Gowlings-firm-lawyer Richard Dearden on Rules and on conflict of interest

An inside view of the St. Lewis v. Rancourt litigation


Now that the University of Ottawa was forced to admit (HERE) its funding of the on-going legal attack against fired physics professor Denis Rancourt, questions remain about president Allan Rock's direct involvement in the decision to fund the litigation. And there now can be no doubt that this a public matter.

If the action is in-part effectively a SLAPP (strategic litigation against public participation), then the behaviour of plaintiff's counsel (who is a part-time law professor at the University of Ottawa) in managing the action is a matter of public concern.

The following email exchange between Gowlings-firm-lawyer Richard Dearden and defendant Rancourt gives an inside view of the nature of the interactions in the litigation.

One sees a counsel for the plaintiff, under instructions for the plaintiff who is a law professor, who disregards the most basic Rules of Procedure and who attempted to create a situation of obvious conflict of interest in establishing the conditions for a mandatory mediation.


On Thu, Oct 20, 2011 at 3:40 PM, Dearden, Richard ; wrote:

Mr. Rancourt - fyi, I will be filing another motion to compel you to answer questions you refused to answer on October 14th. It is my understanding that the earliest date available is October 27th. The motion will be before a Judge on October 27th at 10am.

On Fri, Oct 21, 2011 at 2:22 PM, Denis Rancourt ; wrote:

Mr. Dearden,
I received the Motion Record today.
I will not contest your Motion and I will answer your additional questions by email under my continued affirmation by October 28th.
DGR

On Sat, Oct 22, 2011 at 5:23 PM, Dearden, Richard ; wrote:

Mr. Rancourt. I acknowledge that you will be answering the questions you refused to answer on your continued cross-examination. Unfortunately and unnecessarily you required us to incur the costs of the preparation of a Motion Record and the service and filing of the motion record.
I gave you notice during the cross-examination that I would be seeking costs against you if I was required to file a motion to obtain an Order compelling you to answer the questions you refused to answer.
To avoid an appearance before a Judge on October 27th to deal with the issue of costs, I am offering that you pay $350 in costs within the next 10 days. If you accept this offer, we will send for your signature a Consent to an Order that will state you will pay $350 in costs and that you will answer the refusals that you have now agreed to answer. Please let me know your position on the $350 costs no later than Tuesday October 25th.

On Sat, Oct 22, 2011 at 7:26 PM, Denis Rancourt ; wrote:

Mr. Dearden,

1. Thank you for your message.

2. You refer to a notice about cost you allege to have given to me (you did not) during the cross-examination of October 14th and you have used the full transcript of the October 14th cross examinations in your work to prepare the Motion Record but you have not provided me with a full copy of the transcript. You have up to now disregarded Rule 39.02(4)(a) and my deadline to file a responding motion record using your motion date was Friday. Therefore, please immediately send me a copy of the full transcripts of the October 14th cross examinations, which are due irrespective of whether we go to hearing or not:

Rule 39.02(4)(a) states:

(4) On a motion other than a motion for summary judgment or a contempt order, a party who cross-examines on an affidavit,
(a) shall, where the party orders a transcript of the examination, purchase and serve a copy on every adverse party on the motion, free of charge;

3. You did not ask me to comply before needlessly going ahead and preparing a Motion Record, contrary to what you have always done in the past (all previous three motions) and as I would have expected. That is the unfortunate thing. In the future, to avoid this situation, please always first simply ask and I may be able to agree without any need to further expend resources.

4. Given these circumstances, please (i) drop the cost request and (ii) send me the copies of the transcripts which are due under Rule 39.02(4)(a).

5. Also, you have continued to disregard Rule 37.10.1(1)(a) in always refusing to confer with me before setting dates for motions, now the fourth motion. In this case, I am not available Thursday October 27th, but that is irrelevant when we can agree on the outstanding matters.

Rule 37.10.1(1)(a) states:

37.10.1 (1) A party who makes a motion on notice to another party shall,
(a) confer or attempt to confer with the other party;

6. Please send me the Consent with no costs and send me the transcripts.

DGR

On Sun, Oct 23, 2011 at 10:49 AM, Dearden, Richard ; wrote:

Mr. Rancourt
1. Your demands for a copy of the entire transcript are based on the false premise that I am in possession of the full transcript. The only copy of the transcript that I had in preparing the Motion Record are the pages that I served on you in the Motion Record.

