U of O witch-hunt against Rancourt in full swing -- DAY-3 of arbitration trial

Today was DAY-3 of the binding labour arbitration hearing into the wrongful dismissal case of physics professor Denis Rancourt. Following a rough start (link to all posts about hearings), it was up to the University, in the person of union-busting lawyer Lynn Harnden, to make the opening statements.

The opening statement did not disappoint. It was over-the-top with partial and undated extracts from blog posts, media articles, emails from unidentified sources; including lyrics from Immortal Technique, a reference to the Ottawa bank firebombing, suggestions of inciting violence (evidenced by not inciting violence), and more.

Harnden distributed paper copies of his 19-page statement to the media and public: HERE.

The public and the union were stunned, as was the grievor.

The union, in the person of labour lawyer Sean McGee, patiently responded orally in an almost two-hour presentation. Here are highlights:

"His ideas are so dangerous that he is not allowed on campus without a police escort."

"Can a professor challenge the established order and entrenched patterns of thought? Can a professor adopt a methodology in his teaching and defend and protect that methodology ... without fear of the capital punishment of termination?"

"The University is offended, inconvenienced, and students criticize ... his methods are unpopular and unconventional ... but what is this case about?"

"The University's portrait of a Mansonesque figure is such a distortion of the facts."

"The allegation of 'frivolous grading' is just not true. Nothing of the sort. This was a studied, carefully considered attempt to improve the way physics is taught and learned."

"Calling this 'academic fraud' is shocking hyperbole from an institution of higher learning. The University alleges 'frivolous', 'fraudulent', 'selfish' ... there is nothing to suggest selfish. In fact, quite the contrary ..."

"Case in point, the use of Immortal Technique to show how demonic professor Rancourt is and to allege his desperation in his desire to lure students ... is reminiscent of Catholic nuns in Ottawa urging young girls to stay away from Elvis Presley's concert and his lewd and gyrating hips... and this now in the 21st century."

"Professor Rancourt was made to be increasingly limited to a smaller and smaller sphere of activity: from no teaching in 1st year, to no teaching, to being locked out of his laboratory, to blocking his cinema series, to blocking access to his campus radio show, to no campus access without police escort, to termination."

"This is significant evidence that the University wanted to cut off his efforts to communicate his ideas."

"We are going to ask you to conclude that professor Rancourt does not incite people to violence -- does not, has not, and will not incite anyone to violence. For the University to cite the law about risks of violent acts -- raising that in this context - is - difficult - to - understand - ..."

"The University is funding the defamation lawsuit [St. Lewis v. Rancourt] it now uses as evidence for professor Rancourt's dismissal..."

"In the end, this is a bad faith attempt to get rid of him at all costs."

"Regardless of what you think of professor Rancourt, we will ask you to find that there were no grounds for dismissal."

Tomorrow is DAY-4. The University wants a discovery order to dig into the Immortal Technique connection... Meanwhile, it has supplied none of the emails of the upper administration's known-to-UofOWatch "war room" meetings* in firing Rancourt. (*Most of these will be non-disclosed pursuant to solicitor-client privilege.)

Following public submissions (LINK), the Arbitrator had released his decision to ban all video and audio recordings of the hearings, which are done without an official court transcript -- see ruling HERE. The University's on-record repeated attempts (E.G.) to potentially block the grievor's UofOWatch blog during the hearings fell flat and was not mentioned or retained in the Arbitrator's decision.

See hearings schedule and reports: HERE.

Chronology of wrongful-dismissal background events: HERE.

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Wires crossed in the U of O St. Lewis v. Rancourt litigation...?

"... it is a personal libel action and has nothing to do with it being a SLAPP suit at all."

-- Richard G. Dearden, Gowlings-firm-lawyer paid by U of O (link)


"Her efforts were not personal, but in the interests of the University."

-- David W. Scott, BLG-national-Co-Chair lawyer paid by the U of O (link)




"I have been asked ... to provide an independent evaluation..."

-- Joanne St. Lewis, U of O law professor and plaintiff (link)


"The University has received and will make public this week an evaluation, by an independent assessor, of the report of the Student Appeals Centre."

-- Robert Major, Former U of O VP-Academic and Provost (link)


"... work which she undertook at the request of the University and in the course of her duties and responsibilities as an employee. Her efforts were not personal, but in the interests of the University."

-- David W. Scott, BLG-national-Co-Chair lawyer paid by the U of O (link)

?

