:

[A] trial judge is certainly
    entitled to control the proceedings and to intervene when counsel fail to
    follow the rules or abide by rulings. A trial judge is not a mere observer who
    must sit by passively allowing counsel to conduct the proceedings in any manner
    they choose. It is well recognized that a trial judge is entitled to manage the
    trial and control the procedure to ensure that the trial is effective,
    efficient and fair to both sides

[323]

Duties accompany authority. A
    presiding judges power to control and manage the trial or hearing spawns a
    corresponding duty on the judge to maintain civility in the courtroom.
In
Landolfi v. Fargione
(2006), 79 O.R. (3d) 767,
    this court wrote, at para. 101, about the trial judge's responsibility to
    maintain civility in the courtroom and to intervene to avoid the risk of
    prejudice. As this court has stated,

civility
    in the courtroom is not only the responsibility of counsel but also very much
    the responsibility of the trial judge:
Felderhof
, at para. 94;
Marchand
,
    at para. 148.

[324]

The rationale for this
    duty of the trial judge was described by Molloy J.
in
Abdallah v. Snopek
(2008), 89 O.R. (3d) 771 (Div. Ct.), at paras. 43 and
    45:

There is also an important role
    to be played by the trial judge when counsel step beyond the bounds of
    acceptable conduct in the course of the trial

[C]ourts have recognized that permitting counsel to engage in
    offensive conduct or make offensive statements in a trial is not simply a
    matter affecting the parties; it also reflects poorly on the courts and on the
    public perception of the fair administration of justice. Further, where conduct
    of this nature occurs, depending on its magnitude, there is a responsibility on
    the trial judge to step in.

[325]

Mr. Groia submits that allowing a
    government regulator to review a barristers in-court conduct would impinge on
    the principle of judicial independence because it could result in an
    after-the-fact decision by the regulator about how the judge should have
    conducted the case, specifically with respect to controlling counsels conduct.
    I agree that such a risk exists. In my view, the way to prevent that risk from
    occurring is to require the regulator, as part of its examination of the
    barristers conduct during a professional discipline review, to take into account
    and to give great weight to how the presiding judge responded to the lawyers
    conduct.  Let me explain.

[326]

When called upon to review the
    in-court conduct of a barrister, the court and the regulator look at the same
    subject-matter  the barristers conduct. As well, the interests they seek to
    protect by their reviews of the barristers conduct largely overlap. Both
    monitor a barristers conduct in order to preserve the publics respect for the
    court and for the administration of the criminal justice system, thereby
    maintaining the legitimacy of the results of the adjudication.

[327]

Where the court and regulator part
    company is in what they can do about misconduct by a barrister. The range of
    tools and sanctions available to a court is limited to regulating the
    barristers continued participation in the court proceeding, with contempt as
    the ultimate sanction.  Even then, a contempt finding by and large seeks to
    secure the barristers compliance with the directions given by the court for
    the remainder of the proceeding.

[328]

By contrast, the regulator can
    limit the ability of the barrister to practise his or her profession, including
    the suspension or termination of his or her licence.

[329]

Stripped to its basics, whereas
    the sanctions a court applies for in-court misconduct are designed to ensure
    that the particular proceeding continues in a fair way, free from further
    misconduct by the barrister, the regulator can hit the barrister in the pocket
    book after the proceeding ends.

[330]

Due to the very significant
    overlap in what the court and the regulator look at when reviewing the in-court
    conduct of a barrister, as well as in the interests they seek to protect, a
    risk does exist that a regulators review of in-court conduct could end up
    second-guessing how the presiding judge responded to the barristers conduct. A
    regulatory discipline review that second-guesses how a judge managed a court
    proceeding would impermissibly step over the constitutional boundary between
    the legislature and the judiciary. Under our Constitution, any second-guessing
    of a hearing judges decision falls to an appellate court to perform, not to a
    government regulator.

[331]

To avoid such a risk coming to
    pass, and in order to respect the primacy of judicial control over what goes on
    in the courtroom, the Law Society, when considering whether a barristers
    in-court conduct falls to the level of professional misconduct, must pay
    careful attention to and give deference to any rulings the presiding judge made
    concerning the misconduct alleged, together with the barristers response to
    those judicial rulings.

[332]

Given the variety of in-court
    misconduct in which counsel can engage, it is difficult to set down precise
    guidelines about how a regulator should take into account the presiding judges
    rulings concerning counsels misconduct.  That said, I cannot conceive how a
    regulators finding of in-court professional misconduct could meet either the
    correctness or reasonableness standards if the regulator failed to meaningfully
    take into account the presiding judges rulings.

[333]

There are two other reasons why
    the Law Society must consider how the presiding judge responds to the
    barristers conduct. First, when a barrister walks into a courtroom, the
    barrister reasonably expects that he or she can look to the presiding judge for
    direction as to what conduct is on-side, and what is off-side. That expectation
    is a reasonable one. If a barrister complies with and satisfies the directions
    given by the presiding judge about how to act during a proceeding, a great
    unfairness could arise if, after the proceeding ends, the barrister is exposed
    to allegations of professional misconduct.

[334]

Second, given the realities of the
    courtroom dynamic and the great difficulty of recreating that dynamic
    after-the-fact, the presiding judge, as the representative of the public
    interest who is on the scene, stands in the best position to gauge the
    appropriateness of the conduct of those participating in the proceeding. The
    presiding judge is closest to the facts and best positioned to be alive to the context
    of, and nuances in, the unfolding human drama.

[335]

I acknowledge that the obligation
    of the Law Society to take into account, in a meaningful way, how the presiding
    judge deals with the barristers conduct will, as a practical matter, narrow
    the Law Societys scope for review of in-court conduct by a member. For
    example, I have difficulty seeing how a regulators finding of misconduct could
    meet the correctness or reasonableness standard where it sanctions a barrister
    for conduct which was the subject of complaint to the presiding judge, on which
    the presiding judge ruled, and where the presiding judge was satisfied with
    counsels response to the ruling. Perhaps, if the trial judges ruling on the
    barristers conduct had resulted in an unfair trial, professional misconduct by
    the member would arise. But that would be a most exceptional case.

[336]

Such a practical limit on the Law
    Societys exercise of its statutory disciplinary power over a barrister simply
    reflects the need for the legislature, and its delegated decision-maker, to
    respect the constitutional independence of the judiciary to control the
    proceedings in our provinces courts.

(iii)

The Effect of the Conduct
    on Trial Fairness

[337]

The third and final factor  the
    effect of the barristers conduct on the fairness of the court proceeding
    requires considering whether the barristers conduct undermined, or threatened
    to undermine, trial fairness.

(iv)

A Discipline Tribunal Must
    Consider All Three Factors

[338]

Any inquiry by a discipline
    tribunal into whether a barristers in-court conduct amounts to professional
    misconduct must take into account all three factors. To focus on one factor,
    such as what the barrister did, without taking into account the other two
    factors, would result in an artificial and partial consideration of the
    lawyers conduct, divorced from what was unfolding in real-time in the
    courtroom.

[339]

As well, it would ignore the
    constitutional shadow cast over the Law Societys exercise of its power to
    discipline a barrister for in-court conduct. The Law Society must abide by the
    principle that control over the conduct of any participant in a proceeding in a
    courtroom ultimately rests with the judiciary.

[340]

Before moving on to consider the
    tests formulated by the Appeal Panel and Divisional Court, I wish to address a
    point made by my colleague. She writes, at para. 164, that the parties agreed
    to the test for in-court misconduct ultimately adopted by the Appeal Panel.
    Before this court, the intervener, the Canadian Civil Liberties Association,
    submits there was no agreement on the appropriate test. The CCLA submits the
    Appeal Panel took an agreement amongst parties with respect to how counsel
    could properly advance allegations of prosecutorial misconduct, and then
    wrongly flipped, or re-characterized, that agreement into one governing the
    entire inquiry into whether professional misconduct had occurred.

[341]

The Appeal Panels reasons support
    the CCLAs submission. The parties certainly agreed on how to approach one
    issue  the extent to which zealous defence counsel may impugn the integrity
    of opposing counsel, and make allegations of prosecutorial misconduct. The
    Appeal Panel recorded, at para. 234, that the parties and interveners agreed that
    it is wrong to make allegations of prosecutorial misconduct that impugn the
    integrity of opposing counsel unless those allegations are made in good faith
    and have a reasonable basis.

