ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51657
DATE: 2012/12/07

BETWEEN:

JOANNE ST. LEWIS Plaintiff – and – DENIS RANCOURT Defendant

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

HEARD: October 30, 2012

REASONS FOR DECISION ON Ms. Gervais’ REFUSALS MOTION

R. SMITH J.

[ 1 ] The plaintiff Joanne St. Lewis (“St. Lewis”) has brought a motion seeking an order to compel Mireille Gervais (“Gervais”) to re-attend and answer the questions she refused to answer as well as all follow-up questions.

[ 2 ] The defendant in the libel action, Denis Rancourt (“Rancourt”) filed an affidavit signed by Gervais in support of his refusals motion where he sought to compel St. Lewis to re-attend discovery and answer the questions she had refused to answer.

[ 3 ] Rancourt objected and directed Gervais not to answer over 90 questions during the cross‑examination mostly on the ground that the questions were not relevant.

[ 4 ] On October 20, 2012, I denied Gervais’ request for intervenor status in Rancourt’s refusals motion, after hearing submissions by counsel for Gervais and St. Lewis.

[ 5 ] Gervais is a lawyer who was the author of a report prepared for the Student Appeal Centre (“SAC”) at the University of Ottawa (the “University”). In her report she concluded that there were unfair practices and systemic racism at the University with regards to its procedures for plagiarism and academic fraud.

[ 6 ] St. Lewis was asked by the University to evaluate Gervais’ report. St. Lewis thereafter prepared a report in which she concluded that there was no systemic racism at the University’s procedures for dealing with academic fraud and that the conclusions reached in Gervais’ report were unfounded.

[ 7 ] After St. Lewis’ published her report, Rancourt published his blog on February 11, 2011, making the allegedly defamatory statements concerning St. Lewis, namely suggesting that she had acted as Alan Rock’s “house Negro”.

[ 8 ] Rancourt filed Gervais’ affidavit, after St. Lewis had been examined for discovery, Gervais’ affidavit was filed in support of Rancourt’s refusals motion seeking to have St. Lewis answer further questions in discovery.

[ 9 ] Gervais’ affidavit sets out some of the background to the preparation of the SAC report entitled “Mistreatment of Students, Unfair Practices and Systemic Racism at the University of Ottawa”. Her report largely deals with her observation of processes used by the University to deal with allegations of academic fraud. In her affidavit, Gervais states that she never had any communication with St. Lewis, either about the 2008 SAC report or the 2008 Evaluation of the SAC report, until St. Lewis e‑mailed her on September 23, 2009, at 9:24 p.m. Her affidavit contradicts the evidence given by St. Lewis on discovery, who stated that she had met with Gervais sometime in the spring of 2008 to discuss the SAC report.

[ 10 ] In the course of her cross‑examination, Gervais followed Rancourt’s instructions and refused to answer over 90 questions that were posed to her by counsel for St. Lewis.

[ 11 ] St. Lewis sought to cross-examine Gervais on her affidavit in order to test her reliability independence and her credibility. St. Lewis submits that Gervais is a partisan supporter of Rancourt and she is adverse to St. Lewis because St. Lewis criticized Gervais’ report and came to the opposite conclusion.

[ 12 ] In R. v. Watson (1996), 30 O.R. (3d) 161, 1996 4008, the Ontario Court of Appeal held that a witness’ credibility may be impeached by cross-examination in order to show bias or personal interest. The Court stated as follows at 35:

A witness's credibility may be impeached by cross-examination intended to show that the witness has a bias for or against a party to the litigation or a personal interest to be served by testifying in a particular manner. Because impeachment by the demonstration of bias or partiality is potentially so helpful to the trier of fact in assessing a witness's credibility, the opposing party is allowed to call evidence to contradict a witness's denial of partiality or bias: R. v. Martin (1980), 1980 2837 (ON CA), 53 C.C.C. (2d) 425 at pp. 434-36 (Ont. C.A.); Attorney General v. Hitchcock (1847), 1 Ex. 91 at pp. 101-03; E. Ratushny, "Basic Problems in Examination and Cross-examination" (1974), 52 Can. Bar Rev. 209 at pp. 240-41; United States v. Abel, 105 S. Ct. 465 at pp. 468-69 (1984); McCormick on Evidence, supra, at pp. 130-36.

