Thursday, March 16, 2017

Latest development in my academic freedom case: Supreme Court refuses to fix administrative tribunal law

By Denis G. Rancourt

SUMMARY: The Supreme Court of Canada today refused to clarify and fix the Canadian common law of affidavits needed to remedy an absence of transcripts in administrative tribunal hearings.

I was fired under a false pretext in 2009, at the University of Ottawa where I was a tenured Full Professor of Physics. [1][2][3]

Following a lengthy legal process, in 2014 a labour arbitrator upheld the dismissal. [4]

My union immediately filed for a judicial review (appeal) of the arbitrator's decision, on many grounds, including violation of my natural justice rights. [5]

The arbitrator's decision incorrectly relied on a report prepared by a student who was hired by the university to covertly spy on me, on and off campus, including using elaborate false cyber identities and misrepresentations to third parties. The student spy did not testify at arbitration and her report was not accepted as evidence.

The problem arises because there is no transcript or recording of the arbitration. The arbitrator ruled from his chair that the report would be used solely as a memory aid regarding witness questioning, but then incorrectly relied on and quoted from the report in his decision.

Therefore, my union filed an affidavit by one of its layers in attendance to tell the appellate court what had occurred at arbitration; again, since there is no transcript or recording of the arbitration.

The university, which has used every possible delay tactic over the years, did a motion seeking to strike the affidavit. My union squarely won that motion and the affidavit was allowed. The motion judge had this to say about the student spy [6]:

MAUREEN ROBINSON

[15] The circumstances of Maureen Robinson's involvement in this entire matter is troubling at best. Throughout the relevant portion of the Award by Arbitrator Foisy, Ms. Robinson's written notes were referred to "the report on Professor Rancourt's address prepared by a University of Ottawa student"

[16] Pursuant to the Udell Affidavit, and based on evidence from the hearing, the student being Maureen Robinson was the editor of the student newspaper who had been hired by the University in what the University described as in a clerical capacity to assist Professor Rancourt in his office, without his input on her hiring.

[17] Either in consultation with her employer, the University, or on her own, she monitored the activities of Professor Rancourt both on and off campus and reported her finding back to the University. In an email to Dean Lalonde, she admitted to having a "personal grudge" against Professor Rancourt and went so far as to liken her monitoring of Professor Rancourt as "posing as a young girl to catch a pedophile". Ms. Robinson was not called as a witness at the hearing and, the parties agreed that her "report" would be considered as an "aide memoire" only.

[18] The University referred to the "report" thereafter as a transcript which such description was objected to by the APUO. Similarly, Arbitrator Foisy made certain findings which appear to be based solely on the report which was not evidence.

[19] Given the unique circumstances, paragraphs 3 - 13 are necessary and in keeping with Keeprite and Kingston Utilities, this affidavit evidence should be admitted on the judicial review to "show an absence of evidence on an essential point".

DEAN LALONDE'S CROSS-EXAMINATION AND THE TESTIMONY OF STUDENTS P AND V

[20] It is difficult to separate the input of the evidence or lack of evidence of Ms. Robinson and the circumstances of her somewhat bizarre involvement in this matter, from the other areas of concern identified by the Applicant, APUO. [...]

The university appealed that decision by the appellate court's motion judge to a panel of three judges of the same appellate court.

The panel overturned the first judge's decision and completely struck the affidavit. The panel decision was wrong in that the panel quoted from a document it erroneously said corroborated content of the spy report. In fact, the quoted words were from the spy report itself. Furthermore, the panel relied on Ontario common law (the so-called Keeprite test) that puts an unjust burden on litigants needing to bring affidavits to remedy an absence of transcripts of the proceedings being reviewed.

My union therefore sought leave to appeal to the highest appellate court in the province (Court of Appeal for Ontario). Even though the common law for affidavits filed to remedy an absence of transcripts is both unjust and arguably unclear, and even though the panel made obvious and substantial errors, the Court of Appeal can simply refuse to hear an appeal, without giving any reasons.

In fact, errors of law themselves are not a consideration when the Court of Appeal decides whether to grant leave in such circumstances, no matter how egregious those errors may be.

The Court of Appeal refused to grant leave to appeal, and did not provide any reasons.

Therefore, my union sought leave to appeal to the Supreme Court of Canada, on the grounds that the Canadian common law of affidavits to remedy an absence of transcripts is unclear and unjust. It also pointed out the egregious error of the panel that struck the affidavit, of finding corroborating evidence where there was none.