[342]

However, it is apparent from the
    Appeal Panels reasons that the parties disagreed on whether a finding of
    professional misconduct required the presence of other factors. For example,
    the Appeal Panel specifically rejected, at paras. 222 and 224, Mr. Groias
    submission that the Law Society should not discipline a lawyer for conduct in
    open court unless the lawyer had been found in contempt, the judge had referred
    the lawyers conduct to the Law Society, or the behaviour of the lawyer and
    judge is so egregious that both are subjected to discipline. The Appeal Panel
    also rejected, at paras. 227-28, the submission that disciplinary action was
    only appropriate where there existed egregious or continuous conduct that
    serves to threaten or undermine the integrity of the administration of
    justice, or is reasonably likely to cause a miscarriage of justice.

[343]

So, while the parties may have
    agreed on one element of the test to determine whether in-court conduct amounts
    to professional misconduct, they disagreed on other elements.

[344]

In any event, given the
    constitutional shadow within which the Law Society must operate when
    investigating a barristers in-court conduct, the appropriate test for in-court
    professional misconduct cannot be determined by agreement amongst the parties;
    it requires the concurrence of the courts.

(3)      Assessing the Test Formulated and Applied Below

[345]

Of the three factors identified
    above, the Appeal Panels test for in-court professional misconduct gave
    meaningful effect only to the first factor  what the barrister did. Otherwise,
    the Appeal Panel formulated a test that was partial and incomplete, and
    therefore incorrect. I now examine how the Appeal Panel dealt with each
    element.

(i)

What the Barrister Did

[346]

As to the first factor  what the
    barrister did  the Divisional Court formulated, at para. 74, the standard against
    which to measure the barristers conduct:

[T]he 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.

[347]

The Appeal Panel articulated this
    part of the test in very similar terms. I agree with it as a proper statement
    of the what the barrister did factor.

(ii)

The Effect of the
    Barristers Conduct

[348]

I will now skip ahead to consider
    the third factor  the
effect of the
    barristers conduct on the fairness of the in-court proceeding. I will leave
    the examination of the second factor  what the judge did  to subsequent
    sections where I can deal together with both the law and the applicable
    evidence.

[349]

As to the third factor,
the Divisional Court stated, at paras. 75-76:

[T]here 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
    disrepute, or would have the tendency to do so

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

[350]

I agree with the Divisional Court that
    the inquiry into a barristers in-court conduct must include a consideration of
    the effect of the impugned conduct on the proceeding in which it occurred. I
    disagree with the Divisional Courts conclusion that the Appeal Panel, while
    not adverting to this factor, in fact included it in their analysis. (I will
    deal with that issue later in these reasons.)

[351]

Here, I respectfully differ with
    my colleague who disagrees with the Divisional Courts add-on.

[352]

All who have been called upon to
    review formally what took place in Phase One of the Felderhof trial have
    acknowledged the important role played by counsels zealous advocacy on behalf
    of accused persons. Such advocacy ensures that those charged by the state with
    a crime receive a fair and public hearing by an independent and impartial
    tribunal. In
Doré
, the Supreme
    Court emphasized, at para. 66: Disciplinary bodies must therefore demonstrate
    that they have given due regard to the importance of the expressive rights at
    issue, both in light of an individual lawyers right to expression and the
    publics interest in open discussion.

[353]

Assessing when advocacy crosses
    the line from permissible zealousness to impermissible professional misconduct
    not only requires inquiring into the nature of the barristers conduct  what
    the barrister did  but also into its degree or, more precisely, its
    permissible degree of excess.

[354]

How does one measure that degree
    of excess, the tipping point at which zealous advocacy morphs into professional
    misconduct? Or, to pose the question in the way suggested by The Advocates
    Society, how does one measure the allowable margin of error so that advocates
    do not feel unduly constrained by the threat of prosecution for incivility?

[355]

The inquiry into professional
    in-court misconduct requires some measure for the degree of permissible excess
    to ensure that a regulator does not intrude unduly into the workings of the
    courtroom or on the independence of the barristers who are defending those
    accused by the government. In my view, that measure requires the regulators
    professional misconduct inquiry to include a consideration of the impact of the
    barristers conduct on the proceeding.

[356]

The intervener, the Criminal
    Lawyers Association, submits that the determination of when defence counsel
    may be disciplined by their regulator for incivility must be clear and fair.
    To that end, the
Divisional Court
framed the inquiry as one into whether the
    barristers uncivil conduct would bring the administration of justice into
    disrepute, or would have the tendency to do so. The Criminal Lawyers
    Association and The Advocates Society support the Divisional Courts approach.

[357]

The Canadian Defence Lawyers
    Association submits the Divisional Courts test on this point is unclear. It
    argues that the test should be whether there was a breach of the publics
    reasonable expectation of a lawyers professionalism. In my view, such a test
    would be far more unclear than one framed in terms of the conducts impact on
    the administration of justice.

[358]

This is a difficult issue. I am
    very sympathetic to Mr. Groias submission that the point where zealous
    representation becomes uncivil professional misconduct is not capable of a
    bright line definition. Yet, a prosecution for professional misconduct has the
    potential of stripping a lawyer of his or her ability to earn a livelihood.
    Some effort to articulate a clear test measuring the impact of a barristers
    conduct must be made, however elusive clarity might be.

[359]

In my view, the Divisional Courts
    articulation of this element of the inquiry remains too vague.
Notwithstanding the
Charter
-based pedigree of the phrase, bring the
    administration of justice into disrepute, I prefer to frame this factor of the
    inquiry in a way which focuses more clearly on the impact of the barristers conduct
    on the proceeding in which it occurred. I conclude that when inquiring into
    whether a barristers in-court conduct constitutes professional misconduct, a
    discipline tribunal must assess whether the conduct not only is uncivil, but
    also whether it undermined, or threatened to undermine, the fairness of the
    trial or other court proceeding in which it took place.

(iii)

The Response of the
    Presiding Judge

[360]

Finally, the Appeal Panel erred in
    failing to include in its test, and to apply to the facts, the second factor:
    the need to give meaningful consideration to the rulings made by the trial
    judge concerning the misconduct alleged, and to examine the response of the
    barrister to those rulings.

[361]

It is true that the Appeal Panel
    acknowledged the relevance of what the trial judge did, stating, at para. 225:
    [T]he reaction of the trial judge although relevant is not determinative.
But, having stated the point, the Appeal
    Panel promptly proceeded to ignore it in the analysis, save to refer in its
    chronology of events to some of the rulings made by the trial judge.

[362]

For its part, the Divisional Court
    adopted, at para. 36, the view of the Appeal Panel, but concluded that the Law
    Society should not be constrained in its disciplinary duties by the action, or
    inaction, of a judge. To the extent those comments were confined to the issue
    of the Law Societys statutory jurisdiction to inquire into a barristers
    in-court conduct, I would not disagree. However, to the extent the Divisional
    Court thought that how the trial judge responded to the barristers conduct
    should not place any constraint on the Law Societys exercise of its statutory
    powers, I strongly disagree. How a presiding judge handles complaints about a
    barristers in-court conduct may well limit the practical scope of subsequent
    review and action available to the Law Society in the specific circumstances of
    a case.

[363]

In sum, a critical flaw in the
    test formulated and applied by the Appeal Panel and the Divisional Court was
    that it ignored, in any meaningful way, how the trial judge dealt with the
    prosecutions complaints about Mr. Groias conduct.

[364]

This incomplete approach appears
    to have resulted, in part, from the failure of the Appeal Panel (and the
    Divisional Court) to fully recognize the range of options available to a
    presiding judge to manage inappropriate conduct by a barrister. For example,
    the Divisional Court stated, at para. 38, that
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.
    With great respect, that puts the matter far too narrowly.

