Court File No.: 11-51657 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JOANNE ST. LEWIS Plaintiff and DENIS RANCOURT Defendant DEFENDANT’S NOTICE OF MOTION FOR LEAVE TO APPEAL (Justice Smith’s Decision dated March 6, 2013, Rancourt’s refusals motion) March 15, 2013 Denis Rancourt (Defendant) The Defendant, Denis Rancourt, will make a motion to the Ontario Superior Court of Justice to be heard at 10:00am on a date scheduled by Case Management Judge R. Smith at the Ottawa Courthouse, 161 Elgin Street, Ottawa, Ontario. PROPOSED METHOD OF HEARING: The motion is to be heard orally. THE MOTION IS FOR: 1. An Order that Leave to Appeal be granted to the defendant to appeal from a decision of Justice Robert Smith in His Honour’s Reasons For Decision On Mr. Rancourt’s Discovery Refusal Motion, released on March 6, 2013. 2. The costs of this motion on an appropriate scale. 3. Such further and other relief as the Defendant may advise and this Honourable Court deems just. THE GROUNDS FOR THE MOTION ARE: Overview 1. The words complained of in this $1 million defamation action are based on two reports: (a) a Student Appeal Centre report (“the SAC report”) produced by SAC Director Mireille Gervais; and (b) the plaintiff’s evaluation report about the SAC report (“the plaintiff’s evaluation report”). 2. The plaintiff’s evaluation report makes no mention of the plaintiff having notified or met the SAC prior to finalizing her evaluation report, whereas the plaintiff later asserted such notification and meeting: (a) in her Statement of Claim; (b) in her Reply; and (c) in volunteered sworn testimony during her examination for discovery. Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 1 3. These assertions of the plaintiff are contradicted by affidavit and documentary evidence from SAC Director Mireille Gervais, which became available to the defendant after the examination for discovery of the plaintiff. The said affidavit evidence was duly served, filed, admitted, and crossexamined on by the plaintiff in the defendant’s refusals motion for discovery (the motion from which appeal is sought). 4. In the impugned decision, the judge failed to consider or rule on the issue of whether the new evidence from the SAC Director justified a limited re-examination for discovery of the plaintiff, despite this having been strenuously argued by the defendant. 5. The defendant seeks leave to appeal in order to obtain a limited re-examination to test the truth of material facts in the plaintiff’s evaluation report, and in her pleadings and discovery testimony, about the plaintiff having notified and/or met the SAC prior to finalizing her evaluation report. 6. Thus, leave to appeal is sought on this discrete matter which is important because: (a) The defendant’s fair comment defence is based on the material facts in the plaintiff’s evaluation report; and (b) The disputed statements are made in the Statement of Claim; and (c) The credibility of the plaintiff’s evidence is engaged. Procedural chronology of the motion 7. The $1 million defamation action was commenced by Statement of Claim on June 23, 2011, for criticisms on a blog article written by the defendant. 8. The plaintiff is an Assistant Professor at the Faculty of Law at the University of Ottawa. Her litigation is entirely funded by the University of Ottawa. The defendant was dismissed by the University of Ottawa from his tenured Full Professorship in 2009, and is self-represented. Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 2 9. The action is under case management, by consent, since January 26, 2012. Presently, the case management judge is Justice Robert J. Smith. 10. More than twenty (20) motions have been served in the action, nine (9) by the plaintiff, one (1) by the University of Ottawa. Four (4) motions were served by the plaintiff prior to case management. 11. The examinations for discovery were held on April 30, 2012 (of the defendant) and May 1, 2012 (of the plaintiff). These gave rise to two refusals motions, one from each party. 12. The defendant filed an affidavit of Student Appeal Centre (SAC) Director Ms. Mireille Gervais, sworn on July 9, 2012, in support of his refusals motion for discovery, which contradicted evidence given by the plaintiff in examination for discovery. 13. Ms. Gervais was cross-examined by the plaintiff on August 16, 2012. At cross-examination, Ms. Gervais refused to answer all questions aimed solely at her credibility. On September 25, 2012, the plaintiff brought a refusals motion for the refusals of Ms. Gervais. 14. The plaintiff’s motion for the refusals of Ms. Gervais was heard on October 30, 2012. The defendant argued that his main refusal motion for discovery should not be heard until Gervais refusals were decided. 15. The two main refusals motions for discovery were both heard on November 26, 2012, prior to Justice Smith’s ruling on the Gervais refusals. 16. On December 7, 2012, the Reasons in the plaintiff’s motion for the refusals of Ms. Gervais (Reasons For Decision On Ms. Gervais’ Refusals Motion) were released. Justice Smith ordered almost all the refused questions to be answered, and that the witness be re-examined to answer follow up questions. A re-examination has not been held to this date. Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 3 17. On December 9, 2012, the defendant served and filed a notice of motion for leave to appeal from Justice Smith’s December 7, 2012 decision (Reasons For Decision On Ms. Gervais’ Refusals Motion). This leave motion is scheduled to be heard on April 17, 2013. 