COURT FILE AND PARTIES

COURT FILE NO.: 11-51657

DATE: 2013/01/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joanne St. Lewis

Plaintiff

– and –

Denis Rancourt

Defendant

Richard G. Dearden and Anastasia
Semenova, for the Plaintiff

Denis Rancourt, self-represented

University of Ottawa

Rule 37 Affected Participant

Peter K. Doody, for the University of Ottawa

HEARD: November 15, 2012

AMENDED REASONS FOR DECISION

annis j.

This is an amendment to the Reasons for Decision released November 29, 2012. The amendments occur in paragraph [12] whereby the name “Mr. Rock” is changed to “Professor St. Lewis”; in paragraphs 23 and [27] whereby the date of the decision of Smith J. is changed from June 27, 2012 to July 27, 2012; and on page 8 where the heading “The University Witnesses Refusals Motion” is amended to read “The Plaintiff’s Witnesses Refusals Motion”.

Introduction

[1] This is yet another series of motions in a series of interlocutory motions brought by the defendant, on this occasion seeking leave to appeal three interlocutory decisions of Beaudoin J. and R. Smith J.

[2] The challenged orders are as follows:

(i) The decision of Beaudoin J. made from the bench on June 20, 2012 dismissing the defendant’s motion to compel the University of Ottawa (“the University”) witnesses to answer questions and produce documents on the grounds that the judge demonstrated a reasonable apprehension of bias.

(ii) The ‘decision’ by letter of July 31, 2012 of Smith J. as Case Management Judge to refuse to set down the defendant’s motion to set aside the June 20, 2012 decision of Beaudoin J.

(iii) The decision of Smith J. of September 6, 2012 dismissing the portion of the defendant’s motion that had been adjourned by Beaudoin J. concerning the refusal of witnesses produced by the plaintiff to answer questions and produce documents.

[3] The University argued that the first two leave motions were out of time, in reply to which the defendant sought an extension of time.

[4] I am prepared to grant the defendant an extension of time to bring these leave motions. However, I dismiss the three motions for leave to appeal with costs to the plaintiff and the University as indicated.

Factual Background

[5] The plaintiff, Professor Joanne St. Lewis, sued the defendant for defamation in respect of comments he published on his blog in which he referred to her as “Allan Rock’s house negro”. This comment was made following Professor St. Lewis’ preparation of a report requested by the University into the issue of whether there was “systemic racism” at the University.

[6] Mr. Rancourt brought an interlocutory motion (“the champerty motion”) seeking an order that the action be stayed or dismissed on the ground that it was vexatious or otherwise an abuse of process because the University is funding the litigation.

[7] The affidavit supporting the champerty motion includes the following averments:

(1) Mr. Rancourt had worked at the University for 23 years, attaining the rank of tenured full professor in 1997, until dismissed by the University in 2009;

(2) The dismissal is in binding labour arbitration between his Union and the University;

(3) The University was using the fact of the defamation litigation and its content as evidence against the defendant in the arbitration;

(4) The University was entirely funding the defamation action; and

(5) The University was “receiving a share in the proceeds of the action” because the plaintiff had stated in her statement of claim that if punitive damages were awarded, she would donate half of the award to the “Danny Glover Roots to Freedom Graduate Law Student Scholarship Fund”.

[8] The University intervened in the litigation. It filed responding affidavits from Mr. Rock and Céline Delorme, the University’s counsel in the arbitration. Neither affidavit contained evidence on “information and belief”.

[9] The defendant served Robert J. Giroux, the Chair of the University’s Board of Governors, with a summons to be cross‑examined.

[10] During the cross-examinations, Mr. Rock, Mr. Giraud and Ms. Delorme refused to answer several questions or to produce several documents requested. The defendant brought a motion on June 20, 2012 before Beaudoin J., the Case Management Judge at that time, contesting the refusals.

[11] Justice Beaudoin dismissed the refusals motion pertaining to witnesses produced by the University. There is no claim that he erred in law regarding his June 20th refusals rulings relating to the witnesses from the University, only that he demonstrated a reasonable apprehension of bias requiring the decision to be set aside. He provided written reasons for his decision on August 2, 2012.