[ 13 ] In Bruce v. MacQuarrie Premium Funding Inc., 2010 ONSC 2236, at para. 8, the Court summarized the ability to cross-examine on an affidavit relating to credibility as follows:

[8] Master Haberman recently summarized the permissible scope of a cross‑examination in Coburn v Toronto (City), [2009] O.J. No. 3844 (S.C.J.) at para. 10-12 and stated:

When dealing with cross-examination on an affidavit tendered for a motion, the context will be that motion. Thus, a deponent can be cross-examined on issues that bear a semblance of relevance to matters raised by the motion. He can also be cross-examined on all issues raised in his own affidavit (see BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676). This is so even if he refers, in his affidavit, to matters that are not necessarily relevant to the case (see Wojick v Wojick, 1971 538 (ON SC), [1971] 2 O.R. 687). Cross-examination is also proper if it relates to credibility.

[ 14 ] Rancourt submits that all of the questions Gervais refused to answer are irrelevant namely, they all relate to issues directed solely at her credibility, which he submits should be prohibited. I do not agree with Rancourt’s submission and will follow the approach set out in Watson, supra, and in Bruce v. MacQuarrie Premium Funding Inc., supra. As a result, Gervais may be cross‑examined on her affidavit to test the reliability of her evidence and her independence from Rancourt and her credibility.

Refusals and Undertakings Chart

Issue A Relationship Between the Defendant and Mireille Gervais

[ 15 ] In this case, I agree with the submissions of St. Lewis that the relationship between the defendant and Gervais is relevant to her independence from Rancourt and to the credibility of Gervais. The closeness of her relationship with Rancourt affects the weight to be given to the evidence in her affidavit.

[ 16 ] As a result, I order Gervais to answer questions 7, 9‑11, 13-17, 164-169, and 178-183 on her cross‑examination.

Issue B Mireille Gervais’ Affidavit Sworn on July 9, 2012

[ 17 ] The defendant objected to Gervais answering any questions related to the drafts of her affidavit affirmed on July 9, 2012. St. Lewis submits that these are relevant to establishing the degree of Rancourt’s involvement with the drafting of his witness’ affidavit and to challenging the independence of this witness’ testimony. I agree with St. Lewis’ submission that the drafting of the affidavit and when it was done and by whom is relevant to the weight to be given to the affidavit, especially given that Gervais is a lawyer and Rancourt is a self-represented party. As a result, I order Gervais to answer questions 23-30, and 35-36 on her cross‑examination.

Issue C Articles Written by Mireille Gervais about Professor St. Lewis’ Evaluation of Gervais’ 2008 SAC Annual Report; and

Issue D Mireille Gervais’ criticism of Professor St. Lewis’ Evaluation Report

[ 18 ] The questions under Issues C and D are related to articles written by Gervais at the time of St. Lewis’ evaluation of the SAC’s Annual report. St. Lewis submits that they are relevant to establishing whether Gervais had criticized St. Lewis or her evaluation report at the time and submits that answers may demonstrate that Gervais has an axe to grind or was biased against St. Lewis. I agree that any prior criticism of St. Lewis by Gervais is relevant to whether or not she is biased against her. This evidence will affect the weight to be given to her affidavit. I am also satisfied that these questions are relevant to test her credibility and the plaintiff shall be permitted to cross‑examine on these areas.

[ 19 ] As a result, Gervais is ordered to answer questions 37, and 40‑44 of her cross‑examination.

Issue E Mireille Gervais’ Support of the Defendant

[ 20 ] St. Lewis submits the questions under this issue are relevant to the issue of whether Gervais is a biased and partisan witness against St. Lewis and therefore affects her credibility and the weight to be given to the affidavit. I agree with this submission. Gervais is therefore ordered to answer questions 45 and 46 of her cross‑examination.