Oh, and this by the incomparable president Allan Rock (link):

From: Allan Rock
Sent: Monday November 17, 2008 11:25 AM
To: Robert Major, Victor Simon, Mona Nemer, Nathalie Des Rosiers, Andre Dumulon, Julie Cafley
Subjet: RE: NEWS RELEASE -- Student Appeal Centre report

Robert:

I think the report is very well done. My only concern is with the first recommendation, the wording of which seems to assume that there is some racism present already. Since Professor St. Lewis has already concluded that there is no evidence of it, such wording is wrong and inconsistent with her own report.

Apart from that, the report looks very sound. I assume any press release will say that we are going to study the recommendations, since we have to consult the Senate and other interested parties before committing to the time limits and other recommended changes.

One last point. I would like Robert to be the only point of contact for us with Professor St. Lewis. Although her report is excellent, it may be criticized as not being "independent" from the administration. So far, our dealings with her have been through Robert and have been scrupulously objective. We have simply sought her view, and have imposed no limitations, contraints or conditions. She has been entirely free to say anything she wants. In order to maintain this professional and objective relationship with her, I want Robert to be the only one in communication with her. Robert can simply observe that the first recommendation seems inconsitent with her findings. It will then be up to professor St. Lewis to decide whether to make a change. If a number of people all send emails and call, we will lose that focus of professionalism and independence.

I will take this matter up with CA at noon today. Robert, will you be able to plug in by phone?

Allan
[In response to Robert asking all to quickly give him their feedback on St. Lewis' draft report...]

As background, all related posts about the lawsuit are HERE.

Links to all pleadings and court documents in the lawsuit are HERE.

A Law Times media article about the lawsuit is HERE.
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Gowlings-firm-lawyer Richard Dearden reaction to U of O disclosing its funding of St. Lewis lawsuit

Following THIS, as per a recent media article (HERE):

“I would think that the defamatory statements that he has made about Professor St. Lewis show that it is a personal libel action and has nothing to do with it being a SLAPP suit at all,” Dearden said.

“It has everything to do with protecting your reputation.”

Dearden, who often acts for The Citizen, said the blog comes up as the second result in a Google search of St. Lewis’s name.

“It has to come down. That’s our position,” Dearden said, adding that financial arrangements with his client are privileged and he would not discuss them.

***

As background, all related posts about the lawsuit are HERE.

Links to all pleadings and court documents in the lawsuit are HERE.

A Law Times media article about the lawsuit is HERE.
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Gowlings-firm-lawyer Richard Dearden on Rules and on conflict of interest

An inside view of the St. Lewis v. Rancourt litigation


Now that the University of Ottawa was forced to admit (HERE) its funding of the on-going legal attack against fired physics professor Denis Rancourt, questions remain about president Allan Rock's direct involvement in the decision to fund the litigation. And there now can be no doubt that this a public matter.

If the action is in-part effectively a SLAPP (strategic litigation against public participation), then the behaviour of plaintiff's counsel (who is a part-time law professor at the University of Ottawa) in managing the action is a matter of public concern.

The following email exchange between Gowlings-firm-lawyer Richard Dearden and defendant Rancourt gives an inside view of the nature of the interactions in the litigation.

One sees a counsel for the plaintiff, under instructions for the plaintiff who is a law professor, who disregards the most basic Rules of Procedure and who attempted to create a situation of obvious conflict of interest in establishing the conditions for a mandatory mediation.


On Thu, Oct 20, 2011 at 3:40 PM, Dearden, Richard ; wrote:

Mr. Rancourt - fyi, I will be filing another motion to compel you to answer questions you refused to answer on October 14th. It is my understanding that the earliest date available is October 27th. The motion will be before a Judge on October 27th at 10am.

On Fri, Oct 21, 2011 at 2:22 PM, Denis Rancourt ; wrote:

Mr. Dearden,
I received the Motion Record today.
I will not contest your Motion and I will answer your additional questions by email under my continued affirmation by October 28th.
DGR

On Sat, Oct 22, 2011 at 5:23 PM, Dearden, Richard ; wrote:

Mr. Rancourt. I acknowledge that you will be answering the questions you refused to answer on your continued cross-examination. Unfortunately and unnecessarily you required us to incur the costs of the preparation of a Motion Record and the service and filing of the motion record.
I gave you notice during the cross-examination that I would be seeking costs against you if I was required to file a motion to obtain an Order compelling you to answer the questions you refused to answer.
To avoid an appearance before a Judge on October 27th to deal with the issue of costs, I am offering that you pay $350 in costs within the next 10 days. If you accept this offer, we will send for your signature a Consent to an Order that will state you will pay $350 in costs and that you will answer the refusals that you have now agreed to answer. Please let me know your position on the $350 costs no later than Tuesday October 25th.

