In the latest chapter of the online defamation case by UofO law professor, Joanne St. Lewis, the plaintiff proceeded recently with a motion to compel a response from undertakings and refusals. These motions are rather commonplace in civil litigation, except that the defendant, Denis Rancourt, sought to have a blogger accompany him to report on the proceedings.
The undertakings and refusals emerged from the cross examination of an affidavit, submitted to oppose a motion by the plaintiff to abridge the time for mediation and require the parties to use an experienced private mediator rather than a roster mediator.
Counsel for the plaintiff, Richard Dearden, asked the court for instruction on who may attend a cross examination of an affidavit. The defendant had Joseph Hickey, a UofO Master’s student in physics and graduate student representative of the UofO Senate, attend the cross-examination. Hickey then blogged about the event on his site, A Student’s Eye View,
Mr. Dearden first attempted to block observation of the proceedings by myself and the other members of the public present, and attempted to obtain the identities of each of the observers in turn. However, Dearden refused to provide grounds for removal of observers, and instead abandoned his attempt to intimidate and exclude the public when it was clear that the observers intended to stay. Dearden threatened that the presence of members of the public at the hearing would be used for “malice purposes and aggravated damages and punitive damages” against the defendant.
Dearden proceeded to cross-examine Rancourt, going beyond an examination of the defendant’s affidavit in an attempt to probe into matters beyond the scope of the cross-examination hearing.
Dearden’s interrogation of the witness was aggressive and abusive, and was clearly intended to be an exercise in intimidation. He aggressively yelled at the self-defended witness on several occasions, and refused to answer “yes or no” procedural questions about the legal requirements for the self-defended witness to answer his cross-examination questions. When Rancourt correctly complained that Dearden was “badgering” him with improper questions, Dearden again attacked the defendant with the accusation that this complaint constituted malicious conduct on Rancourt’s part.
The defendant attempted to rely on the open court principle to demonstrate the right of non-parties to attend, which is enunciated subject to several exceptions under the Courts of Justice Act,
Master MacLeod provided clarification,
 …Cross examination or discovery does not take place in open court (although it does take place under court supervision). It is only once a transcript or portions of a transcript are tendered in evidence that they become part of the court record. Motion records and exhibits at trial are part of the court record. Court hearings (such as this motion) are held in open court though that was not always the case. Prior to adoption of the “new rules” chambers motions were not considered to be in open court or on the record. In any event it is quite clear that there is no right for the public to attend an examination out of court at the office of the special examiner or court reporter. Even were that not the case however, the court could give direction about the conduct of such examinations.
The Master allowed the plaintiff a follow-up cross examination on their discretion, and ordered that “no one but the parties and their lawyers and the reporter may be in attendance…”