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 MS. St. Lewis’ discoverY RESUSAL motion

R. SMITH J.

[1] The plaintiff Joanne St. Lewis (“St. Lewis”) has brought a motion to compel the defendant, Denis Rancourt (“Rancourt”) to answer questions that he refused to answer on discoveries held on April 30, 2012 and to comply with undertakings. The questions have been grouped together on a Refusals Chart which I will refer to in my reasons.

[2] Shortly before the motion was heard, Rancourt delivered a document entitled “Answers – Denis Rancourt to most of the questions of the plaintiff’s refusals and undertakings chart”. In addition, Rancourt provided further written answers on December 11, 2012 to Questions 34, 35, 60, 62, 64, 89, 284, 396, 443‑444, 761, on the Refusals Chart.

[3] The context of the refusals motion involves an allegation that Rancourt published a blog in which he referred to St. Lewis as Allan Rock’s ‘House Negro’. St. Lewis is a Black law professor at the University of Ottawa (the “University”) specializing in race relations and social equity issues. St. Lewis prepared a report at the request of the University in which she found that there was no systemic racism at the University. Her report contradicted the finding of a previous report prepared by Ms. Mireille Gervais on behalf of the Student Appeal Centre (“SAC”).

[4] Rancourt was served with notice of libel on May 16, 2011 and published another article, which St. Lewis submits is also libellous, repeating similar allegations.

Analysis

[5] The scope of examinations for discovery are set out in Rule 31.06(1) of the Rules of Civil Procedures, R.R.O. 1990, Reg. 194 which reads as follows:

31.06(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

(b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or

(c) the question constitutes cross-examination on the affidavit of documents of the party being examined. R.R.O. 1990, Reg. 194, r. 31.06 (1); O. Reg. 438/08, s. 30 (1).

[6] The key provision of Rule 36.06(1) is that the person examined for discovery must answer any proper question relevant to any matter in issue in the action.

Background

[7] This action involves a claim for damages for defamation by St. Lewis as a result of statements published by Rancourt in his blogs dated February 11, 2011 and in May of 2011. The issues raised in the action are whether the statements published by Rancourt constitute libel and whether Rancourt can rely on the defences of fair comment, responsible journalism or his Charter protected right of free speech.

[8] St. Lewis was asked by the University to prepare a report to determine whether there was systemic racism in the policies and procedures followed by the University. She concluded in her report dated November 15, 2011 that there was no systemic racism in the policies or procedures followed by the University.

[9] The report prepared by St. Lewis contradicted the conclusions reached in a previous report prepared by Ms. Mireille Gervais (“Gervais”) who prepared a report on behalf of the “SAC”.

[10] The statement of claim and the defence filed by Rancourt, also raise the issue of malice, namely whether Rancourt was acting maliciously when he published the statements about the plaintiff in his blog, referring to St. Lewis as “Allan Rock’s House Negro”. Malice will defeat the defence of fair comment which is being advanced by Rancourt, as well as his right to freedom of expression as protected under the Charter of Rights and Freedom.

[11] The claim by St. Lewis includes a claim for aggravated and punitive damages as well as general damages. On a claim for aggravated damages, the entire conduct of the defendant, including any e‑mails sent giving notice of his publication, as well as any Twitter statements made to his followers, are relevant to the issue of damages.

[12] On the issue of fair comment, the plaintiff wants to know the true factual foundations on which Rancourt’s opinion was based.

[13] In addition, after this motion was brought, and shortly before it was heard, Rancourt answered many of the questions he had refused to answer during his examination for discovery. St. Lewis requests the right to ask follow‑up questions if required. In order to avoid wasting further time and incurring further legal costs to both parties. I order that Rancourt answer any follow-up questions to those that I have ruled he must answer. If Rancourt objects to answering any follow‑up questions then he may record his objection on the record, but must answer the question. I will then decide subsequently if Rancourt’s objection to answer any follow‑up question was a valid objection or not.

Refusals Chart

[14] The refusals chart has outlined the questions that Rancourt refused to answer under Sections (A) to (V) and identifies eight undertakings that St. Lewis alleges were not fulfilled by Rancourt.

