On-going story of an application to the Supreme Court of Canada

When is it OK in a democratic society for a court to ignore a complaint of bias of the court? Is it acceptable for the rules of the court to permit circumventing a bias complaint? Can a judge refuse to hear and determine a complaint about his/her own apparent bias? Is being heard on a bias question in order to overturn decisions of a judge a Charter right? Will the Supreme Court of Canada find these questions of sufficient importance to hear the appeal?

At least the last of these questions will be answered in the coming months. Here is how the story has unfolded to date:

• 2013-01-07::: Rancourt's Application for Leave to Appeal filed to the Supreme Court of Canada, to appeal from the November 29, 2012 decision of Justice Peter Annis to not grant an appeal regarding the defendant's complaints about reasonable apprehension of bias. Full-Application-SCC.

• 2013-01-14 to 2013-01-25::: Letters to and from the Registrar of the Supreme Court of Canada::: 2013-01-10-Dearden-to-Registrar, 2013-01-14-Rancourt-to-Registrar, 2013-01-14-Doody-to-Registrar, 2013-01-15-Dearden-to-Registrar, 2013-01-15-Rancourt-to-Registrar, 2013-01-25-Registrar-to-Rancourt.

• 2013-02-13::: Motion to a Judge, filed to the Supreme Court of Canada, motion to set aside Registrar's January 25, 2013 order. Full-Motion-SCC.

• 2013-02-14::: Letter of St. Lewis via Richard Dearden to SCC Registrar, asking that Registrar "not accept" Rancourt's Motion to a Judge. 2013-02-14-Dearden-to-Registrar.

• 2013-02-22::: Letter of U of O via Peter Doody to SCC Registrar, echoing Dearden's request to "not accept" Rancourt's Motion to a Judge. 2013-02-22-Doody-to-Registrar.

• 2013-02-22::: Letter of SCC Registrar Roger Bilodeau to Rancourt, not accepting Motion to a Judge for filing. 2012-02-22-Registrar-to-Rancourt.

• 2013-03-04::: Ontario Civil Liberties Association's letter to the Chief Justice of Canada, about SCC Registrar's conduct. LINK. Followed by THIS, and then THIS.

Stuff happens in the corridors at the Supreme Court...?

• 2013-04-08::: Registrar of the Supreme Court of Canada changes his mind, accepts to file Rancourt's Application for leave to appeal: Registrar's letter.

• 2013-04-09::: Rancourt re-files his Application for leave to appeal to the Supreme Court of Canada: Full-Application-SCC.

• 2013-04-11::: Supreme Court of Canada Registry letter to Rancourt -- Materials filed, File Number assigned: Registry's letter. 

• 2013-04-19::: Supreme Court of Canada responds to the Ontario Civil Liberties Association about Registrar's conduct: SCC-letter-OCLA.*

• 2013-05-09::: U of O submissions for leave to appeal to the Supreme Court of Canada: UofO-Mem-Arg-SCC.

• 2013-05-09::: St. Lewis's submissions for leave to appeal to the Supreme Court of Canada: StL-Mem-Arg-SCC.

• 2013-05-21::: Rancourt's REPLY for leave to appeal to the Supreme Court of Canada: DGR-Reply-SCC.

*This bullet was added on June 20, 2013.

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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Ontario's IPC practicing unwarranted secrecy, procedural machinations, and condoning unethical practice

September 18, 2010

Ann Cavoukian
Information and Privacy Commissioner / Ontario
2 Bloor Street East
Suite 1400
Toronto, Ontario
M4W 1A8

(By email)

(E-mail CC: Work Ethics Watch; Democracy Watch; Canadians for Accountability; Canadian Association of University Professors; Ontario Ombudsman; and made public)

IPC PRACTICING UNWARRANTED SECRECY HARMFUL TO SOCIETY,
TERMS OF REFERENCE MACHINATIONS,
AND POSSIBLE CONDONING OF UNETHICAL PRACTICE

(Reference: IPC files PA08-149, PA08-224, PA08-245, PA08-97-2, PA08-158-2.)


