In a long-simmering court battle over a racial reference in a blog post, the Ontario Superior Court of Justice has ruled against a law graduate who sought to intervene in the case, ordering her to pay costs.
University of Ottawa law professor Joanne St. Lewis sued former Ottawa physics professor Denis Rancourt for $1 million for libel after he called her a “house negro” on his U of O Watch blog.
Their dispute dates back to November 2008 when the Student Appeal Centre of the Student Federation of the University of Ottawa released a report entitled, “Mistreatment of Students, Unfair Practices and Systemic Racism at the University of Ottawa.”
The report found unfair practices and systemic racism at the university in relation to its procedures for plagiarism and academic fraud. It was written by Mireille Gervais, who has now graduated from the law school. University of Ottawa president Allan Rock asked St. Lewis to evaluate the report. She found there was no systemic racism with the university’s procedures for academic fraud and concluded that Gervais’ findings were not factual.
Rancourt was critical of St. Lewis’ report in a 2011 blog post, calling her a “house negro.”
During the court proceedings, Gervais was called as a witness for Rancourt but refused to answer some of the questions asked by St. Lewis’ lawyer. St. Lewis wanted to cross-examine Gervais to test her credibility and claims Gervais is a partisan supporter of Rancourt. Rancourt argues the questions Gervais refused to answer were irrelevant. St. Lewis then brought a motion to compel Gervais to answer the questions, which Justice Robert Smith accepted.
As a result, Gervais hired lawyer Yavar Hameed to seek intervener status. Hameed requested a copy of St. Lewis’ motion materials, but was told to obtain a copy from the court because Gervais was not an interested party.
But Hameed argues that Gervais was an interested party. “One of the fundamental issues was whether [Gervais] should have gotten notice as an interested party,” he tells Legal Feeds.
In a motion for refusals, where you’re compelling a witness to give evidence and answer questions, the witness will have no choice, he says. “So in that sense . . . [Gervais’] rights are engaged. There’s no question that her s. 7 [Charter] rights are engaged because she will be an interested and affected party,” he says.
In his ruling, Smith described Gervais’ situation as unusual.
“Gervais filed a brief factum in support of her position. The issue of when a witness, who voluntarily files an affidavit in a legal proceeding, may intervene and be represented by separate legal counsel during her questioning is somewhat unusual,” he wrote.
“The difficulty in the judge’s reasoning is that he does not address the issue of her being an interested party,” says Hameed. “Well, actually everything turns on that because the other party never served her with their materials. That — in the lead-up to all of this — could’ve changed the whole progression of how the parties interacted with each other.”
St. Lewis claims Gervais wasted the court’s time by seeking intervener status, so sought costs of $12,768. Gervais claims the costs sought are excessive, but Smith ruled Gervais should have reasonably expected to pay $6,000 in costs if her motion was unsuccessful. So in the end, he ordered her to pay $5,000 plus HST and disbursements of $300 inclusive of HST.
“I find that Gervais’ motion did not raise a point of unsettled law because Gervais failed to identify how her Charter right to free speech would be affected if she was required to answer relevant questions related to her affidavit in a legal proceeding,” wrote Smith.
“If every witness in any legal proceedings was entitled to have separate counsel intervene on their behalf without identifying how a Charter right was being affected, then the whole legal system would grind to a halt.
“I find that Gervais’ rights were not affected by being cross-examined on her affidavit that she voluntarily filed in the legal proceeding because statements made by a witness in a legal proceeding are privileged and a witness cannot be sued for statements made as a witness. Gervais was a voluntary witness in the proceeding and as a result was required to answer relevant questions related to her affidavit.”
At this point, Hameed says he’s unsure if he’s going to appeal the costs award because it will entail more costs.
For more on this story, read the Law Times article “U of O law prof suing colleague over ‘house negro’ remark.”