[365]

In
Anderson
, the Supreme Court of Canada observed, at para. 58:
    Sanctions may include orders to comply, adjournments, extensions of time,
    warnings, cost awards, dismissals, and contempt proceedings.
As noted by Michael Code (now Justice Code of the
    Superior Court of Justice), when
faced with counsels persistent
    incivility, a trial judge can draw on a broad range of remedial tools,
    including (i) immediate intervention by way of reprimand and injunction,
    expressly warning against any repetition of the misconduct, and (ii) repeated
    reprimands and injunctions:
Counsels Duty of
    Civility: An Essential Component of Fair Trials and an Effective Justice
    System (2007) 11 Can. Crim. L. Rev. 97, at pp. 117 and 119.

[366]

Soft tools often are sufficient to
    deal with counsels misconduct. As the Law Societys Convocation observed in
Law
    Society of Upper Canada v. Clark
, [1995]
    L.S.D.D. No. 199, at para. 101: The ability [of the court] to call a short
    adjournment is usually the only measure required. A judge can simply require
    counsel to take a time out and, in appropriate cases, direct counsel to go
    have a coffee and cool their jets for a while before resuming the hearing.

[367]

A trial judges power to control
    counsels conduct does not begin and end with the contempt power; it is limited
    only by the creativity of the presiding judge.

[368]

As I will describe in the next
    section, the trial judge in this case used several trial management techniques
    to respond to the prosecutions complaints about Mr. Groias allegations of
    prosecutorial misconduct. Yet, in its professional misconduct analysis, the
    Appeal Panel essentially ignored the trial judges interventions and, more
    importantly, how Mr. Groia responded to them.

VI.      The Courts Responses
    to Mr. Groias Conduct

[369]

The Appeal Panel found that Mr.
    Groia had engaged in professional misconduct because of what he said in court
    between Days 52 and 68 of the trial. As described by my colleague, during that part
    of the trial, a major dispute emerged between the parties about how the defence
    could use documents disclosed by the prosecution during its cross-examination
    of the first OSC witness, Rolando Francisco.

[370]

The language used by Mr. Groia in
    making submissions on that issue was the subject of comment by this court in
Felderhof
. This court described Mr. Groias rhetoric as
    improper, inappropriate, and misplaced, stating:
His rhetoric was, in many cases, tied to a view about what
    constitutes improper prosecutorial conduct that was simply wrong
: at
    paras. 79, 80 and 100.

[371]

The Appeal Panel concluded that
    Mr. Groias submissions to the trial judge during that portion of the trial
    contained unfounded allegations of prosecutorial misconduct using language which
    amounted to a relentless personal attack on the integrity and the
bona
    fides
of the prosecutors: at paras. 318,
    324 and 328.

[372]

However, whether that rhetoric and
    those submissions amounted to professional misconduct also required the Appeal
    Panel to consider, with great care and appropriate deference, how the trial
    judge dealt with the matter. The trial judge was not oblivious to the way in
    which Mr. Groia was making allegations of prosecutorial misconduct. On the
    contrary, the prosecution continuously complained to the trial judge about Mr.
    Groias allegations and asked the trial judge to rule on them; he responded.

[373]

Between Days 52 and 68, the trial
    judge made several rulings on the issue, and he gave directions to defence
    counsel regarding his clients allegations of prosecutorial misconduct.
    Although the Appeal Panel referred to some of those rulings in its reasons, in
    my view it effectively ignored how the trial judge handled the issue. Most
    significantly, the Appeal Panel ignored how Mr. Groia responded to those
    rulings. In so doing, the Appeal Panel failed to take into account and give
    proper weight to highly material factors, which led them to reach an incorrect
    and unreasonable result.

[374]

How the trial judge and the
    Reviewing Courts

dealt with Mr.
    Groias conduct is critical to the judicial review of the Appeal Panels
    decision. Accordingly, I intend to go over in detail the complaints made by the
    prosecution to the trial judge about Mr. Groias allegations, how the trial
    judge dealt with them, and how Mr. Groia responded to the trial judges
    directions. The prosecution was not satisfied with how the trial judge handled
    their complaints, so the OSC sought judicial review.  I therefore will examine
    the response of this court to the prosecutions complaints.  Finally, I will
    examine how the trial continued in light of the directions given by this court.

(1)

How the Trial Judge
    Dealt with the Prosecutions Complaints about Mr. Groias Conduct

[375]

OSC counsel quickly reacted to Mr.
    Groias first allegation of prosecutorial misconduct. They repeatedly
    complained about it and asked the trial judge to rule on the defences
    allegation. The prosecutions complaints started on Day 54, when Mr. Groia
    began raising the issue of prosecutorial misconduct. The prosecution made the
    following submission to the trial judge:

I have been accused of
    professional misconduct. Mr. Smith has been accused of professional misconduct.
    The prosecution has been alleged to have advanced a prosecution in violation of
    its responsibilities as a prosecutor and its duties of fairness to the accused.

We have been maligned throughout
    the proceedings to date as lazy, incompetent, hell-bent on convicting Mr.
    Felderhof.

Each day further comments are made
    maligning what it is we seek to do and the way we go about seeking to do it.

I have sat and I have listened.
    Sometimes I have got up, Your Honour, and tried to respond to these issues.
    What I will do is I will let the record speak for itself.

It is our respectful submission
    that we have done absolutely nothing improper, that we have conducted ourselves
    in a manner entirely in accord with our duties, that the examination in-chief
    of Mr. Francisco, as the record will reflect, and as Your Honour presiding over
    that cross - examination in-chief rather, was conducted in a manner entirely in
    accordance with law.

We obviously take fundamental
    objection to what Mr. Groia has to say. What we will do is let the record speak
    for itself. I'm quite happy to do that. But if Your Honour - if Your Honour
    should agree with what Mr. Groia has had to say, then I would invite you to
    stay these proceedings because, in my submission, there is no basis to proceed
    if the Crown is doing so in an abusive manner.

We fundamentally, fundamentally,
    resist any suggestion that anything that has been done with respect to the
    conduct of the Crown in this case has been inappropriate.

Well, it's something that's been
    brought in which allegations of prosecutorial misconduct have been brought to
    Your Honour's attention and I am asking that Your Honour rule on that, because
    if you are of the view that the Crown is proceeding in an abusive manner, then
    I invite you to stay these proceedings.

We fundamentally, fundamentally,
    are opposed to those accusations, fundamentally reject those accusations. I'm
    not going to respond. I'm not going to go and get into a personal attack on Mr.
    Groia and things of that nature, the way he has been personally attacking us.
    But if you think there is merit to what he is saying, Your Honour, there is
    little point in proceeding with this prosecution and, with the greatest of
    respect, in my respectful submission, Mr. Groia's submissions are neither
    founded in fact, nor founded in law and I ask that they be rejected and I ask
    that Your Honour suggest that we simply try to conduct the trial in a manner
    that accords with law and fairness.

[376]

This was the first of many
    complaints by prosecution counsel to the trial judge about Mr. Groias
    allegations of prosecutorial misconduct, and the first of many requests that
    the trial judge rule on the allegations.

[377]

The trial judges response to the
    prosecutions complaints evolved over the next number of trial days. Initially,
    the trial judge refused to make any ruling on the defences allegation of
    prosecutorial misconduct. On Day 54, the trial judge stated:

I take the defence submissions
    this morning as not being an application to stay the proceedings, but as notice
    that that application may come at the end of the day. There is no ruling to be
    made with respect to that matter.

[378]

When the prosecution pressed the
    trial judge to rule on the allegations, the trial judge stated:
I expect counsel to conduct themselves professionally
    and I fully expect that they will do that.

[379]

On Day 56, the prosecution
    complained several times about the defences allegations and again requested a
    ruling. The trial judge deflected the request into a consideration of the
    merits of the defences position. The following illustrates the back and forth
    exchanges between prosecution counsel and the trial judge:

[OSC Prosecutor]:  I haven't
    resiled from anything and I take fundamental issue with that suggestion. And
    again, if he is going to keep making those submissions, Your Honour is either
    going to have to say, you are right, Mr. Groia, the Crown has done something
    wrong, or Your Honour is going to have to say, there is no purpose in making
    those submissions any longer, Mr. Groia, because they are not accurate.