Section A Defendant’s Communications with Student Appeal Centre Director, Mireille Gervais

Question 516

[15] Question 516 has been answered.

Question 521

[16] Question 521 has been answered.

Question 469

[17] Rancourt objects to printing out the electronic links contained in e‑mails produced by him and submits that the e‑mail links may be accessed by the plaintiff. I agree with Rancourt that the plaintiff may access the links without Rancourt being required to print out all of the links and e‑mails produced.

[18] The electronic links can connect an individual reading the e‑mail to a web address. I agree that Rancourt does not have the document, in this case a web address, in his possession or control. The plaintiff may access the website through the address. While it would assist the plaintiff to access the website, the defendant has already provided the website address which I find is sufficient.

Questions 478‑479

[19] These questions also refer to forwarding an e‑mail to allow the plaintiff easier access to the website.

[20] Rancourt objects to printing out the electronic links contained in e‑mails produced by him and submits that the e‑mail links may be accessed by the plaintiff. I agree with Rancourt that the plaintiff may access the links without Rancourt being required to print out all of the links and e‑mails produced.

Questions 369-371

[21] Questions 369-371 were answered.

Question 380

[22] The question has been satisfactorily answered.

Section B SAC’s Freedom of Information Documents

Question 698, 707 and 713

[23] Question 698 is a request for the complete response received by Mireille Gervais to her freedom of information request produced at production number 60. Rancourt has answered this question by stating that he does not have any of these documents in his possession.

Questions 707 and 713

[24] Questions 707 and 713 are similar to Question 698. Rancourt has answered that he does not have any of these documents in his possession.

Section C December 6, 2008 University of Ottawa Article “Rock Administration Prefers to Confuse ‘Independent’ with ‘Internal’ Rather than Address Systemic Racism”

Questions 198, 222, 224‑225 and 228‑230

[25] In a December 6, 2008 article, Rancourt referred to St. Lewis as a service intellectual. He was then asked at Question 198 why he was calling Professor St. Lewis a service intellectual. The plaintiff submits that the defendant’s demeanour and bias against the Professor prior to the publication of the allegedly defamatory articles are relevant to the issue of malice. This question as well as Questions 222, 224‑225, 228‑230 have been answered by Rancourt.

Section D Witness List

Questions 637, 645, 398, 404, 406, and 647‑48

[26] The defendant is required to provide a list of witnesses under the Rules of Civil Procedure and Rancourt is therefore ordered to answer the above questions and to provide a list of witnesses and disclose the names and addresses of persons who might reasonably be expected to have knowledge of the occurrences or to be witnesses in this action and a brief summary of their evidence.

Section E Notice of Libel Dated May 16, 2011

Questions 567, 571‑572

[27] Questions 567, and 571‑572 have been answered.

Section F Take Down Notices

[28] The defendant was served with numerous take down notices, including a notice dated January 30, 2012 that demanded he take down two blogs that he published on January 27, 2012. The defendant took down one of these two blogs which referred to his labour arbitration and his libel action. The defendant refuses to answer why he took down this blog. The plaintiff submits that the question is relevant to the issues of the defendant’s malice and aggravated and punitive damages. The plaintiff submits that it was in the defendant’s self‑interest to take down the false statements he made about his bilingual rights at the labour arbitration but he refuses to comply with any of the take down notices in this libel action which is relevant to the issues of aggravated damages and malice.

Questions 629‑630

[29] Rancourt answered that he took down one of the blogs on advice from his lawyer representing him in his labour arbitration. He claims that the reasons for taking down the blog are protected by solicitor‑client privilege. I find that Rancourt is not required to answer this question as it relates to privileged legal advice received which is subject to solicitor‑client privilege.

Section G Fair Comment Defence

Questions 722‑724

[30] Question 722 was “I want to know what are the true facts that you are relying on to support your pleas”. I find that Rancourt is required to answer Questions 722‑724 as these are highly relevant to his defence of fair comment. His answer simply states that he is not relying on the defence of truth, but this answer is not the same as setting out the true facts that he relies on for the defence of fair comment.

