



COURT OF APPEAL FOR ONTARIO

CITATION:
    St. Lewis v. Rancourt, 2015 ONCA 513

DATE: 20150708

DOCKET: C59074

Hoy A.C.J.O., Sharpe and Benotto JJ.A.

BETWEEN

Joanne St. Lewis

Plaintiff (Respondent)

and

Denis Rancourt

Defendant (Appellant)

Denis Rancourt, acting in person

Richard G. Dearden and Anastasia Semenova, for the
    respondent

Heard: June 26, 2015

On appeal from the orders of Justice Michel Z.
    Charbonneau of the Superior Court of Justice, sitting with a jury, dated June
    5, 2014, and June 6, 2014, and from the costs order, dated August 21, 2014.

ENDORSEMENT

[1]

The appellant was a tenured professor at the University of Ottawa until
    2009 when he was dismissed.  He authored a personal blog that  by his own
    admission - was purposefully critical of the university. At issue are two of
    his blog posts from 2011 which referred to the respondent, another professor at
    the university, as the house negro of Allan Rock, the president of the university.

[2]

The respondent sued for defamation.

[3]

On the second morning of trial, the appellant arrived at court and read
    a prepared statement to the trial judge indicating that he would not
    participate further. He left the trial and only returned to hear the jury
    verdict on June 5, 2014.  In the result, he did not call evidence in his
    defence.

[4]

The jury found that numerous statements in the impugned blog posts were
    defamatory and that there was actual malice on the part of the appellant. The
    jury awarded general damages of $100,000 and aggravated damages of $250,000.
    The trial judge endorsed the verdict and ordered substantial indemnity costs of
    $444,895, all inclusive, against the appellant. The trial judge then granted a
    permanent injunction requiring the appellant to remove the offending material
    from the internet and to refrain from further defamation of the respondent.

[5]

The appellant submits that a new trial should be ordered. He raises several
    grounds of appeal. He submits that the trial judge erred in the following ways:
    by not instructing the jury with respect to fair comment; by not considering
    that the respondents claim was statute barred; by not instructing the jury to
    watch a video of Malcom X speaking, which was embedded in his first impugned
    blog post; and by granting the injunction and costs. He also argues that the
    finding that he defamed the respondent violates his right to freedom of
    expression. Lastly, the appellant alleges a reasonable apprehension of bias on
    the part of the trial judge.

[6]

We address these arguments in turn.

[7]

The defence of fair comment requires that the defendant establish that
    the impugned statement was (1) a comment and not a statement of fact; (2) based
    upon true facts; (3) on a matter of public interest; (4) able to satisfy an
    objective test of fairness; and (5) made without malice:
Simpson v. Mair
,
    2008 SCC 40, [2008] 2 S.C.R. 420, at para. 1.  The defence of fair comment was
    not available to the appellant. He called no evidence, and without evidence, he
    could not establish the five criteria just set out. Although the appellant
    mentioned fair comment in his opening statement to the jury, the statement was
    not evidence and could not establish a defence. The trial judge did not err in
    this regard. Moreover, and in any event, the jurys finding of malice defeated
    the defence.

[8]

The appellant submits that, pursuant to s. 5(1) of the
Libel and
    Slander Act
, R.S.O. 1990, c. L.12 (Act), the respondent was required to
    serve a notice of libel within six weeks of acquiring knowledge of the impugned
    blog posts. The first notice of libel was served more than three months after
    the first impugned blog post was published. The limitation period, however,
    applies only to newspapers printed and published in Ontario and to broadcasts
    from a station in Ontario: Act, s. 7.  The burden of proof was with the
    appellant to establish that the blog posts fell within this definition under
    the Act. He called no evidence to establish that they did. The respondent was
    prepared to call expert evidence to address this issue, but, as the appellant
    did not lead any evidence, the respondent did not do so.

[9]

Linked to the first blog post was a video in which Malcolm X defines the
    term house negro. The appellant submits that the jury should have been
    instructed to watch the video.  The full transcript of the video was, in fact,
    put before the jury by one of the respondents expert witnesses. The
    respondents expert testified about the video but was not cross-examined
    because the appellant was not present. There was no request from the appellant
    that the jury be told to watch the video. The trial judge did not err in this
    regard.

[10]

In
    light of the jurys finding of liability grounded in malice, we see no reason
    to interfere with the trial judges exercise of discretion in connection with
    costs.