[12] Justice Beaudoin adjourned the remainder of the motion pertaining to the plaintiff’s witnesses (Professor St. Lewis and Dean Feldthusen) to July 24, 2012. Other motions arising out of other cross‑examinations were previously scheduled on that date.

[13] On the return of the refusals motion of the plaintiff’s witnesses, the defendant, without prior indication, requested an adjournment to bring a motion that Beaudoin J. recuse himself due to an apprehension of bias in connection to events relating to his late son.

[14] Notice was also not provided to counsel for the the University witnesses, although the allegations sustaining the proposed adjournment pertained to the June 20, 2012 decisions.

[15] The defendant alleged that there was an apprehension that Beaudoin J. would not adjudicate matters fairly involving the University because of the existence of a scholarship in honour of his late son at the University where he had attended, which was funded by the Government of Ontario and the Beaudoin family.

[16] In addition, he argued that Beaudoin J. could be unfairly influenced by the fact that Borden Ladner Gervais LLP, which was representing the University in this matter, had named a boardroom after his late son where he had worked.

[17] The request for an adjournment was made based on dated newspaper articles describing Beaudoin J.’s grief arising from the death of his son and the memorials that were created on his behalf. The basis of the request provoked Beaudoin J. to withdraw from any further determinations involving the defendant.

[18] Prior to withdrawing, Beaudoin J. dismissed the defendant’s request for an adjournment and indicated that he had no conflict of interest in respect of the decisions made on June 20, 2012.

[19] The defendant filed a notice of motion on July 30, 2012 requesting a judicial determination of reasonable apprehension of bias regarding Beaudoin J.’s prior rulings in this action. He sought, inter alia, an order that all prior rulings of Beaudoin J. in the action, including his case management rulings, be set aside.

[20] Justice Smith was appointed as the Case Management Judge following the recusal of Beaudoin J. He informed the defendant, by letter dated July 31, 2012 as follows:

Further to your fax of July 31, 2012, I wish to clarify, as I advised you at the motion on July 27, 2012, that I have no jurisdiction to set aside decisions of Justice Beaudoin and I will not be scheduling any motion for this purpose.

[21] On July 27, 2012, Smith J. heard the defendant’s refusal motion regarding the cross‑examinations of Professor St. Lewis and Dean Feldthusen. Justice Smith’s Reasons for Decision dismissing the motion were released on September 6, 2012.

[22] On August 8, 2012, the defendant sought leave to appeal from Beaudoin J.’s decision of June 20, 2012 and Smith J.’s ‘decision’ of July 31, 2012 described above. In addition, the defendant sought leave to appeal from the September 6, 2012 decision of Smith J. on September 17, 2012.

Issues

[23] The issues raised in these three leave applications are:

(1) Whether the defendant should be granted an extension of time for leave to appeal Beaudoin J.’s decision of June 20, 2012 and Smith J.’s ‘decision’ of July 27, 2012?

(2) Whether there is a reasonable apprehension of bias that Beaudoin J. would not decide fairly the decision made on June 20, 2012?

(3) Whether Smith J.’s letter of July 31, 2012 is an order that can be appealed to the Divisional Court, and if so, whether the defendant meets the requirements for leave of Rule 62.02(4)?

(4) Whether the defendant has met the requirements of Rule 62.02(4) for leave to appeal Smith J.’s decision of September 6, 2012?

Extension of Time

[24] Rule 62.02 (2) of the Rules of Civil Procedure requires that a notice of motion for leave to appeal an interlocutory order shall be served within seven days after the making of the order.

[25] The time for appealing from the order is the time when the order is pronounced. An appeal is taken not from the reasons of the judgment, but from the judgment itself. It is the order of the Court which is binding, not the reasons assigned for making it. Accordingly, waiting for the release of reasons is not a valid ground for granting an extension of time. See Byers (Litigation guardian of) v. Pantex Print Master Industries Inc., (2003) 2003 42272 (ON CA), 62 O.R. (3d) 647 (C.A.) at para. 26 per Borins J.A. citing Walmsley v. Griffith (1886), 1886 87 (SCC), 13 S.C.R. 434 at 438; Canadian Express Ltd. v. Blair, (1991) 1991 7172 (ON SC), 6 O.R. (3d) 212 at para. 12 (Ont. Gen. Div.); Westinghouse Canada Inc. v. Canada (Canadian International Trade Tribunal), [1989] F.C.J. No. 540 (F.C.A.) at p. 4.

