Rancourt loses Ontario appeal in defamation case

The decision of the Court of Appeal for Ontario was released on July 8, 2015, and is posted on CanLII here:

St. Lewis v. Rancourt, 2015 ONCA 513 (CanLII), <http://canlii.ca/t/gjxxd>


The Court of Appeal's rendition can be compared with the appeal factums of the two parties:

• Rancourt's (Appellant's) factum: LINK

• St. Lewis's (Respondent's) factum: LINK

• And with the Appellant's court-filed Notice of Constitutional Question: LINK

The summary of Rancourt's factum, on its page-1, is:

In this defamation trial, among other errors, the judge circumvented the jury by saying that the defendant (a blogger) had “no defence”. The judge said: “The defendant here has not introduced any evidence establishing a defence. Therefore, there is no defence for you to consider.” In fact, the defendant had explained his defences to the jury on the first day of trial and more than sufficient evidence to establish his defences was entered by the plaintiff while the defendant was present.

The media reports are based on a reading of the Court of Appeal's decision:

Ex-U of O prof loses defamation appeal

Chris Cobb, Ottawa Citizen

Published on: July 8, 2015 | Last Updated: July 8, 2015 5:53 PM EDT 

Libellous academic loses appeal

By Tony Spears, Ottawa Sun

First posted: Wednesday, July 08, 2015 02:21 PM EDT | Updated: Wednesday, July 08, 2015 02:28 PM EDT 

Another report was posted at this URL:

http://www.canadianlawyermag.com/legalfeeds/2783/appeal-court-upholds-defamation-finding-in-law-prof-case.html 

 

Panel reserved its decision on Rancourt's appeal of the defamation trial in St. Lewis v. Rancourt

Denis Rancourt's appeal hearing was held at the Court of Appeal for Ontario on June 26, 2015, in Toronto.

The Appellant (Rancourt) was self-represented. Ms. St. Lewis was represented by Richard G. Dearden of the Gowlings law firm.

The panel of judges consisted in justices Hoy, Sharpe, and Benotto.

The Panel reserved its decision.


The Appellant had served all his appeal documents to the Respondent (St. Lewis) on March 6, 2015. The Appellant's FACTUM is HERE-link. The Respondent's responding-factum is HERE-link.

The new materials filed during the actual hearing will be linked HERE soon.

St. Lewis v. Rancourt -- Notice of Constitutional Question

This (LINK) is the May 12, 2015, Notice of Constitutional Question, in the appeal listed to be heard on June 26, 2015, at the Court of Appeal for Ontario, in Toronto; in the defamation case St. Lewis v. Rancourt.

The Notice is to inform the Attorney General of Canada, and the Attorney General of Ontario, that the appeal will include constitutional claims or challenges, which are described in the Notice.

There are three claims argued in the Notice:

1. That the trial judge infringed or denied the defendant's Charter right to freedom of opinion and expression when he barred the jury from considering any of the pleaded defences.
2. That the ordered permanent injunction for unknown expression is unconstitutional.
3. That the costs of trial infringe the Charter right to freedom of opinion and expression, and are a violation of the International Covenant on Civil and Political Rights.

All/most court-filed documents in the appeal are HERE.

The factums (arguments) for the appeal are linked HERE.

The full court transcript of the trial is linked HERE.

Joanne St. Lewis v. Denis Rancourt -- Appeal will be heard in June 2015

The appeal from the trial decision in St. Lewis v. Rancourt was recently listed to be heard at the Court of Appeal for Ontario on June 26, 2015, at 10:30 AM.

The self-represented appellant's factum (Rancourt's argument) on appeal is HERE. The factum summary reads:

SUMMARY — In this defamation trial, among other errors, the judge circumvented the jury by saying that the defendant (a blogger) had “no defence”. The judge said: “The defendant here has not introduced any evidence establishing a defence. Therefore, there is no defence for you to consider.” In fact, the defendant had explained his defences to the jury on the first day of trial and more than sufficient evidence to establish his defences was entered by the plaintiff while the defendant was present.

The respondent's (St. Lewis's) responding factum is HERE. 

The private respondent's/plaintiff's legal-costs are entirely funded by the non-party University of Ottawa. The defendant's pre-trial motion that this funding was improper and constituted maintenance and champerty was dismissed prior to trial. (See court documents HERE.)

The appellant made two motions to the Court of Appeal, which were determined prior to the listing for hearing of the appeal:

1. A first motion was for the appellant to obtain non-public communications made during trial between the defendant's lawyer and the trial judge. This motion was dismissed. The motions judge decided not to order disclosure of the communications.

2. A second motion was to overturn a Registrar's decision, based on a technicality, to not accept the filing of the appellant's supplementary factum respecting costs of the trial, in which it was argued that the costs were unconstitutional. The motion was dismissed and the supplementary factum (HERE) was denied filing.