The Court: Well I think the
    question is, if all these documents are authentic and relevant, if that's the
    Crown's position they are all authentic and relevant and Mr. Groia wants to put
    it in, then what else does he have to prove before he can put it in?

[OSC Prosecutor]: It's simply not
    right for counsel to be standing up on a constant basis and making accusations
    against the prosecution in that manner. Not appropriate, in my respectful
    submission. If there is something to it, then we should address it. If there is
    nothing to it, then he should be told to stop making those submissions.

The Court: I'll ask you the
    question. If the documents there are relevant and authentic ---

[OSC Prosecutor]: They are not
    admissible. That doesn't make them admissible.

[OSC Prosecutor]: Okay. I am going
    to stop, Your Honour. I am just going to sit there and accept that he is going
    to malign us and to suggest that we are trying to mislead you. I was quite
    happy to put all of the trading of everyone involved in this company before
    Your Honour. And again, this is where we are headed. If we are going to be
    maligned in this way, I am not going to sit here and let my friend do that
    without taking fundamental objection to those submissions.

The Court:
The line of cross
    examination is appropriate. Let's have the morning recess
. [Emphasis
    added.]

[380]

The trial judge made it quite
    clear why he was adopting that approach: Well, I would like to get on with the
    cross-examination of Mr. Francisco.

[381]

On the next day, Day 57, the trial
    judge repeated to prosecution counsel he was not going to make a ruling at that
    time on the defences abuse of process argument. During an exchange with
    prosecution counsel, the trial judge explained why:

[OSC Prosecutor]: Well but again,
    Your Honour, I need your help because either we are going to sit here on a
    daily basis and allow this man to get up and accuse us of abdicating our
    responsibilities to this Court, every day ---

The Court:
Well but that's his
    position. It's not that I agree with it and he is going to make that
    application at the end of the case
. [Emphasis added.]

[382]

It was towards the end of Day 57
    that the trial judge decided to give some directions to Mr. Groia about how he
    should raise the issue of prosecutorial misconduct in the future. The trial
    judge stated:

The Court: Maybe the way we can
    handle this. I don't have an application before me and Mr. Groia says he is not
    applying now for me to make any ruling and that I don't even have the
    evidentiary basis to do it and that at the end of the day he may never make the
    application. But if he has -- Mr. Groia, perhaps if you think that we have come
    to a point where the Crown has done something which at the end of the day will
    be part of your argument to me that there has been prosecutorial misconduct
you
    can just say here is another instance, Your Honour, and follow with one line
    and leave it at that. And you can stand up and you can say you object
.
But if ---

Mr. Groia: Here is another
    instance Your Honour ---

The Court: And then you can have
    all the records. I am not being asked to resolve this at this time. Really I
    dont think I should be hearing these arguments because there is a lot of
    repetition in the arguments that I am hearing.
So I think we could narrow
    them down to just the way Mr. Groia would stand up when you were putting in a
    document and he would say "its the same objection". I heard the
    objection and we just note it.
[Emphasis added.]

[383]

The prosecution was not satisfied
    with that direction by the trial judge. They continued to press the trial judge
    to rule on the defences allegations of prosecutorial misconduct:

[OSC Prosecutor]: I don't
    understand, in my respectful submission, Your Honour, why we have to wait until
    the end of the trial for the Crown to find out that it should be tendering
    everything that could be remotely of any interest, even though the witness
    doesn't have anything to do with the document ---

The Court:
Look, you have your
    tactical position to take and the defence takes their tactical decisions. I am
    not going to be ruling and explain to counsel how to run their cases
.
    [Emphasis added.]

[384]

By contrast, Mr. Groia said he
    would proceed as directed by the trial judge:

That's fine. And from now on, Your
    Honour, to move matters along, I'll come up with something equivalent to the
    same objection and we won't need to bore you with repetitious arguments about
    prosecutorial misconduct and allegations of irresponsibility and the like. I
    think there are going to be important issues to deal with at the end of the
    case and I think we should leave it until then.

[385]

The next day, Day 58, a dispute
    arose about whether Mr. Groia could mark as an exhibit a National Post article
    upon which he had questioned Mr. Francisco. During the course of his
    submissions, Mr. Groia made the comment about the court being unable to get a
    straight answer out of the prosecutor  a comment which the Appeal Panel found
    to be an instance of incivility amounting to professional misconduct: at para.
    312. Mr. Groias remark elicited a complaint from  the prosecution, resulting
    in the following exchange:

[OSC Prosecutor]: Just before we
    resume, again my friend has, for the record, indicated that I have declined to
    answer a question that Your Honour has put; has again suggested that the Crown
    is misleading the Court in some way, or in some way not being candid with the
    Court. I take fundamental objection to those submissions being made, those
    suggestions being made. He also during the course of his submissions alluded to
    the suggestion that the Court cannot rely on what the Crown has said and I
    guess this is an allusion to having reneged on something. And once again I
    invite my friend to specifically indicate what it is he claims that the Crown
    has reneged on. I again ask Your Honour to indicate to my friend that he has no
    basis and no right to be making submissions casting aspersions on the integrity
    of the officers that are appearing before you with respect to this matter in
    the absence of any foundation to do so. And if there is a foundation to do so,
    then we should be arguing that matter now.

Mr. Groia: Q. Mr. Francisco, would
    you turn to volume ---

The Court: I'm sorry. I have been
    asked something by Mr. Naster. I should respond.
I don't take the
    submissions now that there is a complaint about the prosecution reneging on
    something. Mr. Groia's position is that he is not clear of what your objection
    is and you have put your objection on the record. I am not going to deal with
    exhibit F now. We are going to continue with the cross-examination of Mr.
    Francisco
.

Mr. Groia: Thank you, Your Honour.
    That's what I propose we do. [Emphasis added.]

[386]

Later that day, the prosecution
    repeated its request for a ruling on the defence allegations of prosecutorial
    misconduct. At days end, the trial judge gave further directions to Mr. Groia
    on that issue:

The Court: With respect to the
    defence position of prosecutorial misconduct and the Crown position that they
    categorically deny that and are asking me for a ruling,
I think that's
    enough language to be put on the record, that you are making an allegation that
    prosecutorial misconduct is relevant to the admissibility of this document and
    that the defence position will be that they categorically deny it and if they
    want to they can ask me for a ruling.
And it will take seconds to do as
    opposed to having Mr. Francisco leave the court room.

The Court: The prosecution has to
    be put on notice on each document if there is not an agreement that we can make
    a list.
So if there is a document that you are tendering and you can't have
    it admissible on any other basis than you are relying on prosecutorial
    misconduct, if you can just say so that the defence is, the Securities
    Commission is put on notice, you can say that
---

Mr. Groia: How about the same
    submission, or the same complaint, or words to that effect?

The Court: Yes. Yes, something
    like that.

Mr. Groia: That's fine.

[387]

And addressing the prosecution,
    the trial judge clarified:

I am not putting any gag orders on
    anybody, but I would hope that your response would be as short, unless there is
    something substantially different that hasn't already been said in this court
    that needs to be added.

[388]

The trial judges
    effort to move the trial along by directing defence counsel to make a standard
    complaint as the basis for the admissibility of a document broke down as soon
    as it was used. On Day 61, Mr. Groia invoked the standard complaint for the
    first time in respect of a document. The prosecution was not content with that
    approach, and again objected to the trial judge:

[OSC Prosecutor]: I also wanted to
    indicate again that to the extent that my friend's suggestion regarding the
    standard objection, the standard complaint as he describes it, is an allegation
    of prosecutorial misconduct and I ask that Your Honour rule upon that if he is
    seeking to tender this exhibit in any way, shape, or form, prefaced on an
    allegation of prosecutorial misconduct.

The Court: He may be at the end of
    the day, but he is not asking me to rule on that now, so he is not asking for
    me to mark it as an exhibit on that basis. In fact, he has indicated he hasn't
    been able to strictly prove this document so his suggestion is that it be
    marked as a document for future identification.

