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Judge Orders Student Senator to Pay $3000 for “Unreasonable” E-mails sent to Senate Members

June 7, 2012

Ottawa Judge Robert Smith has released his decision to award high costs against UofO Master’s student, Joseph Hickey, for his March 28, 2012 Motion to Intervene in the case of St. Lewis v. Rancourt:

  • Judge Smith’s Decision Regarding Costs: HERE

Although the Justice stated that Mr. Hickey’s in-court demeanour was “very reasonable and polite,” he awarded high costs against the then-member of the UofO Senate because of his e-mails sent to the University’s lawyer and Prof. Joanne St. Lewis following the hearing and copied to other members of Senate.

The e-mails were only brought before the court for the first time by the University’s and Ms. St. Lewis’ lawyers as parts of their “Replies” to Mr. Hickey’s submission of arguments against costs.  Mr. Hickey did not have an opportunity to respond to the lawyers’ allegations before the Judge’s decision was issued.

The costs of $3000 plus taxes represent 1/4 of Mr. Hickey’s annual income as a graduate student.

E-mails referred to in the judge’s decision at paragraphs 7-9 are here (Prof. St. Lewis: 1, 2), and below (UofO lawyer):

—————————————————————————————————————————

From: Joseph Hickey
To: Peter Doody (Lawyer for the University of Ottawa)
Date: April 2, 2012
Subject: Re: Request re: March 28 hearing; St. Lewis v. Rancourt

Dear Mr. Doody,

This is in response to your e-mail of this afternoon (below). I find your email disturbing, problematic, and paternalistic. I am surprised that you would adopt your approach in attempting to pressure me rather than admit and correct your errors.

1) The objective of my Motion to Intervene (heard on March 28) was to obtain intervener status on the Defendant’s Motion for Leave to Appeal (also heard on March 28, 2012). You were not a party and you did not request or have intervener status on my Motion to Intervene.

2) Nevertheless, you have demanded costs against me for your legal fees for preparation for and attendance at my Motion to Intervene. Did you point out these legal circumstances to your client before making your questionable costs submission against me, a student at the institution that you represent?

3) You have described your costs demand as “conservative,” and have stated that your costs outline (Form 57B) was “incorrectly” filled in, in that it contained 1 hour and not 3 hours attendance. At the same time, you are demanding that your fees be paid at the substantial indemnity rate, which is intended to be used by the courts as a punitive measure against a party that has committed some misconduct or abuse of procedure.

4) It appears to me to be questionable that a lawyer would intentionally underestimate his costs submission on his costs outline, thereby cheating his client and disregarding the Rules for accurate costs submissions, while simultaneously demanding the substantial indemnity rate for his fees.

5) In making his decision on my Motion to Intervene of March 28, Justice Smith did not state that I had acted irresponsibly or committed any misconduct in bringing my motion to the court. Nevertheless, you insist on demanding the substantial indemnity rate for your fees.

6) In your e-mail of this afternoon, you state that you intend to file my e-mail of this afternoon with the Court in your response to my written submissions on costs. In my view, it is questionable that you would file an e-mail sent after the March 28 hearing as evidence in your submission for why I should pay costs for your preparation for and attendance at the hearing itself. Maybe you could outline your legal argument here for the benefit of the university community?

For these and other reasons, I am of the view that your conduct in the St. Lewis v. Rancourt case may raise ethical questions.  As a Member of the University Senate, it is my responsibility to question the conduct of the University’s lawyers as far as it may relate to the University’s academic reputation.

I ask that you withdraw your plan to include any of the present communications in your cost submission reply.  Please confirm that you will do so. Did you consult your client before advancing your plan? I will continue to keep the university community informed of your actions.

Sincerely,

Joseph Hickey
M.Sc. candidate, Physics
Graduate Student Representative to University of Ottawa Senate, Sciences section

Cc: Members of the University of Ottawa Senate, Richard Dearden, Joanne St. Lewis, Denis Rancourt, concerned community members

———————————————————————————————————————————
On Mon, Apr 2, 2012 at 2:49 PM, Doody, Peter K. <PDoody@blg.com> wrote:

Mr. Hickey:

I acknowledge receipt of the email below.

My costs outline was “incorrect”, as I explained in my email to you of March 30, in that it recorded only 1 hour for court attendance to deal with your request to intervene. This amount was necessarily an estimate, becasue the costs outline has to be prepared before attending court. In fact, we spent three hours on your intervention attempt. What I told you in my email of March 30 was that I would stand by the amount of money I was seeking on behalf of the University against you. I was only seeking costs for the one hour of attendance that I had previously estimated it would take, instead of the three hours it actually took. Despite your invitation, I maintain that position. I will not be “correcting” my costs outline in order to seek more money from you by way of costs.

You wrote, in the email which was sent to various officers of my client, including the President and the Vice-President – Governance, and members of the University Senate, that my conduct “appears not to be good lawyering and may raise ethical questions”. There is no basis for this allegation, and you ought not to have made it or given it the wide publication that you did. I require that you withdraw that allegation immediately, in a communication directed to the same recipients (and only the same recipients) of your original email.

I intend to advise the Court of this communication during my submissions in response to your submissions in respect of the costs which you should be ordered to pay to the University.

