ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
BRIAN D. MACRAE,
Michael Harris, for the Plaintiff/Respondent
Plaintiff (Respondent on the Motion for Leave to Appeal)
- and -
ORVILLE SANTA, MARY ROY, BETTY KENNEDY and THE CORPORATION OF THE CITY OF THUNDER BAY,
George Rust-D’Eye, for the Applicants/Defendants Orville Santa, Mary Roy and Betty Kennedy
Defendants (Applicants on the Motion for Leave to Appeal)
HEARD: January 15, 2004, in Thunder Bay, Ontario
Mr. Justice G. P. Smith
Reasons For Judgment
1This is a motion brought by the Defendants, Orville Santa, Mary Roy and Betty Kennedy (the “Applicants”) for leave to appeal the decision of Madam Justice Pierce dated December 2, 2003 to the Divisional Court.
2Rule 62.02(4) of the Rules of Civil Procedure sets out the test that a party must meet before leave to appeal will be granted:
(4) Grounds on which leave may be granted – Leave to appeal shall not granted unless.
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
Overview:
3The Applicants, Orville Santa, Mary Roy and Betty Kennedy were elected to the City of Thunder Bay city council on November 13, 2000.
4One of the major issues facing the city at this time was the development of the city’s waterfront. After their election councillors Santa and Roy became members of the Portside Advisory Committee. This committee had been created to work with the city manager and the waterfront development manager on issues regarding the development of the waterfront. The committee was to submit its recommendations through the city manager’s office to the Committee of the Whole of Council for approval.
5The Defendant Councillors became concerned about the conduct and performance of the city’s administration and, in particular, the performance of the Plaintiff, Brian MacRae who was then the City Manager.
6The Plaintiff was eventually dismissed from his position and has sued the city for wrongful dismissal and the Defendant Councillors for defamation, unlawful interference with economic relations, abuse of public office, unlawful conspiracy and intentional infliction of mental distress.
7On December 3, 2003, Madam Justice Pierce dismissed a motion for summary judgment brought by the Applicants. It is from this decision that the Councillors Santa, Roy and Kennedy seek leave to appeal.
Factual Background:
8The Portside Advisory Committee was requested by City Council to provide a report on the status of the development of the city’s waterfront. Santa, Roy and two other councillors prepared that report.
9On November 13, 2001 the report was presented to an in camera meeting of City Council.
10Following the presentation of the report Councillor Santa called for the Plaintiff’s resignation. Council conducted a vote and passed a resolution to negotiate an exit package for the Plaintiff. Negotiations were commenced but never concluded.
11On December 5, 2001 Councillor Santa held a ward meeting at which he alleged that city administration was either incompetent or corrupt.
12On February 25, 2002 Councillor Kennedy moved a resolution for a judicial inquiry pursuant to s. 100 of the Municipal Act stating that there may have been wrongdoing or illegality in the city’s administration. Council passed this resolution.
13At the same meeting, Councillor Santa reiterated the comments made by him on December 5 of possible incompetence or corruption within city administration. He also mentioned that, in his opinion, that there may be just cause to terminate the Plaintiff.
14As a result of the comments made at this meeting of City Council, the Chief of the Thunder Bay Police Force commenced a police investigation into the conduct of the Plaintiff. This investigation was subsequently taken over by the Ontario Provincial Police.
15A motion was made by Councillor Santa in the public portion of the council meeting to suspend the Plaintiff. This resolution was passed.
16On March 21, 2002 the Plaintiff commenced this action and was subsequently dismissed from the city.
Discussion – The Defence of Qualified Privilege:
17Central to the argument of the Applicants is an understanding of the defence of qualified privilege.
18The legal effect of this defence is to rebut the inference, normally arising from the publication or utterance of defamatory words, that they were spoken with malice.
19As stated at paragraph 59 of the Applicant’s Factum, “Where the occasion is proven to be privileged, the bona fides of the defendant is presumed and the defendant may, in the absence of malice, publish remarks which may be defamatory and untrue about the plaintiff.”
20The Applicants submit that Pierce J. failed to understand the nature of this defence and failed to make a finding that the words and statements complained of were made in a situation of qualified privilege.
21The position of the Applicants is that, had the learned motions court judge made a finding that the words complained of were spoken or written on an occasion of qualified privilege, then their bona fides is presumed at law, causing the onus to shift to the plaintiff to prove that they acted with malice.
22Rule 20 requires that the complete evidentiary record be placed before a motions court judge. The Applicants submit that, a review of the evidence before Pierce J. indicates that it was completely devoid of proof of malice and that summary judgment should have been granted.
DISPOSITION
23I find that the applicants have not met either of the tests set out in Rule 62.02(4)(a) or (b). Accordingly, this motion is dismissed for the following reasons.
24Firstly, with respect to Rule 62.02(4)(a) I am not persuaded that there is a conflicting decision or that it is desirable that leave to appeal be granted.
