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Unofficial English Translation[1]Fabrikant c. Swamy / 2011 QCCS 1385
SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF / MONTREAL
No: / 500-05-006680-928
DATE: / March 25, 2011
______
IN THE PRESENCE OF: / THE HONOURABLE FRANÇOIS ROLLAND,
CHIEF JUSTICE
______
DR. V. I. FABRIKANT
Plaintiff
v.
M.N.S. SWAMY
T.S. SANKAR
S. SANKAR
G.D. XISTRIS
S.V.HOA
Defendants
and
SERVICES CORRECTIONNELS DU CANADA
Mis en cause
______
JUDGMENT
______
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[1] On April 29, 1992, Plaintiff ("V. Fabrikant") sued two colleagues, professors in the Mechanical Engineering Department of Concordia University. Over the following years, he made many amendments to his action so that, at the time of trial, his claim reads as follows:
“DECLARE the Defendants T.S. Sankar, M.N.S. Swamy, S.V. Hoa and G.D. Xistris have made no scientific contribution to the Plainfiff's publication;
ORDER T.S. Sankar, M.N.S. Swamy, S.V. Hoa and G.D. Xistris to write letters of retraction to the editors of relevant Journals, stating that they should not be considered coauthors of respective publications;
ORDER to T.S. Sankar, M.N.S. Swamy, S.V. Hoa and G.D. Xistris to pay damages to the Plaintiff, $500,000 for theft of intellectual property;
ORDER S. Sankar to pay damages to the Plaintiff, $100,000 for extortion;
THE WHOLE with costs.”
THE FACTS
[2] V. Fabrikant graduated from high school in the Soviet Union in 1957 receiving a gold medal for his studies. In 1966, he earned his degree as an “electra mechanical engineer”.
[3] In 1979, he immigrated to Canada and, in December of that year, was hired as a research assistant by Dr. T.S. Sankar, Chair of the Mechanical Engineering Department of Concordia University. He worked for Dr. Sankar until 1985 or 1986, as well as for other members of the department for specific mandates. It is in that context that he met Drs. Hoa, Xistris and Swamy.
[4] In 1985, Dr. T.S. Sankar's brother, Dr. S. Sankar, who also has a Ph.D in Mechanical Engineering, invited V. Fabrikant to participate in a special project, together with two others members of the faculty, Drs. Ahrmed and Rakeja. It was a five-year project and a review of the members of the team was to be made after three years.
[5] Since his arrival at Concordia, V. Fabrikant published a significant number of articles in scientific publications on which appear the names of other members of the department, including Drs. T.S. Sankar, Xistris, Hoa, Swamy and others. These articles were published from 1980 to 1988 without V. Fabrikant ever questioning the issue of co-authorship.
[6] In March 1988, Dr. S. Sankar had discussions with V. Fabrikant indicating that the latter’s contract would be extended for one year only instead of two. It was then that he first raised the issue of co-authorship and approached Drs. S. Sankar, T.S. Sankar, Xistri and Hoa about it.
[7] Even though he is the one who included the names of Defendants and other members of the department on his publications for some eight years, V. Fabrikant now argues that Defendants made no scientific contribution to these articles and cannot claim to be co-authors.
[8] The relationship between V. Fabrikant and his colleagues were strained before, but they started to deteriorate seriously starting in 1988, as shown by the fact that, in March of that year, he secretly recorded conversations that he had with Drs. T.S. Sankar, Xistris, S. Sankar and Hoa. He claims that Dr. S. Sankar was trying to fire him and he needed to find out what was going on.
[9] In the end, his contract was renewed for the full period but things nevertheless got worse thereafter.
[10] He was told on several occasions that he did not have the right attitude and that he should behave as a team player with other colleagues. He felt threatened and, in response, started to threaten Drs. T.S. Sankar and S. Sankar. This eventually led to the present lawsuit and the tragic events that took place in 1992.
[11] At the end of October 1991, an evening meeting of the personnel committee was held in a boardroom of the University, ending around 11:30 p.m. The purpose was to discuss the future of V. Fabrikant at Concordia and he was not invited to attend.
