LSUC Places Stubbornness Above Sensible Decision-Making

I recently wrote a post that sparked a firestorm of comments; most felt that I had overstepped myself for daring to suggest that the Law Society of Upper Canada ignores obvious conflicts in connection with its operations. This week we have another LSUC conflict issue.

Canadian Lawyer Magazine has reported on the ongoing proceedings between LSUC and Joseph Groia. As you are aware, Joseph Groia was found guilty of misconduct by a LSUC disciplinary panel last summer and he is appealing that decision.

The panel that will hear the appeal is comprised of 5 benchers – one of which is Peter Wardle.

Groia is seeking to have Wardle recused from that panel because as Canadian Lawyer reports, “‘There is a reasonable apprehension of bias arising from the fact that partners and associates at Mr. Wardle’s firm, Wardle Daley Bernstein LLP, regularly represent the Ontario Securities Commission as prosecutors and are closely involved in proceedings at the OSC and that Wardle LLP also regularly represents the Law Society of Upper Canada as prosecutors in discipline proceedings,’ wrote Groia’s counsel, Earl Cherniak, in a June 5 notice of motion…..Wardle has refused to recuse himself, the notice of motion notes.”

I emailed Peter Wardle for comment. He responded as follows: “Mitch, I can’t comment on this except to say that no decision has been made and that the Panel is convening to hear the motion in early July.”

I don’t know Joe Groia and I barely know Peter Wardle.

I also have no comment on the disciplinary decision against Joe Groia.

My concern is a very simple one that echoes past blog posts: LSUC has a tendency to make bad decisions which waste membership money.

Mr Wardle is a very bright guy who would add value to the appeals panel. However, he is not the only bencher in Convocation. Mr. Wardle was not elected as a bencher for sole purpose of sitting on appeals panels and he could have just as easily not been elected as a bencher– in other words, his status as a bencher is not based on his skills, but on the whims of lawyers in this province.

In other words, why is it so vital that Mr. Wardle sit on this appeals panel?

Why is LSUC wasting time and money fighting over a recusal that is quite frankly irrelevant given that there are numerous other benchers for this panel?

It appears that the Groia matter has now become personal to LSUC and it will not be told who can, and cannot, sit on the appeals panel.

The former CEO of LSUC and the current Treasurer have both cited complex prosecutions as a reason why LSUC burns through mountains of membership fees each year. Given the failure of LSUC to recognize a potential conflict on the Groia appeal panel and remove Mr. Wardle (thereby saving time and money), one has to wonder how many other very bad decisions have been made on past prosecutions that caused needless hearings and wasted money.

LSUC has to be far more strategic and sensible in these matters – the membership should not have its fees wasted because LSUC wants to puff out its chest in silly personality fights.

Remove Mr. Wardle from the panel and let’s get on with the appeal.

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Comments

  1. Check out Power v. Zuro on Canlii.. I learned this lesson years ago.

  2. Ralph Doncaster

    In theory law is supposed to be done logically and without emotion. My observation is that about half of the judges I’ve appeared before let their emotions guide their decisions. Law school focuses on the logic and reasoning, when being skilled in diplomacy (either by natural talent or by learned psychology) is important in most legal proceedings.

  3. “In theory law is supposed to be done logically and without emotion.”

    Not even always in theory, if you take the Supreme Court of Canada and the House of Lords at their words.

    Here’s 3 examples from the SCC, the two best explanations I know of from the HL, and an aphorism worth mentioning again.

    R. v. Fontaine, 2004 SCC 27, [2004] 1 SCR 702 at para 57: “But in this as in other branches of the law, pure logic must yield to experience and, without undue distortion of principle, to a more practical and more desirable approach.”

    ITO-Int’l Terminal Operators v. Miida Electronics, [1986] 1 SCR 752 at 788: “I would observe on this point that conceptual difficulties of this nature are not a novel feature of the common law. In fact it may be said that one of the virtues of the common law is that it has never really let pure logic get in the way of common sense and practical necessity when a desirable result is sought to be achieved.”

    Arndt v. Smith, [1997] 2 SCR 539 at para. 17: “It has been said that a subjective test, despite its dangers, is the most logical. Yet pure logic cannot achieve the fairness attained by the application of Reibl test.”

    As was often the case in the Commonwealth, the best statement appears in a House of Lords decision: White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455 at 511 per Lord Lord Hoffmann. The issue was whether the the House of Lords should attempt to eliminate the inconsistencies in the content of English law governing tort liability for psychiatric injury. The decision was “no”.

    “It may be said that the common law should not pay attention these feelings about the relative merits of different classes of claimants. It should stick to principle and not concern itself with distributive justice. An extension of liability to rescuers and helpers would be a modest incremental development in the common law tradition and, as between these plaintiffs and these defendants, produce a just result. My Lords, I disagree. It seems to me that in this area of the law, the search for principle was called off in Alcock v. Chief Constable of South Yorkshire, [1992] 1 A.C. 310. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle. …

    Consequently your Lordships are now engaged, not in the bold development of principle, but in a practical attempt, under adverse conditions, to preserve the general perception of the law as system of rules which is fair between one citizen and another.

    Next , there’s the classic HL comment about law, logic, and stare decisis from Quinn v. Leathem, [1901] A.C. 495 at 506, [1901] UKHL 2 (H.L.):

    “[A] case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”

    It’s not difficult to find judicial statements adopting Holmes’ assertion that the life of the common law is experience, not logic. Use this syntax in the CanLII full text box: Holmes /p (“life of the law has not been logic”)

  4. True enough, David. I remember a SCC judge saying to me (in a private conversation, not in open court) that people think the law is common sense, but it isn’t.

    That said, it seems very clear to me that Mr Wardle should recuse himself, and there is no emotional or traditional reason that would override the logic of it.

  5. I agree that he should recuse himself.

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