"An Evolving Sensitivity to Civility" - Peter L. Roy of Roy, Elliot O'Connor
Mr. Joseph Groia's discipline hearing continues this week. Joseph Groia represented John Felderhof before the Ontario Securities Commission.
Big Lady Justice sat through several days of Mr. Groia's hearing during the last 2 weeks.
On August 8, 2011, Mr. Peter Roy (Roy, Elliot O'Connor) appeared as a Witness for Joseph Groia. Mr. Roy was called to the Bar of Ontario in 1976. In April 1997, Mr. Roy was retained by BMO and Nesbitt Burns to head up the Mining Litigation aspect of the defence after the announcement of the results in Bre X Minerals.
Mr. Peter L. Roy was asked his perspective on the civility issue. Since his early career, he has seen how the "the whole approach to civility has become sensitized."
Mr. Roy expressed his view of an "evolving sensitivity to civility".
In Mr. Roy's re-examination, he was given the opportunity to elaborate on his view of an evolving sensitivity to Civility. Joseph Groia's lawyer Earl Cherniak asked Mr. Roy, " . . .has it [civility] been evolving in the last 10 years?" Mr. Roy answered, "I think it has, much more so now. People are much more sensitive to it, than they were ten years ago, or even five years go."
Mr. Peter Roy said, "I take tone to be inflection and presentation . . . I don't know how you get that from a transcript". (the late, Honourable Justice Archie Campbell had discussed tone).
Law Society's Civility Protocols for Ontario Lawyers
Big Lady Justice has a reasoned suspicion that these "Civility Complaints Protocols" were developed with a view to using them specifically against Joseph Groia (with significant contribution from Justice Michael Code). Throughout Joseph Groia’s discipline hearing, Big Lady Justice has not overheard anything he said before the OSC that could be considered uncivil or rude, and certainly nothing that would rise to the level of meriting a discipline proceeding.
Is it uncivil to ask for complete and full disclosure in hard copy? Is it uncivil to make legal argument? Is it uncivil to allege prosecutorial misconduct? Is it uncivil to use metaphors? Is it uncivil to represent an undesirable client? Is it uncivil to have your undesirable client acquitted of charges before the OSC?
The Law Society’s outrageous discipline hearing against Joseph Groia brings disrepute to the administration of justice.
Check out W. A. Derry Millar's statement on "Civility Complaints Protocols".(http://www.lsuc.on.ca/media/convmay10_treasuers_report.pdf).
His statement provides little, substantive context for exigent circumstances that allegedly necessitated the Judiciary's "Civility Complaints Protocols".
"Over the past year, the Law Society has developed and
implemented a plan to promote effective exchanges of
information between the Law Society and the judiciary. The
Civility Complaints Protocols were introduced in September
2009, providing mechanisms for judges and justices of the
peace to refer to the Law Society incidents of inappropriate
conduct on the part of lawyers and paralegals appearing in
their courts. These protocols also provide a new process
whereby referred lawyers can receive mentoring from senior
members of the bar."
In essence, the "Civility Complaints Protocol" is a judicial mechanism for judges' to complain about lawyers. This "plan" facilitates judicial complaints "between the Law Society and the judiciary", not public complaints. Interestingly, W.A Derry Millar does not mention section 63 of the Judges Act, a mechanism for lawyers and lay persons to complain about judicial misconduct.
Quite unlike Peter Roy's evidence of an evolving sensitivity to civility, Derry Millar represents a "decline in civility".
" . . . complaints to the Law Society
related to incivility have increased from 11 per cent of all
complaints received in 2004 to 35 per cent in 2009. Both the
Honourable Coulter Osborne’s 2007 report on the Civil Justice
Reform Project and the 2008 Report of the Review of Large and
Complex Case Procedures by the Honourable Patrick LeSage,
Q.C., and the Honourable Mr. Justice Michael Code addressed
this increase in incivility among legal service providers . . . "
What is interesting about W.A. Derry Millar's characterizations and representations is the spate of information he does not provide. W.A. Derry Millar did not provide his view of what "related to civility" means. Is bringing a disclosure motion "uncivil"? Is bring a recusal motion "uncivil"?
W.A. Derry Millar's statements further represents,
" Participants offered various reasons for the decline in civility,
including the increased size and diversity of the bar that has led
to fewer close personal relationships among professionals that
traditionally helped maintain good standards of behaviour . . "For some reason, W.A. Derry Millar did not elaborate on why some participants offered "diversity" of the bar as one of the reasons offered to explain the decline in civility.
Does W.A. Derry Millar believe this too? Did W.A. Derry Millar conduct a "Diversity Forum" with 800 participants? I didn't get the invitation.
Why didn't W.A. Derry Millar explain the alleged causality between "diversity of the bar" leading to "fewer close relationships among professionals"? what?! what does that mean? ? Where is the evidence to support this?
Why did the former Treasurer include this in his statement, and then not bother to explain it?
Did these participants sit around and complain about the bar's growing diversity?
Isn't it quite curious that diversity of the bar is proffered as a reason by some participants as a reason to explain the alleged "decline in civility"?
What are the demographics of these 800 participants?
Why wasn't the entire profession consulted? W.A. Derry Millar's statement does not acknowledge the evolving sensitivity of recusal motions.
Were these 800 representatives a representative sample of the 42,000 licensed lawyers in Ontario?
W. A. Derry Millar's report does not provide stats on the percentage of public complaints not acted upon, compared to the percentage of judicial complaints not acted upon.
W. A. Derry Millar's report does not discuss the application of the Judiciary's Civility Complaints Protocol. So far, the Judiciary's Civility Complaints Protocol has been disproportionately against female, sole practitioners including female lawyers from "diverse" backgrounds (e.g. Caribbean, Filipino ethnic backgrounds). Of course, the LSUC does not want to highlight this.
Michael McKiernan is not a lawyer. Glenn Kauth isn't either
The unknowledgeable opinions of Michael McKiernan of the Law Times highlight the fact Michael McKiernan never attended law school. Michael McKieran is not a lawyer. Glenn Kauth isn't either. Both do not understand the significance of basic legal issues, nor do they fully grasp the importance of due diligence before trying to write intelligibly about legal ethics and legal issues to an audience of legal readers.
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