Yours truly,

Peter K. Doody
Direct Line: (613) 787-3510
Email: pdoody@blgcanada.com

Borden Ladner Gervais LLP
World Exchange Plaza
100 Queen Street, Suite 1100
Ottawa ON K1P 1J9

————————————————————————————————————————————————
On Mon, Apr 2, 2012 at 1:55 PM, Joseph Hickey <jhick059@gmail.com> wrote:

Dear Mr. Peter K. Doody,

As you are the legal counsel representing the University of Ottawa in its intervention in the defamation action of St. Lewis v. Rancourt, and as your intervention raises important questions about the management of public funds and student tuition fees by holders of public office at the University, such as the University President, I am troubled by several aspects of your handling of the case related to the court hearing of last Wednesday, March 28. I have included the Members of the University of Ottawa Senate in Cc to this e-mail, as your conduct as lawyer for the University is of concern to the academic reputation of the University.

On Friday, March 30 (e-mail below), I informed you that I was concerned that you had not signed or dated your Lawyer’s Certificate in your costs submissions against me for your legal fees incurred as the University’s counsel in opposing my arguments in favour of public observation of the University President’s sworn testimony regarding his management of public funds (document attached). As I stated in my second e-mail of March 30, Rule 57.01(6) of the Rules of Civil Procedure declares the Form that must be used in written costs submission, which form contains a section entitled “Lawyer’s Certificate” requiring the lawyer’s date and signature.

You responded on March 30 (e-mail below) by saying that your written costs submission was incorrect. You did not offer to correct your costs submission or your Lawyer’s Certificate.

I hope you will appreciate my concern that your conduct appears not to be good lawyering and may raise ethical questions, considering that the matter at hand is a sensitive one that must be treated with diligence in that it involves the University’s pursuit of a student for a combined amount of over $5000.00 in legal fees (more than one third of my annual income) for making a formal argument in favour of public observation of the President’s testimony regarding his use of student tuition fees and government money.

Please respond immediately.

Will you correct your conduct in this matter?

Sincerely,

Joseph Hickey
M.Sc. candidate, Physics
Graduate Student Representative to University of Ottawa Senate, Sciences section
https://studentseyeview.wordpress.com

Cc: Members of Senate, concerned community members

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5 Comments leave one →
  1. anonymous permalink
    June 8, 2012 9:16 am

    I would have ordered costs against you on a substantial indemnity scale. You got off easy.

  2. anonymous permalink
    June 8, 2012 9:17 am

    as well, Mr. Doody informed you well in advance of your costs hearing that he was going to submit the e-mails to the court. You had plenty of time to respond to the evidence.

  3. Children of the Spammed permalink
    June 12, 2012 10:49 am

    Yeah, seriously. As one of the many people Hickey emailed who actually read all the submissions posted here, I also agree with the obvious. Since this blog seems pretty biased and clueless, here’s a summary for the disgruntled tin-foil hat crowd: Hickey should be glad that he got off so easy. He chose to intervene in a private dispute and civil litigation is expensive. He was warned and knew it could cost him, but he did it anyway. Whining he’s a poor student isn’t an excuse. $3000 in costs is a gift, and nowhere close to “high costs” he’s complaining about. I was actually amazed it was so little, given the totally baseless ‘intervention’ argument, his bias in this case, and his conduct after the hearing. Read his justifications in the intervention brief and against-costs arguments and it becomes pretty clear he has no clue what he’s talking about on standing, intervener status or the open court principle (which are just bogus issues anyway – the case is still about racial defamation) and the decision and costs award confirmed that. If Hickey is so sure he is right and the lawyers and court are wrong, he can appeal.

    Hickey’s emails and posts after the hearing weren’t just to members of the senate, as this post title suggests either. They were the litigation equivalent of bullying, and the court called him on it. The judge actually takes the space to explain that Hickey’s “conduct in writing to the Plaintiff directly, when he was aware that she was represented by counsel, by copying the email to approximately 70 other individuals, and his conduct of accusing counsel for the University of unethical behaviour is unreasonable and inappropriate conduct. Mr. Hickey’s conduct in pursuing this course of action following his unsuccessful motion to be added as an intervener is unreasonable conduct which will increase the amount of costs that would otherwise have been ordered. I further find that counsel for the University acted reasonably and fairly throughout the motion and that Mr. Hickey’s allegations that counsel’s conduct raised ethical questions was completely unfounded.” In judgment language, that’s a smackdown. This ruling is on a minor motion in a minor case, but its filed now on CanLII under the headings ‘costs motion intervener conduct email’: its a lesson on decorum and good faith conduct in litigation. (http://canlii.ca/en/on/onsc/doc/2012/2012onsc3309/2012onsc3309.html)

    Makes you wonder what Denis Rancourt got dinged for – he was involved in that same motion hearing, faced similar costs submissions, and would have also got a costs ruling at the same time as Hickey. He has not posted anything on his blogs about the outcome and its been almost a week. If he got off without costs, we’d probably should have read his victory rant by now. Maybe his silence hints he didn’t get off as easily as Hickey and the reality of the legal consequences of his race-baiting conspiracy posts are coming back to bite him in the assets. Where’s that open court principle now?

  4. Wilfrid permalink
    June 14, 2012 4:54 pm

    File this under karma Mr. Hickey.

  5. anonymous permalink
    June 19, 2012 6:37 pm

    The decision on Rancourt’s motion is also on Canlii @ http://canlii.ca/t/frmgf. He lost the motion and got ordered to pay just over $9000 in costs + taxes. I was surprised to read there’s HST on court costs.

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