[26] The factors to be considered in allowing an extension of time for service of a notice of motion for leave to appeal to the Divisional Court are as follows:

(a) the prejudice, if any, to the respondent;

(b) when the applicant formed the intention to appeal;

(d) whether or not an extension is required by the justice of the case.

[27] I am satisfied that the defendant should be granted an extension of time to seek leave to appeal the decisions of Beaudoin J. of June 20, 2012 and of Smith J. of the July 27, 2012.

[28] I agree that the time for appealing Beaudoin J.’s order started to run from June 20, 2012 when it was pronounced, as is clearly described from the transcripts of those proceedings. There were no outstanding matters to be decided with respect to the defendant’s refusals motion for the three University witnesses after the hearing on that date. Accordingly, I accept the plaintiff’s submission that the defendant was late in seeking leave.

[29] Nevertheless, no attempt was made either by the plaintiff or the University to claim procedural prejudice by an order extending time to seek leave to appeal. In addition, I find that there were unusual intervening circumstances between the date of Beaudoin J.’s oral decision and the filing of the leave to appeal motion which demonstrate a continuing intention to appeal and provide some explanation for the delay.

[30] These include the adjournment of the uncompleted portion of the defendant’s motion, the subsequent determination of the remainder of that motion by another judge, the defendant’s attempt to bring a motion on the same issue on July 30, 2012 and the subsequent release of Beaudoin J.’s written reasons on August 2, 2012.

[31] I have considered declining the request for an extension given the indication on the record that the defendant is abusing procedural processes, which in most circumstances would lead a court to refuse an extension.

[32] Nevertheless, I think it is in the interests of justice, not only from the perspective of the defendant, but also to uphold the reputation of this court, that an allegation of an apprehension of bias of one of the Court’s judges be considered, at least for the purpose of deciding whether to grant leave to appeal.

[33] It is not clear on the evidence that the defendant was out of time for seeking leave to appeal Smith J.’s letter refusing to schedule his motion.

Leave to Appeal an Interlocutory Order

[34] Leave to appeal to the Divisional Court may only be granted pursuant to Rule 62.02(4) of the Rules of Civil Procedure on the following grounds:

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[35] The test for granting leave to appeal from an interlocutory order is an onerous one. The first ground for obtaining leave to appeal requires the defendant to demonstrate that “conflicting decisions” present a difference in the principle chosen as a guide to the exercise of judicial discretion and not merely in outcome as a result of the exercise of discretion. See Bell ExpressVu Limited Partnership v. Morgan (2008), 2008 63136 (ON SCDC), 67 C.P.C. (6th) 263 (Div. Ct.) at para. 1 and Brownhall v. Canada (Ministry of National Defence), (2006) 2006 7505 (ON SC), 80 O.R. (3d) 91 (Sup. Ct.) at para. 27.

[36] The second ground for obtaining leave to appeal requires the defendant to convince the court that there is a good reason to doubt the correctness of the judge’s decision and proposed appeal involves matters of such importance of leave should be granted. The court should ask itself whether the decision is open to “very serious debate” and, if so, whether the decision warrants resolution by a higher level of judicial authority. See Brownhall, supra, at para. 30.

Reasonable Apprehension of Bias

[37] The test to be applied for determining whether there exists a reasonable apprehension of bias has been formulated by the Ontario Court of Appeal in Bailey v. Barbour, 2012 ONCA 325, 110 O.R. (3d) 161 at para. 16 as follows:

…what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through conclude. Would he or she think it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?