On Sat, Oct 22, 2011 at 7:26 PM, Denis Rancourt ; wrote:

Mr. Dearden,

1. Thank you for your message.

2. You refer to a notice about cost you allege to have given to me (you did not) during the cross-examination of October 14th and you have used the full transcript of the October 14th cross examinations in your work to prepare the Motion Record but you have not provided me with a full copy of the transcript. You have up to now disregarded Rule 39.02(4)(a) and my deadline to file a responding motion record using your motion date was Friday. Therefore, please immediately send me a copy of the full transcripts of the October 14th cross examinations, which are due irrespective of whether we go to hearing or not:

Rule 39.02(4)(a) states:

(4) On a motion other than a motion for summary judgment or a contempt order, a party who cross-examines on an affidavit,
(a) shall, where the party orders a transcript of the examination, purchase and serve a copy on every adverse party on the motion, free of charge;

3. You did not ask me to comply before needlessly going ahead and preparing a Motion Record, contrary to what you have always done in the past (all previous three motions) and as I would have expected. That is the unfortunate thing. In the future, to avoid this situation, please always first simply ask and I may be able to agree without any need to further expend resources.

4. Given these circumstances, please (i) drop the cost request and (ii) send me the copies of the transcripts which are due under Rule 39.02(4)(a).

5. Also, you have continued to disregard Rule 37.10.1(1)(a) in always refusing to confer with me before setting dates for motions, now the fourth motion. In this case, I am not available Thursday October 27th, but that is irrelevant when we can agree on the outstanding matters.

Rule 37.10.1(1)(a) states:

37.10.1 (1) A party who makes a motion on notice to another party shall,
(a) confer or attempt to confer with the other party;

6. Please send me the Consent with no costs and send me the transcripts.

DGR

On Sun, Oct 23, 2011 at 10:49 AM, Dearden, Richard ; wrote:

Mr. Rancourt
1. Your demands for a copy of the entire transcript are based on the false premise that I am in possession of the full transcript. The only copy of the transcript that I had in preparing the Motion Record are the pages that I served on you in the Motion Record.

2. The first available date to get before a Judge next week for a 30 minute motion was October 27th. You fail to appreciate that the mandatory mediation motion is scheduled for November 15th and accordingly time is of the essence to complete my cross-examination of you. You have informed the Court that you are not employed and therefore you should have no problem attending Court on October 27th to deal with how much costs you should pay for refusing to answer relevant questions and unnecessarily requiring me to file another refusals motion. You also have the choice to retain counsel to appear on your behalf on October 27th.

3. Please note that on October 27th I will be seeking costs against you in an amount higher than the $350 I offered you as well as costs for the attendance before the Court on October 27th. The offer of $350 costs remains open until 2pm on October 24th.

On Sun, Oct 23, 2011 at 3:51 PM, Denis Rancourt ; wrote:

Mr. Dearden,

1. Thank you for your continued offer about cost which I continue to consider.

2. I understand that you are not presently in possession of a copy of the entire transcripts, as you assert. My request for copies of the entire transcripts is based on Rule 39.02(4)(a) which states "where the party orders a transcript of the examination". I was personally present when you ordered the transcripts and insisted on knowing the time it would take from the Court Reporter. Otherwise, you are very talented if you can select specific parts for a partial transcript for use in a Motion Record without you or your associates using or knowing the full transcript? Please comply with Rule 39.02(4) and instruct the Court Reporter to send me the complete transcripts.

3. I am not available on Thursday 27th. I would have informed you of this had you conferred with me about the date as you were required to do following Rule 37.10.1(1)(a). My next available date at 10am is Thursday November 3rd. Recall that this would likely be dealing only with the matter of cost, a point that you appear to not appreciate in citing the November 15th main motion hearing date.

4. You did not ask me to comply before needlessly going ahead and preparing a Motion Record, contrary to what you have always done in the past (all previous three motions) and as I would have expected. In the future, to avoid this situation, please always first simply ask and I may be able to agree without any need to further expend resources.

5. Do you accept the attached Offer to Settle the main motion? If so, you will agree that the outstanding refusals and undertaking are moot and that answers are therefore not required. This would greatly simplify the overall proceedings and I hope that you can accept the Offer.

DGR

On Sun, Oct 23, 2011 at 7:46 PM, Dearden, Richard ; wrote:

Mr. Rancourt

1. further to para 5 (and the attachment) to the email below, Professor St. Lewis accepts your offer to settle the mandatory mediation motion and selects Ellen Zweibel as the mediator. I will email Professor Zweibel (and cc you) to ask if she can conduct the mediation on November 15th.