[12] A commotion occurred at the meeting. V. Fabrikant had been seen walking outside the boardroom while the meeting was going on. The committee members believed that he was spying on them, while he was under the impression that the members of the committee were checking on him.
[13] During the following months, he continued complaining about co-authorship, both against Defendants and other members of the faculty. Finally, on April 29, 1992, he instituted the present action against Dr. Swamy, former dean of the faculty, and Dr. T.S. Sankar.
[14] On August 24, 1992, V. Fabrikant killed four professors and injured a secretary, acts for which he was convicted on four counts of first-degree murder in 1993.
HISTORY OF THE LEGAL PROCEEDINGS
[15] The lawsuit that V. Fabrikant commenced on April 29, 1992 against M.N.S. Swamy and T.S. Sankar has been ongoing for almost nineteen years. There has been much activity in the file over the intervening period.
[16] Between 1992 and 1998, V. Fabrikant presented numerous motions and amendments in connection with the action.
[17] On July 27, 1998, he filed a Re-Amended Declaration adding Drs. G.D. Xistris, S.V. Hoa and S. Sankar as co-defendants. He is claiming $500,000 from the first four Defendants (excluding S. Sankar) to compensate for damages sustained as a result of alleged false co-authorship situation. He claims $100,000 from Dr. S. Sankar for extortion.
[18] In 1999, he filed a motion to re-amend his Declaration in order to add other Defendants. On March 27, 2000, Mr. Justice Flynn dismissed the motion, save and except for the authorization to add one paragraph, but without adding any new defendants.
[19] On November 2003, the action was inscribed and placed on the Roll with the prior authorization of the then Chief Justice, Lyse Lemieux, since V. Fabrikant had been declared a vexatious pleader on May 30, 2000.
[20] Dr. S.V. Hoa and G.D. Xistris each presented a motion to quash the action based on prescription. In her judgment, on October 13, 2004, Madam Justice St-Pierre concluded that V. Fabrikant's claim in damages for copyright infringement was prescribed, since it was not taken within three years of the alleged infringement. However, given that recourses other than the action in damages were also available, she did not grant the motions to dismiss the action.
[21] The trial on the merits in this file finally began on November 5, 2007 before Mr. Justice Gilles Hébert.
[22] In the days leading up to the opening of the trial, Justice Hébert received an impressive number of requests from V. Fabrikant. As well, on the first day of the trial, V. Fabrikant presented five new motions to Justice Hébert, who also heard a Motion to Quash Subpoenas that had been served on a number of judges of this Court and of the Court of Appeal at the request of V. Fabrikant.
[23] V. Fabrikant testified for approximately six hours on November 7 and 8, 2007. During that testimony, he asked Justice Hébert to recuse himself and, on November 13, 2007, Justice Hébert did so. His reasons are set out in his judgment, as follows:
[translation]
[1] The trial was scheduled for 22 days.
[2] Well before the trial began, I was inundated with letters and requests from Valery I. V. Fabrikant, each more surprising than the last.
[3] During the first three days of the hearing, I noted Valery I. V. Fabrikant’s cynical and aggressive behaviour and heard the insulting and denigrating comments he made about the defendants, legal counsel and myself, not to mention the four victims of 1992.
[4] Given the situation, I do not feel that I can comply with the rule concerning the appearance of impartiality because, despite my sense of duty, I do not have the serenity required to continue the trial.
[5] I believe that a judge who has an inner conviction that he no longer has the serenity required to judge objectively or that he could be so perceived must recuse himself. This is the decision that I have made.
[6] I am divesting myself of this matter, which is referred to Chief Justice François Rolland.
[24] At this point, I, as Chief Justice of the Superior Court, ordered the continuation of the trial before Madam Justice Nicole Morneau, who continued the trial and heard witnesses on November 20, 21 and 22, 2007, in difficult conditions.
[25] In the afternoon of November 22nd, V. Fabrikant asked for the recusation of Justice Morneau. He stated: “Allright: So the first thing in the morning, on Monday, I will make a Motion for your recusation, Madam.”