2. The first available date to get before a Judge next week for a 30 minute motion was October 27th. You fail to appreciate that the mandatory mediation motion is scheduled for November 15th and accordingly time is of the essence to complete my cross-examination of you. You have informed the Court that you are not employed and therefore you should have no problem attending Court on October 27th to deal with how much costs you should pay for refusing to answer relevant questions and unnecessarily requiring me to file another refusals motion. You also have the choice to retain counsel to appear on your behalf on October 27th.

3. Please note that on October 27th I will be seeking costs against you in an amount higher than the $350 I offered you as well as costs for the attendance before the Court on October 27th. The offer of $350 costs remains open until 2pm on October 24th.

On Sun, Oct 23, 2011 at 3:51 PM, Denis Rancourt ; wrote:

Mr. Dearden,

1. Thank you for your continued offer about cost which I continue to consider.

2. I understand that you are not presently in possession of a copy of the entire transcripts, as you assert. My request for copies of the entire transcripts is based on Rule 39.02(4)(a) which states "where the party orders a transcript of the examination". I was personally present when you ordered the transcripts and insisted on knowing the time it would take from the Court Reporter. Otherwise, you are very talented if you can select specific parts for a partial transcript for use in a Motion Record without you or your associates using or knowing the full transcript? Please comply with Rule 39.02(4) and instruct the Court Reporter to send me the complete transcripts.

3. I am not available on Thursday 27th. I would have informed you of this had you conferred with me about the date as you were required to do following Rule 37.10.1(1)(a). My next available date at 10am is Thursday November 3rd. Recall that this would likely be dealing only with the matter of cost, a point that you appear to not appreciate in citing the November 15th main motion hearing date.

4. You did not ask me to comply before needlessly going ahead and preparing a Motion Record, contrary to what you have always done in the past (all previous three motions) and as I would have expected. In the future, to avoid this situation, please always first simply ask and I may be able to agree without any need to further expend resources.

5. Do you accept the attached Offer to Settle the main motion? If so, you will agree that the outstanding refusals and undertaking are moot and that answers are therefore not required. This would greatly simplify the overall proceedings and I hope that you can accept the Offer.

DGR

On Sun, Oct 23, 2011 at 7:46 PM, Dearden, Richard ; wrote:

Mr. Rancourt

1. further to para 5 (and the attachment) to the email below, Professor St. Lewis accepts your offer to settle the mandatory mediation motion and selects Ellen Zweibel as the mediator. I will email Professor Zweibel (and cc you) to ask if she can conduct the mediation on November 15th.

2. We will cancel the refusals motion scheduled for October 27th and cancel the mandatory mediation motion scheduled for November 15th.

3. I will respond to the other paragraphs in your email below later this week.

From: Dearden, Richard ;
Date: Sun, Oct 23, 2011 at 9:38 PM
Subject: Professor St. Lewis v. Denis Rancourt
To: Ellen Zweibel
Cc: Denis Rancourt

Good evening Professor Zweibel. I act for Professor Joanne St. Lewis in a libel action she has commenced against Mr. Rancourt, a former physics Professor at the University of Ottawa. Mr. Rancourt has proposed you as a mediator for the mandatory mediation in this action and Professor St. Lewis is in agreement with that proposal. I appreciate this may be short notice but are you available to be the mediator in a mandatory mediation on in this action on November 15th in Ottawa?

From: Denis Rancourt ;
Date: Sun, Oct 23, 2011 at 11:17 PM
Subject: Re: Professor St. Lewis v. Denis Rancourt
To: Ellen Zweibel
Cc: "Dearden, Richard" <>

Good evening Professor Zweibel,

I would like to clarify a few points following Mr. Dearden's email:

(1) This would be an assignment under the Ontario Roster mediator program for Mandatory Mediation.

(2) As I would with any mediator, I would like to briefly meet you one-on-one before the mediation date (as soon as possible) only to ask you questions which are consistent with the section entitled "What should parties consider in choosing a mediator?" in the Ministry of the Attorney General's "Fact Sheet: Mandatory Mediation, Effective January 1, 2010".

(3) Frankly, I did not realize when today I made my proposal to use a Roster mediator for Mandatory Mediation (and gave three Ottawa-based names in inverse-alphabetical order) that you are in the Common Law Faculty and therefore are a colleague of both Mr. Dearden and Professor St. Lewis. I now note from a brief web search that you are an eminently qualified mediator. If in your professional opinion and following our short introductory meeting, you conclude that there is not a conflict of interest, then I will accept your judgment and look forward to a productive mediation.