2. We will cancel the refusals motion scheduled for October 27th and cancel the mandatory mediation motion scheduled for November 15th.

3. I will respond to the other paragraphs in your email below later this week.

From: Dearden, Richard ;
Date: Sun, Oct 23, 2011 at 9:38 PM
Subject: Professor St. Lewis v. Denis Rancourt
To: Ellen Zweibel
Cc: Denis Rancourt

Good evening Professor Zweibel. I act for Professor Joanne St. Lewis in a libel action she has commenced against Mr. Rancourt, a former physics Professor at the University of Ottawa. Mr. Rancourt has proposed you as a mediator for the mandatory mediation in this action and Professor St. Lewis is in agreement with that proposal. I appreciate this may be short notice but are you available to be the mediator in a mandatory mediation on in this action on November 15th in Ottawa?

From: Denis Rancourt ;
Date: Sun, Oct 23, 2011 at 11:17 PM
Subject: Re: Professor St. Lewis v. Denis Rancourt
To: Ellen Zweibel
Cc: "Dearden, Richard" <>

Good evening Professor Zweibel,

I would like to clarify a few points following Mr. Dearden's email:

(1) This would be an assignment under the Ontario Roster mediator program for Mandatory Mediation.

(2) As I would with any mediator, I would like to briefly meet you one-on-one before the mediation date (as soon as possible) only to ask you questions which are consistent with the section entitled "What should parties consider in choosing a mediator?" in the Ministry of the Attorney General's "Fact Sheet: Mandatory Mediation, Effective January 1, 2010".

(3) Frankly, I did not realize when today I made my proposal to use a Roster mediator for Mandatory Mediation (and gave three Ottawa-based names in inverse-alphabetical order) that you are in the Common Law Faculty and therefore are a colleague of both Mr. Dearden and Professor St. Lewis. I now note from a brief web search that you are an eminently qualified mediator. If in your professional opinion and following our short introductory meeting, you conclude that there is not a conflict of interest, then I will accept your judgment and look forward to a productive mediation.

Sincerely,
Dr. Denis Rancourt

From: Dearden, Richard ;
Date: Mon, Oct 24, 2011 at 5:55 AM
Subject: RE: Professor St. Lewis v. Denis Rancourt
To: Denis Rancourt ;, Ellen Zweibel
Cc: "Wagner, Wendy"

Mr. Rancourt - further to paragraph 2 of your email below to Professor Zweibel, I have previously informed you that you will not be meeting with the mediator one on one prior to the commencement of the mediation. We have accepted your choice of Professor Zweibel as the mediator whose mediations skills are renown. Our next steps are to confirm the date of the mediation (we ahve asked Professor Zweibel if she is available November 15th) , sign a mediation agreement and once we book a mediation date we will decide on the date that we provide Professsor Zweibel with our Mediation Briefs.

From: Denis Rancourt ;
Date: Mon, Oct 24, 2011 at 9:14 AM
Subject: Re: Professor St. Lewis v. Denis Rancourt
To: "Dearden, Richard" ;
Cc: Ellen Zweibel, "Wagner, Wendy" ;

Mr. Dearden,

The next steps are:

(1) For Professor Zweibel to answer whether she is able to accept the mediation assignment, given both the time constraints and my question about conflict of interest. This should be answered as soon as possible.

(2) If no, to choose another mediator by mutual consent.

Denis Rancourt

From: Ellen Zweibel ;
Date: Mon, Oct 24, 2011 at 10:33 AM
Subject: RE: Professor St. Lewis v. Denis Rancourt
To: Denis Rancourt <>, "Dearden, Richard" ;
Cc: "Wagner, Wendy" ;

Good morning Mr Rancourt and Mr Dearden

I must decline the request to act as the mediator in this matter. Professor St. Lewis is a colleague on my faculty. I have been a member of the APUO grievance committee and have heard requests by Mr Rancourt on one or two grievances matters.

Thank you for considering me for this.

Very truly yours,

Ellen B. Zweibel, Professor

From: Denis Rancourt ;
Date: Mon, Oct 24, 2011 at 10:51 AM
Subject: Re: Professor St. Lewis v. Denis Rancourt
To: Ellen Zweibel ;
Cc: "Dearden, Richard" ;, "Wagner, Wendy" ;

Professor Zweibel,

Thank you for the rapid answer.

Just to clarify: I do not recall your presence at one or two grievance committee meetings and even your web photo did not help my memory. Also, there have been many such grievance committee meetings with many different committee members and I do not receive minutes from these meetings. Very sorry for the confusion.

