ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51657
DATE: 2012/09/06

BETWEEN:

Joanne St. Lewis Plaintiff – and – Denis Rancourt Defendant

Richard G. Dearden, for the plaintiff
Denis Rancourt, self-represented

HEARD: July 27, 2012

REASONS FOR DECISION ON refusals
by joanne st. lewis IN Champerty motion

R. Smith J.

Background to this Motion

[ 1 ] This is a continuance of the June 20, 2012 motion brought by Mr. Rancourt to address refusals to answer questions by the plaintiff Joanne St. Lewis (“St. Lewis”). Beaudoin J. had completed and decided Mr. Rancourt’s (“Rancourt”) refusals motion with regards to representatives of the University of Ottawa (“University”) and had adjourned the balance of the motion with regards to refusals by St. Lewis to July 24, 2012.

[ 2 ] On July 24, 2012, Rancourt alleged that Beaudoin J. was not impartial and asked him to recuse himself based on his having established a bursary at the University to keep the memory of his deceased son alive and to assist him in dealing with his grief. Rancourt also raised the fact that Beaudoin J.’s deceased son had previously worked at the law firm representing the University before his untimely death. Beaudoin J. held that he did not have a conflict of interest and was not biased, but given the allegations made by Rancourt involving his personal grieving over the loss of his son, he was unable to continue and decide the remaining matters involving Mr. Rancourt with impartiality given the statements made by Mr. Rancourt on July 24, 2012.

[ 3 ] As a result of Beaudoin J.’s recusal, Regional Senior Justice Hackland assigned me to replace Beaudoin J. as the case management judge and directed that the balance of the champerty refusals motion related to St. Lewis be heard on Thursday, July 26, 2012. On July 26 th , I adjourned this refusals motion to Friday, July 27, 2012 as Rancourt had written a letter indicating that he was unable to attend court due to a prior medical appointment.

[ 4 ] I refused Rancourt’s request for an adjournment on July 27, 2012 because he had been prepared to argue this part of his motion on June 20, 2012 when it was originally set to be heard, and again on July 24, 2012 and as a result I was not persuaded that he needed any further time to prepare. In addition, the champerty motion had been previously scheduled to be heard at the end of August 2012.

[ 5 ] Rancourt further advised that he wished to overturn Beaudoin J.’s rulings on the refusals motion related to the representatives of the University. He sought an adjournment for this purpose. I advised Rancourt at the hearing and in a subsequent letter that I did not have jurisdiction to overturn an order of Beaudoin J. Rancourt has subsequently brought a motion in Divisional Court seeking leave to appeal Beaudoin J.’s decision, which is the appropriate procedural step. I have made no decision on whether leave to appeal should or should not be granted on this motion for leave to appeal.

[ 6 ] In addition, the balance of the refusals motion with regards to St. Lewis was not related to Rancourt’s possible appeal of Beaudoin J.’s order and for this additional reason the adjournment was not granted.

The Refusals by St. Lewis

Background Related to Issues in Dispute

[ 7 ] This motion was brought in a libel action by St. Lewis against Rancourt for statements he made about St. Lewis in his blog. Rancourt submits in his Statement of Defence that the comments made by him were not defamatory and were within his right to freedom of expression.

[ 8 ] St. Lewis is a professor at the University of Ottawa who was asked to prepare a report for the University on whether or not there was systemic racism at the University. She reported that there was no systemic racism at the University. As a result of the conclusions she had reached in her report to the University, Rancourt referred to St. Lewis as Allan Rock’s “house negro” in a blog published by him.

[ 9 ] The University has admitted that it has agreed to pay St. Lewis’ legal fees incurred to sue Rancourt for libel. Rancourt has brought a motion alleging that the University’s agreement to pay for St. Lewis’ legal fees constitutes champerty and maintenance, and asks that her action be stayed.

[ 10 ] Champerty and maintenance were discussed in McIntyre Estate v. Ontario (Attorney General), 2002 45046 (ON CA), 61 O.R. (3d) 257 (Ont. C.A.), at paras 26-28 . Maintenance occurs where an individual for an improper motive described as “wanton or officious intermeddling” becomes involved or funds litigation in which the maintainer has no interest. With champerty the maintainer shares in the profits of the litigation. Paragraph 26 reads as follows:

Although the type of conduct that might constitute champerty and maintenance has evolved over time, the essential thrust of the two concepts has remained the same for at least two centuries. Maintenance is directed against those who, for an improper motive, often described as wanton or officious intermeddling, become involved with disputes (litigation) of others in which the maintainer has no interest whatsoever and where the assistance he or she renders to one or the other parties is without justification or excuse. Champerty is an egregious form of maintenance in which there is the added element that the maintainer shares in the profits of the litigation. Importantly, without maintenance there can be no champerty ...

