Xanthippa's Chamberpot

It has taken me more than a week to write this up – my apologies.  I was hoping the decision would come soon and that I would be able to report it along with what I had witnessed in the courtroom.

This was a hearing for a motion in the lawsuit that Richard Warman is bringing against the Fourniers for infringing his copyright on 3 grounds:

• inserting an ‘inline link’ to a picture of Richard Warman (the picture remained on Mr. Warman’s site and under his full control, including the ability to remove it and/or to block inline links to it)
• re-posteing a newspaper article which Mr. Warman had subsequently acquired copyrights of in an out-of-court settlement (the article was re-posted before Mr. Warman had copyright control over it and was removed as soon as his lawyers had demanded this)
• posting public court documents which included sentences from the abovementioned article as part of the public record

The full background to this post is here.

The motion hearing was my first experience in Federal Court – so far, all my spectating has been done in Ontario Provincial Court.  I must admit, the atmosphere is a bit different, the security a bit more along the lines of what one might expect.  The courtroom, however, was not at all equipped for spectators:  instead of the benches with built-in headphones (for translation, if the case was being tried in French), 10 office chairs were placed along the back wall of the courtroom, appearing more as an afterthought than anything else.  Most of these were occupied by people waiting to present future cases – their particular type of grooming suggested they were lawyer-types and/or their aides.  I would appear to have been the lone spectator on Courtroom #2 that October 6th morning.

The motion hearing was presided over by the Honourable judge R. Aronovitch.

Mr. Richard Warman was represented by the ever-charismatic Mr. Katz.

Mrs. Fournier spoke on behalf of herself and her husband, as they were representing themselves.

This was not a long hearing:  each side made a short presentation of how they saw the situation and an even shorter rebuttal.

(As it is easier to follow what happened if I focus on each thread of the argument and follow it rather than report on the proceedings sequentially, I will jump back and forth in time in order to follow each ‘thread’.)

Mr. Katz was the first to speak; he was presenting the reason for this motion:  Mr. Warman had filed the copyright lawsuit against the Fourniers and they had filed their statement of defense (OK – there are proper legaleese terms for these, but I am not trained in the law whatsoever, so, please, do not take what I write as anything more than an untrained person’s observations – and if you can correct me on some points I got wrong, please, I would be grateful if you did).

When the Fourniers filed their statement of defense, this document included some phrases that, according to Mr. Katz, were irrelevant and prejudicial – and which should, therefore, be removed from their statement of defense.  If I recall  Mr. Katz’s words correctly, their primary argument was that these paragraphs (named in the motion) are clearly not relevant and are simply character assassination of his client.

Mr. Katz asserted that some of the these paragraphs are describing actions of third parties and not those of Mr. Warman, others are simple hearsay and would better be addressed in the cross-examination rather in the submission.  There was a little back-and-forth with the judge on the salient points of hearsay and cross-examination.

Mr. Katz also said that Mrs. Fournier had originally agreed to longer cross-examination time, then reneged on her word:  Mrs. Fournier seemed surprised by this claim and said she is agreeable to setting the cross-examination time to whatever length the judge would like to specify.

The Fourniers’ main argument was that it was best left up to the judge who would preside over the lawsuit itself to read the evidence and then to decide what is and what is not irrelevant.  Removing the offending paragraphs earlier would prevent the judge from making that decision – and this is why it should all be left in.

Mr. Katz said that the Fourniers were making claims that by bringing this copyright infringement lawsuit is somehow an abuse of judicial process, that he is being disingenuous and harassing them – when his client is only trying to protect his rights to the literary work (the article).  He charged that it was not his client but the Fourniers who were abusing the judicial process by trying to have this motion dropped.

Mrs. Fournier defended their position by pointing out that Mr. Warman had initiated 64 lawsuits/actions similar to this one, several of these against themselves, many still under way.  It was important to their defense to paint a complete picture of Mr. Warman’s activities related to these lawsuits/actions, including his openly and publicly stated desire to sue people he finds annoying.

(If I am not mistaken, the phrasing was somewhat along the lines that the more annoying Mr. Warman finds someone, or the more fun prosecuting them would be, the higher up his target-list they get moved up, regardless of anything else.  However, the website which documented this quote, along with many other things related to Mr. Warman, has recently been shut down.  This makes it impossible for me to verify the precise wording and reference it, as I normally would.  My apologies.)

