Verdict a Victory for Defamed Professor and Defamed Justice System
In June a jury awarded my uOttawa colleague Professor Joanne St. Lewis a stunning $350,000 verdict in her defamation lawsuit against blogger and former University of Ottawa professor Denis Rancourt. The jury’s verdict not only vindicated St. Lewis but also the entire justice system because the defendant had impugned the integrity of most of the judges who participated in the proceedings and the integrity of the Canadian justice system.
Let me be transparent in exposing my connections to the dramatis personae and my own biases about the case. Professor St. Lewis is a colleague whom I consider a friend and respect and admire, especially for the action that she took in bringing this defamation lawsuit. I have met and briefly chatted with one of the judges involved (the Hon. Robert Beaudoin) and with one of the Masters (Master McLeod). I have never met the trial judge (the Hon. Charbonneau) or any of the other judges involved against whom accusations of reasonable apprehension of bias were leveled. I know some of the other principals involved including University of Ottawa President Allan Rock, some of the lawyers at Borden Ladner Gervais LLP (my former law firm in Toronto) who represented the University of Ottawa on the defendant’s unsuccessful champerty motion. I know Professor St. Lewis’s lawyer, Richard Dearden, on a professional basis which is to say I have seen him at various law events or elsewhere and chatted about legal matters, but not this case. I have never met the defendant.
I am a member of the Law Society of Upper Canada and as those who have read past columns of mine or follow me on Twitter can hopefully attest, at times I am critical of that body and at times praiseworthy. The same can hopefully be said of my writing and commentary about judicial ethics and the administration of justice generally. I take seriously my ethical duties as a lawyer, including Rule 4.06 of the Law Society’s Rules of Professional Conduct, the commentary to which states that:
Where a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to and should support the tribunal, both because its members cannot defend themselves and because in doing so the lawyer is contributing to greater public understanding of and therefore respect for the legal system.
It is that ethical duty that led me to write this post. Perhaps I should have written it earlier, when the defendant first started to assail the integrity of various judicial officers who could not defend themselves but I did not want to interject commentary into a process that the defendant was successfully hijacking, nor did I want to give credence to his baseless attacks on the integrity of those judges.
From my brief experience as a litigator in San Francisco and Toronto and my now longer experience as an observer of the justice system, I tell my students that litigation is like war: it is easy to start but difficult to predict how it will turn out. Never was this maxim more true than in this case.
In my last blog, I argued that we need to ration civil justice. This case is Exhibit A in support of my argument. According to the court docket, there were 30 motions between 2011 and the delivery of the verdict in June 2014; the defendant brought 23 of these. CanLII reports 23 judgments in this case.
The defendant unsuccessfully sought to disqualify Justice Robert Beaudoin on the grounds of reasonable apprehension of bias because there was a scholarship in honour of Justice Beaudoin’s deceased son at the University of Ottawa where his son had attended which was funded by the Beaudoin family and the Government of Ontario. In addition, the defendant argued that Justice Beaudoin could be unfairly influenced because the University’s counsel, Borden Ladner Gervais LLP, had named a boardroom after Justice Beaudoin’s late son because he had worked there. The defendant brought this motion without notice and Justice Beaudoin rejected the claim but recused himself nonetheless. Another judge found no reasonable apprehension of bias. Leave to appeal the decision was denied. The Ontario Court of Appeal rejected an appeal and the Supreme Court of Canada dismissed the application for leave to appeal with costs awarded against the defendant and in favour of St. Lewis on a solicitor and client basis.
The defendant also unsuccessfully challenged other judges who heard motions in the case on the grounds of reasonable apprehension of bias. Then the defendant sought to disqualify the trial judge – Justice Charbonneau — because he is a University of Ottawa graduate and donates money to its scholarship fund. Justice Charbonneau rejected this challenge. The correctness of that decision will ultimately be determined on appeal should the defendant elect to do so.
Throughout this three year ordeal, the defendant has demonstrated a pattern of using the Canadian justice system to his advantage when it suits him but then opting out when it displeases him.
The defendant walked out of the trial mid-way through. According to media reports, he “likened the trial to proceedings in the Soviet Union during the Stalinist era.”
Such actions constitute an assault on the integrity of the Canadian system of justice. John Locke wrote that the reason why people decide to quit the state of nature is because of their belief in the impartial adjudication of disputes through the courts rather than resort to violence. The Canadian system of justice is rightly respected and envied around the world. It has its flaws; some like the access to justice problem are very serious. However, the impartiality and integrity of the men and women who preside as judges and judicial officers over legal proceedings in this country must be ranked near the top if not at the top in the world.
Comparing a trial in Ottawa to Stalinist proceedings is a farce and an attack on the integrity of Canadian judges and the Canadian administration of justice. You cannot “opt out” of the justice system when it does not suit you. Such actions lead to chaos and anarchy and undermine the rule of law which is the foundation of an orderly society in Canada.
Thus, when a jury of ordinary men and women made its award of $350,000, it not only vindicated St. Lewis, but it also fortified the Canadian justice system.
The administration of justice really needed this, thanks! I am relieved that it survived thanks to your missive.
The costs decision for this suit came out last week. [Joanne St. Lewis v. Denis Rancourt, 2014 ONSC 4840] It is a good read for lawyers, law students and anyone who is interested in how litigation costs are assessed in Ontario.
The defendant Denis Rancourt was ordered to pay $444K in costs. The plaintiff asked for $608K. Considering some of the defendant’s admissions in the court file (which he never fully tried to explain or mitigate because he walked out of the trial) I think he lucked out in that he is only on the hook for 73% of actual costs. On top of that are $247K in pretrial motion costs and the $350K damages award. Having read his somewhat incomprehensible notice of appeal, there may be more if it is rejected with costs.
Justice Charbonneau writes a concise summary of the case issues and their severity, provides some insight into the conduct of the defendant and his supporters in court, and serves as a good tutorial on the guiding principles on costs, the nature of submissions vs. pleadings, and the principle of indemnity in Ontario civil proceedings.
Also fortunately for defendant, the decision also includes clarification of the 3rd-party publication rule in civil vs. criminal trials, with the judge researching and revising his own order such that Mr. Rancourt escapes the serious issue of a contempt of court hearing that was scheduled for September 2014.
The judge’s reflection upon and revision of his own order is based on a fair application of the rule of law and civil procedure. I think this is commendable but expected of a judge entrusted with administering the law, especially in the face of overt antagonism toward him personally by Rancourt’s supporters. However, it emphasizes Professor Dodek’s point that “The jury’s verdict not only vindicated St. Lewis but also the entire justice system because the defendant had impugned the integrity of most of the judges who participated in the proceedings and the integrity of the Canadian justice system.” I wonder if the defendant appreciates that, without any prompting or assistance from himself, this ‘kangaroo’ system worked in his favor on this serious matter, despite his protests of inherent bias and privilege.
This was a relatively minor but justified open-and-shut case of racialized malicious defamation if there ever was one, and it should have been settled ages ago – either through settlement or cogent argument. I am not sure what will be the basis of his appeal, but I suspect it is not over and we will have to stay tuned. The drama may continue, but the principled approach of the justice system seems to be weathering this tempest in a teapot pretty well.
Thanks for this article Adam. Interesting case with lots of issues for society, our profession and the (mis)use of scarce judicial resources…