ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51657
DATE: 2013/03/06

BETWEEN:

JOANNE ST. LEWIS

Plaintiff

– and –

DENIS RANCOURT

Defendant

Richard G. Dearden, for the Plaintiff

Denis Rancourt, self-represented

HEARD: November 26, 2012

REASONS FOR DECISION ON MR. RANCOURT’S DISCOVERY REFUSAL MOTION

R. SMITH J.

[1] Denis Rancourt (“Rancourt”) has brought a motion seeking an order:

(a) to compel the plaintiff Joanne St. Lewis (“St. Lewis”) to have her counsel produce all communications in any way related to the action with the University of Ottawa or any of its staff and officers, including an e‑mail allegedly sent from Allan Rock to Richard Dearden dated March 30, 2012;

(b) to decide whether the plaintiff’s searches were insufficient for full discovery;

(c) to decide whether the plaintiff’s counsel practised excessive interference;

(d) to decide whether the refused questions and productions should be answered by St. Lewis;

(e) to decide whether too many of the plaintiff’s answers were overly long and non‑responsive; and

(f) to decide whether in the circumstances merit leave for a further examination for discovery of the plaintiff.

[2] The essence of Rancourt’s motion is a request for an order that the plaintiff answer all of his questions that she refused to answer at discovery and to provide further productions that she had refused to provide. As a result of the refusals, Rancourt seeks limited additional discovery of the plaintiff.

[3] St. Lewis submits that she answered all of the relevant questions were answered at the examinations for discovery and that she has produced all the relevant documents in her possession. She further submits that any questions that she refused to answer were simply not relevant.

[4] The following issues have been set out by Rancourt is a refusals chart that he has prepared and which I will follow in this decision.

Issue #1 Communications about the litigation between the University of Ottawa and the plaintiff

Question #9

The refusal to produce an e-mail allegedly sent from Allan Rock to Richard Dearden dated March 30, 2012, sent at 11:29 a.m.

[5] The plaintiff answered Question number 9, stating as follows:

A. There is no such e‑mail. That is my position, it is an impossibility. Until this was drawn to my attention on the day of the original e-mail, and the meeting in question, was at the request of Dany Chung, the assistant to Dean Feldthusen, and an exchange took place internal to the president’s office between Stéphane Euard‑Chabot and the staff, confirming that that meeting would take place -- and a meeting request came to me via Outlook to attend a meeting on April 15th at 11:00 in the morning. That is the original e‑mail. The icon which refers to the forward/forward meeting with Bruce Feldthusen -- do I provide this?

Mr. Dearden: Yes. We’re entering that as Exhibit No. 2.

[6] In addition, during the motion, counsel for St. Lewis gave his personal undertaking to the court that there was no such e‑mail. I find that this question has been satisfactorily answered as well as the request in the notice of examination at paras. 5 and 6 for all documents in her possession, including a copy of an e‑mail from Allan Rock to Richard Dearden of March 30, 2012 at 11:29 a.m.

Issue #2 How does the plaintiff understand, in terms of her knowledge, information, and/or belief, whether the blog post title is a racist statement?

[7] At Question number 798, Rancourt asked, “Could you please tell me how that item as a stand alone item is a racist statement?”, referring to Question number 797, “Did Professor Joanne St. Lewis act as Allan Rock’s House Negro?” Mr. Dearden objected on behalf of St. Lewis on the basis that the question was about the meaning of words. Mr. Dearden stated in response to Question 798 as follows:

That will be for the jury to decide, sir. Okay? The words – we’ve set out the words complained of, and we’ve set out what the meanings, the natural and ordinary meanings are of those words or the legal innuendos for those words. It’s not for you to say what those words mean. It’s not for the plaintiff to do anything but put it in the pleading, and it’ll be someone else to decide.

[8] The witness further responded to Question 800 as follows:

I think the difficulty we have here is mixed roles, Mr. Rancourt. My counsel has just reminded me of -- is that in this particular context I’m a plaintiff. I’m not a law professor, critical race expert, anti‑racist decision maker. I am a plaintiff with a set of pleadings that have been submitted, and I’m not in a position to be simultaneously the plaintiff and an expert. We have an expert. We’ve provided you with what we can.

[9] In the text Canadian Libel and Slander Actions, 2003, Irwin Law, by Roger D. McConchie and David A. Potts, at p. 292, the authors state as follows:

(4) it is for the trier fact to determine the sense in which the words would give reasonably have been understood by an ordinary person in light of the generally known facts. The intention of the author and publisher is not relevant to the issue of meaning. Nor is the subjective opinion of the plaintiff as to the meaning of the expression any more relevant.

[10] I find that St. Lewis does not have to answer Questions 798, 799, or 800 as her understanding of the meaning is not relevant to the issues to be decided by the jury. The meaning to be attached to the words used is what an ordinary person would reasonably understand. The defendant has set out the words complained of and is set out the ordinary meanings of those words, her subjective opinion is not relevant because the test for libel is an objective test.