[ 11 ] The person’s motive is a proper consideration when deciding whether the arrangement constitutes champerty or maintenance. Paragraph 27 of McIntyre , supra , reads as follows:

The courts have made clear that a person's motive is a proper consideration and, indeed, determinative of the question whether conduct or an arrangement constitutes maintenance or champerty. It is only when a person has an improper motive which motive may include, but is not limited to, "officious intermeddling" or "stirring up strife", that a person will be found to be a maintainer.

[ 12 ] In McIntyre , supra , at para. 28 the Court of Appeal set out the definition of champerty and maintenance as summarized in Buday v. Locator of Missing Heirs Inc. (1993), 1993 961 (ON CA), 16 O.R. (3d) 257 (C.A.) quoting from Monteith v. Calladine (1964), 1964 434 (BC CA), 47 D.L.R. (2d) 332 (B.C.C.A.), at p. 342:

It would appear, therefore, that champerty is maintenance plus an agreement to share in the proceeds, and that while there can be maintenance without champerty, there can be no champerty without maintenance. There must be present in champerty as in maintenance an officious intermeddling, a stirring up of strife, or other improper motive. [Emphasis in original.]

[ 13 ] The above definition of maintenance and champerty and the background facts are the context in which I will decide whether St. Lewis’ refusal to answer certain questions during cross‑examinations on her affidavit was justified.

[ 14 ] St. Lewis has grouped the refusals into seven areas on the Refusals Chart (“chart”) attached as Schedule ‘A’. The summary of the dispositions will be entered on the chart. (see the attached chart)

Issue º1 – Questions related to the Plaintiff’s Academic and Promotions Background

[ 15 ] This group of questions relates to St. Lewis’ application for tenure, promotions, and the calibre of her work and academic background with the University. Rancourt submits that whether St. Lewis had applied for promotions beyond being appointed as a tenured professor in 2001 is relevant to her vulnerability and independence from her employer.

[ 16 ] I agree with St. Lewis’ submissions that the refusals to answer questions 49, 53-54, 56, 64 and 76-78 are irrelevant to the issues to be decided in the champerty motion.

[ 17 ] Since St. Lewis was appointed as a tenured professor in 2001 and the University has admitted that it has agreed to pay for St. Lewis’ legal costs in her libel action against Rancourt, I am not persuaded that these questions are relevant to whether the University’s agreement to pay for her legal fees constitutes maintenance or champerty.

Issue º2 – Questions Related to the Plaintiff’s Intent to Commence Action in 2008 Before Seeking University Funding

[ 18 ] Rancourt submits that questions related to whether the plaintiff intended to commence litigation against in 2008, some two years before he published the blog which is the subject of the libel action, and before the University agreed to pay her legal fees, is relevant to this motion.

[ 19 ] The questions related to Rancourt’s December 7, 2008 blog are irrelevant to whether the defendant’s blogs published in February and May of 2011 are libellous. Whether or not St. Lewis had any intent to litigate over blogs published by Rancourt, before the blogs complained of were published, is irrelevant to the champerty motion. Refusals to answer questions 99, 103, 104 and 107 were therefore justified.

[ 20 ] Questions 110, 135, 136 and 137 relate to whether St. Lewis recalled receiving an e‑mail giving her an opportunity to provide factual corrections. These questions would be relevant to the defamation action but not to the champerty motion. These refusals were therefore justified with regards to the champerty motion.

Issue º3 – Questions Relating to Choosing Counsel to Represent St. Lewis

[ 21 ] Rancourt submits that whether or not St. Lewis was prepared to pay for the best libel lawyer in town is relevant to her prior intent to litigate before the University agreed to pay for her legal fees.

[ 22 ] I agree with the plaintiff that Question 192 was answered by St. Lewis in detail in together with her response to Question 191, on pages 75-76 of the transcript.

(i) Question 19 3

[ 23 ] Whether St. Lewis was prepared to pay for the best libel lawyer in the City from her own resources, if her legal fees were not going to be paid by the University involves speculation and is not relevant as the University did agree to pay for her legal fees incurred by counsel of her choice. Her choice of counsel and the rates charged by counsel are also not relevant to the question of whether the University’s agreement to fund St. Lewis’ counsel of choice constitutes champerty and maintenance.

(ii) Question 232

[ 24 ] I agree with St. Lewis’ submissions that whether or not she was able to pay Mr. Dearden’s fees if the University had not agreed to provide funding involves speculation and is irrelevant as the University has admitted that it has agreed to provide funding to St. Lewis to retain counsel of her choice, because Rancourt’s comments related to her work for the University.

