The Ontario Superior Court of Justice recently clarified which protections the law provides to elected municipal officials who defame others during council meetings.
In Gutowski v. Clayton, 2014 ONSC 2908, County of Frontenac Warden Janet Gutowski alleged that four council members had defamed her in a motion made during a council meeting. The motion alleged that Gutowski had breached her oath of office by uttering promises and rewards in an effort to conspire with staff to move the municipal councillors to vote in a "biased, corrupt or [otherwise] improper manner." It said that her "peddling of political favours" shall be referred to the Minister of Municipal Affairs and Housing. In addition, Councillor David Jones asked rhetorically during the council meeting, "What other tricks has she been up to?"
The councillors brought a motion to strike Gutowski's allegation of defamation. Although they admitted to defaming Gutowski during the council meeting, they argued that they were protected on the ground, inter alia, of absolute privilege. Granting absolute privilege to the defendants would be a total defence to any defamatory statements made in council.
The Ontario Legislature has the constitutional power to enact laws pertaining to municipal governments, but has delegated much of that power to municipal councils. The councillors argued, therefore, that the absolute privilege enjoyed by the Ontario Legislature is impliedly granted, and such privilege is necessary for the proper exercise of the municipal government's delegated functions. They argued that the common law should protect anything said by them that was necessary for the proper exercise of the municipal government's legislative functions.
Although Canadian jurisprudence has only previously afforded qualified privilege to municipal councillors for comments made inside and outside of the council chamber, which is a lower level of protection, the councillors argued that no previous Canadian case discussed whether absolute privilege applies to speech made solely inside the council chamber.
Justice Beaudoin, however, found that Canadian courts have indeed determined previously that municipal councillors do not enjoy absolute privilege for comments made in the course of their council meetings. In Prud'homme v. Prud'homme, 2002 SCC 85, the Supreme Court of Canada provided a wide analysis of privilege. The court based its entire discussion of qualified privilege on the fact that municipal councillors do not enjoy absolute privilege. This has been affirmed by courts throughout Canada.
Ontarian municipalities, moreover, do not have the sufficient safeguards necessary for granting absolute privilege to speech made during council meetings. Justice Beaudoin found that the common law has justified granting absolute privilege to legislatures because of their constitutionally protected ability to examine, discuss, and judge its own members. If members of a legislature make inappropriate comments, the Speaker has a variety of remedies that he or she may employ. This includes recording an apology, naming the members, and ejecting them from the legislature until they retract their comments. Ontarian municipalities, on the other hand, do not have such safeguards. While the Municipal Act, SO 2001, c 25, allows municipalities to institute codes of conduct and appoint integrity commissioners, no such protections existed in the County of Frontenac. Since such safeguards are optional, moreover, Justice Beaudoin found no reason for extending absolute privilege to municipal speech. Justice Beaudoin held that the Supreme Court of Canada's analysis of municipal speech in Prud'homme v. Prud'homme is still authoritative. Namely, municipal speech is specifically protected by qualified privilege. In order to succeed in his or her action, a defamed plaintiff must prove malicious intent or intent to harm on the part of the councillor.
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