Without presenting this full picture, including speeches to radical and militant groups with history of lawlessness and violence, it is impossible to demonstrate how Mr. Warman’s current activities follow the pattern of ‘maximum disruption’ which he has publicly ascribed to himself – and which include the subversion of the courts to promote his own political agenda. (Again, I am paraphrasing, but this, to the best of my understanding, is the main thrust of the Fourniers’ argument.)

It is always difficult for lay people to represent themselves in court.  As such, Mrs. Fournier explained that she put great weight to what the opposing counsel said.  When he had sent them the notification that some parts of their statement of defense were inadmissible from a legal point of view, she gave it great credence.  However, she thought it integral to their case to let the judge who will hear the case see all the evidence and decide for him/herself.  Yet, she never doubted the opposing counsel’s word:  which is why she was surprised to see that only some of the paragraphs that Mr. Katz had told her were inadmissible were no longer being objected to on these grounds.  If they were legally inadmissible at one point, as he had advised her, why were they acceptable now?

At this, the judge leaned forward and asked for clarification:  did Mrs. Fournier mean that there was a difference between what was originally asked to be removed from the record, and what was actually included in the final motion?  Yes, that was it:  only some of the phrases/paragraphs that were in the original motion to strike from the record were in the latest draft, others were no longer being objected to.  This seemed to intrigue the judge – but I am not certain what the legal impact of this difference would be.

Mr. Katz did not, to the best of my recollection (and notes), address this point very clearly.  There was another point which had been raised at that moment which seemed to occupy his attention:  it was to do with costs and Mr. Katz’s role in them.

There is a rule (404, unless I am mistaken) which states that if the opposing counsel makes some mistake which ends up costing people money, then that opposing counsel must pay those costs.  Not the client, but the counsel.

The Fourniers claimed that there was some sort of an irregularity in how they had been served with this lawsuit:  an irregularity which cost them money and which was Mr. Katz’s fault.  If I understand this correctly, this irregularity was also a subject of a complaint the Fourniers lodged with The Law Society of Upper Canada, the body which licenses lawyers to practice in Ontario.

Mr. Katz responded that the complaint was trivial and was dismissed without him having to even attend to it.

Mrs. Fournier disagreed with that, stating she had correspondence from the Law Society of Upper Canada which stated that they will only attend to the complaint based on what the judge’s ruling will be:  if the judge will rule that the irregularity had indeed been Mr. Katz’s fault and awarded Fourniers financial compensation for the damages,  they would look into the complaint.  So, in her words, it was not dismissed but rather will either go forward or be dismissed, based on what the judge finds in the courtroom.  Since it relates to the costs in the lawsuit, it will have to be the judge in this case whose opinion will determine how the complaint proceeds.

Mr. Katz was very focused on this part of the discussion, though he did not seem as cool and collected as he usually appears in the courtroom.  He seemed downright anxious – and, who would not be, with such a serious charge against him?  Once the topic of this irregularity and its consequences was brought up, he focused most of his attention and arguments in that direction.

This was a very interesting – if short – courtroom appearance.  All was over by 10:20, less than an hour from when it started.

To recap:

Mr. Warman charged (through his lawyer, Mr. Katz) that much of what was in the statement of defense was irrelevant and prejudicial and should be excluded from court documents.  The defendants are abusing the judicial process by including inadmissible statements in their statement of defense.

The Fourniers defense had 3 parts:

• Mr. Warman wanted relevant information taken off because he did not want his own words which demonstrate his record of bad behaviour to become part of the public record and thus widely known
• in order for his actions to be fully understood, Mr. Warman’s doctrine of ‘maximum disruption’ must be part of this record to demonstrate how he is abusing the justice system to promote his political aims
• the reason Mr. Warman wants this evidence suppressed is because by having it stricken, he is obliquely depriving them of evidence they had planned to use in their defense in 3 other lawsuits which Mr. Warman has launched against them.

All the evidence should be left in:  if the judge decides it is irrelevant, it can be removed at that point.  This decision should rest with the judge.

We certainly live in interesting times!