Sincerely,
Dr. Denis Rancourt

From: Dearden, Richard ;
Date: Mon, Oct 24, 2011 at 5:55 AM
Subject: RE: Professor St. Lewis v. Denis Rancourt
To: Denis Rancourt ;, Ellen Zweibel
Cc: "Wagner, Wendy"

Mr. Rancourt - further to paragraph 2 of your email below to Professor Zweibel, I have previously informed you that you will not be meeting with the mediator one on one prior to the commencement of the mediation. We have accepted your choice of Professor Zweibel as the mediator whose mediations skills are renown. Our next steps are to confirm the date of the mediation (we ahve asked Professor Zweibel if she is available November 15th) , sign a mediation agreement and once we book a mediation date we will decide on the date that we provide Professsor Zweibel with our Mediation Briefs.

From: Denis Rancourt ;
Date: Mon, Oct 24, 2011 at 9:14 AM
Subject: Re: Professor St. Lewis v. Denis Rancourt
To: "Dearden, Richard" ;
Cc: Ellen Zweibel, "Wagner, Wendy" ;

Mr. Dearden,

The next steps are:

(1) For Professor Zweibel to answer whether she is able to accept the mediation assignment, given both the time constraints and my question about conflict of interest. This should be answered as soon as possible.

(2) If no, to choose another mediator by mutual consent.

Denis Rancourt

From: Ellen Zweibel ;
Date: Mon, Oct 24, 2011 at 10:33 AM
Subject: RE: Professor St. Lewis v. Denis Rancourt
To: Denis Rancourt <>, "Dearden, Richard" ;
Cc: "Wagner, Wendy" ;

Good morning Mr Rancourt and Mr Dearden

I must decline the request to act as the mediator in this matter. Professor St. Lewis is a colleague on my faculty. I have been a member of the APUO grievance committee and have heard requests by Mr Rancourt on one or two grievances matters.

Thank you for considering me for this.

Very truly yours,

Ellen B. Zweibel, Professor

From: Denis Rancourt ;
Date: Mon, Oct 24, 2011 at 10:51 AM
Subject: Re: Professor St. Lewis v. Denis Rancourt
To: Ellen Zweibel ;
Cc: "Dearden, Richard" ;, "Wagner, Wendy" ;

Professor Zweibel,

Thank you for the rapid answer.

Just to clarify: I do not recall your presence at one or two grievance committee meetings and even your web photo did not help my memory. Also, there have been many such grievance committee meetings with many different committee members and I do not receive minutes from these meetings. Very sorry for the confusion.

Sincerely,
Dr. Denis Rancourt

From: Renzo Catana ;
Date: Mon, Oct 24, 2011 at 1:13 PM
Subject: Transcript - WORD
To: "Richard G. Dearden" ;
Cc: Denis Rancourt ;

Gentlemen,

Please find attached the Continued Cross-Examinations of Mr. Rancourt and Mr. Lamontagne of October 14, 2011 in WORD format.

The hard copies will be delivered later today by courier.

Renzo Catana
CORNELL CATANA REPORTING SERVICES

Rock attempt to manipulate senate minutes on Israel fails

University of Ottawa president Allan Rock tried to have the university Senate minutes changed via an unusual machination that in the end did not fly -- thanks to student senate member Joseph Hickey.

Hickey has reported the entire unfortunate episode on his blog about Senate: HERE.

The university videos of Senate also document Rock's incredible attempt to remove from the record the large numbers of abstentions in votes on motions questioning the University's academic involvement with the apartheid state of Israel, given the international call for an academic boycott of Israel.

It is remarkable the extent to which the Rock administration will go to participate-in and facilitate Israel's overt and explicit image war that has been termed "Brand Israel" -- an attempt to mask Israel's on-going war crimes (Geneva Conventions in occupied Gaza, etc.) using public opinion devices and cultural and academic collaborations.

Allan Rock senate circus exposed by Hickey, again

On some days, when the university is credibly exposed to a judicial review, University of Ottawa president Allan Rock explains that his role as Chair of university Senate is one of neutrality and procedural fairness.

On most others days, Rock and his sidekick VP-Governance Diane Davidson are the boss of Senate; making up the rules as they go along - irrespective of established practice, the University of Ottawa Act, 1965, and in blissful ignorance of institutional memory.

It's quite remarkable really. As remarkable as the murder of obedient crows that is senate itself.

Elected student senator Joseph Hickey is one of a few notable exceptions.

Hickey, in a fit of civil obedience, actually acts as a senator and reports his resulting run-ins with the Rock machine on a dedicated blog: A Student's-Eye View.

Hickey's most recent post ("Guest Speakers at Senate") is a documented and striking example of president Allan Rock's selective amnesia and disregard for the law; illustrated using Rock's own pronouncements at Senate.

