The Limits Of Misconduct For Incivility

The Supreme Court of Canada allowed an appeal of misconduct findings in litigation and overturned sanctions

G, a lawyer, was hired by F to defend him against charges of insider trading and authorizing misleading news releases brought against him by the Ontario Securities Commission (“OSC”). F’s trial was characterized by a pattern of escalating acrimony and by a series of disputes between G and the OSC prosecutors, which included personal attacks, sarcastic outbursts and allegations of professional impropriety made by G. In particular, the OSC prosecutors and G disagreed over the scope of the OSC’s disclosure obligations and the format of such disclosure, as well as over the admissibility of documents. Much of the disagreement stemmed from G’s honest but mistaken understanding of the law of evidence and the role of the prosecutor. During the trial, despite the frequency and fervor of the dispute, the trial judge initially adopted a hands‑off approach, but he finally directed G to stop repeating his misconduct allegations. G largely followed the trial judge’s directions. Evidentiary disputes were eventually resolved and the trial was completed, with F being acquitted on all charges.

After F’s trial, the Law Society brought disciplinary proceedings against G on its own motion, alleging professional misconduct based on his uncivil behaviour during the trial. A three‑member panel of the Law Society Hearing Panel found G guilty of professional misconduct, suspended his licence to practice law for two months and ordered him to pay nearly $247,000 in costs. On appeal by G, the Law Society Appeal Panel also concluded that G was guilty of professional misconduct, but it reduced G’s suspension to one month and decreased the costs award against him to $200,000. In its decision, the Appeal Panel developed a multi‑factorial, context‑specific approach for assessing whether in‑court incivility amounts to professional misconduct. The Divisional Court upheld the Appeal Panel’s decision as reasonable. A majority of the Court of Appeal dismissed G’s further appeal.

The court

  Although the approach that it set out was appropriate, the Appeal Panel’s finding of professional misconduct against G on the basis of incivility was unreasonable. First, even though the Appeal Panel accepted that G’s allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous legal beliefs as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis. The Appeal Panel acknowledged that submissions made on the basis of a sincerely held but erroneous legal belief cannot ground a finding of professional misconduct, and accepted that in making his allegations of impropriety against the OSC prosecutors, G was not deliberately misrepresenting the law and was not ill‑motivated. Despite this, the Appeal Panel used G’s legal errors to conclude that he had no reasonable basis for his repeated allegations of prosecutorial impropriety. Such a finding was not reasonably open to the Appeal Panel. Allegations of prosecutorial misconduct based on a sincerely held but mistaken legal belief will be reasonably based as long as they have a sufficient factual foundation. The question for incivility purposes is not whether G was right or wrong on the law; rather, the question is whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation. In this case, they did. G’s legal errors, coupled with the OSC prosecutors’ conduct, provided the reasonable basis for his allegations. Accordingly, based on the Appeal Panel’s own approach, G’s allegations were made in good faith and they were reasonably based.

Second, the other contextual factors in this case could not reasonably support a finding of professional misconduct against G on the basis of incivility. The evolving abuse of process law at the time accounts, at least in part, for the frequency of G’s allegations; the presiding judge took a passive approach in the face of G’s allegations; and G’s behaviour changed in response to the directions of the trial judge. The Appeal Panel failed to account for these contextual factors in its analysis. The only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that G was not guilty of professional misconduct. Because G, in the circumstances of this case, could not reasonably be found guilty of professional misconduct, the complaints against him are dismissed and there is no need to remit the matter to the Law Society.

Three justices dissented

the majority’s disposition in this appeal is disagreed with. The Appeal Panel’s decision was reasonable and there is no basis to interfere. Accordingly, the appeal should be dismissed. The majority fundamentally misstates the Appeal Panel’s approach to professional misconduct and reweighs the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes the Court’s judgment for that of the legislature’s chosen decision maker. Where, as here, the standard of review analysis leads to the application of reasonableness, deference is not optional. Deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable. It follows that a reviewing court also cannot supplement the decision maker’s reasoning for the purpose of undermining it. Neither may a court reweigh evidence or contextual factors considered by the decision maker. At all times, the starting point of reasonableness review is the reasons for the decision under review. There is no basis on this record to interfere with the Appeal Panel’s decision. Its analysis was cogent, logical, transparent and grounded in the evidence…

There are a number of concerns about the implications that follow from the majority’s decision: they immunize erroneous allegations from sanction by the Law Society, validate improper conduct and threaten to undermine the administration of justice and the culture change that the Court has called for in recent years. Moreover, setting aside the decision of the Appeal Panel has the potential to undermine the ability of law societies to promote the efficient resolution of disputes. Law societies are important actors in the culture change that is needed. Their decisions respecting professional misconduct should be approached with deference.

The Star reported on the decision. (Mike Frisch)