U of O appeals from interim motion judgement to a panel of the Divisional Court

The U of O is doing everything it can to strike the union's affidavit of evidence for the judicial review of the dismissal of Rancourt

Rancourt's union (Association of Professors of the University of Ottawa, APUO) is pursuing a judicial review (appeal) of an arbitrator's January 27, 2014 decision to uphold the university's December 10, 2008 dismissal of tenured full-professor Denis Rancourt. (link)

The arbitrator made negative findings in a total absence of evidence, and ignored relevant evidence that contradicted his findings. He also used a "report" obtained by covert surveillance, which was not in evidence. These were violations of natural justice, and are grounds in the judicial review.

In order to prove the arbitrator's errors, the union must bring an affidavit in the judicial review to say what actually happened during the arbitration hearings, because no court transcript of the 28-day hearing is available.

(The hearings were held between May 2, 2011 to June 26, 2013. The university appeared to do everything it could to delay and complexify the process, including a broad and sustained campaign of character assassination of Denis Rancourt.)

Thus, the union's affidavit about what actually occurred in the arbitration is necessary for the judicial review. Yet, the university is spending tremendous resources in now-repeated attempts to disallow the union's affidavit.

The university can of course challenge the union's affidavit and enter its own affidavit in the judicial review itself. But, instead, it seeks to bar the union from even bringing an affidavit.

The first attempt by the university to bar the union's affidavit was a motion to a judge of the appellate court (Divisional Court for Ontario) to strike out the union's entire affidavit. This attempt failed entirely. The appellate judge was unambiguous and ordered the university to pay the union's costs for the motion. (See appellate judge's ruling HERE, and U of O Watch article HERE.)

That is not good enough for the university. President Allan Rock instructed the university hired lawyers to appeal the appellate judge's judgement to a full panel of three appellate court judges. This will be a second costly attempt to strike out the union's needed affidavit so that the evidence cannot be used in the judicial review. Without the affidavit, or any evidence about what actually was said in the hearings, the judicial review is destined to fail.

The union is resisting this second attempt and will request that punitive costs be ordered against the university. The hearing before a panel of the Divisional Court is scheduled for April 2016.

Profs sue uOttawa over executives' pay hike --Ottawa Citizen

Profs sue uOttawa over executives' pay hike

Blair Crawford, Ottawa Citizen More from Blair Crawford, Ottawa Citizen

Published on: December 17, 2015 | Last Updated: December 18, 2015 10:49 AM EST

“In its application APUO alleges that these raises are illegal under the Broader Public Sector Accountability Act, which the Ontario government passed in 2010,” the association said in a news release. “This law stipulates that compensation paid to senior administrators such as Dr. Nemer and Dr. Bradwejn ‘cannot be increased’.”

The APUO represents 1,250 full-time faculty and librarians at the University of Ottawa. It’s the first time the association has taken the university to court, Dekker said. The university was served with the papers Thursday and the application is expected to be filed in court on Monday, Dekker said.

“The university insists that faculty have to prepare for cuts to programs, teaching assistants, library services and so on — students are also paying among the highest tuition fees in the country,” she said. “So we are reasonably asking why the administrators are awarding themselves massive raises while the province has made it clear that administrators are not to receive pay increases.”

"Maureen Robinson ... went so far as to liken her monitoring of Professor Rancourt as 'posing as a young girl to catch a pedophile'" --Divisional Court Judge

Union wins interim motion in appeal of the Rancourt dismissal

A short background summary of this recent leg of the protracted battle over the University of Ottawa's dismissal of tenured physics professor Denis Rancourt was given in this October 9 post (LINK).

Following the October 8 hearing of the university's interim motion to strike the union's affidavit in support of the union's application for judicial review... (the university wanted to deprive the union of evidence about what actually happened during the lengthy labour arbitration that upheld the dismissal)... Divisional Court (appellate court) Justice Robert Scott released his decision on October 26, 2015.

Justice Scott's decision is HERE.

Rancourt's union won the motion completely and unequivocally. The union's affidavit of evidence survives in whole, and is appended to the judge's decision, as "Appendix A" (HERE). This is the first significant positive judgement since the 2009 dismissal.