Sincerely,
Dr. Denis Rancourt

From: Renzo Catana ;
Date: Mon, Oct 24, 2011 at 1:13 PM
Subject: Transcript - WORD
To: "Richard G. Dearden" ;
Cc: Denis Rancourt ;

Gentlemen,

Please find attached the Continued Cross-Examinations of Mr. Rancourt and Mr. Lamontagne of October 14, 2011 in WORD format.

The hard copies will be delivered later today by courier.

Renzo Catana
CORNELL CATANA REPORTING SERVICES

U of O admits funding "private lawsuit" against fired professor

David W. Scott, BLG Co-Chair

The high-profile case of St. Lewis v. Rancourt involves law professor Joanne St. Lewis, represented by part-time-law-professor and Gowlings-firm-lawyer Richard Dearden, and former physics professor Denis Rancourt, all at the University of Ottawa.

St. Lewis' defamation lawsuit is for a blog post by Rancourt critical of St. Lewis' role in minimizing a student report about systemic racism at the school, via an "evaluation report" of the student report. Both St. Lewis and the University administration characterized the St. Lewis "evaluation report" as an "independent" assessment.

The lawsuit claims damages of $1 million and would provide $125 thousand directly to the University for a scholarship fund.

There is uncontested public record evidence of the litigation being aggressive, and a barrage of four motions have already been filed against the self-represented and unemployed defendant since pleadings were closed on August 5, 2011, HERE.

Case law in Ontario has established that publicly funded corporations such as school boards and municipalities cannot sue individuals for defamation related to any criticisms, in that the asymmetry of resources negates the individual's Charter rights.

Not to mention the other obvious problems related to using public funds and student tuition money in this way if an accredited university were to fund a "private" litigation aimed at silencing one of its critics.

Questions therefore arise: Is this effectively a SLAPP (strategic litigation against public participation)? Is public and student money being used for one professor to sue a former professor over criticism with sting and name-calling? Is this an individual exercising her right to protect her reputation or an institution attacking one of its vocal critics?

Is the University funding the lawsuit?

It has taken two months to extract an answer from the University. The efforts to get an answer have included:

• Persistent and repeated requests to president Allan Rock and his administration, HERE.
• An access to information (ATI) request, rebuked as "frivolous", HERE.
• A formal motion at University Senate, HERE.
• A direct and unanswered question to Dearden in a Court hearing (October 6, 2011).
  

Finally, an answer came one-day after the October 24, 2011, deadline set by Rancourt. The answer is provided by a national firm Co-Chair of BLG, the largest law firm in Canada, Mr. David W. Scott (link to letter):

Dear Dr. Rancourt

We represent the University of Ottawa and are responding to your communication of August 28.

Of the many questions which you have posed, I am instructed to answer only the first. The remaining questions suggest an agenda and are beyond any requirement to respond.

Indeed, the University of Ottawa is reimbursing Professor St. Lewis for her legal fees incurred in her defamation proceeding in the Courts against you. Your defamatory remarks about Professor St. Lewis were occasioned by work which she undertook at the request of the University and in the course of her duties and responsibilities as an employee. Her efforts were not personal, but in the interests of the University. Furthermore, your outrageously racist attack upon her takes this case out of the ordinary and, in the view of the University, alone creates a moral obligation to provide support for her in defence of her reputation.

For the future, any questions which you choose to pose in respect of which there is no legal obligation to respond will be not answered.

Yours very truly
Borden Ladner Gervais LLP
David W. Scott

When Mr. Scott was elected Chair of Pro Bono Law Ontario in 2007, he graciously stated (link):

"In my opinion, the single most important issue facing those charged with responsibility for the administration of justice is access to the courts by ordinary citizens. That's what Pro Bono Law Ontario is all about. It's great to be part of such a wonderful organization."

I guess this is Mr. Scott's way to help ensure that law professor St. Lewis has access to justice?

As background, all related posts about the lawsuit are HERE.

Links to all pleadings and court documents in the lawsuit are HERE.

A Law Times media article about the lawsuit is HERE.
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Submissions on video transparency to Arbitrator Foisy in Rancourt wrongful dismissal case

Following the latest hearing day of October 12, 2011, in the wrongful dismissal case of physics professor Denis Rancourt, the Arbitrator invited written submissions about video recording of the sessions, with a submission deadline of October 18, 2011.

A report about the October 12, 2011, arbitration session is HERE. Public records of the hearings are HERE. Nasty things done to Prof. Rancourt are listed HERE.

Two written submissions about video access were received by Arbitrator Claude Foisy, from Dr. Steve E. Noble and from the griever Dr. Denis Rancourt; HERE and HERE.


