COURT OF APPEAL FOR ONTARIO

CITATION: St. Lewis v. Rancourt, 2015 ONCA 513

DATE: 20150708

DOCKET: C59074

Hoy A.C.J.O., Sharpe and Benotto JJ.A.

BETWEEN

Joanne St. Lewis

Plaintiff (Respondent)

and

Denis Rancourt

Defendant (Appellant)

Denis Rancourt, acting in person

Richard G. Dearden and Anastasia Semenova, for the respondent

Heard: June 26, 2015

On appeal from the orders of Justice Michel Z. Charbonneau of the Superior Court of Justice, sitting with a jury, dated June 5, 2014, and June 6, 2014, and from the costs order, dated August 21, 2014.

ENDORSEMENT

[1] The appellant was a tenured professor at the University of Ottawa until 2009 when he was dismissed. He authored a personal blog that – by his own admission - was purposefully critical of the university. At issue are two of his blog posts from 2011 which referred to the respondent, another professor at the university, as the “house negro” of Allan Rock, the president of the university.

[2] The respondent sued for defamation.

[3] On the second morning of trial, the appellant arrived at court and read a prepared statement to the trial judge indicating that he would not participate further. He left the trial and only returned to hear the jury verdict on June 5, 2014. In the result, he did not call evidence in his defence.

[4] The jury found that numerous statements in the impugned blog posts were defamatory and that there was actual malice on the part of the appellant. The jury awarded general damages of $100,000 and aggravated damages of $250,000. The trial judge endorsed the verdict and ordered substantial indemnity costs of $444,895, all inclusive, against the appellant. The trial judge then granted a permanent injunction requiring the appellant to remove the offending material from the internet and to refrain from further defamation of the respondent.

[5] The appellant submits that a new trial should be ordered. He raises several grounds of appeal. He submits that the trial judge erred in the following ways: by not instructing the jury with respect to “fair comment”; by not considering that the respondent’s claim was statute barred; by not instructing the jury to watch a video of Malcom X speaking, which was embedded in his first impugned blog post; and by granting the injunction and costs. He also argues that the finding that he defamed the respondent violates his right to freedom of expression. Lastly, the appellant alleges a reasonable apprehension of bias on the part of the trial judge.

[6] We address these arguments in turn.

[7] The defence of fair comment requires that the defendant establish that the impugned statement was (1) a comment and not a statement of fact; (2) based upon true facts; (3) on a matter of public interest; (4) able to satisfy an objective test of fairness; and (5) made without malice: Simpson v. Mair, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 1. The defence of fair comment was not available to the appellant. He called no evidence, and without evidence, he could not establish the five criteria just set out. Although the appellant mentioned fair comment in his opening statement to the jury, the statement was not evidence and could not establish a defence. The trial judge did not err in this regard. Moreover, and in any event, the jury’s finding of malice defeated the defence.

[8] The appellant submits that, pursuant to s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (“Act”), the respondent was required to serve a notice of libel within six weeks of acquiring knowledge of the impugned blog posts. The first notice of libel was served more than three months after the first impugned blog post was published. The limitation period, however, applies “only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario”: Act, s. 7. The burden of proof was with the appellant to establish that the blog posts fell within this definition under the Act. He called no evidence to establish that they did. The respondent was prepared to call expert evidence to address this issue, but, as the appellant did not lead any evidence, the respondent did not do so.

[9] Linked to the first blog post was a video in which Malcolm X defines the term “house negro.” The appellant submits that the jury should have been instructed to watch the video. The full transcript of the video was, in fact, put before the jury by one of the respondent’s expert witnesses. The respondent’s expert testified about the video but was not cross-examined because the appellant was not present. There was no request from the appellant that the jury be told to watch the video. The trial judge did not err in this regard.

[10] In light of the jury’s finding of liability grounded in malice, we see no reason to interfere with the trial judge’s exercise of discretion in connection with costs.

[11] On June 6, 2014, the day after the jury verdict, the trial judge heard and decided a motion for a permanent injunction. The respondent’s counsel presented him with a draft order which was the subject of submissions. The trial judge permitted the appellant to participate. The draft order required the appellant to remove the defamatory articles from the internet and permanently restrained him from publishing any of the statements the jury found to be defamatory. The draft also included a provision permanently restraining the appellant from publishing “any defamatory statement about the [respondent].”

[12] In granting the injunction, the trial judge said:

The evidence heard at trial clearly establishes that the [appellant] has carried out a persistent attack on the [respondent], and that the theme of his attack is that [she] lacks integrity and independence as a professional.

[13] The trial judge correctly noted the situations in which permanent injunctions have been consistently ordered after defamation proceedings, as identified in Astley v. Verdun, 2011 ONSC 3651, 106 O.R. (3d) 792. Chapnik J. wrote in Astley, at para. 21:

Permanent injunctions have consistently been ordered after findings of defamation where either: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible... [Citations omitted.]

[14] The trial judge concluded that, on either branch of Astley, the respondent had demonstrated the need for a permanent injunction. With respect to the first branch, the trial judge found that the appellant had demonstrated a total disregard for the judicial process and that his conduct, before and during the trial, made it more probable than not that he will continue to defame the respondent. With respect to the second branch, the trial judge found that there was no reasonable prospect that the appellant would be able to pay the damage and cost awards.

[15] The injunction ordered by the trial judge –preventing any defamatory statement - was broad. In his reasons, he said this:

The draft order submitted by the [respondent] is reasonable. It only forbids the [appellant] from publishing defamatory statements, not about stopping to blog whatsoever. It is not, as claimed by the [appellant], a silencing of him. He can easily avoid breaching the injunction by simply refraining from publishing defamatory statements.

[16] A broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order. See: Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (C.A.), at para. 78; Astley, at para. 35; Ottawa-Carleton District School Board v. Scharf, [2007] O.J. No. 3030 (S.C.), at para. 30(b), aff’d 2008 ONCA 154, leave to appeal refused, [2008] S.C.C.A. No. 285. Under these circumstances, we would not interfere with the terms of the trial judge’s order.

[17] We do not accept the appellant’s submission that his constitutional right to freedom of expression affords him the right to defame. First, the appellant has led no evidence or argument that the respondent’s legal proceeding is a government action that would engage the Charter. Second, while the Supreme Court has modified the common law of defamation (see Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640)) the appellant has failed to bring himself within any Charter-based defence. In the first sentence of Mair, Binnie J. wrote for the majority of the Supreme Court, “the defence of fair comment .... helps hold the balance in the law of defamation between two fundamental values, namely the respect for individuals and protection of their reputation from unjustified harm on the one hand, and on the other hand, the freedom of expression and debate that is said to be the ‘very life blood of our freedom and free institutions’”. Rather than attempting to prove that his right to freedom of expression should, at law, overcome the respondent’s right to protect her reputation, the appellant refused to participate in the trial.

[18] There is a heavy burden on a party who seeks to rebut the presumption of judicial impartiality: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, at paras. 20-26. There is nothing on the record that would satisfy that burden. A reasonable, informed person would not think it more likely than not that the trial judge, whether consciously or unconsciously, would not decide fairly.

[19] For these reasons, the appeal is dismissed with costs payable to the respondent in the amount of $30,000.00 inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”

“Robert J. Sharpe J.A.”

“M.L. Benotto J.A.”