St. Lewis v. Rancourt: Appellant files motion to obtain ex parte communications

On November 28, 2014, the appellant, Denis Rancourt, in the case St. Lewis v. Rancourt, filed a "motion for directions" to the Court of Appeal for Ontario:

"SUMMARY: The judge communicated in private with the opposing counsel during the trial. I want to know what these “ex parte” communications were."

LINK to full Motion Record

St. Lewis v. Rancourt: Notice of Appeal served and filed

The defendant Denis Rancourt will appeal the judgement resulting from the May-June 2014 trial of the St. Lewis v. Rancourt defamation case.

The Notice of Appeal has been served to the plaintiff and filed to the Court of Appeal for Ontario, and is posted HERE, and as a PDF file HERE.

The Overview section in the Notice of Appeal reads:

OVERVIEW

1. This appeal raises fundamental questions about:
(a)    the sufficient conditions that give rise to a reasonable apprehension of bias, regarding financial and institutional ties, in-court procedural decisions, the charge to the jury, and express findings from the bench;
(b)    the right of a litigant to argue an abuse-of-process remedy in a defamation trial, which was pleaded in pleadings that were not stuck out;
(c)    the right of a defendant to have his pleaded defences and remedies considered by the jury in a defamation trial;
(d)    whether the charge to the jury in a defamation trial can limit the jury members to either accept or reject specified meanings of the words complained of;
(e)    whether an imbedded video that is an integral part of a web article (“blogpost”) complained of and that is essential to the context of the alleged libel in a defamation action must be shown to the jury at trial;
(f)    the limiting of a defendant’s freedom of expression by a permanent injunction that forbids future unknown statements about the plaintiff, following a successful defamation action;
(g)    costs policy principles, the Charter principle of freedom of expression, and the common law of awarding costs, for costs of a defamation trial against an impecunious defendant when there are no costs to the plaintiff.

All/most court-filed documents of both parties in the overall action and its appeals are HERE.

St. Lewis v. Rancourt::: Rancourt files Factum and Motion Record to appeal costs in the champerty motion

Rancourt has filed his Factum and Motion Record to the Court of Appeal for Ontario for a motion for leave to appeal the costs in the champerty motion.

Rancourt's arguments that the $105,700.00 costs should be dismissed or reduced and/or delayed are (from the Factum):

10. The Appellant submits that the test of fairness and reasonableness for leave to appeal costs is amply satisfied, and that the impugned costs decision contains palpable and overriding errors of fact and law, including:

(a) the motions judge exceeded his jurisdiction by awarding costs to the University, which does not have party status, although given leave to file material but not to be awarded costs;

(b) costs for preparation of and attendance at five case conferences were awarded, contrary to binding case law;

(c) partial indemnity costs were awarded to the Plaintiff, in the absence of a need to indemnify, and raising the prospect of double recovery of costs;

(d) the motions judge did not recognize and did not consider ample evidence for the Defendant’s impecuniosity;

(e) in the circumstances of the defamation action, the awarded costs are inconsistent with Charter principles regarding the right to free expression, and definitively restrict the Defendant’s access to justice; and

(f) the quantum of costs ($105,700.00) for the one-day motion is excessive and contrary to the policy of partial indemnity.

Background documents:::

• Factum-LINK. 
• Motion-Record-LINK. 
• Motion-Record-ALTERNATE-LINK.

St. Lewis v. Rancourt::: Ottawa Citizen characterizes champerty motion as an "attempt to derail the lawsuit"

In its latest of many articles about the St. Lewis v. Rancourt lawsuit, the Ottawa Citizen newspaper has characterized Rancourt's champerty motion as an "attempt to derail the lawsuit", without reporting any of the arguments made by Rancourt in the champerty motion, or in the appeal of the champerty motion to the Court of Appeal for Ontario: LINK-to-Citizen-article.

The courts made no finding whatsoever that Rancourt's champerty motion was "an attempt to derail the lawsuit". Furthermore, the action is in case management by consent, which means that any unworthy motion is blocked from ever being filed.

The Ottawa Citizen has ventured into hyperbole based on a curt judgement by the Court of Appeal for Ontario, without reporting any of the facts or arguments, and without playing its role of critically assessing the court process. When this kind of media superficiality becomes the norm, there is no point having an open court system in Canada.

Background documents:::

• 2013-05-09 Rancourt serves and files appeal to ONCA, to appeal the decision on the champerty motion: Factum and Appeal Book, HERE.
• 2013-07-05 St. Lewis FACTUM for ONCA of champerty motion: StL-Factum-ONCA.
• 2013-07-05 U of O FACTUM for ONCA of champerty motion: UofO-Factum-ONCA.