[38] Determining whether a reasonable apprehension of bias arises requires a highly fact‑specific inquiry. The test is an objective one. The record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences from the perspective of a reasonable observer throughout the trial. Moreover, isolated expressions of impatience or annoyance by a trial judge as a result of frustrations do not of themselves create unfairness. See Lloyd v. Bush, 2012 ONCA 349, 110 O.R. (3d) 781 at paras. 25‑26.

[39] There is a strong presumption in favour of the impartiality of the trier of fact. Where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of judicial impartiality. See Bailey v. Barbour, supra, at para. 19.

Analysis

[40] This is not a case that could possibly give rise to a reasonable apprehension of bias on the part of Beaudoin J. There are no interventions or declarations by him that could lend themselves to a concern of partiality. He is not personally involved in any of the circumstances of the case. There is nothing the defendant could point to in Beaudoin J.’s conduct which could begin to suggest that he somehow favoured the University.

[41] Moreover, the University is a large quasi-governmental institution in our community. Being multifaceted, ubiquitous and amorphous, it is anonymous and thus does not permit a suggestion that a judge by setting up a memorial scholarship in the name of his departed son could give rise to an apprehension that the judge might be favourably disposed to the University in litigation brought before him or her.

[42] The University was merely the means whereby Beaudoin J. could obtain some solemnity from the untimely death of his son in establishing a scholarship for others who wished to study at the University. Actions of this nature intended to benefit Society, even if taken to memorialize a close relation, are not the type of conduct that consciously or unconsciously could suggest a judge cannot act fairly.

[43] Similarly, no reasonable apprehension of a favourable consideration by Beaudoin J. towards the University could possibly arise by the University being represented by a law firm that had named one of its meeting rooms in memory of his son where he was working at the time of his premature demise.

[44] It is unreasonable to suggest that the mere act of respect by a law firm towards one of its associates who was the son of a judge and whose untimely death touched the firm could indirectly cause the judge to be biased in favour of the law firm’s clients. Were this to be the case, Beaudoin J. could not hear any case pleaded by Borden Ladner Gervais LLP. This is an untenable proposition that fails to recognize that lawyers are officers of the court who are required to advance their clients’ interests without adopting them as their own.

[45] The defendant’s motion for leave to appeal the decision of Beaudoin J.’s decision of June 20, 2012 is dismissed with costs to the University.

The Letter ‘Decision’ of Justice Smith

[46] The plaintiff contends that the letter of Smith J. was not a decision: he was merely informing the defendant that his proposed motion was in the wrong court and therefore would not be scheduled to proceed.

[47] I cannot see any problem with a Case Management Judge refusing to set down a motion entirely void of merit, such as occurred here when the defendant’s request was to set aside the decision of a fellow Superior Court judge on grounds of apprehension of bias.

[48] Nevertheless, whether the form is one by letter indicating immediate rejection of the motion or the refusal to set it down, substantively the results are the same, i.e. a decision rejecting the defendant’s motion. As such, the defendant is entitled to seek leave to appeal the decision not to schedule his motion.

[49] This said however, leave is refused because the defendant seeks by his motion to set aside the interlocutory decision of Beaudoin J. of June 20, 2012 on grounds of reasonable apprehension of bias: a remedy which only the Divisional Court can consider.

[50] In addition, having decided that there is no possibility of success on a claim of reasonable apprehension of bias by Beaudoin J., leave to appeal this decision would serve no purpose if granted.

[51] Accordingly, it is dismissed with costs to the University.

The Plaintiff’s Witnesses Refusal Motion

[52] As it is clear that no judge could conclude that the proposed appeal involves matters of any importance or that it would be desirable to grant leave, the defendant’s motion for leave to appeal the order of Smith J.’s decision of September 6, 2012 is dismissed with costs to the plaintiff.

[53] For the record, I also conclude that there is no reason to doubt the correctness of the orders of Smith J., and in particular, I reject the defendant’s main submission that although the applicable legal principles were properly stated, he misapplied them to the facts.

Costs

[54] The plaintiff and the University may file submissions on costs not to exceed three (3) pages in addition to a costs outline within ten (10) days of the release of these reasons. The defendant may respond within ten (10) days with submissions limited to three (3) pages.

Mr. Justice Peter Annis

Released: January 2, 2013