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,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.
(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;
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,6. Please send me the Consent with no costs and send me the transcripts.
(a) confer or attempt to confer with the other party;
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
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