Excerpts from the submissions of Dr. Noble are as follows.

From the Summary:

"This is the first case of its kind in Canada – the (wrongful) dismissal of a tenured full professor because of academic reasons (which flies in the face of implicit full academic freedoms professors are supposed to enjoy within university settings). It is a landmark case that has national and arguably international repercussions for the Academy, more broadly."

"I demand that these hearings must be audio-visually recorded and that an air of openness, transparency, public accountability be presumed over that of confidentiality and restricting public access. This shouldn’t even be some belaboured discussion."

From the main text:

"... Yet, here we have an arbitration that was immediately cloaked in secrecy despite the public nature of the issue and the institution involved."

"... hiding this public good behind a constructed mantel of pervasive corporate managerialism undermines democracy, while disavowing the overwhelmingly public nature of “ownership” of these institutions."

"Priority – and the default - should be for openness, transparency, public accountability – because this relates to the running of a public institution, paid for by taxpayers and, increasingly through student tuition/ancillary fees: a university."

"University administrators, including legal counsel and President Rock are not shareholders, nor corporate owners; they are caretakers or custodians of the public good and investment in education paid for by citizens. And as caretakers, they should be operating with the presumption that everything they do, or documents they produce, will and should come under public scrutiny."

"Students are learners and stakeholders, not clientswho should not be privy to confidential commercial information and interests. Increasingly, university elites act like autocratic parents to increasingly infantilized students, rendered relatively powerless: unseen and unheard. Muzzling the recording of these hearings would be an extension of knowing what’s best for the academic community."

"The default position must be that these hearings must be audio-visually recorded because it’s in the public’s interest to do so. And that’s the first interest that should be protected."

"I find it deeply troubling that the union, for instance, has agreed that none of the hearings be transcribed. [...] To remove a layer of public record makes me very suspicious as to why this is being requested and why this is being agreed to."

"Publicly firing a 20+ year professor who is fully tenured under questionable processes is directly relevant to the broader Academic, Educational and General communities. This episode within the University of Ottawa will have direct effect upon academic freedom, freedoms of expression and tenure policy for years to come. Students and professors alike need to have all material arising from these hearings available to them to engage in debate and discourse as part of the much larger educational project."

-- Dr. Steve E. Noble

Dr. Rancourt's submissions are HERE.

The next hearing dates and places are listed HERE.

St. Lewis v. Rancourt defamation lawsuit::: St. Lewis wins motion to compel answers

Part of the suit of motions discussed in the previous post was a motion to compel answers to questions in cross-examination of defendant Denis Rancourt on an affidavit on the main motion.

In English this means that there was a first (main) motion. Evidence for the main motion was filed in the form of affidavits (sworn or affirmed statements) with exhibits. The defendant was then cross-examined on his affidavits by the plaintiff's lawyer Richard Dearden.

Present at this September 6, 2011, cross-examination were plaintiff Joanne St. Lewis and her two lawyers Richard Dearden and Wendy Wagner (both with the Gowlings law firm), the defendant, and three members of the public who came to observe.

Following refusals by the defendant to answer several questions in cross-examination, on the basis of constituting premature discovery and/or relevancy, the plaintiff filed a motion to compel answers and to re-examine the defendant in a second cross-examination session.

The motion to compel answers was heard in court before Master ("judge") MacLeod on October 6, 2011, and took all day. The ruling is HERE.

In response to the motion to compel answers, the defendant filed evidence about the aggressive nature of the cross-examination, HERE.

Observer Joseph Hickey blogged about the cross-examination (HERE) and the SLAW Canadian law website re-posted some of Mr. Hickey's statements HERE.

The SLAW article also emphasized a law-setting element of the Master's Decision (paragraph-20) regarding the open court principle in out-of-court cross-examinations. These aspects were critiqued on the Activist Teacher blog HERE.

On the main point of the motion, Master Macleod found that four of the fifteen refusal questions were "overly intrusive" and did not need to be answered by the defendant (paragraph-17, HERE). On the questions requiring answers, Master MacLeod ordered a new cross-examination allowing "reasonable follow-up questions".

As a result of the re-examination, the plaintiff was allowed to learn the exact financial and real-estate holdings of the defendant (RRSPs, house, pension), all the communications with expert Claude Lamontagne, about letters of support from U of O professors in the Rancourt dismissal case, and information about the defendant's intentions in suing the University of Ottawa for insurance coverage in the litigation and about his home insurance policy.