Issue º4 – Independence of Plaintiff’s Choice of Counsel

[ 25 ] Rancourt submits that these questions are relevant to St. Lewis’ prior intent to litigate and to her vulnerability.

(i) Question 195

[ 26 ] This question was answered in sufficient detail.

(ii) Question 196

[ 27 ] What other lawyers St. Lewis may have considered hiring and their qualifications or rates is mere speculation and is irrelevant as she chose to engage Mr. Dearden and the University has admitted that it agreed to pay for his fees.

Issue º5 – The Plaintiff’s Financial Situation

(i) Question 237

[ 28 ] Question 237 was satisfactorily answered at pp. 93-94.

(ii) Questions 238, 239, 240 and 241

[ 29 ] These questions relate to the plaintiff’s financial situation and presumably whether she could afford to retain Mr. Dearden or any other counsel if the University had not agreed to pay for her legal fees to defend her reputation. The payment arrangements that could have been negotiated between St. Lewis and her legal counsel of choice are quite varied, involve speculation about what she might have done, and are not relevant to the champerty motion. As a result, her financial situation is also irrelevant to the champerty motion because the University has agreed to provide funding to the plaintiff before she retained Mr. Dearden, and the reason given was because she alleges that she suffered damage to her reputation as a result of preparing a report for the University.

Issue º6 – Implementation and Financial Administration of the Funding Agreement

[ 30 ] Rancourt submits that the details of how counsel for St. Lewis is paid by the University are relevant.

(i) Questions 242, 243, 244, 245, 247, 248 and 249

[ 31 ] Questions 242, 243, 244, 245, 247, 248 and 249 relate to the invoicing and payment of St. Lewis’ counsel’s legal fees by the University. The amount of the invoices and whether the invoices were submitted monthly or at the end of an event or are paid within 30 days or 60 days are not relevant to the champerty and maintenance motion. The question of whether the legal fees charged were fair and reasonable is one to be addressed at another time, either between the solicitor and his client or possibly at the end of a legal proceeding if costs are awarded. They are not relevant to the champerty motion as the University has admitted that it would pay Mr. Dearden’s fees “without a cap”. As a result the exact amounts charged and the payment terms are not relevant to the Champerty motion.

Issue º7 – Communication between the University and Plaintiff and/or Her Counsel

[ 32 ] Rancourt submits that his alleged expert witness’ affidavit should be admitted related to an Outlook record of a meeting held on April 15, 2011. He seeks relevant e‑mail communication between Allan Rock and plaintiff’s counsel related to a meeting held on April 15, 2011 between Allan Rock, Dean Feldthusen and St. Lewis. A copy of the e‑mail was forwarded to counsel for St. Lewis on March 30, 2012. St. Lewis was not a recipient of the March 12, 2012 Outlook calendar appointment and Allan Rock has already answered this question in detail.

[ 33 ] Rancourt relies on the expert opinion of Mr. Louis Béliveau, a lawyer in New Brunswick who also graduated as an engineer. Mr. Béliveau has provided his opinion that the March 30, 2012 e‑mail is a communication between Allan Rock and counsel for the plaintiff. I find that Mr. Béliveau’s opinion does not meet the requirements of R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.), as he lacks any special qualifications in how appointments recorded in Outlook are forwarded by e‑mail at a subsequent date. In addition, his opinion does not meet the requirements of relevancy to an issue in the champerty motion and is also not necessary to assist the Court in deciding the issues in this refusals motion or in the champerty motion as the University has admitted that it has agreed to pay for St. Lewis’ legal fees to pursue her libel action against Mr. Rancourt.

[ 34 ] The e‑mail has been produced enclosing an Outlook scheduled meeting on the Outlook software program which occurred on April 15, 2011. All three of the persons present at the meeting, namely St. Lewis, Dean Feldthusen and President Rock have been cross‑examined concerning this meeting. Therefore I fail to see the relevance of any further answers to this question that can be given by St. Lewis on whether the Outlook record indicates that Allan Rock sent an e-mail to counsel for the plaintiff. In these circumstances an expert report is also not necessary as Allan Rock has already been questioned on this issue. In addition, I agree with the plaintiff’s submissions that it amounts to a “fishing expedition”.

Re-examination of Dean Feldthusen

[ 35 ] Rancourt seeks to strike the answers given by Dean Feldthusen to questions posed to him in re‑examination. This request is denied because I find that the questions were proper re‑examination and were related to questions asked by Rancourt during his cross‑examination about the plaintiff selecting counsel. The question about whose decision it was to select counsel is not a leading question, as the answer is not contained in the question.

Costs

[ 36 ] The plaintiff may make submissions on costs within ten (10) days, Rancourt shall have ten (10) days to respond and the plaintiff shall have seven (7) days to reply.

R. Smith J.

Released: September 6, 2012