[389]

Before the morning break on Day
    61, the trial judge reiterated his direction to the defence to use the usual or
    standard complaint approach. However, immediately following the morning break,
    the trial judge modified his approach, giving the following directions:

The Court: I am not asking for any
    submissions.
I have some sympathy for Mr. Naster's position that, with
    respect to the usual complaint, Mr. Groia. I think most people would find that
    having that repeated when you believe that there is no basis to the allegations
    is somewhat upsetting.
So you have put me on notice that you are going to
    bring this application at the end of the day and you have put Mr. Naster on
    notice.
So unless there is a factual distinction between what your complaint
    is now and there may be some other basis for that complaint that you want to
    put us on notice on, it may be that we don't need to hear it.

Mr. Groia: That was a proposal I
    made to you last week, Your Honour, and I am perfectly happy to go forward on
    the basis that I can put them all in a basket and deal with them at the end of
    the trial. But I thought I stand to be corrected -- I thought the ---

The Court
:
I think I
    took that position that Mr. Naster had the right to have notice, but I think
    maybe we can just take it as a general notice
.

Mr. Groia: And if that suits the
    Court, that's perfectly fine with us as long as I reserve that right to deal
    with them as a collective case. [Emphasis added.]

[390]

The defence cross-examination of
    Mr. Francisco then proceeded without incident on Days 62 and 63. Mr. Francisco
    was unavailable for continued cross-examination on Day 64 because of health and
    family reasons. As a result of the witnesss absence, Days 64 through 68 were
    consumed with further submissions on document issues.

[391]

At one point during counsels
    submissions on Day 65, Mr. Groia started to allude to the issue of
    prosecutorial misconduct, but the trial judge cut him off, restricted what Mr.
    Groia could say, and directed defence counsel to focus on the matter of concern
    to the court:

Mr. Groia: Your Honour, I just
    cannot allow the Government to make this every Bre-X document argument go in. I
    am trying to do this ---

The Court: Sorry. I am trying to
    get -- I don't actually want -- I am having problems two ways. Your suggestions
    of misconduct and your suggestion that if one document goes in that the million
    papers go in.

I don't want to hear that argument. I am going to
    hear it at some point. I don't need to hear it on every document we are trying
    to put in. I would like to know what you want in, Mr. Groia, and what you are
    consenting to, Mr. Naster, for whatever reason.
[Emphasis added.]

[392]

On Day 66, the prosecution renewed
    its request for the trial judge to hear what was styled as an omnibus
    documentary evidence application. Four months earlier, the trial judge had
    declined to entertain such an application. On Day 67, the trial judge again
    ruled he would not hear the application at that time.

[393]

At the start of Day 68, the
    prosecution raised concerns about the trial judges refusal to hear its omnibus
    application and requested an adjournment of the trial for about a month. The
    trial judge took issue with the prosecutions submissions, and rendered a
    ruling in which he described the Crowns comments as inappropriate. OSC
    counsel immediately apologized. During the course of his ruling, the trial
    judge summarized how he had tried to manage the defences allegations of
    prosecutorial misconduct in respect of the documents:

As conceded by the defence, there
    was no evidentiary basis for me to make findings of prosecutorial misconduct,
and
    I have asked the defence to restrict their allegations
.
There have
    been no allegations against Mr. Hubley. The defence did not dispute Mr.
    Hubley's credibility in the disclosure application, but, in fact, relied on his
    evidence. In my ruling, I accepted his evidence. [Emphasis added.]

[394]

Days 69 and 70 saw the start of
    the OSCs examination-in-chief of their second witness, Paul Kavanagh. At that
    point, the trial adjourned for a scheduled break, during which the OSC brought
    its application for judicial review.

[395]

Several key facts emerge from the
    record for Days 52 through 70 of the trial.

[396]

First, the trial judge did not
    ignore the prosecutions complaints that Mr. Groia was making improper and
    unfounded allegations of prosecutorial misconduct. In its reasons the Appeal
    Panel stated, at para. 86:
At various points,
    [the OSC prosecutor] objected and asked for a ruling on the question of
    prosecutorial misconduct. Justice Hryn repeatedly declined to deal with that
    issue and instead attempted to address the admissibility issues.
With
    respect, that is not a fair statement of the matter. True, the trial judge did
    not accede to the prosecutions request that he rule on the defences abuse of
    process allegations at that time; he deferred that issue until later in the
    trial. Instead, the trial judge adopted a different trial management technique,
    issuing a series of rulings directing how the defence could place those
    allegations before the court.

[397]

Those rulings culminated in the
    trial judges direction on Day 61 that since Mr. Groia had put the prosecution
    and the court on notice about his intention to bring an abuse of process
    application,
unless there is a factual
    distinction between what your complaint is now and there may be some other
    basis for that complaint that you want to put us on notice on, it may be that
    we dont need to hear it.
On Day 65, the
    trial judge stopped Mr. Groia when he started to revisit the allegation,
    stating: I dont want to hear that argument. In his Day 68 ruling, the trial
    judge reminded the parties that he had
asked
    the defence to restrict their allegations. In sum, the trial judge did deal
    with the prosecutions complaints about Mr. Groias allegations, but in his own
    way.

[398]

While other judges might well have
    handled the situation in a different fashion, restricting the manner and content
    of defence counsels submissions at a much earlier time, as this court observed
    in
Felderhof
, at paras. 77, 85
    and 90:

[The
    trial judges] solution was not irrational or unfair. He was also not wrong to
    try and encourage counsel to meet and attempt to reach a consensus about
    certain documents. He was not wrong to attempt to move the case along, pending
    the abuse of process and omnibus document motions, by attempting to have
    counsel provide lists of documents that they wish to tender to upcoming witnesses.

The
    application judge has catalogued the attempts that the trial judge did make to
    keep the trial and defence counsel on track.
The prosecution says he did not
    do enough but I think it difficult at this stage to second-guess a trial judge
    who was faced with what would be a very long and difficult case
.

I
    agree with the application judge that this is not a case where a trial judge
    did nothing. The trial judge did intervene on several occasions to attempt to
    limit the nature of defence counsel's complaints. [Emphasis added.]

[399]

Or, as put by the
    application judge, at para. 284, the trial judge chose neither the road of
    strong intervention, nor the path of complete non-intervention; he took the
    middle ground.

[400]

Second, this was not a case where
    defence counsel ignored directions given by the trial judge. Quite the
    contrary. The trial record shows that Mr. Groia complied with the trial judges
    directions. This is a most material fact in the professional misconduct
    analysis.

[401]

Third, although this court described
    Mr. Groias rhetoric as improper and inappropriate, not once did the trial
    judge call Mr. Groia to task for his choice of language.

And the
    Felderhof trial was not a case in which the trial judge was unaware of the need
    for counsel to conduct themselves in a professional manner.

On Day 54, in
    response to the
prosecutions request for
    a ruling on the allegations of prosecutorial misconduct, the trial judge
    stated:
I expect counsel to conduct
    themselves professionally and I fully expect that they will do that.

[402]

Moreover, the trial judge also
    reminded counsel to refrain from using sarcasm. On Day 58, during the course of
    submissions by the prosecution, the trial judge stated:

The Court: See, we are getting to
    -- you know, Mr. Naster, sarcasm is starting to come into this trial and I
    think we should stay away from that.

(2)

How the Court of Appeal
    Dealt with the Prosecutions Complaints

[403]

Unsatisfied with how the trial
    judge had dealt with their complaints, the prosecution applied for judicial
    review. When unsuccessful before the Superior Court of Justice, the prosecution
    appealed to this court. The appeal was dismissed, with this court holding that
    the trial judge had not committed any error that deprived him of jurisdiction.

[404]

This court went further. In its
    reasons, this court, in effect, directed Mr. Groia to change the language used
    in making future submissions during the continuation of the trial, stating, at
    para. 96:
Even if Mr. Groia
    honestly believed that the prosecution tactics were excessive and could amount
    to an abuse of process, this did not give him licence for the kind of
    submissions he made in this case.

[405]

This court also held that some
    positions advanced by defence counsel before the trial judge were wrong at law.
    It gave specific directions to the trial judge about how to deal with certain
    defence arguments in the unlikely event Mr. Groia raised them during the
    remainder of the trial: at paras. 73, 76 and 88.