One has to wonder how Rock manages to keep all these contradictory "truths" inside one brain. Such compartmentalization must be a gift? (Although it has routinely gotten Rock into hot water in his illustrious political career: HERE.) (For a relevant radio interview with a brain surgeon see HERE.)

This is the first time in the university's history that the venerable institution is run by two outside lawyers (Rock and Davidson) having no professional academic experience. Not exactly a successful experiment...?

Will the university community rise to the challenge of assuming its own governance? Only time will tell. The recent historic record suggests not, unless the students get involved (e.g., vintage video).

U of O Senate's crisis of democracy has been solved

This is a follow up to a previous post about a historic development at the Senate of the University of Ottawa: LINK.

The Senate of the University of Ottawa is the highest governing body on all academic matters in the institution, pursuant to the University of Ottawa Act, 1965.

In law, the Senate instructs executive management on all academic matters.

The Senate is intended to work as a democratic body, at the top of the collegial governance apparatus, where senators as equals authentically engage and make collective decisions.

Instead, the Senate at the University of Ottawa has become a showcase where the university executive managers decide on the agenda, veto motions before they can be considered, decide when discussions should end, write the minutes, and even declare when a "consensus" has been reached in the face of repeatedly voiced opposition (see video of January 10, 2011, meeting).

Fortunately Senate sessions are now filmed and made public (thanks to student activism) such that astute observers can ascertain what a sham it has become. Where are our brave tenured colleagues who work in the areas of institutional analysis, democracy studies, ... ?

In an effort to partly correct the administrative hijacking of Senate, some student senators had advanced that rules of procedure were needed that guaranteed democratic procedures, such as the iconic Robert's Rules of procedure. (LINK)

The embarrassment that no rules of procedure existed for Senate was enough that the student proposal could not be ignored, although this was the executives' main initial recommendation. (LINK)

Therefore, the executive management of "Canada's university" needed to solve the impending crisis of democracy whereby rules of procedure might create some room for democratic process.

The executives' solution was twofold:

(1) Provide interim rules which conveniently fit on one page, which leave out all the fluff about the democratic rights of senators, and which are a point-form list of the Chair's (which at U of O is the University President) functional role in ending discussions, calling the vote, declaring "consensus", etc.; without any mention of how motions are added to the agenda, for example.

(2) Do not create a Senate committee to study the question of procedural rules for six months, until after the mandates of the pesky students who brought this up are over.

The second arm of this solution is clever and was needed after the executives' first attempt -- which was to have the executive managers name the members to the new Senate committee -- was exposed as a device to exclude the student who had spearheaded the rules issue.

After missing two Senate meetings, you can tell that President Allan Rock is back, just in time to solve this crisis in democracy; although VP-Governance Diane Davidson was well on her way to achieving a solution.

Note that both Allan Rock and Diana Davidson are outside executives, not named from the professorial ranks.

Senators: Stand up, your noses are brown.

Dean of science will step down at end of academic year

It was announced internally (see below) by Allan Rock that the dean of the Faculty of Science, Andre E. Lalonde, will step down at the end of the university academic year.

Lalonde was the dean who accepted to participate in the University of Ottawa administration's coordinated campaign under Allan Rock to dismiss tenured physics professor Denis Rancourt.

The campaign was ordered by Allan Rock, largely coordinated by then VP-Academic Robert Major, and involved regular meetings and communications with hired corporate lawyers, University Legal Counsel, several VPs, several deans, several department chairpersons, retired professor Raymond St-Jacques hired as a consultant, human resources bosses, the director of the Marketing Services and Communications Office, and several administrative assistants.

By contrast, workplace procedures foresee an independent investigation by an independent dean (the dean of Science for a physics professor) who would write his own letters.

In a public report about the Rancourt dismissal, academic workplace expert Professor Kenneth Westhues called it an "administrative mobbing". See the Westhues report HERE.

Lalonde will go back to being a regular professor.

The announcement comes in the midst of a large Information and Privacy Commissioner (IPC) adjudication involving Lalonde (LINK) and after he was found by UofOWatch to have lied in his dealings related to a previous IPC adjudication (LINK).

[2012-05-09 correction: In the paragraph above, "he was found to have lied in a previous IPC adjudication" has been corrected to "he was found by UofOWatch to have lied in his dealings related to a previous IPC adjudication".]

-----------------------------------
Date: Mon, 6 Dec 2010
Subject: Message from the President

After a full and successful five years in his position, Dean André E. Lalonde of the Faculty of Science has asked to be replaced as of July 1, 2011. Let me therefore take this occasion to thank him for his outstanding work and to remind you what a contribution he has made.