Master MacLeod remarked on the possible University of Ottawa involvement as (par-23, in part):

"On the other hand, of course, he [the defendant] will be submitting to the judge on the main motion that the entire motion – and therefore all of the costs – is improper and misguided. In the event that the judge agrees with this, it might not be reasonable for the defendant to be saddled with the costs of a motion within that motion. Of course he also argues that in the action as a whole he is the person being wronged because the action is simply an improper – and indeed unconstitutional – attempt by the University of Ottawa to muzzle free speech and criticism."

The Court's Decision was followed by an attempt by Mr. Dearden to obtain "clarification" that would have changed one aspect of the order. This was settled in favour of the defendant: Dearden to Master Oct.11th, Rancourt to Master Oct.13th, Dearden to Master Oct.13th, Dearden to Master Oct.13th again, Master MacLeod's Order Oct.17th.

As background, all related posts about the lawsuit are HERE.

Links to all pleadings and court documents in the lawsuit are HERE.

A Law Times media article about the lawsuit is HERE.
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St. Lewis v. Rancourt defamation lawsuit::: Lawyer Richard Dearden accuses defendant of anarchism and atheism, using Facebook

In the latest in a suit of motions against defendant Dr. Denis Rancourt, Richard Dearden for his client Prof. Joanne St. Lewis moved (MOTION-3; served October 5, 2011, heard October 7, 2011) to strike Rancourt's Notice of Examination for discovery on the basis of a conflict with a previous motion (MOTION-1; served August 18, 2011) to bar discovery until a forced Mandatory Mediation is held.

The public-record plaintiff's Motion Record in the motion to strike the discovery-request states in affidavit (affidavit-point-2, nominal-page-8, HERE):

"The Defendant's Facebook page (attached as Exhibit "A") states that he is an anarchist, his activities are anarchy and that his religious views are atheist."

A copy of the Facebook page was provided in evidence: Exhibit "A", nominal-page-14, HERE.

In addition, Dearden introduced the two motions heard consecutively in court on October 7, 2011, by first stating to the Judge that according to Facebook the defendant is an anarchist. (The part about atheism was left out in Dearden's oral presentation.)

Defendant Rancourt argued that he had a procedural right to discovery, that nothing in the Rules of Procedure allow Mandatory Mediation to interfere with discovery, that discovery can be helpful to mediation, that the Rules of Procedure foresee seven days between serving and hearing a motion whereas he was given only two days, and that he had insufficient time to prepare. (It was on the record that he had been in court all-day one of the two days, on October 6, 2011.)

The Judge ruled to strike the defendant's Notice of Examination for discovery and ordered legal costs of the motion to be paid forthwith by the defendant.

The main motion (Motion-1) was ordered scheduled for a full-day of trial November 15, 2011, to be heard on its merits, Ontario Superior Court of Justice, Elgin Street courthouse, Ottawa.

As background, all related posts about the lawsuit are HERE.

Links to all pleadings and court documents in the lawsuit are HERE.

A Law Times media article about the lawsuit is HERE.
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Rancourt wrongful dismissal case::: Report on DAY-2 of hearings

"First dismissal of a tenured university professor in Canada, over an academic matter."

The second day of binding labour law arbitration hearings into the University of Ottawa wrongful dismissal case of physics professor Denis Rancourt before Arbitrator Claude Foisy was held on October 12, 2011.

In addition to four lawyers/advisers on each side, the griever and the Arbitrator, there were approximately twenty student and academic supporters and representatives from the media and civil society present.

Two preliminary motions were argued, following written submissions from both sides (HERE-Oct.3rd and HERE-Oct.7th).

Despite the five-month period between the first day of arbitration (DAY-1: May 2, 2011) and the second day of arbitration (DAY-2: October 12th) and despite the Arbitrator's instructions to provide the submissions early to allow his early decisions on all preliminary matters before DAY-2, the University did not provide its written motion submissions until October 3rd.

This was followed by the Union (APUO) reply submissions on October 7th.

Following the posting of two Youtube videos about DAY-1 (VIDEO-1, VIDEO-2), the University has:

• dropped its request for a media ban (its so-called "enriched exclusion"),
• abandoned using the griever's so-called "post-dismissal behaviour" (code for "UofOWatch blogging") to bar media access, and
• stopped pondering legal advances to prevent its written submissions from being public.

Instead, the University (Oct.3rd submissions) argued for single-camera video recording, tentatively suggested blocking UofOWatch blog reporting of the hearings, and argued to bar the griever (Rancourt) from free access to the discovery/disclosure documents (the evidence).

The Union responded (Oct.7th submissions) that student and alternative media video cameras should be allowed, that Rancourt needed full access to all discovery/disclosure documents, and that Rancourt's UofOWath blog was part of his academic freedom.