(3)

Phase Two of the Felderhof
    Trial

[406]

After the release of the decision
    of this court, the trial resumed. According to the Appeal Panel, [i]t
appears to be undisputed that Phase Two proceeded in a
    much more orderly fashion, with the parties reaching agreement on many of the
    evidentiary disputes that had marred Phase One and with little if any bickering
    or rancour between counsel: at para. 117.

[407]

Against that factual background, I
    turn to review the finding of the Appeal Panel that Mr. Groia was guilty of
    professional misconduct for incivility.

VII.     Analysis of the Decision Below

(1)

Application of the Correctness Standard

[408]

Under the correctness standard,
    the
court will decide whether it agrees with
    the determination of the decision maker; if not, the court will substitute its
    own view and provide the correct answer:
Dunsmuir
, at para. 50. I
    propose to review the Conduct Decision by examining how it dealt with each of
    the three factors that make up the test for assessing whether a barristers
    in-court conduct amounts to professional misconduct. Although I will consider
    each factor under a separate heading, it is the Appeal Panels treatment of
    them as a whole that is the proper subject-matter of this appellate review.

(i)

What the Barrister Did

[409]

The Appeal Panel acknowledged, at
    para. 280, that the making of incorrect legal submissions by a barrister
    cannot, in and of itself, constitute a basis for finding professional
    misconduct. The Appeal Panel concluded, however, that it was improper for Mr.
    Groia to use incorrect legal submissions as a platform to attack the
    prosecutors and impugn their integrity without a reasonable basis to do so. It
    found that Mr. Groia made allegations of deliberate prosecutorial misconduct
    that were unfounded and lacked a reasonable basis: at paras. 295 and 328. The
    Appeal Panel stated that during the course of making those allegations Mr.
    Groia impugned the integrity of prosecutors without any factual foundation,
    including by alleging that they could not be relied on to keep their word, were
    lazy and were incompetent: at para. 285.

[410]

I agree with those conclusions of
    the Appeal Panel, with one exception. Having reviewed the transcripts from Day
    52 to Day 70, I do not understand how the Appeal Panel could conclude, at para.
    286, that Mr. Groias use of the term Government to describe the prosecution
    and the prosecutors amounted to the use of sarcasm to cast aspersions on
    opposing counsel. Mr. Groia did not resort to the term Government only
    occasionally; it was his term of choice for describing the prosecution. The
    trial judge once admonished the OSC prosecutor for the use of sarcasm, but Mr.
    Groias use of Government drew no admonition from the trial judge. Nor did it
    draw any objection from the prosecution. Moreover, the term Government
    accurately describes the status of the OSC as prosecutor. I think the Appeal
    Panels conclusion on the use of the word Government illustrates the
    difficulties and dangers of after-the-fact transcript reviews of a barristers
    in-court conduct. In any event, this is a minor point.

[411]

The primary reason why I agree
    with those conclusions of the Appeal Panel lies in the reasons of this court in
Felderhof
. A distinctive feature of this
    case is that partway through the trial, the prosecution sought relief from more
    senior courts to stop the trial and replace the trial judge, in part because of
    how the trial judge was responding to Mr. Groias conduct. Although the
    prosecution did not obtain a new trial, it did secure comments from this court
    about what had transpired to that point in the trial, as well as directions
    about how the trial should move forward.

[412]

This courts comments in
Felderhof
were not made in the context of
    assessing whether Mr. Groias in-court conduct amounted to professional
    misconduct. The comments did not amount to findings of fact made against Mr.
    Groia which might preclude or in some way limit his ability to defend a charge
    of professional misconduct. However, this courts comments identified conduct
    that Mr. Groia should not continue during the balance of the trial. In effect,
    this court told Mr. Groia to cut it out and change his ways; he did. As well,
    this court gave specific directions to the trial judge about how to manage
    certain document-related issues around which disputes had arisen.

[413]

As I stated in the opening of
    these reasons, in its decision in
Felderhof
this court administered a public shaming to Mr.
    Groia. This courts comments and directions amounted to what Code described in
    his article, at p. 117, as an intervention by way of reprimand and injunction
    which could be read in no other way than a warning against any repetition of
    the misconduct.

[414]

Consequently, I think the Appeal
    Panel was correct in concluding that during the course of his submissions about
    prosecutorial misconduct, Mr. Groia used inappropriate language and impugned
    the integrity of the prosecutors without foundation.

[415]

That, however, does not conclude
    the inquiry into whether Mr. Groias in-court conduct constituted professional
    misconduct. It is only the beginning.

(ii)

What the Courts Did about
    the Barristers Conduct

[416]

In theory, trials involve the
    dispassionate application of reason to the observations by participants about
    events, in the hope that some understanding of what really transpired will
    emerge, and legal rights can be determined. In reality, trials generate
    considerable emotion, indeed passion, amongst their participants. The judicial
    office imposes on the presiding judge a duty not only to keep his or her
    emotions in check during a hearing, but also those of the participants,
    especially counsel. Charged as they are with the task of fearlessly defending
    or promoting the interests of their clients, counsel sometimes succumb to the
    adrenalin of the moment and engage in conduct which comes close to or crosses
    the line of propriety.

[417]

Many decisions in this case have
    quoted the remarks made by Morden J.A. in his 2001 Address to the Call to the
    Bar: Civility is not just a nice, desirable adornment to accompany the way
    lawyers conduct themselves, but, is a duty which is integral to the way lawyers
    do their work: see
Felderhof
,
    at para. 83. These words are true and wise. But, courtrooms are not populated
    by saints; they are populated by flawed human beings who enter them each day to
    argue and adjudicate cases. As put by the intervener, The Advocates Society,
    advocates are not infallible and may occasionally falter. The same can be
    said about judges. To hold either counsel or judges to a standard of perfection
    is unreasonable, because it is unattainable. Judges and counsel are human
    beings, not machines.

[418]

Part of the duty of the presiding
    judge is to maintain order in this arena of potential chaos. As a result, the
    trial judge is the person best placed to determine whether a barristers
    conduct is approaching or has crossed over the all-too-grey line that separates
    zealous advocacy from impermissible courtroom conduct. No person stands in a
    better position than the presiding judge to assess what a barrister says or
    does, the manner or tone in which it is said or done, its relevance to the
    dispute under adjudication, and the impact such conduct will have on the
    fairness of the trial, including the fairness of the process to its other
    participants. Counsel look to the presiding judge to draw the lines of fair
    conduct and to police their observance.

[419]

Consequently, any regulatory
    review of a barristers in-court conduct that fails to give meaningful
    consideration to how the trial judge reacts to a barristers conduct, and how
    the barrister responds to judicial direction, ignores a necessary and critical
    element of the context in which the analysis of the barristers conduct must
    take place.

[420]

In the present case, the Appeal
    Panel ignored that necessary component of the analysis. It failed to factor
    into its analysis the rulings made by the trial judge in response to the
    prosecutions complaints about Mr. Groias conduct and, more importantly, how
    Mr. Groia reacted to those rulings.

[421]

The Appeal Panel stated, at para.
    241, that in reviewing Mr. Groias conduct as recorded in the transcripts of
    Phase One, it tried to look at the entire picture  not just one isolated set
    of events or submissions. In Part II of its reasons, The Facts, the Appeal
    Panel identified some, but not all, of the rulings made by the trial judge in
    response to the prosecutions complaints about Mr. Groias submissions.
    Significantly, the Appeal Panel omitted the trial judges ruling on Day 65 when
    Mr. Groia began to allude to the allegation of prosecutorial misconduct: the
    trial judge cut him off, and told Mr. Groia he did not need to hear that
    argument. Mr. Groia complied with the trial judges direction.

[422]

Having acknowledged that the
    reaction of the trial judge was relevant to its inquiry, the Appeal Panel made
    no reference to the trial judges rulings in Part VII of its reasons,
    Assessment of Mr. Groias Conduct during the Felderhof Trial, with one
    exception: the prosecutions efforts on Days 55 to 57 to secure a ruling from
    the trial judge about the allegations. Instead, the Appeal Panel undertook its
    analysis as if the trial judge was not part of the entire picture, and only
    what Mr. Groia and the prosecution did mattered. The Appeal Panel, for all
    intents and purposes, ignored the third person in the courtroom  the trial
    judge, who was the person in whom reposed the duty and the power to control the
    trial process, including counsels conduct.