André E. Lalonde (BSc Honours ‘78) joined the Faculty in 1985 as a lecturer in the Department of Earth Sciences. He was promoted to assistant professor in 1986, granted tenure in 1990, promoted to associate professor in 1992 and then to full professor in 2001. In August 2006, he became the acting dean, a post he held until July 2007, when he was appointed dean. An accomplished geologist, he is one of the few people who can claim to have a mineral, lalondeite, named in his honour.

Dean Lalonde has presided over a period of growth and accomplishment in the Faculty. He has shown himself to be capable of handling the challenges of being a leader with the highest degree of professionalism, a "people person" who values and celebrates the contributions of all those he works with. He is responsible for hiring over 30 professors in his faculty. This includes 9 science lecturers involved in a highly successful pilot-project in science pedagogy, 5 Canada Research Chairs and world-renowned researchers such as Paul Corkum and Robert Boyd. Under his leadership, his faculty recently received over $35M in research funding from two major combined Canada Foundation for Innovation and Ontario Research Fund grants and a Canada Excellence Research Chair in Quantum Nonlinear Optics. He believes that science can be taught and researched in a fully bilingual setting, thus assuring the continued relevance of the French language in this field.

While we will miss his contributions as dean, we are happy that André Lalonde will be returning to the classroom, where he has achieved national recognition for his rapport with students, teaching mineralogy and geology in the Department of Earth Sciences. I know he's excited to be teaching once more, and students will be fortunate to have him as their professor, cultivating their love of the sciences.

A selection committee will soon be struck to hire a new dean for the Faculty.

Allan Rock
President and Vice-Chancellor

It took 163 years: U of O Senate to consider adopting rules of procedure

Until recently there has been no need for debate...

by Denis G. Rancourt

I attended a grand meeting of the Senate of the University of Ottawa today in Tabaret Hall, U of O campus, Ottawa, Canada. The Senate is the highest governing body on all academic matters by virtue of the University of Ottawa Act, 1965. The university was founded in 1848.

President Allan Rock was absent. VP-Academic Francois Houle (of Anne Coulter fame) presided. VP-Governance Diane Davidson attended by speaker phone from home.

Dean of the Faculty of Science Andre E. Lalonde came into the boardroom before the start of the proceedings just to say hello to me and then left and never came back; despite being slated to present the new Financial Mathematics and Economics Undergraduate Honours Program?

For several months now student member of Senate Joseph Hickey and others have been trying to clarify what the rules of procedure might be. Hickey reports this on his blog about U of O Senate (LINK).

The matter arose in part because Hickey believes that discussion on key points (such as the procedures for rewarding friends of the university administration with honorary degrees) is too often arbitrarily curtailed by the chair or allowed to be curtailed in order to pass items proposed by the administration.

In a previous discussion, when Houle stated that he would arbitrarily invoke Code Morin rules of procedure at will depending on the circumstances but not at other times, Hickey became particularly concerned.

Hickey and student Senate member Martin Schoots-McAlpine have been pressing the administration to state the rules of procedures for Senate.

Remarkably, no one in the institution knew if rules of procedure had ever been adopted by Senate or what the rules might be. A detailed search of the university archives had to be undertaken in preparation for today's meeting.

It appeared today that Hickey is making significant headway towards adoption of the novel idea that "Canada's university" (as the branding slogan goes) would have rules of procedure at Senate.

Davidson reported that the U of O Senate (back to 1930 according to Davidson) has never adopted rules of procedure.

Davidson further reported that she had thoroughly investigated the matter and found that all other university senates in her sample (in Canada) have written rules of procedure (surprise!), based on the Code Morin, Robert's Rules, other codes and often in-house adaptations of existing codes.

We conclude that the U of O really is unique. Hickey takes this to be a sign that there has never been debate at Senate (LINK).

Davidson's stated recommendation to Senate, based on her study, is the status quo - no written rules and the chair (the university president) decides. It's called "established practice" but nobody could remember what the practice had been, not even whether or not rules of order had even been adopted by Senate.

Davidson explained, and this was echoed by Houle, that the procedure has been "consensus". So it appears that the Senate has always been in "consensus" with motions put forward by the administration.

No mention was made to define "consensus" which was said to be the venerable past and now recommended practice. If a majority of student senate members disagree is that "consensus"? If two members who are experts on the matter vehemently disagree is that consensus?

I asked senator Linda Pietrantonio (Vice-Dean of Undergraduate Studies, Faculty of Social Sciences) what this "consensus procedure" was that Davidson and Houle kept parroting. She said "No idea!".

At a next meeting the Senate will attempt to decide (following as yet unknown rules of order) how it will study the possibility of proposing rules of order.

That's progress.