Court of Appeal for Ontario finds no champerty: St. Lewis v. Rancourt

Osgoode Hall -- Court of Appeal for Ontario

The Court of Appeal for Ontario heard and decided the appeal of the champerty motion in the St. Lewis v. Rancourt case on November 8, 2013.

The Court dismissed the appeal without wanting to hear the responding parties (St. Lewis and University of Ottawa), and ordered costs against the Appellant (Rancourt).

The responding parties asked for "partial indemnity" costs of $29,950.66 (St. Lewis) and $19,890.75 (U of O), almost $50,000.00. They got $20,000.00 and $15,000.00, respectively. The costs decision was made immediately after the endorsement (i.e., written decision/reasons) for dismissing the appeal was read by Justice Alexandra Hoy, Associate Chief Justice of Ontario.

Rancourt spoke in French, which was translated for the two responding lawyers, Richard Dearden (representing St. Lewis) and Peter Doody (representing the University of Ottawa).

During Rancourt's presentation to the Court, which lasted approximately 35 minutes, he made the following arguments, and other points.


A.    The University and St. Lewis have a champertous agreement, which is against the law in Ontario

[A champertous agreement is one where the maintaining party pays the legal costs of the plaintiff in order to share in the proceeds of the action.]

Key and undisputed facts are:

1. The University is paying all the legal costs of the Plaintiff (St. Lewis).
2. The Plaintiff has the written intention to give half of the punitive damages obtained from the action to the University.

 The Ontario statute An Act Respecting Champerty prescribes:

"All champertous agreements are forbidden, and invalid."

Therefore, lower court Justice Smith made an error contradicting the law, in being silent on Rancourt's request that the champertous maintenance be ordered terminated.

COURT: The Court found that there was not a champertous agreement since (the uncontradicted sworn evidence of the Plaintiff and of university president Allan Rock is that) the Plaintiff unilaterally decided to give punitive damages proceeds to the University.


B.    A lower court judicial bias complaint was never heard on its merits and is a ground for appeal

Rancourt sought to have a motion for reasonable apprehension of bias of lower court Justice Beaudoin judicially determined on its merits. The lower court circumvented this motion from ever being heard. A lower court leave to appeal to the Divisional Court was denied by leave judge Justice Annis.

Since the Supreme Court of Canada has determined that a bias complaint is heard either at the lower court when it is made, or on appeal, and since the champerty motion is tainted with bias, the reasonable apprehension of bias of Justice Beaudoin is a ground for appeal.

The enumerated evidence for reasonable apprehension of bias of Justice Beaudoin included (see affidavit of evidence HERE-LINK):

1. A terms of reference contract between the judge and the University of Ottawa, for a scholarship fund in the name of the judge's son.
2. A boardroom named after the judge's son at the BLG lawfirm, which represents the University.
3. A media article, recognized by the judge on the court record, in which the judge expresses the personal and emotional importance that he attributes to the scholarship fund, and to the boardroom at BLG.
4. The fact that the judge recused himself rather than accept his responsibility to determine the reasonable apprehension of bias question, by alleging bad behaviour of the Defendant (Rancourt), in the way the request to bring the bias complaint was made, without taking action to correct the alleged bad behaviour.
5. The fact that the judge threatened the Defendant (Rancourt) with contempt of court (a criminal charge), if Rancourt continued to advance his request, his argument.
6. The fact that at no time prior to the hearing at which the judge recused himself did the judge mention his ties to the University of Ottawa or the BLG lawfirm.
7. Other affidavit evidence (LINK).

Therefore, Rancourt argued to the Court of Appeal: If it is permitted for a judge hearing a request for determination of a reasonable apprehension of bias to recuse himself without making the determination, and for the given reason of the behaviour of the requester in making the request, then we have crossed a line into a new and dangerous territory where the integrity of the court is threatened.


COURT: The Court of Appeal found that since the lower court leave judge, Justice Annis, had denied leave by finding in his reasons that this was not a case where reasonable apprehension of bias could possibly arise, the Court did not need to consider the ground of reasonable apprehension of bias.


C.    The Plaintiff decided to sue after she was granted the University's funding of her lawsuit

Rancourt presented several streams of evidence, which the lower court had denied as not admissible on incorrect technical grounds (and/or apparently ignored), showing, he argued, that the Plaintiff (St. Lewis) decided to sue only after the University funding was granted without limit and without conditions.

This is vital because, in establishing the abuse of maintenance, prior intent to sue is determinative, Rancourt argued, based on case law.

For example, Rancourt read a February 14, 2011 email from St. Lewis to university president Allan Rock, about the February 11, 2011 blogpost that is at the center of the defamation lawsuit (see Factum HERE-LINK):

Hi there Allan,

I make it a practice to delete the communications from Mr. Rancourt and have done that in this case. It has spared me a great deal of aggravation in the past.

Do let me know if you want me to do anything. I will happy to fit into whatever strategy you decide but until then I intend to make no comment.