[423]

The Divisional Court did consider
    what weight, if any, should be given to the lack of complaint by the trial
    judge to the regulator, concluding that none should: at paras. 36-44. However,
    like the Appeal Panel, the Divisional Court did not consider the rulings made
    by trial judge, or Mr. Groias compliance with them, in assessing whether Mr.
    Groia had engaged in professional misconduct.

[424]

When the trial judges rulings and
    Mr. Groias responses to them are brought into the analysis, what emerges is
    the picture of a trial judge who responded to the prosecutions complaints
    about Mr. Groias conduct and attempted to deal with them. Over the course of
    six trial days, the trial judge went from the position that he would not
    interfere with counsels tactical decisions to ultimately ruling that Mr. Groia
    had given sufficient notice of his allegations of prosecutorial misconduct and
    was not to repeat them.

[425]

What emerges, as well, is the
    picture of a defence counsel who listened to and abided by the trial judges
    rulings. When, on Day 57, the trial judge directed Mr. Groia to employ a
    standard form of complaint, Mr. Groia complied. When Mr. Groia first employed
    the standard complaint  eliciting a prosecution objection in response  he
    agreed to comply with the trial judges further direction that since defence
    counsel already had given sufficient notice of his allegation, it need not be
    repeated unless there was some other basis for the complaint. When, on Day 65,
    Mr. Groia began to backslide into making an allegation of prosecutorial
    misconduct, the trial judge cut him off, stating he did not need to hear that
    argument. Mr. Groia complied. And that was the end of the issue of
    prosecutorial misconduct in Phase One of the trial, which adjourned five days
    later.

[426]

Not satisfied with that state of
    affairs, the prosecution sought a remedy from the senior courts. What the
    prosecution obtained from the senior courts were forceful rulings and
    directions to both the trial judge and Mr. Groia:
Felderhof
, at paras. 73, 76-77 and 93. Mr. Groia complied with
    those directions. Yet, as part of its assessment, the Appeal Panel did not take
    into account how Mr. Groia reacted to those directions. Instead, t
he Appeal Panel held, at para. 120, that [g]iven our
    findings below, we have not considered it necessary to rely in any way on the
    conduct of the parties in Phase Two or to draw any inferences adverse to Mr.
    Groia from his alleged change in position from his conduct of Phase One.

[427]

In my view, the Appeal Panel erred
    in law in failing to take into account Mr. Groias responses to judicial
    directions. When assessing whether a barrister has engaged in professional
    misconduct during the course of a trial, it is incumbent upon the Law Society
    to take into account the entirety of the members conduct, not just what
    happened at a particular slice of time. A barrister who persists in improper
    conduct notwithstanding the admonition of the court stands in a radically
    different position than one who has been told by the court to cut it out, and
    complies with the courts direction.

[428]

In that respect, the present case
    differs markedly from the situation in
Marchand
, where the plaintiff complained that the trial judge
    had failed to restrain defence counsels repeated attacks on the integrity and
    competence of plaintiffs counsel throughout the 165 days of trial: at para.
    134. Here, in the context of a 160-day trial, the Appeal Panel focused on
    complaints about defence counsels conduct which spanned six days of trial
    time, by the end of which the trial judge had ruled that Mr. Groia was not to
    repeat the allegations, a direction reiterated by this court, and with which
    Mr. Groia complied.

(iii)

The Effect of the
    Barristers Conduct

[429]

I have accepted that for uncivil
    in-court conduct to fall to the level of professional misconduct, the Law
    Society must demonstrate that the barristers conduct would undermine, or would
    have the tendency to undermine, trial fairness. Although the Appeal Panel did
    not expressly include a similar factor in its analysis, the Divisional Court
    held, at para. 96, that the Appeal Panel really had taken it into account:

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 prosecutions first witness.  The
    Appeal Panel, therefore, addressed the requirement that I have identified of
    conduct that might bring the administration of justice into disrepute.

[430]

I disagree. In my view, the Appeal
    Panel committed two errors in this area of its analysis. First, the Appeal
    Panel ignored the findings of this court on the issue of trial fairness. The
    prosecution had squarely placed the issue of trial fairness before this court.
    In
Felderhof
, this court found
    that: the trial judge had not made a jurisdictional error in failing to rule on
    the prosecutions objections to the defences abuse of process allegations; the
    trial judge had not admitted inadmissible evidence; and the trial judges
    response to Mr. Groias rhetoric and litigation style did not prevent a fair
    trial: at paras. 72, 81 and 90.

[431]

The Divisional
    Court erred in accepting, at para. 96, the Appeal Panels conclusion that Mr.
    Groias conduct had interfered with the prosecutors ability to present their
    case. In
Felderhof
, this court specifically stated, in the Civility
    section of its reasons at para. 82, that it agreed

with the conclusion of
    the very experienced application judge that the prosecution was not prevented
    from having a fair trial

[432]

Whatever other use may be made of
    court findings in professional misconduct proceedings, at a minimum the
    regulator must defer to a finding of an appellate court that conduct which
    occurred during a trial or hearing, whether by the presiding judge or by
    counsel, did not prevent a fair trial or hearing. In my respectful view, it was
    impermissible second-guessing on the part of the Appeal Panel and the
    Divisional Court to disregard this courts findings on the issue of trial
    fairness in
Felderhof
.

[433]

The second error lies in the
    Appeal Panels finding, at para. 351, that Mr. Groias conduct caused a
    serious adverse impact to the prosecutions first witness, Mr. Francisco. The
    trial record discloses that the prosecutions examination-in-chief of Mr.
    Francisco consumed 20 days of trial time. By the time Phase One adjourned, the
    defences cross-examination of Mr. Francisco had taken about 10 days. No rule
    of criminal or civil procedure establishes some limit in the ratio between the
    times for cross-examination and examination-in-chief beyond which counsel
    cannot tread without fear of sanction for professional misconduct. If the
    Appeal Panel intended to signal that when defence counsels cross-examination
    of a witness exceeds 50% of the length of the prosecutions
    examination-in-chief counsel then is straying into the area of professional
    misconduct, that bright line is transgressed every week in the civil and
    criminal trial courts of this province. With respect, I think the Appeal
    Panels finding on this point was incorrect and unreasonable.

[434]

Moreover, it is the job of the
    trial judge to ensure that witnesses are treated fairly. The transcripts of the
    trial disclose that the trial judge was alive to the need to ensure that Mr.
    Francisco was treated fairly by both counsel. From Day 52 to Day 68, the record
    shows that the trial judge was faced with opposing counsel who were incapable
    of making brief submissions on any point. His frustration with both counsel was
    palpable on the face of the transcripts. His frustration was based, in part,
    upon the effect that the incessant bickering by
both
counsel was having
    on the progress of the evidence. Ultimately, the trial judge made rulings which
    foreclosed further submissions on certain points by both counsel and required
    them to focus on calling evidence.

(2)

Conclusion

[435]

Taking into consideration all
    three elements of the test for determining whether a barristers in-court
    conduct amounts to professional misconduct, I conclude that the Appeal Panel
    erred in finding that Mr. Groia had engaged in professional misconduct.

[436]

A hard-fought, high-profile
    criminal trial saw inappropriate submissions and allegations by Mr. Groia over
    the course of several days in Phase One. The trial judge responded to the
    prosecutions complaints about that inappropriate conduct. He ultimately directed
    Mr. Groia to stop making allegations of prosecutorial misconduct. Mr. Groia
    complied with the trial judges rulings. This court then gave strong directions
    to both the trial judge and Mr. Groia about how to deal with the disputed
    evidentiary and abuse of process issues during the balance of the trial. This
    court found that the fairness of Phase One of the trial had not been
    compromised by Mr. Groias conduct and the prosecution was not prevented from
    having a fair trial. At the same time, this court administered a public
    shaming to Mr. Groia.  He mended his ways during the balance of the trial. The
    remaining 90 days of the trial proceeded without incident.

[437]

And, no one involved in the trial
    or the judicial reviews complained to the Law Society about Mr. Groias
    conduct.