Dear Dr. Ann Cavoukian,


Unwarranted secrecy

I have recently received two letters dated September 13, 2010, signed by IPC Adjudicator Catherine Corban (PA08-97-2, PA08-158-2). These are cover letters inviting my submissions for IPC inquiries.

In the recent past (October 29, 2009) I have received three such notices signed by IPC Adjudicator Colin Bhattacharjee (PA08-149, PA08-224, PA08-245).

The October 2009 notices stated:

“Please find attached severed copies of the University’s representations… Portions of these representations have been withheld because they fall within this office’s confidentiality criteria on the sharing of representations.”

Whereas the September 2010 letters state:

“Please find attached the non-confidential representations of the University. Please note that portions of the University’s representations have been withheld due to confidentiality concerns.”

Contrary to the October 2009 stated IPC policy, the September 2010 letters describe an unwarranted application of secrecy consisting in the IPC not disclosing the University of Ottawa’s submissions consistent with the IPC’s own established practice.

This is of concern to me because it appears to function in a way that is contrary to the IPC’s societal mandate regarding transparency and disclosure. It also harms my ability to respond in my submissions to the IPC.

I request an explanation regarding the IPC’s change of position.

I ask to be given the full representations following the IPC’s own confidentiality criteria on the sharing of representations.

I add to this my continuing concern that the IPC is anomalously not itself subject to the conditions of the Act (FIPPA) and that your office has not lobbied to bring the IPC under the purview of the Act. In this regard, your office has not been a model defender of transparency for societal institutions. Other provincial “IPC” offices are rightly subjected to the conditions of access to information laws.

Terms of reference changed in mid-inquiry

I am also concerned that the terms set out in the original IPC Notices of Inquiry for inquiries PA08-97-2 and PA08-158-2 were changed between the times the University was asked to make its submissions and now when I am being asked to make my submissions. The September 2010 letters sate:

“I am enclosing a Notice of Inquiry which summarizes the facts and issues in the appeal. This Notice has been modified to reflect matters arising from the representations [which I am not being allowed to see] of the University.”

It is difficult for me to understand why the IPC’s terms of reference on the “facts and issues” for the inquiries in question would need to be changed. I ask that you explain this.

Possible ethical breach in University’s use of the BLG law firm

Finally, I wish to inform the IPC of the following.

The recent University submissions (PA08-97-2, PA08-158-2) were prepared by the Borden Ladner Gervais (BLG) law firm. The former Chairman of the Board of Governors (BOG) of the University of Ottawa, Mr. Marc Jolicoeur, is the Regional Managing Partner of the Ottawa office of BLG. He stepped down as U of O BOG Chairman in mid June 2010.

Mr. Jolicoeur participated in the administrative process that led to my April 2009 dismissal from the University, as is publicly documented. My dismissal as a tenured professor has not yet gone before a labour law arbitrator. Mr. Jolicoeur’s law firm is now working at profit to bar access to records that relate to my dismissal.

To the extend that this situation is an ethical breach for the University and for BLG, and now that the IPC has been explicitly informed, continuing to allow the involvement of BLG will constitute condoning and collaboration by the IPC.

I ask that the IPC disallow the participation of BLG in all IPC inquiries involving me.

Need for a quick response

Please respond immediately as the inquiry process imposes deadlines for my representations.

Please acknowledge receipt of the present communication.

Yours truly,

Denis Rancourt
Former physics professor, University of Ottawa

RELATED POSTS:
BLG's previous involvement and link to Jolicoeur
Jolicoeur leaves U of O BOG in silence

U of O's previous attempt to use IPC to deny access: covert surveillance (several posts)

Another one bites the dust at U of O -- Jolicoeur out Giroux in -- (with VIDEO analysis)

Meet the new Chairman of the Board of Governors of the University of Ottawa, Mr. Robert Giroux.

No mention of the last guy...?

It has become commonplace under the Allan Rock reign at the U of O for top executives to be removed or demoted or to leave without any explanations or public thank yous.

