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Representation - Lawyers - Incivility. Guiste v. Law Society of Ontario
In Guiste v. Law Society of Ontario (Div Ct, 2026) the Divisional Court dismissed an appeal, this brought against several professional misconduct findings where: "a panel of the Hearing Division of the Law Society Tribunal found that the allegations were proven.[1] The Hearing Panel imposed a three-month suspension, and ordered that Mr. Guiste pay costs of $225,000 to the Law Society.[2] Mr. Guiste’s appeal to the Appeal Division of the Tribunal was dismissed."
Here the court considers the issue of 'incivility' in the context of a law practice:[4] I would dismiss the appeal against the findings and penalty. I agree that an appropriate balance must be struck between a lawyer’s duty of civility and his or her primary duty of resolute advocacy, and that the former cannot overshadow or compromise the latter. This can be accomplished by ensuring that the concept of incivility is properly defined and appropriately circumscribed such that it does not interfere with a lawyer’s duty to fully represent the client. The Hearing Panel did so, its findings reflect no error, and the Appeal Panel did not err in upholding the decision. I am also not persuaded that the Hearing Panel committed any error in principle in determining the penalty or that it was unfit.
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C. Application of the Factors in Groia v. Law Society of Upper Canada
(i) Overview
[67] The appellant submits that with respect to both the Street and Ram matters, the Hearing Panel erred by failing to consider all of the relevant context and thereby applied the wrong legal test in determining whether incivility amounting to professional misconduct had been established. He submits that this raises a question of law to be determined on a correctness standard and the Appeal Panel erred by applying a standard of palpable and overriding error.
[68] The parties agree that the correct approach to determining issues of incivility is that set out in Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772. As was explained in that case, at paras. 77-80, the approach must be “both flexible and precise” so that it can be applied in the wide variety of circumstances in which lawyers conduct themselves while at the same time provide a workable and reasonably ascertainable standard on which lawyers can rely to guide their behaviour. The court adopted a non-exhaustive list of relevant factors, which include (1) what the lawyer said; (2) the manner and frequency of the lawyer’s behaviour; and (3) the trial judge’s reaction.
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(ii) Balancing Civility With Resolute Advocacy
(a) Categories of Incivility
[70] A central concern in Groia, and one which permeates this case, is the need to balance a lawyer’s duty to be civil with the duty of resolute and fearless advocacy: Groia, at paras. 70-74. This latter duty is not only one of the primary functions of a lawyer, in criminal cases such as those in which the appellant was involved, it “extends beyond ethical obligations into the realm of constitutional imperatives”: Groia, at para. 75. However, these conflicting duties can be balanced provided that the concept of incivility is correctly defined and circumscribed.
[71] The term “incivility” can be applied to a broad range of conduct. In Groia, at para. 2, the court referred to “belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct” which, while not an exhaustive definition, likely captures most incivility. This type of conduct generally falls into two categories: offensive communication and baseless allegations of impropriety.
[72] The first category relates to conduct which attracts descriptions such as “belligerent behaviour” and “disruptive and discourteous conduct.” It usually refers to how a lawyer communicates with counsel, the court and others, for example where a lawyer raises his or her voice, interrupts, uses profanity or engages in vitriol or undue sarcasm. The concern is not with what the lawyer says, but “how they choose to do so”: Rappaport v. Law Society of Ontario, 2024 ONLSTA 13, at para. 35, aff’d 2025 ONSC 431 (Div. Ct.).
[73] The second category relates to unfounded attacks on the integrity of other counsel, judges or others involved in the justice system. In such cases, it is what the lawyer says, rather than how he or she says it, that matters. The two types of incivility may occur together, but this is not always the case. A baseless allegation of impropriety may be made politely.
[74] Offensive communication incivility will rarely, if ever, raise issues of conflicting duties. Resolute advocacy does not require, and is in fact inconsistent with, this type of behaviour as it can lead triers of fact to view the client’s case unfavourably and will prevent the rational resolution of disputes: Groia, at para. 54.
[75] Baseless accusation incivility may pose greater difficulties. Improper conduct by counsel, judges and others, while rare, does unfortunately occur. When it does and adversely affects a client, a lawyer has a duty to raise the issue and must be able to do so without fear of prosecution for professional misconduct. This is particularly true in the criminal law context, as explained in Groia, at para. 75:... [D]efence lawyers advancing the accused’s right to make full answer and defence “are frequently required to criticize the way state actors do their jobs”: Québec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478, at para. 32; Doré [v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395], at paras. 64-66. These criticisms range from routine Charter applications -- alleging, for example, an unconstitutional search, detention, or arrest -- to serious allegations of prosecutorial misconduct. Defence lawyers must have sufficient latitude to advance their clients’ right to make full answer and defence by raising arguments about the propriety of state actors’ conduct without fear of reprisal. (b) Resolute Advocacy and Issues Respecting Racism
[76] The concern raised in Groia is especially pronounced in cases involving issues of racism and racial discrimination in the justice system. While suggestions of systemic racism in the justice system were once often met with scepticism or indignant denial, that time has passed and its existence is now an undeniable reality, as was recognized by the Court of Appeal in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 685, at para. 1:It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97; R. v. Theriault, 2021 ONCA 517, at para. 212, leave to appeal to S.C.C. [refused, [2021] S.C.C.A. No. 362]; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario, 2018), at p. 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for African Canadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p. 29. Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. The duty to acknowledge, confront and mitigate racism falls on all criminal justice system actors, and it is undoubtedly part of a lawyer’s duty of resolute advocacy to raise the issue when doing so is in the best interests of his or her client.