The Supreme Court's decision was released today. The Court refused to grant leave for an appeal (no reasons are provided, as usual) and it ordered my union to pay the university's costs in opposing the leave application.

Thus, the Supreme Court of Canada today refused to clarify and fix the Canadian common law of affidavits needed to remedy an absence of transcripts. This is significant because absence of transcripts is the norm in virtually all administrative tribunals in Canada, whether they are labour arbitrations or human rights tribunal hearings.

Just like that, the Supreme Court of Canada can decide not to fix a common law that is at odds with principles of fundamental justice and with international norms of fair judicial processes, such as those prescribed by the International Covenant on Civil and Political Rights, which Canada has signed.

Here are the Supreme Court of Canada documents about its today's decision:



Endnotes

[1] Statement By Denis Rancourt Regarding His Dismissal By The University Of Ottawa, ZCommunications, 2009-04-16. https://zcomm.org/znetarticle/statement-by-denis-rancourt-regarding-his-dismissal-by-the-university-of-ottawa-by-denis-rancourt/

[2] Dismissing critical pedagogy: Denis Rancourt vs. University of Ottawa, by Jesse Freeston, rabble.ca, 2009-01-12. http://rabble.ca/news/dismissing-critical-pedagogy-denis-rancourt-vs-university-ottawa

[3]  Ottawa's Dismissal of Denis Rancourt, by Kenneth Westhues, University of Waterloo, 2009-08. http://www.kwesthues.com/Rancourt09.htm

[4] University of Ottawa v Association of Professors of The University of Ottawa, 2014 CanLII 100735 (ON LA), 2014-01-27, <http://canlii.ca/t/gxcr2>

[5] APUO statement, 2014-03-10. http://www.apuo.ca/denis-rancourt-arbitration/

[6] University of Ottawa v Association of Professors of The University of Ottawa, Endorsement of Justice Robert Scott, Divisional Court for Ontario, 2015-10-26. https://archive.org/details/20151026MotionToStrikeAPUOVUniversityOfOttawaEndorsement

Wednesday, March 15, 2017

Pernicious effects of political correctness

"Were third-party bugging a prevalent practice, it might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious, and defiant discourse—that liberates daily life."
-- Justice Harlan, dissenting (Supreme Court of the US), United States v. White, 401 U.S. 745 (1971).

The presumed harmful effects against people of both state surveillance and political correctness are of the same character. 

Most Liberals opposes surveillance but participate in political correctness. Many Conservatives reject both, which is at least consistent. 

I believe that language intolerance, regarding both form and content, is a major liability against freedom, democracy, and personal emancipation.

Monday, March 6, 2017

One simple rule to improve Western "representative" democracy

By Denis G. Rancourt, PhD

Representative democracy is designed to limit popular interference with elite rule, while providing a nurtured illusion of community and justice.

However, if the system goes too far in dissociating itself from the popular will, then the entire society is at risk of destabilization.

My recommendation especially applies to the Western states Canada and the USA, which incidentally both shun proportional representation. Canada shuns proportional representation because the managerial elite can get away with it, while continuing to sell off the country. The USA shuns any improvement because it is already the freest and greatest nation in the history of the universe.

Nonetheless, purely out of academic interest, I make the following considered suggestion.

In order to create and improve democracy in the USA and Canada, I would implement this simple rule:

Voter registration for each election requires attending one all-candidates debate or presentation in person in a riding for the upcoming election, whether federal, provincial, or municipal, from beginning to the end of the debate or presentation part, at least; in which all candidates are invited to and accommodated in the said debate or presentation.

If you don't care to attend at least one such session in the 4 years between elections, then it is presumed that you don't care to vote and the collective prefers that you not vote.

The simple rule:
  • ensures that sufficient such events are held
  • brings the focus onto representation rather than blinded leader selection
  • increases so-called transparency and accountability
  • reduces the chance of over-influence from payed-for or manipulated propaganda
  • gets you meeting the candidates and trusting your live impressions
  • gets you into the community meeting your neighbours who care to vote
  • makes for better all-candidates events
  • invigorates the democratic process
  • informs you like nothing else can
  • gives you a chance to ask questions and communicate your views directly to the candidates ...

I would add "parliamentary privilege" for all attendees, so one can say what one wants to say without the societal cost of prosecution or litigation.

Bring back the town hall meeting, as a first step. Then we can talk about proportional representation, referendum mechanisms, independence of government watchdogs, actual whistle-blower protection, rules against moneyed interest groups, campaign donations, and, eventually, even participatory democracy.