Section H Truth Defence

[31] The defendant initially refused to answer the question of what words complained of in the Statement of Claim are ‘true facts’. In his defence, Rancourt claimed that the statements published by him were true. However, in his written answer to Questions 724‑725, he stated that he was not relying on the legal defence of truth and so this question has been satisfactorily answered.

Section I Google Blogspot.com

Question 107

[32] The defendant refuses to provide the address or location for the servers that host his website Blogspot.com. Blogspot.com hosts his blog “U or O Watch”. The plaintiff submits that these questions are relevant to the defendant’s limitation defence. The limitation periods in sections 5 and 6 of the Libel and Slander Act apply only to “stations” located in Ontario. The location of Google’s servers for Blogspot.com is relevant to this defence. Rancourt had raised a limitation defence pursuant to the Libel and Slander Act and therefore this information is relevant to his limitation defence. As a result, Rancourt is ordered to answer this question.

Questions 112-115

[33] Rancourt must also answer these questions for the same reasons as for Question 107.

Question 97

[34] St. Lewis requests a copy of the documents Rancourt signed to create the U of O Watch blog. Rancourt is the client and signed certain documents and would reasonably be expected to be able to obtain this information. The question is relevant as he is relying on a limitation defence.

Questions 108-112

[35] Rancourt must answer these questions for the same reasons as given for the previous question.

Section J Schedule B to the Defendant’s Affidavit of Documents

Documents 18, 23 and 26

Questions 685-686

[36] Rancourt initially listed Documents 18, 23 and 26 in Schedule A of his affidavit of documents, then on April 16, 2012, he moved the Documents into Schedule B of his affidavit of documents. Rancourt refuses to answer any questions about Documents 18 and 23 which deal with potential expert witnesses. The defendant has refused to provide the names of expert witnesses. The defendant must comply with Rule 30.06(3) of the Rules of Civil Procedure and answer these questions.

[37] Document 26 is referred to as “e‑mail exchange, Defendant – CCLA, lawsuit”. The defendant and Joseph Hickey have touted the support of the Canadian Civil Liberties Association (“CCLA”) in the champerty motion. The e‑mail exchange is not privileged and therefore Rancourt should answer the questions relating to Document 26.

Questions 689-690

Documents 1, 2 and 3

[38] The answers to the above questions are not privileged. The defendant, Rancourt, is ordered to answer Questions 689 and 690 as the questions are relevant to the issue of malice.

Section K Failure to Apologize

Question 810

[39] Question 810 is as follows: “… [R]egardless of the fact you’re saying, “I plan to offer a verbal apology for her stress…?”, why haven’t you offered a verbal apology for her stress?” Rancourt has answered this question in writing.

Question 742

[40] Paragraph 71 of the Statement of Defence pleads that the plaintiff’s claimed damages would put the defendant out of house and home. The defendant was asked “…[W]hy don’t you publish and apology to Professor St. Lewis and take down your defamatory publications?” Rancourt has answered that he believes he has a right to make fair comment on a matter of public interest.

Section L Communications Received by the Defendant about Professor St. Lewis and the Articles in Issue in this Action

Question 134

[41] The defendant refuses to produce all e‑mails sent to him about any blog that he has written about Professor Joanne St. Lewis since December 6, 2008, including the blogs involved in this libel action. The plaintiff submits that the community’s reaction to the defendant’s publications about St. Lewis are relevant to the issue of the damages caused and his malice in failing to apologize or take down his defamatory publications.

[42] Rancourt submits that he has answered this question at pages 47‑48 stating that he has produced all of the e‑mails because they are relevant. He has satisfactorily answered this question.

Section M Defendant’s Communications with the Media about Professor St. Lewis

Question 883

[43] The plaintiff requests that Rancourt print out exactly what he sent to all the media outlets on June 23, 2011. The defendant has provided the exact URL, which is the address of his blog, however, to avoid any confusion, I order Rancourt to answer the question and to print out exactly what he sent to all the media outlets on June 23, 2011. I agree with Rancourt that the hyperlink is not an attachment but rather is an address, and, that there is no way to know what was exactly on the hyperlink address at that particular time, unless it was printed at that time. Rancourt is ordered to provide a copy of the contents of the hyperlink address if it was printed out at the time it was sent.