Issue F Mireille Gervais’ Communications with the Defendant about this Action

[ 21 ] St. Lewis submits that these questions are relevant to establishing the defendant’s close and partisan relationship with Gervais and to show that Gervais is biased and has an axe to grind against St. Lewis. I agree that the relationship between Gervais and Rancourt is relevant to her credibility and to the weight to be given to her affidavit evidence. As a result, Gervais is ordered to answer questions 47‑48, 51‑54, 56 and 57. I do not find that questions 49 and 50 are relevant and they need not be answered.

Issue G Interaction Between Mireille Gervais and Professor St. Lewis

[ 22 ] I find that the questions under Issue G are relevant to establish the relationship between St. Lewis and Gervais, are relevant to test her credibility and to the weight to be given to her affidavit evidence. As a result, Ms. Gervais is ordered to answer questions 61‑62, 64‑68, and 72 of her cross‑examination.

Issue H Gap in time between October 2008 and November 12, 2008 in the Affidavit of Mireille Gervais Sworn on July 9, 2012

[ 23 ] St. Lewis submits that the questions posed on this issue are relevant to establishing that prior to completing her 2008 SAC report that Gervais was aware that the University was going to provide a response to her and that St. Lewis’ evaluation was the University of Ottawa’s response. I find that these questions are relevant to the relationship between St. Lewis and Gervais and to Gervais’ credibility when she filed her affidavit. Gervais is therefore ordered to answer questions 75-76, and 86‑90.

Issue I Mireille Gervais’ Expression of Concern about Professor St. Lewis not meeting with her prior to release of her Evaluation Report

[ 24 ] St. Lewis submits that these questions are relevant to establishing that Gervais never expressed any concern about St. Lewis not meeting with her in November of 2008. I agree with her submission and find that the questions under this issue are relevant to the issue of the accuracy of Gervais’ recollection of when she met St. Lewis. Gervais is therefore ordered to answer questions 93, 96‑101, and 112 of her cross‑examination.

Issue J Access to SAC’s Data Prior to November 25, 2008

[ 25 ] St. Lewis submits that these questions are relevant to the issue of the witness’ recollection about a meeting with St. Lewis that took place four years ago. I find the series of questions are relevant to the witness’ recollection about events during the relevant time relating to facts deposed to in her affidavit. Therefore, Gervais is ordered to answer questions 113, 120‑124, 129, 131 and 132.

Issue K Communications Between Mireille Gervais and the Defendant

[ 26 ] I previously ruled that communications between Gervais and Rancourt and the relationship between Gervais and the defendant are relevant to the credibility of Gervais and to whether she is a partisan supporter of the defendant and biased against St. Lewis. Gervais is therefore ordered to answer questions 134‑137, and 143.

Issue L September 30, 2009 Meeting Between Mireille Gervais and Joanne St. Lewis

[ 27 ] I agree with St. Lewis’ submission that the questions related to what was discussed at the September 30, 2009 meeting between Gervais and St. Lewis are relevant to Gervais’ credibility and the accuracy of her memory. Gervais is therefore ordered to answer questions 158, 161, and 163.

Disposition

[ 28 ] Mireille Gervais is ordered to answer the questions listed above for the reasons given above. As a result, Gervais is ordered to re-attend for further cross-examination and is ordered to answer the questions referred to in this decision as well as any follow‑up questions. If there is an objection to any follow‑up question, Gervais or Rancourt may record their objection and then must answer the question posed. I will hear a motion and decide if the answers given to questions objected to may be used in evidence.

Costs

[ 29 ] St. Lewis may make brief submissions on costs within ten (10) days, Rancourt shall have ten (10) days to respond and St. Lewis shall have seven (7) days to reply.

R. Smith J.

Released: December 7, 2012

COURT FILE NO.: 11-51657
DATE: 2012/12/07

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JOANNE ST. LEWIS Plaintiff – and – DENIS RANCOURT Defendant REASONS FOR DECISION ON Ms. GERVAIS’ REFUSALS MOTION R. Smith J.

Released: December 7, 2012