18. On March 6, 2013, the Reasons for the two main refusals motions for discovery were both released: (a) Reasons For Decision On Mr. Rancourt’s Discovery Refusal Motion; and (b) Reasons For Decision On Ms. St. Lewis’ Discovery Refusal Motion 19. In the present motion, the defendant seeks leave to appeal from a discrete issue in Justice Smith’s Reasons For Decision On Mr. Rancourt’s Refusal Motion released on March 6, 2013 (the impugned decision). Grounds for Leave to Appeal the Decision of Justice Smith 20. The test for granting leave to appeal is described in Rule 62.02(4): Leave to appeal shall not be granted unless, (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. Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 4 Conflicting Decisions And Desirable That Leave Be Granted Evidence must be tested and discovered: Did the plaintiff meet with SAC Director Mireille Gervais prior to releasing her evaluation report? Importance of the issue to the defamation action 21. The crux of the criticism complained of in the defamation action is that the plaintiff’s evaluation report was not independent and was made to serve the interests of the University president. Whether the lack of mention in the plaintiff’s evaluation report, that the plaintiff advised or met the SAC prior to finalizing her evaluation report, is a true fact is needed in the defendant’s fair comment defence because an independent and conscientious professional evaluator would consult the entity being reported on and would verify the data prior to releasing critical conclusions. 22. The issue of the plaintiff’s possibly false statements (in her pleadings, and in her examination for discovery) about notifying and meeting the Student Appeal Centre (SAC) prior to releasing her evaluation report about the SAC report is relevant and is centrally important to the defendant’s case because: (a) The plaintiff’s statements are in her pleadings, both the Statement of Claim, and the Reply; and (b) There is no mention in the plaintiff’s evaluation report that she notified or met the SAC in preparing her evaluation report; and (c) The plaintiff’s evaluation report is a key fact relied on in the defendant’s fair comment defense; and (d) The contradiction between the evidence of the plaintiff and the evidence of SAC Director Mireille Gervais, including the hard evidence of an email, is relevant to the credibility of the plaintiff’s evidence. The new evidence implies a need for a limited re-examination for discovery 23. In light of the SAC evidence (new evidence) which became available to the defendant after the examination for discovery, the plaintiff appears to have volunteered incorrect evidence at the examination for discovery, prior to being questioned on the issue in question of her notifying and meeting the SAC prior to finalizing her report. Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 5 24. The plaintiff should not be allowed to benefit from possibly having misled the defendant during the examination for discovery. Had the SAC evidence been known at the time, the examination would have proceeded differently, in testing and discovering the relevant statements volunteered by the plaintiff. Judge’s failure to consider or rule on the refusals issue in question 25. Justice Smith concludes the Reasons of the impugned decision as: 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. (Emphasis added.) Wherein these Reasons make no mention at all of the evidence of SAC Director Ms. Gervais, or the relevance of her evidence to the motion being determined, or the defendant’s Order Requested arising from the SAC Director’s evidence. Reasons, impugned decision, defendant’s refusals motion for discovery, para. 43 26. Thus, Justice Smith erred in law by failing to consider any of SAC Director Gervais’ evidence, and by failing to consider or rule on the defendant’s Order Requested for a limited re-examination for discovery on the basis of Ms. Gervais’ evidence. The impugned Reasons make no mention of: (a) an affiant, (b) the affiant’s evidence, (c) the affiant’s cross-examination by the plaintiff, (d) the plaintiff’s refusals motion for the refusals of the affiant Ms. Gervais, (e) the Justice’s ruling on the plaintiff’s refusals motion for the refusals of Ms. Gervais, (f) the defendant’s arguments about the relevance to his refusals motion for discovery of his affiant’s evidence, or (g) the defendant’s Requested Order on the matter. Factum, defendant’s refusals motion for discovery, paras. 14-19, 66-69, and 72 (Order Requested #2 in para. 72) Reasons, impugned decision, defendant’s refusals motion for discovery Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 6 Strenuous arguments on the refusals issue had been made 27. The honourable judge failed to consider or rule regarding the issue of the a requested limited re-examination based on the plaintiff’s possibly false statements and submissions about meeting the SAC prior to releasing her evaluation report about the SAC report, despite the defendant’s strenuous arguments on the question. The following arguments were made by the defendant in the defendant’s refusals motion for discovery: I. The plaintiff stated in her June 23, 2011 Statement of Claim that she had “met with representatives of the Student Appeal Centre” (SAC) prior to releasing her evaluation report about the SAC report on systemic racism at the University of Ottawa. Statement of Claim, para. 25 II. The plaintiff stated in her August 5, 2011 Reply that “The Plaintiff provided the SAC advance notice of the analytical problems in the SAC report and requested that data be provided to her that supported the SAC report.” Reply, para. 7 III. In the examination for discovery (held May 1, 2012), the Plaintiff gave sworn testimony, as: […] I know that that is tied because I remember distinctly the preconditions I set, because when I had met with Mireille Gervais in November 2008, one of the distinct pieces in that meeting with her was her concern about confidentiality and I recollected that. […] Transcript of May 1, 2012 examination for discovery, p.104, l.9-14 IV. In the examination for discovery (held May 1, 2012), the Plaintiff further gave sworn testimony, as: A. No. Let's clarify that. No, they did not provide me with data but I met with Mireille Gervais on the 14th. She just didn't want to be cooperative-399. Q. The 14th of what, please? A. Of November 2008. She just didn't want to be cooperative. So, in that meeting, other than raising the issue around confidentiality of data and that she was not going to provide me with data, I only had the benefit of the data that was in the public report which had been provided to me by the university and not directly by Ms. Gervais on behalf of SAC. Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 7 400. Q. Did Ms. Gervais tell you why she would not be cooperative with you? A. Yes. She said that the issue, for her, was confidentiality of the data. 401. Q. Thank you. A. And my response to her, which I think is giving a full answer, Mr. Rancourt, was that I fully appreciated her concerns about the confidentiality of the data and I made-- Transcript of May 1, 2012 examination for discovery, p.184, l.1-20 V. The Plaintiff’s pleadings statements and sworn testimony about a meeting she had with SAC staff in November 2008 before she finalized her evaluation report of the SAC Report is in contradiction to affidavit evidence of SAC Director Ms. Mireille Gervais sworn on July 9. 2012: I have never had any communication, by any means, in person or otherwise, with Joanne St. Lewis about the 2008 Student Appeal Centre report, and/or her 2008 evaluation of the Student Appeal Centre report until Joanne St. Lewis emailed me on September 23, 2009 at 9:24pm. July 9, 2012 affidavit of Mireille Gervais, para. 10 VI. Exhibit “A” of the July 9, 2012 affidavit of Mireille Gervais is an email from Joanne St. Lewis to Mireille Gervais dated September 23, 2009 at 9:24pm, which states, in part: I have been remiss in not introducing myself before this. As you know, I was tasked by the University with providing an independent report of your SAC report. July 9, 2012 affidavit of Mireille Gervais, para. 11, citing affidavit Exhibit “A” VII. The evidence of SAC Director Ms. Mireille Gervais became available to the defendant after the plaintiff was examined for discovery on May 1, 2012. This evidence shows that the plaintiff’s assertions that she notified and met the SAC prior to releasing her evaluation report about the SAC report are incorrect. VIII. As such, the defendant presented the evidence of Ms. Gervais and argued that a reexamination of the plaintiff was needed to examine her on her assertions. Factum, defendant’s refusals motion for discovery, paras. 14-19, 66-69, and 72 (Order Requested #2 in para. 72) Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 8 The present leave to appeal is the only avenue to obtain the needed discovery 28. The defendant has a right to test the material evidence relied on in the main action, and to challenge the credibility of the plaintiff’s evidence for trial. The plaintiff’s volunteered statements in examination had the effect of misleading the defendant, and the defendant’s examination questions would have been different had the plaintiff not volunteered statements that, in light of the new evidence, are incorrect. 29. Thus, it is desirable that leave to appeal be granted to allow needed discovery on an apical and relevant issue, and on the credibility of the plaintiff’s evidence in relation to the fair comment defence advanced by the defendant, in this $1 million defamation lawsuit in a matter of public interest. 30. The case law in Ontario is such that the present leave to appeal motion is effectively a final recourse to redress the deficiencies in discovery that arise from the impugned decision. 31. Thus, the defendant submits that Branch-(a) of the test for leave to appeal is amply satisfied. Good Reason To Doubt Correctness And Importance Of The Matter 32. The defendant submits that the honourable Justice’s failure in the impugned Reasons to mention, consider, or rule on a pivotal issue strenuously argued by the defendant is good reason to doubt the correctness of the order in question, and is a matter of great importance beyond the particular case of the parties, regarding the actual and apparent fair administration of justice. 33. Further, the defendant submits that the right to discover evidence on a material matter that is submitted in the Statement of Claim, by limited re-examination based on newly adduced evidence, in circumstances where possibly incorrect evidence was volunteered, is also a matter of such importance in the proposed appeal that leave to appeal should be granted. Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 9 34. As such, the present leave motion is of great importance beyond the individual case, and the defendant submits that Branch-(b) of the test for leave to appeal is amply satisfied. Other Specific Grounds for the Motion 35. Rules 1.04, 3.02, 31, 34, 34.10, 37, 39, 57, 58, 62, 63, and 77 of the Rules of Civil Procedure; 36. Such further and other grounds as the Defendant may advise and this Honourable Court deems just. THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion: 1. The Reasons for the impugned decision; and 2. The transcript of the November 26, 2012 court hearing; and 3. The transcript of the October 30, 2012 court hearing; and 4. The motion records, factums, and written submissions in the defendant’s refusals motion for discovery (impugned decision); and 5. The motion records, factums, and written submissions in the Gervais refusals motion; and 6. The pleadings in the action (Statement of Claim, Statement of Defence, Reply); and 7. Relevant communications between the defendant and the plaintiff’s counsel in the action; and 8. Relevant reasons and endorsements in the action; and 9. Such further and other evidence as the Defendant may advise and this Honourable Court may permit. Defendant’s Notice of Motion for Leave to Appeal, Rancourt’s refusals motion Page 10