Question 919

[44] A similar request is made for Rancourt to print out the hyperlinks that were sent to the student editors at Exhibit #20. Rancourt has provided the URLs which are addresses, however, to avoid any confusion, I order Rancourt to provide printed copies of the hyperlinks at the date the e‑mails were sent, if he has them in his possession.

Questions 921‑924

[45] The defendant sent an e‑mail to media organizations and reports (Exhibit #21) and he refuses to print out the links to documents he provided. Rancourt has provided the URL addresses. I agree that these addresses and the information contained in them may not be the same presently, however, if he has the copy of the website link when the e‑mail was sent, he is ordered to provide a copy. Printing the contents of a current website for a media outlet would not be relevant due to the changing volume of information.

Question 932

[46] The defendant sent an e‑mail to media organizations and reports (Exhibit #21) and he refuses to print out the links to documents he provided. Rancourt has provided the URL addresses. I agree that these addresses and the information contained in them may not be the same presently, however, if he has the copy of the website link when the e‑mail was sent, he is ordered to provide a copy.

Questions 941-947

[47] The defendant sent an e‑mail on August 29, 2011 to 100 media outlets linking the information about his alleged expert Claude Lamontagne about the meaning of ‘House Negro’. Rancourt has provided the URL addresses. I agree that these addresses and the information contained in them may not be the same presently, however, if he has the copy of the website link when the e‑mail was sent, he is ordered to provide it.

Questions 947‑949

[48] The defendant has refused to forward to counsel for St. Lewis all the e‑mails that include the links to the documents provided to third parties about St. Lewis. Rancourt has provided the URL addresses. I agree that these addresses and the information contained in them may not be the same presently, however, if Rancourt has the copy of the website link when the e‑mail was sent, then he is ordered to provide it to counsel for St. Lewis.

Section N Facebook

[49] Rancourt posted messages on Facebook about St. Lewis such as his invitation to his Facebook friends to attend the motions at the courthouse stating “in the crazy case of the defamation lawsuit against me”. Rancourt refused to answer why he was posting messages about St. Lewis’ defamation action on the Facebook Group page “Against the Dismissal of Denis Rancourt” he administers. The plaintiff submits that the defendant is deliberately drawing attention to his defamatory ‘House Negro’ publications and submits that these questions are relevant to the issue of the defendant’s malice as well as aggravated and punitive damages.

Question 766

[50] The question of why Rancourt is posting messages about his defamation action on Facebook should be answered as it is relevant to the issues of aggravated and punitive damages as well as malice.

Question 780

[51] Question 780 is not really a question.

Questions 794‑796

Issue

[52] The defendant refuses to provide a list of his Facebook friends that belong to the Facebook Group that he administers. The plaintiff submits that it is relevant to the issues of general aggravated and punitive damages and that St. Lewis is entitled to know the extent of the damages the defendant is causing her by disseminating to third parties information about his publications that called her a ‘House Negro’. St. Lewis submits that she is entitled to know who in the community is receiving the defendant’s Facebook communications about his defamatory ‘House Negro’ publications and the location of these Facebook friends (local, national, and international). The plaintiff submits the conduct of Rancourt during the litigation on the libel action is relevant to the issues of malice and aggravated damages.

[53] Rancourt submits that his posts are made to a publically accessible website.

[54] Rancourt is ordered to provide the list of his Facebook friends who would have had access to messages he posted about St. Lewis or the defamation action on Facebook. When a message is posted on Rancourt’s Facebook page, it would appear on all his friends’ Facebook account depending on the settings that have been set by his various friends on Facebook. In any event, sending a message on Facebook to a group of friends is relevant evidence to the question of publication and the issues of damages and malice.

Question 845

Issue

[55] St. Lewis requests the names of all of Rancourt’s 402 friends on Facebook with whom he would have exchanged messages about St. Lewis or the defamation action.