Issue #3 How does the plaintiff understand, in terms of her knowledge, information, belief and/or legal position, her defamation allegation regarding her involvement in a “high level cover‑up”?

[11] Question 803 is as follows:

I’d like to know how that statement in any way implies that you participated in a high‑level cover-up.

[12] In his blog post, Rancourt stated:

The ATI records expose a high‑level cover-up orchestrated by Allan Rock himself to hide the fact that Ms. St. Lewis’s efforts were anything but ‘independent’ as she characterizes her report on the first page.

[13] The answer given by counsel for St. Lewis’ counsel was as follows:

We’ve set out in that Statement of Claim what the words are that are complained of and then pleaded what the natural and ordinary meaning is. The jury reading the blog as a whole will decide whether the meanings (a) to (e), all of them or some them, flow from those words in their natural and ordinary meaning. It’s not for this witness to tell you.

[14] In Issues 2 and 3, Rancourt asks the plaintiff to explain the meanings of words in a libel action. The relevant meanings are those that an ordinary person would reasonably understand and the belief or opinion of the plaintiff is not relevant. The meanings of the words used are not for the plaintiff to decide.

[15] St. Lewis is not required to answer this question because it is not relevant for the same reasons given for Issue #2.

Issue #4 Reputation and impact on reputation or lack of impact on reputation

[16] Whether St. Lewis received a promotion or not is wholly irrelevant. In Hill v. Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 177. Cory J. stated that Casey Hill had received promotions, became a bencher of the Law Society of Upper Canada and was appointed as a trial judge and as a lawyer, he had no way of knowing what others may have thought. It matters not if St. Lewis received promotions or did not receive promotions afterwards, it is an irrelevant factor.

[17] At Question 25, Rancourt’s question is as follows:

I want to ask you specifically about section – paragraph 19 of my Notice of Examination. I asked for all documents about all your applications for tenure and/or promotion above the rank of assistant professor in your possession, control or power and I gave a little bit more details about what I meant be ‘all’. Are you prepared to disclose such documents today?

[18] The answer given was as follows:

I’m not prepared to disclose any of those documents to you, Mr. Rancourt. The issue of any exchanges between myself and my employer are private and clearly irrelevant to your February 11th blog post where you called me a ‘house negro’, and where you have been making repeated errors that I am untenured, which you are wrong. Yesterday, you were provided with a letter, by my counsel, that showed that in 2001, Bruce Feldthusen had confirmed my appointment as a tenured professor. I see no reason to provide you with any responses to item number 19.

[19] I find that Rancourt’s request for documents related to St. Lewis’ application for tenure which she was received in 2001 is not relevant. The alleged libel was published in 2011 and his request is for documents prepared over 10 years before the alleged libel took place is not relevant to the issues in the libel action.

[20] In Question 29, Rancourt seeks copies of all student evaluation reports for the year 2007‑2008 to 2011‑12. I find the student evaluations are not relevant to the issues involved in determining whether the statements made by Rancourt in his blog, would be found to be libellous.

[21] I also find that Rancourt’s request for all of St. Lewis’ annual reports to her dean for the academic years of 2007‑2008 to 2011‑12 in Questions 30 and 31, are not relevant to the issues involved in the defamation action, namely whether Rancourt’s statements in his blog constitute libel and what damages were suffered.

Issue #5 The plaintiff’s communications with Henry Wong about her report

Questions 438 and 449

[22] In Questions 438 and 439, Rancourt requests information about a communication sent to St. Lewis from Mr. Wong. St. Lewis answered “But I’m just saying, I don’t – I’ve given you everything I have. That information that’s being referred --”.

[23] The answer to Question 439 is as follows:

But I just told you. I can’t –

Mr. Dearden: She just told you she doesn’t have it.

The witness: I don’t have it. I’m just trying to answer your question. I’m saying the communication that I got on the weekend is reflected in the last two pages of the Appendix, Appendix 1 and 2. I don’t have it any more. I just don’t. I had no reason to hold onto it. It was stale dated demographic --

[24] St. Lewis’ answer to Question 440 about whether it was an e‑mail is as follows: “I don’t know. But I don’t have it.”

[25] I find that St. Lewis has adequately answered Questions 438-449. She answered that she no longer has a copy of the e‑mail in her possession and does not recall the contents of the e‑mail.

Issue #6 Plaintiff’s communications with the Vice President Academic Robert Major about her report

Question 643

[26] Rancourt asked: “Did you and Mr. Robert Major have any communication about his small editorial marks on these pages?”

[27] St. Lewis answered: “There may have been an e-mail which touched on what the – something related to the squiggles on page 14. I’d have to look.”

Question 645

[28] Rancourt asked: “So, if there was one, you’ve already produced it, is what you’re saying.”

[29] St. Lewis answered: “Yes, I would have produced it.”