Do take care,
Joanne

COURT: The Court of Appeal found that the lower court judge had plenty/sufficient evidence to conclude that there was no maintenance and champerty. The Court did not state whether or not the denied evidence would have made a difference.

For more links to background documents (e.g., all Facta) go HERE-LINK.
For all the court-filed documents in the whole case go HERE-LINK.

Court of Appeal for Ontario November 8, 2013 hearing: St. Lewis v. Rancourt

Courtroom at the Court of Appeal for Ontario

The appeal hearing of Defendant/Appellant Denis Rancourt's "champerty motion" will be heard:

• Starting at 10:30 am, scheduled for 50 minutes.
• Friday, November 8, 2013
• Court of Appeal for Ontario (Osgoode Hall), 130 Queen Street West, Toronto
• Courtroom #1 (or as indicates under "St.Lewis v. Rancourt" on the bulletin board in the main entrance)

The three-judge panel will be composed of:

Justice Robert A. Blair

Justice Alexandra Hoy, Associate Chief Justice of Ontario

Justice Robert J. Sharpe

The "champerty motion" was a motion to end the $1 million private defamation lawsuit, on the grounds of abuse of process because the University of Ottawa is funding the Plaintiff/Respondent's private defamation lawsuit, while the Plaintiff plans to give half of any punitive damages awarded in the defamation lawsuit to a scholarship fund of the University of Ottawa.

The "champerty motion" was dismissed by the Superior Court of Justice for Ontario (lower court) in this judgement: 2013 ONSC 1564

The latter lower court judgement is now being appealed.

Court documents for the appeal are here:

• 2013-05-09::: Rancourt serves and files appeal to ONCA, to appeal the decision on the champerty motion: Factum and Appeal Book, HERE.
• 2013-07-05::: St. Lewis FACTUM for ONCA of champerty motion: StL-Factum-ONCA.
• 2013-07-05::: U of O FACTUM for ONCA of champerty motion: UofO-Factum-ONCA.

The Ontario Civil Liberties Association (OCLA) objects to the funding by the University of Ottawa of the Plaintiff's private defamation lawsuit using public money: LINK-OCLA-page: "Public Money is Not for Silencing Critics".

Main AF.ca page about the St. Lewis v. Rancourt case: HERE.

Saudi doctors lose appeal of dismissal of University of Ottawa lawsuit -- media article, judgement, and commentary

Dr. Khalid Aba-Alkhail (left), and Dr. Waleed AlGhaithy

The Ottawa Citizen has reported this short story: HERE.

The actual Court of Appeal for Ontario judgement is HERE.

Well there you have it. The claimants were simply never allowed to be heard in the Ontario courts regarding how they were treated by University of Ottawa administrators. Plain and simple denial of access to justice. Straight up. Is anybody paying attention?

The "Neuroleaks" emails constitute a textbook example of evidence for bad faith, of the type that should be written up in law school curricula, yet the "Neuroleaks" evidence was not known by the claimants until after all the internal University tribunals were done, yet the Ontario courts "found" (that's the legal term) that all the evidence was considered by the internal University tribunals... Both the Superior Court of Justice for Ontario and the Court of Appeal for Ontario "found" (by some process that defies reality) that all the evidence had already been considered by the internal University tribunals. No it had not. Just look at the documents filed with the courts, or the fact that a motion was won by the claimants in judicial review at the Divisional Court to introduce the new "Neuroleaks" evidence after the internal University tribunals were done, or all of this chronologically reported in the media, the same media that do not hiccup at this latest October 18, 2013 Court of Appeal judgement:

[13] Finally, the appellants argued that the trial judge erred in finding that they are relying on the same facts as in the discipline proceedings. They pointed to certain emails that they say were either not before the tribunals or not taken into account by them because there was nothing the tribunals could use them for. This position was disputed by the respondent.

To this observer, this means that the courts can and do make up the facts. In addition, the media and legal researchers clearly don't scrutinize the courts! What's the point of having a so-called open court principle in Canada if no one dares to scrutinize the darn courts? Incredible.

Well, HERE, again, is a copy of some of these "Neuroleaks" emails. Judge for yourselves. Read the six emails at that link. If your hair does not stand on end, then you are pathologically cynical. How the judges could have overlooked such administrative misbehaviour (that is putting it very politely) which ended the careers of a star neurosurgeon (weeks from being certified) and of two interns in cardiology, is, well, not what one expects in a free and democratic society.

The behaviour of the courts in Ontario, in this case, has the effect of condoning the egregious behaviours of administrators at the University of Ottawa, and it produces a striking denial of access to justice in which claimants, whose careers were ruined, are simply never heard on the full evidence and on the merits of their arguments.

The claimants never had their day in court. We must ask the question: Is that because they are Saudi?

Ontariariario!