For years in the courtroom, civility was something debated as much as it was practised — a question of how far an advocate could push before crossing the line.

The case of Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772^[1]laid that tension bare.  A securities fraud trial where fierce advocacy blurred into accusations of prosecutorial misconduct, the Supreme Court was asked to decide whether incivility itself could amount to professional misconduct. In mediation, by contrast, civility is not a contested boundary but the very currency of the process. What works — or at least can be excused — in the adversarial theatre of a trial rarely serves in the negotiation room. The Groia decision forces us to think hard about where civility helps, where it hinders, and why the answer differs depending on whether you are standing before a judge or sitting at a mediation table.

The Groia Story

Joseph Groia was no junior litigator. He was a senior criminal defence lawyer representing John Felderhof, a Bre-X executive charged with securities fraud after the collapse of the notorious gold-mining company. The trial was sprawling, technical, and high-stakes. Early in the proceedings, Groia took aim at the Ontario Securities Commission prosecutors, accusing them of using what he called a “conviction filter” to deny his client a fair trial. His attacks became frequent, strident, and often sarcastic.

The trial judge largely let it play out. Disclosure rulings went both ways, and Groia’s objections became a running theme. By the second phase of the trial, after judicial admonitions, the tone shifted and the case proceeded more smoothly. Felderhof was ultimately acquitted.

But the story did not end there. The Law Society of Upper Canada initiated disciplinary proceedings against Groia, alleging that his courtroom conduct — repeated accusations of prosecutorial misconduct and sarcastic broadsides — amounted to professional misconduct.

The Law Society Proceedings

At first instance, a hearing panel of the Law Society found Groia guilty of professional misconduct. He was suspended for two months and ordered to pay $200,000 in costs. An Appeal Panel reduced the suspension to one month but upheld the finding of misconduct.

Groia took his case to the courts. The Divisional Court and the Ontario Court of Appeal largely sided with the Law Society. The Court of Appeal’s majority stressed that civility is not a nicety — it is integral to the administration of justice. A dissent, however, warned of the chilling effect on fearless advocacy if discipline was imposed too readily.

By the time the matter reached the Supreme Court, the issue was stark: how should the line between resolute advocacy and incivility be drawn?

The Supreme Court Majority

Writing for the majority, Justice Moldaver struck a careful balance. He affirmed that civility and resolute advocacy are not enemies. In fact, civility is often the most effective advocacy. But he also recognized that criminal defence lawyers, in particular, occupy a unique role. They are the last line of defence between the accused and the power of the state. They must sometimes make uncomfortable, even unpopular allegations against prosecutors, police, or other justice system actors.

The key, Moldaver said, is context. Allegations impugning opposing counsel’s integrity must be made in good faith and have a reasonable basis. They cannot be speculative, malicious, or purely rhetorical. At the same time, lawyers should not face sanction for sincerely held but mistaken legal arguments, so long as those arguments rest on some factual foundation.

Applying that standard, the majority found the Appeal Panel’s decision unreasonable. Groia had made his allegations in good faith, and his mistaken legal beliefs about disclosure obligations, though wrong, were sincerely held. His conduct was intemperate, but not professional misconduct. The majority set aside the Law Society’s finding, dismissed the complaints, and awarded costs to Groia.

The Concurrence

Justice Côté agreed with the outcome but not the reasoning. In her view, the standard of review should have been correctness, not reasonableness, because the conduct at issue occurred in open court — a domain overseen by independent judges, not regulators. Allowing law societies to second-guess in-court conduct, she warned, risks undermining judicial independence.

On the merits, she too found that Groia’s behaviour, though improper at times, did not warrant discipline. The trial judge had chosen a largely passive stance, Groia had moderated his tone once directed, and Phase Two of the trial proceeded without incident.

The Dissent

Justices Karakatsanis, Gascon, and Rowe saw it differently. They would have upheld the Law Society’s finding of misconduct. In their view, the Appeal Panel had applied a contextual, flexible standard that was entitled to deference. Groia’s repeated and sarcastic attacks on opposing counsel were neither necessary nor acceptable. Allowing him to escape sanction risked validating incivility, undermining professionalism, and eroding public confidence in the administration of justice.

The dissent emphasized that civility is not window dressing. It is a professional obligation enshrined in every code of conduct, and it matters most when the issues are hardest. Lawyers facing provocative or frustrating conduct must still exercise restraint.

Civility, Advocacy, and the Charter

What gives the case its enduring importance is the way it grapples with advocacy as both a professional duty and a constitutional imperative. On one side is the lawyer’s expressive freedom under the Charter and the duty of resolute advocacy — to raise fearlessly every issue that might assist the client. On the other side is the Law Society’s mandate to regulate the profession in the public interest and uphold confidence in justice.

The majority leaned heavily toward protecting advocacy, insisting that the threshold for incivility must not be set so low that it chills legitimate defence work. The dissent leaned toward protecting civility, stressing that unchecked incivility corrodes justice from within.

Why This Case Matters

The Groia decision has become a touchstone in Canadian legal ethics. For litigators, it provides both a shield and a warning. The shield is that you will not be disciplined simply for advancing an unpopular or mistaken argument, provided you do so in good faith and with some factual basis. The warning is that tone and repetition matter. Sarcasm, invective, and relentless personal attacks can still push conduct over the line.

For criminal defence lawyers, the case is especially significant. The Court underscored that their role demands a wide berth for criticizing the state, but also reaffirmed that even in that crucible, civility has its place.

For regulators and judges, the case is a reminder that disciplinary decisions must be contextual, proportionate, and sensitive to advocacy’s constitutional dimension.

From the Courtroom to the Mediation Table

Reading Groia today, I cannot help but reflect on my own transition from litigator to mediator. In the courtroom, there were times when “fighting fire with fire” seemed the only option. The system rewarded tenacity, even when tempers flared. Mediation is different. It thrives on civility, patience, and careful listening.

And yet, the echoes remain. Parties arrive at mediation with histories — sometimes shaped by years of incivility between counsel. Old grievances spill into the room. My job is often to cool the temperature, to restore the civility that the adversarial system eroded.

The lesson of Groia is that civility is not weakness. It is strength. It does not demand silence in the face of misconduct. It demands that allegations be made responsibly, with foundation, and without unnecessary invective. That lesson applies as much in mediation as it does in the courtroom.

Conclusion

The Supreme Court’s decision in Groia was never just about one lawyer’s conduct. It was about what kind of profession we want to be. Do we want a bar that is fearless in defence of clients, even at the cost of professional courtesy? Or one that prizes civility, even if it risks dulling advocacy’s edge?

The Court’s answer was a compromise. Fearless advocacy, yes, but bounded by reasonableness and good faith. No sanction for sincerely held mistakes. But no licence for gratuitous invective.

For those still in the trenches of litigation, the message is clear. Fight hard, fight fair, and choose your words with care.

For those of us in mediation, the message resonates too. Civility is not the end of advocacy. Done well, it is its highest form.