[30] In Questions 649-650, Rancourt is requesting information about the e‑mail. In answer to Question 700, St. Lewis states:

Mr. Rancourt, you recall just before we went on the break, I told you that I thought there might have been an e‑mail exchange with regards to recommendation one between myself and Monsieur Major, and I just wanted to point out that I think that is located at Tab 7 of the materials, that there is an exchange. I said I remember vaguely that there was an email --

[31] I find that the Questions 643, 644, 645, 649, 650, 651 and 700 have been satisfactorily answered where St. Lewis answered in response to Question 651 that:

…the critical thing is did it result in my responding in any substantive way to or watering down any of my recommendations one through ten, and not a single word was changed in my report as a result of anything meant by a squiggle or any email that they may have had amongst themselves. It just didn’t happen.

Issue #7 Whether an unredacted original copy of an e‑mail from Joanne St. Lewis to Robert Major should be produced

Questions 245 to 259

[32] In Questions 245‑246 and 251, an e‑mail is produced to St. Lewis. In Question 252, Rancourt asks: “Did you send this e‑mail?” and St. Lewis answers: “Yes, I believe I sent this e‑mail. I think it may be elsewhere.”

[33] At Question 255, Rancourt states: “You have not produced this e‑mail to me.” and St. Lewis answers: “I produced everything that I can produce.”

[34] In Question 258, Rancourt states: “Is it fair for me to summarize your answer as you will not provide this e‑mail because it is not relevant?” The answer by counsel: “Yes.” Rancourt continues at Question 259 “You accept your counsel’s answer?” and St. Lewis answers “Absolutely.”

[35] St. Lewis has provided everything that she was able to produce and Rancourt has obtained a copy of an e‑mail from some other source. In any event, Rancourt has a copy of the e‑mail that he is seeking and was able to examine St. Lewis on it. His requests for further productions under this issue are refused.

Issue #8 Whether a document in Schedule A of the plaintiff’s Affidavit of Documents should be produced, and with its correct attachment

[36] At Question 552, Rancourt requests a copy of an e‑mail:

Could I have the original e‑mail which this is intended to be because your index of documents says that your Tab 13 should be your e‑mail to her of November 19, 2008, 10:42 a.m. So could I have that e‑mail please?

[37] St. Lewis answers the following:

I don’t understand what he’s asking me for that he doesn’t have. I need direction from my counsel. I’m not understanding what you’re asking.

Mr. Dearden: You want a printout on a stand alone basis of the November 19, 2008 e‑mail from Joanne St. Lewis to Andrée Dumulon sent at 10:42 a.m.?

Mr. Rancourt: Yes, I do. Do you agree to provide that?

Mr. Dearden: We will certainly look for it.

[38] In Questions 554, 572 and 581 all relate to the same e‑mail. The answer given by St. Lewis is:

So, I’m saying, you know, I know I had it there but how -- what decision I made or how that worked, as we can see, I’m going to look and see if I have the original e‑mail. That’s all I can do.

(In a letter dated July 11, 2012, plaintiff’s counsel states: “The Plaintiff has conducted a search of her records and cannot locate the e‑mail on a standalone basis.”)

[39] The contents of the e‑mail are known as they are contained in a chain of e‑mails but Rancourt is requesting a stand alone copy of the e‑mail, when he already has the e‑mail in question in a chain of e‑mails. I am satisfied that the questions have been adequately answered and no further answer or production is required or possible.

Issue #9 Excessive Interference by counsel

[40] Based on the transcripts I have reviewed, I find that there has not been any excessive interference by counsel for St. Lewis in her discovery.

Issue #10 Production of known relevant documents that were not produced

[41] I do not find that Rancourt has satisfied his burden of proof to show that there are other relevant documents in St. Lewis’ possession that were not produced.

Issue #11 Were the plaintiff’s answers too long, whether St. Lewis’ answers were inadequate, and whether Rancourt should he be permitted further limited examinations for discovery

[42] I have held that all of the questions were adequately and properly answered by St. Lewis and I do not find that St. Lewis’ answers were too long or non‑responsive or that there was excessive interference by objections to inappropriate questions by her counsel during the discovery. In these circumstances, I am not prepared to allow further limited questioning, or further examinations for discovery by Rancourt as to do so would expand this matter beyond relevant factors and not be consistent with Rule 1.04.

Disposition of Mr. Rancourt’s refusals motion on Discovery

[43] For the above reasons, Rancourt’s motion for answers to further questions for additional productions and for additional discovery is dismissed for the above reasons.

Costs

[44] St. Lewis may make submissions on costs within 15 days, Rancourt shall have 15 days to respond and St. Lewis shall have 10 days to reply.

R. Smith J.

Released: March 6, 2013

COURT FILE NO.: 11-51657
DATE: 2013/03/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOANNE ST. LEWIS

Plaintiff

– and –

DENIS RANCOURT

Defendant

REASONS FOR DECISION ON MR. RANCOURT’S DISCOVERY REFUSAL MOTION

R. Smith J.

Released: March 6, 2013