[56] Rancourt submits that Facebook is like a bulletin board and he is unaware who would have accessed his Facebook page. The plaintiff submits that one of the defendant’s Facebook friends is Joseph Hickey who is a partisan supporter of the defendant and who has published defamatory statements about St. Lewis and her counsel on his blog “Students‑Eye‑View”. St. Lewis submits that this information is relevant to the issues of general, aggravated and punitive damages in that the defendant is deliberately expanding the number of people who know about his defamatory ‘House Negro’ publications during the litigation, and that the conduct is relevant to the issue of malice.

[57] Rancourt is ordered to produce a copy of all of the messages he has posted to his Facebook page about St. Lewis or this libel action as they are relevant to the issues of malice and damages.

Question 974

[58] The plaintiff requests that the defendant produce his Facebook messages with Joseph Hickey relating to the libel action and St. Lewis. Joseph Hickey is a partisan supporter of the defendant. Mr. Hickey has published allegedly defamatory statements about St. Lewis and her counsel on his blog “Students‑Eye‑View”, including republishing the defendant’s February 11, 2011 ‘House Negro’ article in issue in this libel action. St. Lewis submits that Rancourt’s communications with Mr. Hickey in this action related to St. Lewis or the libel action are relevant to the issues of malice and aggravated and punitive damages.

[59] Rancourt submits that he gave a complete answer to the question stating that he has already produced a copy of all Facebook messages between himself and Joseph Hickey related to St. Lewis or the libel action.

[60] I agree that Rancourt has already answered this question.

Section Q Defendant’s Twitter Account

[61] The plaintiff seeks a list of the defendant’s Twitter followers. Rancourt has tweeted about St. Lewis and this libel action. The defendant sent out a tweet that disseminated a National Post article that reported on his allegedly defamatory ‘House Negro’ publication. St. Lewis submits that the defendant is deliberately drawing attention to his defamatory publications and expanding the base of people who know about his defamatory statements about St. Lewis and that the location of these people (local, national, and international) and who they are (ex: media, other professors, students) is relevant to the issue of the breadth of the damages that the defendant causes to St. Lewis and to the issue of malice.

[62] Rancourt submits that tweets are not electronic person to person messages but rather like a posting to a web page, which are public, and any follower may choose to access and read. Rancourt states that he has already provided the list of his 79 Twitter followers. If he has done so, then I find the question has been adequately answered. If he has not done so, then I would order Rancourt to provide the list of his 79 Twitter followers. I agree with Rancourt’s submission that he would not have knowledge of other members of the public who may have read his tweets.

Section R Disclaimer Added to Rancourt’s U of O Watch Blog

[63] Rancourt initially refused to provide the date that he added a paragraph to his disclaimer on the front page of his blog “U of O Watch”. The plaintiff submits that the addition was made to the disclaimer on a date after the defendant published the libellous articles in issues in this action. St. Lewis submits that the addition of a paragraph to the disclaimer demonstrates Rancourt’s concern about the content of what he published on his “U of O Watch” blog, yet he refuses to take down his defamatory publications and to apologize to St. Lewis. The plaintiff submits that this is relevant to the issues of aggravated damages and malice.

[64] Rancourt has answered the question by stating that the addition to his disclaimer was made after the statement claim was served.

Section S Defendant’s Investigation of Counsel for the Plaintiff

[65] The defendant has refused to answer questions of why he was seeking records from the University going back to 2009 about Richard Dearden’s financial donations to the University as well as teaching contracts. St. Lewis submits that Rancourt’s investigation of plaintiff’s counsel’s donations and his teaching contracts at any time (let alone the years 2009 and 2010 with the University) is relevant to the issue of his malicious conduct.

[66] I find that any donations made by counsel for the plaintiff or any teaching he may have engaged in at the University of Ottawa are completely irrelevant to the issues in this action and therefore, the question need not be answered.

Section T Defendant’s Lack of Qualifications to Publish the Articles in Issue

[67] The defendant refuses to produce articles or presentations that he “maybe” wrote about systemic racism in Canada. The defendant’s qualifications to publish articles about the plaintiff’s evaluation report and the SAC’s 2008 Annual Report dealing with systemic racism are relevant to his defences of fair comment, truth and public interest responsible communication. St. Lewis submits that Rancourt’s lack of qualifications is also relevant to the issue of malice in that it demonstrates his reckless disregard for the truth and his recklessness in publishing his defamatory ‘House Negro’ publications about St. Lewis.

