U of Ottawa’s Legal Campaign to Strike out Evidence in Academic Freedom Case

Within the protracted legal battle that has been on-going since 2005, ((Ottawa’s Dismissal of Denis Rancourt, Commentary by Kenneth Westhues, University of Waterloo, August 2009.)), ((Dismissing critical pedagogy: Denis Rancourt vs. University of Ottawa, By Jesse Freeston, Rabble.ca, January 12, 2009.)), ((Statement By Denis Rancourt Regarding His Dismissal by the University Of Ottawa, April 16, 2009, Znet.)) the University of Ottawa is now doing everything it can, at any cost, to strike out the professors’ union’s affidavit of evidence in support of the union’s application for judicial review (appeal) of the dismissal of Professor Denis Rancourt.

Rancourt’s union (Association of Professors of the University of Ottawa, APUO) is pursuing a judicial review of an arbitrator’s January 27, 2014 decision to uphold the university’s December 10, 2008 dismissal of the tenured full-professor.

The arbitrator made negative findings in a total absence of evidence, and ignored relevant evidence that contradicted his findings. He also used a “report” obtained by covert surveillance, which was not in evidence. ((Association of Professors of the University of Ottawa (APUO) and University of Ottawa, Superior Court of Justice for Ontario (Divisional Court), dated 2015-10-26, Court File No. 14-2022, Justice Robert Scott.)) These were violations of natural justice, and are grounds in the judicial review.

In order to prove the arbitrator’s errors, the union must bring an affidavit in the judicial review to say what actually happened during the arbitration hearings, because no court transcript of the 28-day hearing is available.

(The hearings were held between May 2, 2011 and June 26, 2013. The university appeared to do everything it could to delay and complexify the process, including a broad and sustained campaign of character assassination of Denis Rancourt.)

Thus, the union’s affidavit about what actually occurred in the arbitration is necessary for the judicial review. Yet, the university is spending tremendous resources in now-repeated attempts to disallow the union’s affidavit.

The university can of course challenge the union’s affidavit and enter its own affidavit in the judicial review itself. But, instead, it seeks to bar the union from even bringing an affidavit.

The first attempt by the university to bar the union’s affidavit was a motion to a judge of the appellate court (Divisional Court for Ontario) to strike out the union’s entire affidavit. This attempt failed entirely. The appellate judge was unambiguous and ordered the university to pay the union’s costs for the motion. ((Association of Professors of the University of Ottawa (APUO) and University of Ottawa, Superior Court of Justice for Ontario (Divisional Court), dated 2015-10-26, Court File No. 14-2022, Justice Robert Scott.)), ((“Maureen Robinson … went so far as to liken her monitoring of Professor Rancourt as ‘posing as a young girl to catch a pedophile'” —Divisional Court Judge: Union wins interim motion in appeal of the Rancourt dismissal, U of O Watch, November 1, 2015.)), ((Happenings in the U of O’s “motion to strike”, in the judicial review of the Rancourt dismissal, U of O Watch, October 9, 2015. ))

That is not good enough for the university. President Allan Rock instructed the university hired lawyers to appeal the appellate judge’s judgement to a full panel of three appellate court judges. This will be a second costly attempt to strike out the union’s needed affidavit so that the evidence cannot be used in the judicial review. Without the affidavit, or any evidence about what actually was said in the hearings, the judicial review is destined to fail.

The union is resisting this second attempt and will request that punitive costs be ordered against the university. The hearing (about the university’s second attempt to strike out the union’s affidavit) is scheduled for April 2016, before a panel of three judges of the Divisional Court.

Denis G. Rancourt is a former tenured full professor of physics at the University of Ottawa, Canada. He is a researcher for the Ontario Civil Liberties Association. He has published more than 100 articles in leading scientific journals, on physics and environmental science. He is the author of the book Hierarchy and Free Expression in the Fight Against Racism. Denis can be reached at denis.rancourt@gmail.com. Read other articles by Denis.