Former president Gilles Patry fell off the edge of the earth and has been nowhere to be seen in public life. His acclaimed talents for running a top Canadian university or any similar corporation seem to be going entirely to waste.

VP-Governance (then Secretary) Pamela Harrod was suddenly demoted to "special" assistant to the president doing routine access to information legal work, to then suddenly leave under early retirement.

VP-Governance interim Nathalie Des Rosiers was never formalized and took administrative leave to head the Canadian Civil Liberties Association but is now leaving that post under questionable circumstances.

VP-Academic Robert Major could barely be convinced to stay one year into Rock's mandate and left without a public thank you after being a pillar of the institution for decades.

Major was replaced by Coulter-fiasco Francois Houle at the same time that the position of VP-Academic was downgraded from second-in-charge to "just another VP cause we need at least one from academic ranks" while the newly renamed position of VP-Governance was given to outside hack Diane Davidson and upgraded to second-boss-man.

The underlings feel it also. The turn-around in staff at media relations (Marketing Service and Communications Office) is legendary, to say the least. Must be a nice work environment in that department?

And now the latest...

The University simply put out THIS June 16, 2010, press release announcing:

"The University of Ottawa has appointed Mr. Robert Giroux as chair of its Board of Governors."

The press release makes NO mention of Marc Jolicoeur or his many years of service and gives no indication as to why a new Chair of the BOG was appointed. No search had been announced, no search committee formed, nothing. Quite remarkable really.

The celebrated Chair of the Board of Governors, Marc Jolicoeur, is being replaced without any explanation or public thank yous?

Jolicoeur remains the Regional Managing Partner of the Ottawa office of Borden Ladner Gervais LLP (BLG Law), the same law firm that threatened to sue UofOWatch some time ago and that appears to have used illegally-obtained personal information to threaten lawsuits against students for client VP-Resources Victor Simon, well known for his respect of academic freedom.

This is all the more surprising given the intellectual and legal stature of Jolicoeur, as can be ascertained in this video in which he explains the democratic nature of the BOG to an interested student:

Did Jolicoeur quit?
Why would he quit?
Did he not want to be thanked publicly?
Will there be a thank you reception later this summer?

