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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