[26] On November 26, 2007, without allowing V. Fabrikant to argue his case, Justice Morneau dismissed the action in an oral judgment of 21 pages. There, she explained that her reasons for doing so were based on abuse of process and, in any event, the prescription of his claims. I reproduce extracts of the judgment :
[translation]
[1] Fabrikant charges the defendants M.N.S. Swamy, T.S. Sankar, G.D. Xistris and S.V. Hoa with unfairly benefited from the results of his scientific research. He states that he was the one who added their names as co-authors of the publications listed in Exhibit P-4 while knowing that they did not contribute to them. He claims that he felt obliged to so do to keep his job at Concordia University. He is claiming $500,000for theft of intellectual property.
[2] The work that gave rise to the publications in question was completed between 1980 and March or April 1987. Fabrikant acknowledges that the names of the defendants do not appear in his subsequent publications.
[3] During his cross-examination of November 20 before the undersigned, Fabrikant made a general admission. He stated that, with regard to all the articles and lectures in question, he knew that none of the defendants had contributed to them but that he did not change the order of their names in the list of co-authors and did not eliminate them because doing so would have ended his university career.
[4] In his action, Fabrikant also names S. Sankar. He accuses him of extortion and claims $100,000. According to allegation No. 9 in Fabrikant’s action, S.Sankar threatened that he would get him fired if he did not include him as co-author, but he did not do so.
[5] The present action against Swamy and Sankar was filed on April29, 1992. On August24, 1992, Fabrikant arrived armed at Concordia, and killed four of his colleagues. He was found fit to stand trial and convicted of murder. He is serving a sentence of life imprisonment without eligibility for parole for 25 years. In May 1998, he obtained authorization to amend his proceedings by adding Xistris and Hoa as defendants. He also charges them with unlawfully profiting from him.
[6] Over the years, Fabrikant has filed a panoply of motions. In a judgment rendered on May 30, 2000, he was declared a vexatious pleader and prohibited from bringing any new proceedings without the authorization of the Chief Justice of the Superior Court or a judge designated for this purpose. The record in this case, which was filed before that date, was supposed to have been perfected by 2003.
[7] The hearing of the case, which began on November5, 2007, continued on November20 before the undersigned, who had earlier listened to the recording of Fabrikant’s testimony in chief. Since then, Fabrikant has regularly brought motions that have become increasingly far-fetched.
[8] At the beginning of the hearing on the merits, more than 15 years after his initial action was filed and nine years after Xistris and Hoa were added, he wished to proceed with examinations on discovery, obtain an order entitling him to Legal Aid, which had already been refused, obtain other documents, quash the judgment declaring him a vexatious pleader and obtain an order allowing witnesses outside Quebec to be heard by telephone. He has unlawfully served several judges. He attempted to submit additional documents in violation of the applicable rules and has disputed decisions that did not suit him.
[9] In his November 2003 declaration to be entered on the roll, Fabrikant stated that he would call 17 witnesses. When the hearing began, he wanted to add others.
[10] On November20, the undersigned invited the plaintiff to review his list of witnesses. He acknowledged that eight of the witnesses he had called had not responded to his correspondence. He deduced that they would not cooperate and had eliminated them. That left his testimony, scheduled to take six hours (which has already been heard), the hearing of the five defendants, whom he insisted on hearing on demand, as well as the testimony of Dr. Ahmad and Dr. Thulasiraman, as well as Dr Kachanov, whose letter he had filed in the Court record in 1994. The defendants, realizing that he wanted to use Kachanov as an expert, objected on the ground that Fabrikant had not announced any expert testimony. Furthermore, he was unable to furnish proof that notice of the filing of an expert report had been served as required by the Code of Civil Procedure.
[11] His new list of witnesses is dated November1, 2007. Fabrikant has kept the defendants, Dr. Kachanov, and Dr. Thulasiraman, added seven judges, added F.Lowy, C. Bertrand, J. Thompson and certain persons whom he does not yet know by name and has described as “Chair of NSERC Committee (Name to be found)” now known to be Dr. Armstrong of New Brunswick, and “Person in charge Special Review of NSERC Accounts July 6, 1995” whose identity is still unknown.