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This week at the SCC

|Written By Elizabeth Raymer

The Supreme Court of Canada will hear four appeals this week, three civil and one criminal. Today’s appeal concerns the case of an Ontario lawyer, Joseph Groia, who was disciplined by Ontario’s law society for having engaged in uncivil conduct.

Nov. 6 – Ontario –  Groia v. Law Society of Upper Canada

Law of professions: The applicant, Joseph Groia, is a barrister and solicitor licensed by the Law Society to practise law in Ontario. In 2007, he defended a client in a contentious case, and the accused was acquitted. But the litigation was complex and protracted, and disputes arose between counsel to the point of Groia alleging serious prosecutorial misconduct by the Ontario Securities Commission prosecutors. The OSC applied for judicial review, arguing Groia’s conduct was unacceptable. After the trial had concluded, the Law Society of Upper Canada initiated disciplinary proceedings against Groia, alleging that he had engaged in professional misconduct during his defence of his client. Neither the trial judge nor the OSC prosecutors complained to the Law Society about Groia’s conduct.

A hearing panel concluded that the Law Society had proven all its professional misconduct allegations against Groia, though an appeal panel allowed Groia’s appeal in part. Both the Divisional Court and Court of Appeal dismissed the appellant’s appeals.

Read the Ontario appellate court decision here.

Related news stories:
Who should control a lawyer’s courtroom behaviour? Toronto Star

Groia v. LSUC: The civility war; Canadian Lawyer

'Rude' lawyer Joseph Groia loses appeal on incivility conviction; Toronto Star

Lessons to be learned from LSUC v. Groia; Canadian Lawyer

Nov. 7 – Alberta – Valard Construction v. Bird Construction

Civil law: Bird Construction Company, a general contractor on an oilsands project, hired a subcontractor, which in turn hired Valard Construction Ltd. Neither Bird Construction Company nor the subcontractor notified Valard Construction Ltd. that the subcontractor had obtained a labour and materials payment bond, which named Bird Construction as the obligee. The subcontractor failed to pay Valard Construction’s invoices, but Bird Construction was not notified of its payment dispute with the subcontractor until after a deadline for filing a claim set out in the bond had passed. When advised of the non-payment, Bird Construction informed Valard Construction about the bond. Valard Construction Ltd. submitted a claim to the surety, but the surety refused to pay the claim because the deadline for making a claim had passed. Valard Construction Ltd. commenced an action against the surety, added Bird Construction Company as a defendant and then pursued the action only against Bird Construction Company. Bird Construction Company applied for summary dismissal.

Read the Alberta appellate court decision here.

Related news story:
Supreme Court of Canada to hear appeal from subcontractor arguing trustee must notify potential claimants of existence of surety bond; Canadian Underwriter

Nov. 9 – Ontario – Office of the Children's Lawyer v. Balev

Charter of Rights: The father and mother were married in Canada and moved to Germany a year later, where their children were born as Canadian citizens. The parents finally separated in 2013, and they agreed the mother would return to Canada with the children for educational purposes until August 2014. In March 2014, the father purported to revoke his consent and commenced a Hague Convention application in Germany and a further one in Ontario; he also applied for custody of the children in Germany. When the father’s appeals in Germany were unsuccessful, he pursued his Hague application in Ontario. In 2015, the application judge in Ontario ordered that the Office of the Children’s Lawyer intervene; that office advised the court that neither child wished to return to Germany. The Court of Appeal for Ontario, however, ruled that the children must return.

Read the Ontario appellate court decision here.

Related news story:
Court orders 2 Canadian children to move to Germany with father; CBC News Toronto

Related brief:
Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v. Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention; CanLII Connects (ABlawg)

Family Law: Hague Convention; CanLII Connects (Supreme Advocacy LLP)

Nov. 10 – British Columbia – Wing Wha Wong v. R.

Criminal law, miscarriage of justice: The applicant pled guilty to one count of trafficking cocaine. At the time he entered the plea, his counsel had not informed him that such a conviction would make him inadmissible to Canada on grounds of serious criminality pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act; nor had his counsel discussed the defence of entrapment with him. On appeal, Wong argued his plea should be set aside on the basis of ineffective assistance of counsel. The Court of Appeal dismissed the appeal, finding that allowing the conviction to stand would not amount to a miscarriage of justice because there was no evidence that Wong would not have pled guilty had he been informed of the collateral immigration consequences of his plea. Specifically, the court noted that Mr. Wong did not depose in his affidavit that had he known the jeopardy a conviction created to his permanent resident status he would not have pleaded guilty.

Read the British Columbia appellate court decision here




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