[11]

On
    June 6, 2014, the day after the jury verdict, the trial judge heard and decided
    a motion for a permanent injunction. The respondents counsel presented him
    with a draft order which was the subject of submissions. The trial judge
    permitted the appellant to participate. The draft order required the appellant
    to remove the defamatory articles from the internet and permanently restrained
    him from publishing any of the statements the jury found to be defamatory. The
    draft also included a provision permanently restraining the appellant from
    publishing any defamatory statement about the [respondent].

[12]

In
    granting the injunction, the trial judge said:

The evidence heard at trial clearly establishes that the
    [appellant] has carried out a persistent attack on the [respondent], and that
    the theme of his attack is that [she] lacks integrity and independence as a
    professional.

[13]

The
    trial judge correctly noted the situations in which permanent injunctions have
    been consistently ordered after defamation proceedings, as identified in
Astley
    v. Verdun
, 2011 ONSC 3651, 106 O.R. (3d) 792.  Chapnik J. wrote in
Astley
,
    at para. 21:

Permanent injunctions have consistently been ordered after
    findings of defamation where either: (1) there is a likelihood that the
    defendant will continue to publish defamatory statements despite the finding
    that he is liable to the plaintiff for defamation; or (2) there is a real
    possibility that the plaintiff will not receive any compensation, given that
    enforcement against the defendant of any damage award may not be possible...
    [Citations omitted.]

[14]

The
    trial judge concluded that, on either branch of
Astley
, the respondent
    had demonstrated the need for a permanent injunction. With respect to the first
    branch, the trial judge found that the appellant had demonstrated a total
    disregard for the judicial process and that his conduct, before and during the
    trial, made it more probable than not that he will continue to defame the
    respondent. With respect to the second branch, the trial judge found that there
    was no reasonable prospect that the appellant would be able to pay the damage
    and cost awards.

[15]

The
    injunction ordered by the trial judge preventing any defamatory statement -
    was broad. In his reasons, he said this:

The draft order submitted by the [respondent] is reasonable. It
    only forbids the [appellant] from publishing defamatory statements, not about
    stopping to blog whatsoever. It is not, as claimed by the [appellant], a
    silencing of him.  He can easily avoid breaching the injunction by simply
    refraining from publishing defamatory statements.

[16]

A
    broad ongoing injunction is an extraordinary remedy which should be used
    sparingly. However, where there has been a campaign of defamation and a
    likelihood that it will continue, there is authority for such an order. See:
Barrick
    Gold Corp. v. Lopehandia
(2004), 71 O.R. (3d) 416 (C.A.), at para. 78;
Astley
,
     at para. 35;
Ottawa-Carleton District School Board v. Scharf
, [2007]
    O.J. No. 3030 (S.C.), at para. 30(b), affd 2008 ONCA 154, leave to appeal
    refused, [2008] S.C.C.A. No. 285. Under these circumstances, we would not
    interfere with the terms of the trial judges order.

[17]

We
    do not accept the appellants submission that his constitutional right to
    freedom of expression affords him the right to defame. First, the appellant has
    led no evidence or argument that the respondents legal proceeding is a
    government action that would engage the
Charter
. Second, while the
    Supreme Court has modified the common law of defamation (see
Hill v. Church
    of Scientology
, [1995] 2 S.C.R. 1130;
Grant v. Torstar,
[2009] 3
    S.C.R. 640)) the appellant has failed to bring himself within any
Charter
-based
    defence. In the first sentence of
Mair
, Binnie J. wrote for the
    majority of the Supreme Court, the defence of fair comment .... helps hold the
    balance in the law of defamation between two fundamental values, namely the
    respect for individuals and protection of their reputation from unjustified
    harm on the one hand, and on the other hand, the freedom of expression and
    debate that is said to be the very life blood of our freedom and free
    institutions. Rather than attempting to prove that his right to freedom of
    expression should, at law, overcome the respondents right to protect her
    reputation, the appellant refused to participate in the trial.

[18]

There
    is a heavy burden on a party who seeks to rebut the presumption of judicial
    impartiality:
Yukon Francophone School Board, Education Area #23 v. Yukon
    (Attorney General)
, 2015 SCC 25, at paras. 20-26. There is nothing on the
    record that would satisfy that burden. A reasonable, informed person would not
    think it more likely than not that the trial judge, whether consciously or
    unconsciously, would not decide fairly.

[19]

For
    these reasons, the appeal is dismissed with costs payable to the respondent in
    the amount of $30,000.00 inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

Robert J. Sharpe J.A.

M.L. Benotto J.A.