UofOWatch Blog Too Much for UofO – Board to Decide on Suspension of Professor

This very blog, which should be celebrated by the University of Ottawa as an example of open self-criticism and vibrant discourse (e.g., see Professor St-Amant’s many contributed comments to the previous post), has in fact been threatened with legal action on two counts and its creator, Professor Denis Rancourt, has been disciplined and is now under review for suspension.
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Professor Rancourt’s final supplementary brief (posted HERE) in the matter of his suspension for the blog was deposited today. The Board of Governors (BOG) of the University of Ottawa has 40 working days to provide its decision and its reasons therefor. BOG meetings are public.
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A brief history of the University’s reactions to the UofOWatch blog is as follows.
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First, on August 20, 2007, University of Ottawa’s VP-Resources Victor Simon initiated a “private” action against Rancourt using the third largest national law firm in Canada, Borden Ladner Gervais (BLG), which is known to specialize in libel and defamation cases. The Chairman of the BOG of the University of Ottawa is a Partner in BLG.
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The BLG letter of threat “Notice under the Libel and Slander Act” is posted HERE. It is signed by BLG Partner J. Bruce Carr-Harris who has been involved in high-profile fund raising activities for the University.
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The letter states:
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“Mr. Simon hereby demands that you immediately remove the two blogs [THIS ONE and THIS ONE] … from your U of O Watch blog, failing which we expect to receive instructions to commence the requisite legal proceedings to do so.
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In addition, we require a full, absolute, and unequivocal and fair apology and retraction of all defamatory statements…”
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Similar letters of threat of legal action, in this matter of Victor Simon and UofOWatch, were sent to graduate students Jean-Paul Prévost and Severin Stojanovic (for allegedly providing material support) and to three (student) staff members (Editor-in-Chief, Director General, and the journalist covering the Victor Simon matter) of the student newspaper La Rotonde (presumably to intimidate the paper away from publishing on the matter).
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La Rotonde bravely published a full spread on September 10, 2007, with copies of some of the BLG letters. Rancourt did not budge, trusting truth as the ultimate defence. The lawsuits never materialized.
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Next, on August 28, 2007, came a letter from the University of Ottawa’s Legal Counsel (Michelle Flaherty). This letter is posted HERE and states: “the University of Ottawa hereby requires that you immediately remove the images of Tabaret Hall, of the President of the University of Ottawa with Mr. Telfer and of the President of the University of Ottawa and Mr. Lau from the U of O Watch blog site … If you fail to remove these images by August 31, 2007, the University of Ottawa may take whatever action it deems necessary to protect its intellectual property rights.”
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The Flaherty letter explained that it is University policy that the images “may be used by faculty, staff, students, and the news media solely for the positive promotion of activities related to the University of Ottawa.”
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Having been informed of the University policy, Rancourt responded by making more widespread use of copyrighted University images, which greatly enhanced the blog.
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The Dean of the Faculty of Science, André E. Lalonde, next enthusiastically took on the job of “protect[ing] [the University’s] intellectual property rights.” The Dean initiated his own investigation on November 23, 2007 (see letter posted HERE). In his letter, the Dean explained “I am concerned that your refusal to remove the copyrighted images from the U of O Watch website constitutes insubordination.”
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What followed was a long series of meetings, exchanges of letters, and procedures (see Rancourt’s brief HERE for a summary) in which Rancourt tried to explain to the dean that both criticism and allowing criticism were positive and that, consequently, the University policy was not being violated.
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The Dean disciplined Rancourt and warned of more discipline if the images were not removed. The Dean then appealed to the good judgement of VP-Academic Robert Major to ask that Major schedule the continuation of the investigation in order to pursue a suspension of Rancourt. Major obliged – leading to the present evaluation by the Board.
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The Executive Summary of Rancourt’s BRIEF to the Board reads as follows.
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The University of Ottawa has a stated policy of allowing professors to use its copyrighted images from its web site “for the positive promotion of activities related to the University of Ottawa.” (See Legal Counsel’s letter to Denis Rancourt dated August 28, 2007.)
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Denis Rancourt uses credited copyrighted images from the University’s web site in the UofOWatch blog that he manages (see attached item-1).
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The UofOWatch blog features commentary and critical articles about activities of the University of Ottawa (see attached item-1).
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The credited copyrighted images from the University’s web site significantly enhance the UofOWatch blog (a picture is worth a thousand words) and show a positive image of a university open to self-criticism.
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University professors have academic freedom in their research and communications, including in criticisms of the university itself. The university has a duty to support the work of its professors, within the usual limits of resource constraints.
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The University has disciplined Professor Denis Rancourt (Letter of Reprimand dated February 5, 2008) for not removing the copyrighted images from the UofOWatch blog.
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Dean André E. Lalonde presently seeks further discipline (a one-day suspension) to be approved by the Board, before a grievance (filed on February 24, 2008) against the first discipline has been heard.
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The University’s discipline and the on-going attempt to further discipline are not legitimate and appear to constitute attempts at ideological (political) censorship. The actions of the dean (and of Legal Counsel) appear to be petty and contrary to fostering a vibrant and critical university intellectual environment in a free and democratic society.
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In addition, there are many procedural anomalies that point to serious problems in ethical and responsible management. These include illegal gathering and use of personal information and unwarranted legal threats.
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In wrapping up his BRIEF, Rancourt states:
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“Criticism is positive, healthy, and necessary to produce change. Congratulatory niceties only support the status quo. Not exposing known problems encourages their continuation. Criticism is vital work that needs to be encouraged rather than censored and attacked.”
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Let us hope that the Board, in its collective wisdom and mandated fairness, will find a way to celebrate freedom of expression and inquiry at the University of Ottawa.
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[Photo Credit: University of Ottawa. Mr. Marc Jolicoeur, BLG Partner and Chairman of the University’s Board of Governors.]