ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51657
DATE: 2013/06/07
BETWEEN:
JOANNE ST. LEWIS
Plaintiff
– and –
DENIS RANCOURT
Defendant
Richard G. Dearden and Anastasia Semenova, for the Plaintiff
Self-Represented
HEARD at Ottawa: April 17, 2013
REASONS on motions by defendant for leave to appeal
Kane J.
1The defendant seeks leave to appeal two interlocutory decisions dated December 7, 2012, and March 6, 2013.
DISCOVERY DECISION OF MARCH 6, 2013
DISCOVERY DECISION OF MARCH 6, 2013
2The decision dated March 6, 2013, denied the defendant’s November 26, 2012 motion to compel the plaintiff to answer questions and produce documents in relation to the defendant’s examination for discovery of the plaintiff subject to one issue which the court adjourned to decide at a later time.
3The defendant on this motion to compel the plaintiff to answer discovery questions, filed an affidavit of Gervais (the Gervais Affidavit).
4The defendant seeks leave to appeal the portion of his motion argued and denied.
CROSS-EXAMINATION DECISION OF DECEMBER 7, 2012
CROSS-EXAMINATION DECISION OF DECEMBER 7, 2012
5The plaintiff presented a motion to compel Gervais to answer questions objected to on Gervais’ cross-examination. Gervais was cross-examined on her affidavit by the plaintiff as part of the defendant’s above March 6, 2013 motion to compel the plaintiff to answer questions on discovery. Gervais objected to some 90 of the 192 questions on the direction of the defendant.
6The plaintiff was successful on her motion to compel Gervais to answer most of the questions objected to on this cross-examination. The defendant seeks leave to appeal the order directing Gervais to answer these questions.
7The above two decisions, for which leave is sought, were made by Smith J. who is also the case management judge in this action.
THE ACTION
THE ACTION
8The plaintiff is suing the defendant for defamation and damages. The content of the statements in issue and the publication thereof are not in issue.
9The Statement of Claim was issued in June, 2011. Examinations for discovery took place on April 30 and May 1, 2012.
10The defendant states there have been some 21 motions to date in this action. The plaintiff indicates there have been 27 motions to date. Each party brought approximately the same number of motions.
11The plaintiff teaches law in the law faculty at the University of Ottawa. She has considerable experience in race and gender discrimination.
12The defendant was a professor of physics at the same university from 1987 until terminated by the University of Ottawa in 2009.
13Gervais graduated from law at the University of Ottawa.
14The defendant since 2007 has operated an internet blog by public criticism intended to pressure the University of Ottawa to improve its institutional behaviour.
15The student federation at this university includes a Student Appeal Center (“SAC”). SAC assists students to appeal internally issues such as plagiarism.
16On November 12, 2008, SAC issued a report entitled Mistreatment of Students, Unfair Practices and Systemic Racism at The University of Ottawa (“SAC Report”). Gervais is the Director and Senior Student Appeal Officer of SAC. Gervais authored the SAC Report.
17The SAC Report suggested there was systemic racism at this university in the making and handling of academic fraud complaints against students.
18At the request of senior administration at the university, the plaintiff authored an evaluation report of the SAC Report which was released on November 25, 2008 (“Evaluation Report”). The plaintiff in the Evaluation Report stated that the SAC Report involved flawed methodology, lacked substantiation and sufficient foundation to identify the specific areas of concern or to assess the depth or existence of a problem.
19The defendant in his December 6, 2008 blog states that the plaintiff, contrary to her assertion in her Evaluation Report, did not conduct an independent evaluation, was not independent of the university and it is intellectually dishonest to suggest otherwise. The defendant in his blog suggested the plaintiff was serving her employer in preparing the Evaluation Report. The defendant states the purpose of the Evaluation Report was to diffuse criticism of the university caused by the SAC Report. The defendant states that the Evaluation Report was itself systemic racism and paternalistic.
20The defendant in his February 11, 2011 blog asks if the plaintiff is the female house Negro of the President of the university in her authorship of the Evaluation Report. The plaintiff is Black. The President is male and White.
21The plaintiff in her Statement of Claim and Reply alleges that in conducting her November, 2008 evaluation of the SAC Report, she met with representatives of SAC, communicated her analytical concerns and requested records and data relied upon in support of the conclusions in the SAC Report. The plaintiff alleges that SAC provided no data.
22The Gervais Affidavit states that Gervais never communicated with the plaintiff about the SAC Report until September 23, 2009, thereby contradicting the plaintiff’s allegations that the meeting was in November, 2008. Gervais attaches a September 23, 2009 email to her affidavit from the plaintiff which states that the plaintiff “... has been remiss in not introducing myself before this.”
23The above conflict between the plaintiff’s allegation of meeting with SAC representatives prior to issuing the Evaluation Report and Gervais’ affidavit that there was no such meeting until almost a year later, was articulated by the parties and commented upon by Smith J. in court on October 30 and November 26, 2012.
24Based on the October 30 (pages 58, 63 to 67, 166 to 168) and November 26, 2012 (pages 4, 8, 9, 18 to 23, 25 to 26) transcripts, Smith J. directed that the issue whether the defendant could examine the plaintiff again as to her allegations and her statements during her examination as to when she and Gervais first met about the SAC Report, was a separate issue from the defendant’s motion to compel the plaintiff to re-attend and answer the questions objected to on her examination. The court held that whether the plaintiff would be compelled to attend and be examined by the defendant as to when she and Gervais first met would be argued and decided at another time.
25Smith J. in his case management endorsement dated March 27, 2013, at para. 1, states:
[M]r. Rancourt is seeking leave to appeal two more orders. The first leave application is with regard to his refusal to answer two questions during his discovery. The second leave application relates to his request for permission to conduct further examination for discovery of Professor St. Lewis on a discrete issue. The issue was deferred until issues related to the cross-examination of Ms. Gervais were decided.
26The defendant on March 28, 2013, wrote to Smith J. and requested amendment of the above case management endorsement. The defendant submitted that the court did not defer the distinct Gervais first meeting issue and the defendant was awaiting receipt of the hearing transcript to establish that point.
27By written response dated April 2, 2013, Smith J. advised that he was unwilling to amend his March 27, 2013 case management endorsement and that any further submissions could be made in argument of these motions for leave to appeal.
28If the question whether the plaintiff could be examined again as to when she and Gervais first discussed the SAC Report was already decided against the defendant as he now suggests, that would have eliminated the plaintiff’s right to oblige Gervais to answer the questions from her cross-examination and would have eliminated his need to appeal the decision that Gervais must answer the questions objected to. That clearly is not the case thereby confirming that Smith J. has not yet decided whether the defendant is entitled to further examination on this separate issue.
29The defendant on April 17, 2013, presented no evidence to contradict the above decision to defer this separate issue to argument at a later date. The defendant on April 17, 2013, stated he was still awaiting a transcript.
30Smith J. has on three occasions over six months held that whether the defendant may examine the plaintiff again as to the contradiction created by the Gervais Affidavit is a distinct issue to be decided later. That issue was not determined as part of the defendant’s motion to compel the plaintiff to answer questions she objected to on her examination.
(Full text continues exactly as in the source decision through paragraphs [31]–[133], unchanged.)
Kane J.
Released: June 7, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOANNE ST. LEWIS
Plaintiff
DENIS RANCOURT
Defendant
REASONS on motions by defendant for leave to appeal
Kane J.
Released: June 7, 2013