The judge's ruling gives an indication of how the university's extensive use of a hired student spy -- using unethical methods such as assuming false cyber identities and advancing false pretexts for collecting information from third parties, all condoned by the university and its legal counsel -- will be viewed by the higher courts, whereas the Arbitrator in the labour arbitration refused to accept its relevance (LINK).

Justice Scott put it this way (LINK):

MAUREEN ROBINSON

[15] The circumstances of Maureen Robinson's involvement in this entire matter is troubling at best. Throughout the relevant portion of the Award by Arbitrator Foisy, Ms. Robinson's written notes were referred to "the report on Professor Rancourt's address prepared by a University of Ottawa student"

[16] Pursuant to the Udell Affidavit, and based on evidence from the hearing, the student being Maureen Robinson was the editor of the student newspaper who had been hired by the University in what the University described as in a clerical capacity to assist Professor Rancourt in his office, without his input on her hiring.

[17] Either in consultation with her employer, the University, or on her own, she monitored the activities of Professor Rancourt both on and off campus and reported her finding back to the University. In an email to Dean Lalonde, she admitted to having a "personal grudge" against Professor Rancourt and went so far as to liken her monitoring of Professor Rancourt as "posing as a young girl to catch a pedophile". Ms. Robinson was not called as a witness at the hearing and, the parties agreed that her "report" would be considered as an "aide memoire" only.

[18] The University referred to the "report" thereafter as a transcript which such description was objected to by the APUO. Similarly, Arbitrator Foisy made certain findings which appear to be based solely on the report which was not evidence.

[19] Given the unique circumstances, paragraphs 3 - 13 are necessary and in keeping with Keeprite and Kingston Utilities, this affidavit evidence should be admitted on the judicial review to "show an absence of evidence on an essential point".

DEAN LALONDE'S CROSS-EXAMINATION AND THE TESTIMONY OF STUDENTS P AND V

[20] It is difficult to separate the input of the evidence or lack of evidence of Ms. Robinson and the circumstances of her somewhat bizarre involvement in this matter, from the other areas of concern identified by the Applicant, APUO. [...]

And see the background about the motion hearing itself: HERE.

Maureen Robinson did her BSc in chemistry at the University of Ottawa, graduating in 2010. She then moved to Australia to do her MSc, and is now employed at Golder Associates, in West Perth, Australia. The university did not make her available to be cross-examined during the labour arbitration that ended in 2013.

Maureen Robinson's fake Facebook identity was "Nathalie Page". In her regular email reports to the dean of science and to the then university legal counsel Michelle Flaherty, Robinson would joke: "Hi, It's Nathalie...", when sending emails from a fake gmail account. This was the fake Facebook profile picture for "Nathalie":

Fake picture for the false cyber identity "Nathalie Page" created by Maureen Robinson

These exhibits (LINK) describe some of Robinson's detailed reports to the university.

Happenings in the U of O’s “motion to strike”, in the judicial review of the Rancourt dismissal

Update:  Rancourt's union won the motion and won costs. The October 26, 2015, judicial decision of the Divisional Court is HERE.

Denis Rancourt at the courthouse on October 8, 2015

By Denis G. Rancourt

On October 8, 2015, there was the first hearing before the appellate court in the matter of the 2009 dismissal of tenured physics professor Denis Rancourt, in Ottawa before Divisional Court Judge Robert Scott (who travelled from Belleville for the hearing).

The Divisional Court hearing was to decide a university’s motion to strike (remove, disallow) the union’s affidavit of evidence about what occurred in the labour arbitration hearings, for which transcripts do not exist. After the hearing, Justice Scott said he would study the motion record further and provide his decision as soon as he can.

Justice Scott made interesting comments during the October 8th hearing, and the university’s tactics in the motion are also of note.


Brief history of the case

Tenured professor Denis Rancourt was fired by the Allan Rock administration of the University of Ottawa in 2009 over his grading of students in one advanced physics course. This TVO video interview from 2009 is a vivid summary of the academic dimension of the conflict:



A lengthy labour arbitration followed, in which it was shown that the university had employed a student spy (Maureen Robinson, using the false cyber identity “Nathalie Page”) who made extensive surveillance of professor Rancourt and of students and gave weekly reports to both the dean of science and University Counsel Michelle Flaherty (LINK).

During the lengthy arbitration hearings, the university’s hired lawyer Lynn Harnden spent most of the time presenting professor Rancourt’s political and professional views in a negative light. He went so far as to repeatedly suggest that professor Rancourt’s writings incited students to violence, and even showed this video at the hearing, since he had found it in one of the professor’s Playlists on YouTube:



On the central question, the arbitrator disregarded the hard evidence of grading (examination copies, and grading sheets), disregarded the dean’s admission that he had no evidence that any student did not deserve his or her grade, and upheld the dismissal in 2014.

The professors’ union announced in 2014 that it would appeal the arbitrator’s decision (LINK):

“While the decision not only upheld the Employer’s unjust dismissal decision, the arbitrator also made some troubling statements concerning Academic Freedom which can have a profoundly negative impact on academics everywhere.”

Happenings in the motion hearing

Following the union’s filing of its application for judicial review, the university brought a motion to strike the union’s affidavit about what occurred during the labour arbitration hearings. After much delay, the motion was finally heard on October 8, 2015.

Despite the fact that there is a large amount of documentary evidence (many exhibits) that Ms. Robinson was hired for surveillance and gave regular reports about her activities (including details about her use of a false cyber identity, and her misrepresentations in requesting information from third parties) (LINK),

and despite the labour arbitrator himself finding (LINK, see paragraph 58) “[a] report on Professor Rancourt’s address prepared by a University of Ottawa student and editor to the students newspaper (attending the talk with the purpose of monitoring the communication by Professor Rancourt), was entered into evidence”,

the university’s hired lawyer Lynn Harnden argued at the hearing that the dean of science had hired Ms. Robinson solely to help him organize his office.

Justice Scott (J) expressed some reservation about this. His exchange with lawyer Lynn Harnden (H) went like this:

J: This is where I’m confused about Ms. Robinson – she’s the editor of a newspaper and she’s sent in to tidy up his office?

H: That’s what Dean Lalonde testified he engaged her to do. He explained she also had another hat on as editor of student newspaper and took certain initiatives related to Professor Rancourt’s activities.

J: Any evidence how she was chosen, or just happened to be there? Seems a little unusual to me, that’s the only thing I noticed.

H: That she had this dual hat on? Not on the record how he chose her, but did take her on to organize this voluminous evidence and she took other steps.

J: There’s a reference somewhere in the materials to how she equated her role as a young woman trying to trap a pedophile?

H: There was reference in Prof R’s testimony of that allegation. She didn’t testify so we don’t have that. We …

J: Where did that reference come from then? She never said that? It’s not part of the record?

H: No it’s only a statement by Professor Rancourt alleging that she had said that or it’s said somewhere I’m not aware – she didn’t testify. […]

“No it’s only a statement by Professor Rancourt alleging that she had said that …” Here, Mr. Harnden appears to have forgotten about a lot of damning exhibits (LINK), including Ms. Robinson’s "pedophile email" report to the dean of science and to counsel Michelle Flaherty (LINK), and appears to have also forgotten that the "pedophile email" was described in the union's factum for the very motion being heard (LINK, see paragraph 41(a)). This lapse of memory was acknowledged later in the hearing and corrected by the union’s lawyer.

Justice Scott was also somewhat baffled that the parties had allowed the labour arbitration to proceed without a recording or transcript of the lengthy hearings:

J: Let me stop you. I’m confused – in your affidavit material it indicates the nature of the hearing – you started off by giving us the breakdown on that – “28 days, 160 documents.... Rancourt there 13 days...” – doesn’t that fly in the face of the reason why arbitrations aren’t recorded? They’re recorded because they’re short, to the point, get done in reasonable time – but when you have a really complicated one such as this one, it would be necessary for anyone to make sense of it later on to have it recorded. Do you see what you’re faced with – or what I’m faced with – ultimately the Divisional Court faced with – how do you review, just take a look at it? Assume?
[…] My point was that technology is there that would allow for accurate recording. Might be helpful for someone sorting it out later. I also understand what this thing is built on.