[77] Special care may be required when balancing a lawyer’s duty of resolute advocacy with the duty of civility in this context. Most people rightly view racist beliefs and attitudes with moral disapprobation and will therefore take great exception to being accused of having such beliefs and attitudes. However, it is now well recognized that biases can be unconscious and many people who hold such beliefs and attitudes are unaware that they do so: R. v. Chouhan, 2021 SCC 26, 459 D.L.R. (4th) 193, at paras. 49, 53. Individuals may take great offence when counsel raise issues of racism, even when they do so legitimately and with a proper basis.
[78] This is precisely what occurred in R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.). In that case, counsel for the accused alleged in the course of a s. 9 Charter application that his client, a Black man, had been stopped by the police as a result of racial profiling. While there was an evidentiary basis for the application, as the Court of Appeal concluded, at trial the argument was met with what the Court of Appeal characterized as “judicial resistance” by the trial judge, who characterized it as “really quite nasty, malicious, potentially, accusations based on … nothing” and who, after dismissing the application, suggested that the accused should apologize to the police: Brown, at paras. 60, 81, 98.
[79] For this reason, the following caution in Groia, at para. 76, is of particular importance where an allegation of incivility is made in relation to a lawyer who has raised issues of racism:Nevertheless, when defining incivility and assessing whether a lawyer’s behaviour crosses the line, care must be taken to set a sufficiently high threshold that will not chill the kind of fearless advocacy that is at times necessary to advance a client's cause. (c) The Lack of Reasonable Basis Requirement
[80] As discussed in Groia, at paras. 81-97, there are two main components to a finding of incivility based on allegations of impropriety: (1) a lack of reasonable basis for the allegation; and (2) a lack of a good faith basis for the allegation. Both can play an important role as safeguards in ensuring that there is a sufficiently high threshold to be met before it can be concluded that a lawyer has crossed the line.
[81] As noted in Groia, at para. 88, “the reasonable basis requirement is not an exacting standard.” Allegations of impropriety that have weak evidentiary support or are merely unlikely to succeed are insufficient to ground a finding of incivility. The following description of when such allegations are appropriate from R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 88, is helpful in this regard:The defence has the right to make allegations of abuse of process and prosecutorial misconduct, but only where those allegations have some foundation in the record, only where there is some possibility that the allegations will lead to a remedy and only at the appropriate time in the proceedings. [Emphasis added]. [82] Two points must be borne in mind when considering whether there is a reasonable basis for an allegation of impropriety based on racist motivations. The first is that establishing that a state actor was improperly motivated by racism, and particularly unconscious racism, is often difficult and will rarely be achieved by relying on direct evidence: Brown, at paras. 45-46.
[83] The second is that a decision by a state actor can be legitimately raised by a lawyer as long as race or racial stereotypes played some role and the decision need not be motivated solely or even mainly by race-based considerations: R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at paras. 62-65.
[84] Provided that there is some foundation for an allegation and some possibility that the allegation will lead to a remedy, the making of an allegation cannot amount to incivility unless it is done in an uncivil manner. There is no restriction on a lawyer’s duty of resolute advocacy in these circumstances. Incivility may only be found if there is no foundation for the allegation and no possibility that it will lead to a remedy. Where baseless accusation incivility is defined in this way, there will be no effect on the duty of resolute advocacy as it is never in a client’s interest for a lawyer to make allegations that cannot result in a remedy.
(d) The Lack of Good Faith Requirement
[85] The second safeguard is the need to consider whether the lawyer made the allegation of impropriety in bad faith or whether it was based on a sincerely held belief, even if mistaken. The court in Groia concluded, at para. 84, that it is open to a Law Society to conclude that civility requires the presence of both good faith and a reasonable basis because of concerns about “irresponsible counsel with sincere but nevertheless unsupportable suspicions.” While this suggests that a finding of incivility can be made where there is either a lack of reasonable basis or a finding of bad faith, the court made it clear that incivility is not made out where the lack of reasonable basis is based on a lawyer’s good faith mistake about the law: Groia, at paras. 90-91.
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