This was all followed by a surprise weekend call from the Arbitrator, presumably after viewing the Youtube videos, telling the two sides that he was not in favour a priori of video cameras but that he would hear submissions from the public and media on video access.

The first matter at the actual DAY-2 hearing was the question of barring griever Rancourt from free access to discovery documents. On this question, it is not an exaggeration to say that the University, represented by lawyer Lynn Harnden, bombed. Their argument for barring the griever from free access to the evidence was technical and tenuous.

Lawyer for the Union Sean McGee put a document shredder on the desk in front of him, plugged it in, took the university submissions and shredded them, then walked over and poured the shreddings on Lynn Harnden's desk, to the amazement of all present, figuratively.

At this point, the University asked for a short recess, walked out, and came back to say with a brave face that they no longer had concerns about the griever's free access to the evidence against him.

Next was the question of video access to the hearing.

Oral submission were heard (all off camera) from the griever and from several members of the media, a government scientist, academics, and civil society (accredited NGO Canadians for Accountability). Further written submissions were invited until October 18th, to be sent to both Harnden and McGee.

The Arbitrator took detailed hand-written notes of all the oral submissions and promised to answer all submission points in his final public decision on video access.

It is expected that the Arbitrator will have ruled on all outstanding preliminary matters before DAY-3 which is scheduled for October 31st.

The place of the DAY-3 hearing is to be announced. The Arbitrator expressed his desire to accommodate the student complaints about physical access to the hearings by requesting that a venue be found which is more accessible from campus.

DAY-3 (October 31st) should see the opening arguments of the University, giving their statements as to why they fired Rancourt.

Hearings schedule and background links are HERE.

U of O student senator concerned about any university funding in the St. Lewis v. Rancourt defamation lawsuit

University of Ottawa student senator Joseph Hickey has followed the recent court appearances in the Joanne St. Lewis v. Denis Rancourt defamation lawsuit and reports his concern about possible University funding of the litigation:

Gowlings Partner Richard Dearden Suggests the U. of O. is Paying for the “House Negro” Case: St. Lewis v. Rancourt


A highly related recent post is this one:
University Senate motion would require president to answer university involvement in Joanne St. Lewis v. Denis Rancourt defamation lawsuit

As background, all related posts about the lawsuit are HERE.

Links to all pleadings and court documents in the lawsuit are HERE.

A Law Times media article about the lawsuit is HERE.
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Student-won senate transparency being challenged by Rock administration

Hickey standing strong:

Student Senator Demands Apology for Vice-Dean Denis Bachand’s Aggression, University of Ottawa

Highly related::: Remember THIS?
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U of O president Allan Rock has left the country

University of Ottawa president Allan Rock has left the country, was absent from chairing the monthly university senate meeting for the sixth time in a row on October 3rd, and his vice-presidents (VP-Governance, VP-Academic, and VP-Resources) don't know where he is:::

Allan Rock’s Senate Absence Continues: Francois Houle Shuts Off Senate Camera

All concerned members of the university community are asked to help locate president Allan Rock and to report on the business that is keeping him from his statutory responsibilities at senate.

The last entry on his blog was September 8, 2011.

Where has the president gone and what is he doing?

Rancourt wrongful dismissal case::: University's opening arguments expected on October 12th

The case of the University of Ottawa's wrongful dismissal of tenured physics professor Denis Rancourt is now in binding arbitration in labour-law-tribunal hearings.

The public hearings will be on-going well into 2012 and the hearing schedule of dates and places is posted HERE.

The second hearing date is October 12, 2011, at which the University is expected to make its opening arguments characterizing Rancourt's actions both as a professor in his teaching and in what the University has called "post-dismissal behaviour":

Wednesday, October 12, 2011
Conference Centre, 200 Coventry Road, Ottawa
9:30 am start

-open to the public and to the media-
-cameras-allowed-

Rancourt was fired in 2009 under the pretext of fraudulent grading in one course, for attributing high grades to all 23 students in an advanced (final-year and graduate) physics course.

President Allan Rock has publicly broadcast (university press releases and emails to community members) that he endorses the decision to fire Rancourt

--the first-ever firing of a tenured professor in Canada over a question of teaching methods.

• Rancourt's chronology of the academic freedom conflict since 2005 is posted HERE.

• The main TV report (TVO, The Agenda, April 2009) is HERE.
  

• Compilations of links to past media reports and media commentary are HERE, HERE and HERE.

• A video report of Rancourt's press conference statement at the start of the hearings (May 2, 2011) is HERE.

• All UofOWatch posts about the hearings are HERE.

A video of commentators at the first day of hearings (May 2, 2011) is here: