Rancourt files application to Supreme Court to obtain his right to an impartial court

An Ontario superior court judge had strong personal, family, emotional, and contractual financial ties to a party intervening for the plaintiff in [the] case, and also to the law firm representing the party in court, and did not disclose any of these ties. This party was also the employer of the plaintiff in the lawsuit, and funded the plaintiff’s litigation. The judge was tasked with determining the propriety of the party’s funding of the plaintiff, which was done with public money. The judge’s ties made it inconceivable that he would rule against the party. When the defendant discovered the judge’s ties and presented the evidence, the judge lost decorum, threatened the defendant with contempt of court, and recused himself, but refused to consider whether there was an appearance of bias, and continued to release decisions. The judge’s in-court reaction and walkout further confirmed his ties with the party in the lawsuit. The defendant raised the matter with six more judges, up to the court of appeal [for Ontario], but all of them refused to duly consider and properly apply the facts. As a result, all the decisions of the judge in the lawsuit stand to this day, even the decisions he released after recusing himself.

--Summary, Memorandum of Argument, Application Book, page-34


Denis Rancourt has filed and served an application for leave to appeal to the Supreme Court of Canada, for leave to appeal from the dismissal of his appeal at the Court of Appeal for Ontario, appealing from the lower court dismissal of his champerty motion to end the defamation action funded by the University of Ottawa with public money.

The full application book (with arguments and evidence), dated January 6, 2014, is posted HERE, and alternatively HERE.

The whole matter is very disturbing. The judge recused himself for real bias moving forward, while refusing to make a judicial determination of an apparent bias that would have negated all his past decisions, then continued releasing findings from the bench and written decisions after the events said to have caused his real bias. And seven judges have refused to make a proper consideration on merits of the complaint.

Rancourt is arguing that the Supreme Court of Canada has a Charter obligation to grant leave to appeal:

Thus, in the facts of this case, the applicant’s right to an impartial court has been infringed or denied in the courts below, such that s. 24 of the Charter can be satisfied, in application and principle, solely if the [Supreme] Court grants the instant leave to appeal. Without the Court’s intervention and express directives, the infringement or denial of the applicant’s right to an impartial court will stand without ever having been properly heard on merits, and the right to judicial impartiality will continue to be denied in Canada’s lower courts, by the same means as in the present case, and in other ways.

--Paragraph 41, Memorandum of Argument, Application Book, page-48


The Executive Director of the Ontario Civil Liberties Association (OCLA) has provided an affidavit in support of the application: See Application Book, starting at page-290.

OCLA also heads a campaign against the public funding of the defamation lawsuit, entitled: "Public Money is Not for Silencing Critics: University of Ottawa must end its financing of a private defamation lawsuit".

If an egregious and documented case of apparent bias of a judge cannot be properly heard on merits in any court, then there is something wrong in Canada. It would mean that we do not have the legal system that many imagine and hope that we have. 

Given the egregious and factual nature of this case, it would mean that circumventing complaints of judicial bias is a systemic problem in Canadian courts: If there is even only one Mack Truck in the living room then this necessarily implies that there is an entrance to the living room large enough to accommodate the truck's drive-in.

Court documents in the 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.

L'ancien professeur [Rancourt] condamné à payer 100 000 $ d'indemnités -- La Rotonde (French media)

L'ancien professeur condamné à payer 100 000 $ d'indemnités (LINK)
Marc-André Bonneau, La Rotonde, 21 octobre 2013

Extract:

Un procès financé par l’argent public
Les frais juridiques de la plaignante sont assumés par l’Université. Allan Rock a alloué un budget sans limite au procès, situation que l’Association des libertés civiles de l’Ontario (ALCO) a dénoncée. L’ALCO a lancé une campagne publique intitulée « Public Money is Not for Silencing Critics », qui a dénoncé qu’il « n’est pas éthique d’un point de vue de la liberté académique, que l’Université s’engage à protéger » le fait que l’administration finance cette poursuite pour diffamation contre M. Rancourt. [...] [article entié ici]

Former prof Denis Rancourt ordered to pay $100,000 legal cost in libel case -- Ottawa Citizen

Former prof Denis Rancourt ordered to pay $100,000 legal cost in libel case (LINK)
By Don Butler, OTTAWA CITIZEN October 8, 2013

OTTAWA — Former University of Ottawa professor Denis Rancourt must pay about $100,000 in legal costs after his motion to halt a $1-million libel suit filed against him by another professor was dismissed earlier this year. (Continue reading...)

OCLA calls on U of O to end its financing of a private defamation lawsuit

The Ontario Civil Liberties Association (OCLA) has posted a position statement on its website, entitled:

Public Money is Not for Silencing Critics
University of Ottawa must end its financing of a private defamation lawsuit  (LINK)

As part of its campaign, OCLA has written to Allan Rock (link), and to Nathalie Des Rosiers (link).

Court rejects Denis Rancourt’s bid to quash libel lawsuit -- Ottawa Citizen

Latest mainstream media report about the St. Lewis v. Rancourt lawsuit:

Court rejects Denis Rancourt’s bid to quash libel lawsuit  -- Ottawa Citizen (LINK)

St. Lewis v. Rancourt::: IN A NUTSHELL

This is a brief explanation of the St. Lewis v. Rancourt defamation lawsuit presently before the Ontario Superior Court of Justice.


SUMMARY -- In 2008 the student union released a public report about systemic racism at the University of Ottawa. The University asked a black professor expert to assess the student report in a responding public report. The expert found that there was no basis for affirming systemic racism at the University of Ottawa. A white former physics professor runs a blog critical of the University of Ottawa and of its (white) president. The physics professor was critical of the expert's report in a 2008 blogpost. After the student union released relevant access to information documents in 2011, the physics professor blogged again stating that the access to information documents suggested that the expert had [COURT ORDER]. The expert obtained funding for a lawsuit from the university president, and then sued the physics professor for $1 million in a defamation action, without disclosing the university funding. The university was later obliged to disclose its involvement and the president's role in the on-going lawsuit.


Denis Rancourt is a former tenured Full Professor of physics, University of Ottawa. He has run the "U of O Watch" blog, critical of the University of Ottawa, since 2007. Rancourt was dismissed from his full professorship in 2009, after 23 years. The dismissal is presently in binding labour arbitration where the hearings are scheduled to continue until June 2013.

In 2008, the student union at the University of Ottawa published a report ("the SAC report", Student Appeal Centre) alleging systemic racism in the University's treatment of academic fraud, based on the SAC's data and on case studies. This SAC report immediately attracted media attention.

The University asked tenured Assistant Professor of law Joanne St. Lewis, then Director of the University's Human Rights Research and Education Centre, to write an evaluation ("the St. Lewis report") of the SAC report. The completed St. Lewis report was announced on the University web site and Professor St. Lewis did media interviews about her report.

The St. Lewis report was critical of the SAC report, found, in part, that

"The short answer for this evaluator on whether there is systemic racism in the administration of the Academic Fraud process at the University of Ottawa is: I don’t know. What I do know, is that this report does not establish this in any measurable or analytically plausible fashion."

and made ten recommendations, as "The Way Forward".

In 2008, Rancourt made a critical assessment of the St. Lewis report on his blog. The post was entitled "Rock Administration Prefers to Confuse “Independent” with “Internal” Rather Than Address Systemic Racism".

In 2011, the SAC posted documents about the St. Lewis report, which it had obtained via an access to information request, to the SAC blog.

In 2011, Rancourt posted another blog article critical of the St. Lewis report, based on the newly released access to information documents. This second blog article was entitled "[COURT ORDER]" and it stated, in part (see p.9, HERE):

"[COURT ORDER]"

The later blogpost gave rise to a $1 million defamation lawsuit against Rancourt, initiated by St. Lewis, see June 23, 2011 Statement of Claim.

As one defence, Rancourt argued that if this lawsuit was a proxy lawsuit by the University, then it violated his Charter rights by suppressing his criticism of a public institution, see p.20-21 of the Statement of Defence.

Rancourt sought to discover if the University of Ottawa was funding the St. Lewis litigation. This question was pursued and even was asked at the University's Senate via a student senator's motion (LINK).

The University replied on October 25, 2011, via hired lawyer David Scott, that it was indeed funding the St. Lewis litigation against Rancourt. A report on the efforts to obtain this reply is here: LINK. Scott's letter states, in part:

"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."

Following this reply, Rancourt brought a motion that the action be stayed or dismissed for abuse of process (see Notice of Motion). The later motion is presently in process (LINK to report about motion).

As part of the later "champerty" motion, Rancourt cross-examined university president Allan Rock who testified under oath that he had made the decision in April 2011 to fund the St. Lewis lawsuit "without a cap" (with no funding limit) from the University's operating budget (see Transcript of the cross-examination).

Rancourt's "champerty" motion will be heard on August 29, 2011, following Rancourt's on-going "refusals and productions" motion to obtain answers that the cross-examined witnesses have refused to give.

In the first day of Rancourt's "refusals and productions" motion, on June 20, 2012, Rancourt was not allowed to cross-examine a recent affiant put forward by the University of Ottawa to counter the "refusals and productions" motion. In addition, Rancourt had put forward an expert's affidavit to establish the authenticity of a document showing a March 2012 email communication from Allan Rock to St. Lewis' counsel Richard Dearden. The expert's affidavit was stated to be inadmissible for reasons that Rancourt expects will be explained in the Judge's decision about the "refusals and productions" motion.

The "refusals and productions" motion resumes in court on July 24, 2012.

St. Lewis v. Rancourt::: Update on the Defendant's "champerty" motion

The last update on the St. Lewis v. Rancourt defamation lawsuit on this blog was the February 24, 2012 post.

Justice Robert Smith, Ontario Superior Court of Justice, recently summarized the current status of the lawsuit this way (LINK):

[1] Denis Rancourt (“Rancourt”) is a former professor at the University of Ottawa who publishes a blog. He is being sued by the plaintiff, Joanne St. Lewis (“St. Lewis”), for libel for statements he made in his blog, criticizing the University of Ottawa.

[2] St. Lewis is also a professor at the University of Ottawa who prepared a report which concluded that there was no systemic racism in the University of Ottawa’s treatment of visible minority students. Her legal fees for her libel action against Rancourt are being paid by the University of Ottawa (“University”), which Rancourt alleges constitutes champerty.

[3] Rancourt seeks leave to appeal the decision of Beaudoin J., acting as a case management judge, wherein he refused to allow him to bring a motion (the open court motion) to allow members of the public to attend the cross‑examinations on affidavits that were filed in his champerty motion.

At this time, Rancourt has moved that the action be dismissed for abuse of process ("champerty" motion). That motion hearing will be on August 29, 2012, in open court. The reason alleged is that the University of Ottawa is funding the Plaintiff's entire legal costs with improper motive and stands to benefit from proceeds of the action.

Since the previous update, many events have occurred in the action, including:

• the motion for Leave to Appeal the Court's decision to deny Rancourt's Open Court motion to make cross-examinations public was heard and decided - Decision (LINK);
• a motion by student Joseph Hickey to intervene in the Leave to Appeal motion of Rancourt was heard and denied (no written decision was provided);
• legal costs were ordered against Rancourt for his Leave to Appeal motion - Costs Decision (LINK) 
• legal costs were ordered against student Hickey for his motion to intervene - Costs Decision (LINK)
• a seven-hour discoveries examination of the Plaintiff by the Defendant was held;
• a seven-hour discoveries examination of the Defendant by the Plaintiff's lawyer was held;
• the Chair of the U of O Board of Governors, Robert Giroux, was cross-examined as a witness by Rancourt for the "champerty" motion - Transcript of the examination (LINK)
• the President of the U of O, Allan Rock, was cross-examined as an affiant by Rancourt for the "champerty" motion - Transcript of the cross-examination (LINK)
• the Plaintiff, U of O law professor Joanne St. Lewis, was cross-examined as an affiant by Rancourt for the "champerty" motion - Trancript of the cross-examination (LINK), Exhibits at cross-examination (LINK);
• the Dean of the U of O common law faculty, Bruce Feldthusen, was cross-examined as an affiant by Rancourt for the "champerty" motion - Transcript of the cross-examination (LINK);
• a lawyer for the U of O (in the Rancourt dismissal arbitration case), Celine Delorme, was cross-examined for the "champerty" motion - Transcript of the cross-examination (LINK), Exhibits at cross-examination (LINK);
• Both the University and the Plaintiff declined to cross-examine the Defendant on his two affidavits in the "champerty" motion - First affidavit (LINK), Second affidavit (LINK);
• Rancourt filed a refusals and productions motion to seek orders compelling the witness and affiants to answer refused questions in the "champerty" motion examinations;
•  The first day of hearings for the refusals and productions motion in the "champerty" motion was held on June 20, 2012, continuing on July 24, 2012 in open court.

In cross-examination, U of O president Allan Rock testified under oath that he made the decision to entirely fund the Plaintiff's litigation without a cap (no spending limit) from the University's operating budget. This decision to fund, according to the Plaintiff's testimony, occurred before the Plaintiff researched or contacted her counsel for the action.

The chosen counsel had been suggested by the Plaintiff's Dean, Bruce Feldthusen, who, according to his testimony, made a strong appeal to Rock that the University had a responsibility to fund the litigation (to sue Rancourt).

The Chair of the Board of Governors provided sworn testimony establishing that Rock had never informed the Board about the fact that the Plaintiff's Statement of Claim sought $125 thousand for a university scholarship fund (that St.Lewis had spearheaded). The Chair learned this fact for the first time at the April 18, 2012 examination of him by Rancourt.

All transcripts and many of the court documents are provided as links HERE.