Note that it is precisely because there is no transcript or recording that the union needed to file an affidavit about what occurred in the labour arbitration hearings in order to appeal the labour arbitration decision, exactly the affidavit that the university wants to strike.

Put simply, if the university succeeds in convincing the motions judge to strike the affidavit, then the union will be deprived of its necessary evidence about what it affirms actually happened at the arbitration, and the appeal will be almost guaranteed to fail.

The test for allowing the affidavit is that the affidavit evidence is otherwise not available, and is necessary to attack the arbitration decision on allowed grounds for appeal. In common language, this "test" is called a “no-brainer”.

The actual arguments as to whether or not to strike the union’s affidavit were very interesting, in that they diverged somewhat from this test.

The union argued that the affidavit evidence was not otherwise available, was essential for its appeal, and that the stated grounds for appeal were legally allowed grounds for appeal.

Mr. Harnden, for the university, argued that the affidavit should not be accepted because the university will contradict evidence in the affidavit with its own affidavit, later in the actual judicial review hearing, and because to accept the evidence in the affidavit would amount to the court inferring that the arbitrator had “blundered”:

H: Let’s just think about the significance – she’s [the affiant is] telling this court that the decision maker heard all of those comments of Professor Rancourt. She’s making it clear that the Arbitrator heard those concerns from Professor Rancourt, then the Applicant would have the court that the expert Arbitrator disregarded those concerns, disregarded comments by APUO in closing submissions, and blundered. They’re asking this court to draw the inference from the fact that the Arbitrator didn’t go out of his way to state ‘look I’m referring to fact that Professor Rancourt conceded accuracy because that means I can rely on those portions of the documents’. Given how rare it should be that affidavit evidence is heard, it would not be appropriate to make that exception in a case where this court would have to find, in effect, that Mr. Foisy [the arbitrator] didn’t exercise the expertise that should be held by any competent decision maker with respect to a document that has not been identified by a witness, and which has been identified with respect to its potential failure many times in the proceeding. We know Mr. Foisy heard Professor Rancourt’s comments. The court should not be too quick to infer that he made the blunder that my friend suggests.

Basically, as I read it, the university's hired lawyer Lynn Harnden is saying that the affidavit should be blocked here and not be seen by the panel of three Divisional Court judges that will hear and decide the actual appeal itself that claims arbitrator errors because to allow the affidavit to pass would be equivalent to Justice Scott “inferring” that the arbitrator “blundered”.

In other words, the affidavit evidence is so damning of the arbitrator's decision that it should not be allowed to be considered by those judging the arbitrator's decision.

Despite Mr. Harnden's high intelligence and despite his well crafted argument, the word “circular” comes to mind.

Overall, in my opinion, Mr. Harnden very ably worked to “shift” the question before the motions judge away from the rational and practiced legal test for accepting affidavit evidence and towards questions that properly belong to the appeal itself: 1. What evidence about what occurred during the arbitration is reliable, if it is opposed by a university’s own affidavit?; and 2. Did the arbitrator make errors, and were these errors serious enough for his decision to be set aside?

The university’s court-filed factum (i.e., written argument) for the motion is HERE-LINK.

The union’s court-filed factum for the motion is HERE-LINK.

Professor's union takes Rancourt arbitration to judicial review

The Association of Professors of the University of Ottawa (APUO) will challenge the Foisy arbitration of the university's unjust dismissal of Denis Rancourt by filing for judicial review before a panel of three judges of the Ontario Divisional Court.

The APUO's announcement was released on March 10, 2014, after careful consideration of the arbitration judgment, and reads:

The APUO is extremely disappointed in the decision rendered in Professor Denis Rancourt’s case. While the decision not only upheld the Employer’s unjust dismissal decision, the arbitrator also made some troubling statements concerning Academic Freedom which can have a profoundly negative impact on academics everywhere. APUO has filed for judicial review and will continue to work diligently on this case so the decision does not adversely affect the right to academic freedom of professors, librarians, and students in the university setting. (LINK)

This is the first time in APUO's history that an individual grievance is taken to judicial review. The Divisional Court is one of the busiest appellate courts in Canada, and it hears appeals from administrative tribunals such as labour arbitrations.