[438]

Great weight must be given to Mr.
    Groias compliance with the directions of the courts and to the fact that his
    conduct did not affect trial fairness. When that is done, and when the
    circumstances of the Felderhof trial are looked at in their entirety, I
    conclude that Mr. Groia did not engage in professional misconduct contrary to
    the
Rules of Professional Conduct
.
    Consequently, I conclude that the Appeal Panel erred in determining that he
    did.

(3)

Application of the
    Reasonableness Standard

[439]

My colleague concludes that a
    reasonableness standard of review applies. Even using that standard, I would
    grant the appeal.

[440]

While the Appeal Panels
    decision-making process certainly was transparent and intelligible, I conclude
    its reasons lack the justification needed to meet the reasonableness standard.
    This results from its failure to take into account in the analysis two factors
    relevant to the contextual inquiry required in this case:
Doré
, at para. 54. Specifically, the Appeal Panel failed
    to inquire into, in any meaningful way, two key factors: (i) what the courts
    did about the barristers conduct and how the barrister reacted to judicial
    direction; and (ii) the effect of the barristers conduct on trial fairness.
    Moreover, as already mentioned, the Appeal Panel acknowledged that the reaction
    of the trial judge was relevant to its inquiry but, in the result, it failed to
    take that factor into account in its analysis. The Appeal Panels failure to
    examine those two key factors in its contextual inquiry renders its decision
    unreasonable.

VIII.    Use of the Reviewing Courts Reasons

[441]

I agree with the analysis of my
    colleague, at paras. 222-28, dealing with the Appeal Panels use of the
    Reviewing Courts Reasons.

IX.      Disposition

[442]

For the reasons set out above, I
    conclude that the Appeal Panel was incorrect and unreasonable in finding Mr.
    Grioa had engaged in professional misconduct. I would allow the appeal, set
    aside the decision of the Appeal Panel, and dismiss the complaints against Mr.
    Groia.

[443]

On the issue of costs, the record
    discloses that the parties came close to settling this matter before the
    initial discipline hearing. It is most unfortunate that they did not.

[444]

In my view, costs should follow
    the cause. I would award Mr. Groia his costs of the appeal fixed in the amount
    of $50,000, all-in, together with his costs below, which I fix in the following
    amounts: before the Hearing Panel, $200,000; nothing for the hearing before the
    Appeal Panel since neither side sought costs; and $30,000 for the appeal before
    the Divisional Court.

[445]

I join my colleague in thanking
    all counsel for their most helpful submissions on the important issues raised
    by this appeal.

David Brown J.A.

Schedule A

A.

The
    1998 Handbook: The Law Society of Upper Canada,
Professional Conduct
    Handbook
, (Toronto: L.S.U.C., 1998,
    2nd ed.)

10.

When acting
    as an advocate the lawyer, while treating the tribunal with courtesy and
    respect, must represent the client resolutely and honourably within the limits
    of the law.

.

10.7       At all times the
    lawyer should be courteous and civil to the court and to those engaged on the
    other side. Legal contempt of court and the professional obligation outlined
    here are not identical, and a consistent pattern of rude, provocative or
    disruptive conduct by the lawyer, even though unpunished as contempt, might
    well merit discipline.

.

13.                   The
    lawyer should assist in maintaining the integrity of the profession and should
    participate in its activities.

14          .         The
    lawyers conduct towards other lawyers should be characterized by courtesy and
    good faith.

.

14.8       The lawyer should
    avoid ill-considered or uninformed criticism of the competence, conduct, advice
    or charges of other lawyers, but should be prepared, when requested, to advise
    and represent a client in a complaint involving another lawyer.

B.

The
    2000 Rules: The Law Society of Upper Canada,
Rules of Professional Conduct
,
    (Toronto: L.S.U.C., 2000)

4.01 (1)  When acting as an
    advocate, a lawyer shall represent the client resolutely and honourably within
    the limits of the law while treating the tribunal with candour, fairness,
    courtesy, and respect.

.

(6)  A
    lawyer shall be courteous, civil, and act in good faith to the tribunal and
    with all persons with whom the lawyer has dealings in the course of litigation.

.

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.

.

(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.

C.

The
    Current Rules: The Law Society of Upper Canada,
Rules of Professional
    Conduct
, (Toronto: L.S.U.C., 2014)

2.1-1       A lawyer has a duty
    to carry on the practice of law and discharge all responsibilities to clients,
    tribunals, the public and other members of the profession honourably and with
    integrity.

2.1-2       A lawyer has a duty
    to uphold the standards and reputation of the legal profession and to assist in
    the advancement of its goals, organizations and institutions.

.

5.1-1       When acting as an
    advocate, a lawyer shall represent the client resolutely and honourably within
    the limits of the law while treating the tribunal with candour, fairness,
    courtesy, and respect.

.

5.1-5       A lawyer shall be
    courteous, civil, and act in good faith to the tribunal and with all persons
    with whom the lawyer has dealings.

.

5.6-1       A lawyer shall
    encourage public respect for and try to improve the administration of justice.

.

7.2-1       A lawyer shall be
    courteous, civil, and act in good faith with all persons with whom the lawyer
    has dealings in the course of their practice.

.

7.2-4 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.

[1]

An Act for the better regulating the Practice of Law
, S.U.C. 1797 (37
    Geo. III), c. XIII.

[2]
On March 12, 2014, the Law Society Hearing and Appeal Panels were replaced by
    the Law Society Tribunal, consisting of the Law Society Hearing and Appeal
    Divisions:
Modernizing Regulation of the Legal Profession Act, 2013
, S.O. 2013 c.17.

[3]
Effective October 1, 2014, the Law Society approved new
Rules of
    Professional Conduct
, modelled on the Federation of Law Societies of
    Canadas
Model Code of Professional Conduct
.  Because the current
    rules, which are virtually identical in material part to the relevant 2000
    Rules, post-date Mr. Groias impugned conduct, they are inapplicable in this
    case.

[4]
See also 1998 Handbook, rr. 10 and 14.

[5]
I note that the Law Society, like many other professional responsibility and
    oversight regulators, has clear statutory authority to proceed in this
    fashion.  Once the Law Society receives information that suggests a lawyer has
    engaged in professional misconduct, it can start an investigation.  The
    information need not come in the form of a third-party complaint: see s. 49.3
    of the Act.

[6]
During his reply submissions before this court, Mr. Groia maintained that the
    Appeal Panel misunderstood his position on the appropriate test and that he did
    not agree that the test described by the Appeal Panel was conclusive, one way
    or the other, on the matter of professional misconduct.

[7]
As the evidence relevant to those acts of professional misconduct was the same
    as that relied on by the Law Society for its misconduct allegations regarding
    Mr. Groias communications with the court, the Appeal Panel ruled that it was
    unnecessary to address the latter allegations.  This ruling is not challenged
    on appeal.

[8]
This concept of joint enterprise or partnership between the bench and the bar
    is not new.  It enjoys a well-established place in the traditions of our
    justice system.  See for example, the Hon. John W. Morden,
The Partnership of Bench and Bar
(1982),
    16 L. Soc. Gaz. 46.

[9]
See
Male v. The Business Solutions Group
, 2013 ONCA 382, at para. 19;
Chippewas
    of Mnjikaning First Nation v. Chiefs of Ontario
, 2010 ONCA 47, 265 O.A.C.
    247, at para. 235;
Candito v. Nmezi
, 2015 ONCA 793;
Denomme v.
    McArthur
, 2013 ONCA 694.

[10]
See for example,
Marché dAlimentation Denis Thériault Ltée v. Giant Tiger
    Stores Ltd.
, 2007 ONCA 695, 87 O.R. (3d) 660, at paras. 31-33 and 41;
Behn
    v.
Moulton Contracting Ltd.
, 2013 SCC 26, [2013] 2 S.C.R. 227, at
    paras. 40-42;
Blencoe v. British Columbia (Human Rights Commission)
, 2000
    SCC 44, [2000] 2 S.C.R. 307, at para. 115;
R. v. Babos
, 2014 SCC 16,
    [2014] 1 S.C.R. 309, at para. 35; and
R. v. OConnor
, [1995] 4 S.C.R.
    411, at p. 457.