Question 49

[68] Question 49 reads as follows: “And prior to February 11, 2011, did you write an article or make a presentation about systemic racism in Canada?”

[69] The defendant has subsequently provided a list of URLs where he may have written publications on‑line, however I order Rancourt to provide copies of all articles that he has written on‑line, or presentations that he has made on the subject of racism in Canada.

Questions 27-32

[70] Questions 27-32 pertain to the defendant’s expertise on issues of anti‑Black racism or oppression as it affects the Black community.

[71] The defendant has subsequently provided a list of URLs where he may have written publications on‑line, however I order Rancourt to provide copies of all articles that he has written on‑line, or presentations that he has made on the subject of racism in Canada.

Section U Professor St. Lewis Acted Like President Allan Rock’s ‘House Negro’

[72] The defendant was repeatedly asked what acts or actions St. Lewis did that caused the defendant to conclude that she acted as a ‘House Negro’ (e.g.: What were the ‘House Negro’ actions of Joanne St. Lewis?). The only answer that the defendant would put on record was that the plaintiff did not write an independent report.

[73] Rancourt agreed subsequent to the motion to answer the questions related to Issues 1, 2 and 3 under Section U in writing within 15 days. This is satisfactory. However, Rancourt refused to answer the Question 600 under Issue 4 of Section U on the basis that it was a hypothetical question.

Questions 600 and 550‑556

[74] In Question 600, Rancourt was asked how a ‘House Negro’ acts. He refused to answer on the grounds this was a hypothetical question.

[75] Rancourt is ordered to answer Questions 600 and 550‑556 as they are relevant to the issue of malice.

Section V Defendant’s Prior Use of Racist Terms

Questions 334-335, 343 and 454‑458

[76] The plaintiff states that the defendant refused to produce an e‑mail that he admits at Question 343, p. 122 he sent to students on July 13, 2008. That e‑mail contains racist language: “Let’s get in touch with that niga”. St. Lewis submits that the defendant’s propensity to use racist language is an issue in this action.

[77] Rancourt submits that the questions are not relevant. I agree that the e‑mail is not relevant to issues in the defamation action related to St. Lewis.

Question 329 regarding Severin Stojanovic

[78] The defendant refuses to answer whether a former student named Severin Stojanovic is suing him. The defendant allegedly sent an e‑mail to this student using racist language stating “Let’s get in touch with that niga”. Rancourt also refused to answer whether he discussed the SAC report with the former students such as Mr. Stojanovic demonstrating the defendant’s vested interest in defending the SAC report and attacking St. Lewis.

[79] I find that this question is not relevant and Rancourt is not required to answer as it is not relevant to an issue in this libel action.

Questions 352-359 pertaining to the defendant’s wife

[80] In his sworn affidavits, Questions 352-359, the defendant states that his wife is a person of colour, born in Madagascar, but has refused to answer whether his wife is Black. When asked why he included the information in his affidavits if the question was irrelevant, he answered that the question goes to motive. St. Lewis submits that the question is relevant to the defendant’s qualifications to appreciate what might happen to a Black person in Canada such as St. Lewis who is called a ‘House Negro’.

[81] Given that Rancourt has raised this issue in his affidavits, I order him to clarify whether his wife is a person of colour or a Black person. It is also related to his expertise and knowledge on the issue of racism.

Defendant’s Undertakings

[82] The defendant was to advise whether he has written an article or made a presentation about Malcolm X prior to February 11, 2011.

[83] The defendant has provided answers to the undertakings. If there are any further issues of whether the answers fully complied with the undertakings, they may be raised at a future case conference.

Costs

[84] The plaintiff may make submissions on costs within 15 days. The defendant shall have 15 days to respond and the plaintiff 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 MS. St. Lewis’ discoverY RESUSAL motion

R. Smith J.

Released: March 6, 2013