25With respect to Rule 62.02(4)(b) and the question of whether there is reason to doubt the correctness of the decision, there are two recent decisions of the Ontario Court of Appeal that endorse the reasoning of Pierce J.
26At paragraph 24 of Justice Pierce’s reasons she states that “Malice is a question of fact. It necessarily requires a consideration of the context and the motives for the communication. It may be inferred from direct or indirect evidence. It requires the trier of fact to look at the dependant’s state of mind. Credibility must be assessed and evidence weighed.”
27The Court of Appeal in Grant v. Cormier-Grant et al, [2001] O.J. No. 3851 and in Roach v. Long, [1998] O.J. 929 adopted the above reasoning. At paragraph three in the case of Roach v. Long, the Court writes: “We think that this finding of malice or its absence, in these circumstances, requires the trier to see the witnesses so that credibility can be properly assessed.”
28In this case, the credibility of the parties and the question of malice are very much in issue. The defendant councilors maintain that their actions and statements had the best interests of the city in mind. The plaintiff suggests that they were motivated by an animus towards him.
29Common sense dictates that only a trier of fact can decide the issue of credibility and the question of malice after hearing and seeing the witnesses testify. There are simply too many nuances and subtleties involved for a finding to be made of the basis of affidavit evidence. The Court of Appeal in Grant v. Cormier-Grant, supra, stated in paragraph 11 that: “In most cases, there is rarely direct evidence of malice, and this case is no exception. In my view, there is extrinsic evidence from which the trier of fact could infer that the respondent was actuated by malice. I would add that malice can take the form of any improper motive for speaking the words complained of, and is not limited to knowledge that the statement was false or that it was published reckless as to its truth or falsity as the motion judge appeared to believe.”
30Pierce J. adopted a different analytical framework that that suggested by the applicants by not first making a finding that the words written or spoken were made in the context of qualified privilege. I find, however, that her assessment of the evidence of malice to be correct and that her dismissal of the motion was justified.
31Rule 62.02(4)(b) imposes a 2-part test on the applicants. They must satisfy both aspects of the test before leave to appeal is granted. The second part of the test requires the applicants to show that the proposed appeal involves matters of such importance that leave to appeal should be granted.
32In a democratic society the ability of our elected officials to openly and freely debate and discuss issues of concern is of the utmost importance. The Supreme Court of Canada in the case of Prud’homme v. Prud’homme (2002), 2002 SCC 85, 221 D.L.R. (4th) 115 had this to say at paragraphs 41 and 42 of that judgment:
41In addition, this Court has often stressed that political discourse is central to the constitutional guarantee of freedom of expression. (Thomson Newspapers, supra; Sharpe, supra; Guignard, supra). In Keegstra, supra, at pp. 763-64, Dickson C.J. said, inter alia:
The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.
42In a defamation action against an elected municipal official, freedom of expression takes on singular importance, because of the intimate connection between the role of that official and the preservation of municipal democracy. Elected municipal officials are, in a way, conduits for the voices of their constituents: they convey their grievances to municipal government and they also inform them about the state of that government (Gaudreault-Desbiens, supra, at p. 486). Their right to speak cannot be limited without negative impact on the vitality of municipal democracy, as Professor P. Trudel noted in an article entitled “Poursuites en diffamation et censure des débats publics” Quand la participation aux débats démocratiques nous conduit en cour” (1998), 5 B.D.M. 18, at p. 18:
[TRANSLATION] Municipal democracy is based on confrontation between views and on open, and sometimes vigorous and passionate, debate. Discussion about controversial subjects can occur only in an atmosphere of liberty. If the rules governing the conduct of such debates are applied in such a way as to cause the people who participate in them to fear that they will be hauled before the courts for the slightest breach, the probability that they will choose to withdraw from public life will increase.
33It is of critical importance for all publicly elected officials to know what they can legally and safely say without being concerned that they will be sued. There must be clear boundaries delineating where reasonable, vigorous, passionate can take place.
34The issues in this case are, therefore, of general public importance however the applicant must meet both aspects of the test in Rule 62.02(4)(b) and they have not done so.
35For the reasons set out above, the applicants’ motion for leave to appeal is dismissed.
COSTS
36If the parties cannot agree on the disposition of the costs of this motion, they may make written submissions to me. The Applicants submissions are to be filed within 10 days of the release of these reasons and the plaintiff’s response is to be delivered within 10 days thereafter. No reply submissions are to be filed without leave. The submissions shall include the requisite material that will permit me to fix the costs of the motion should I determine that costs are to be awarded.
original signed by
Mr. Justice G. P. Smith
Released: February 18, 2004
COURT FILE NO.: D04-0001
DATE: 2004-02-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRIAN D. MACRAE,
Plaintiff (Respondent on the Motion for Leave to Appeal)
- and –
ORVILLE SANTA, MARY ROY, BETTY KENNEDY and THE CORPORATION OF THE CITY OF THUNDER BAY,
Defendants (Applicants on the Motion for Leave to Appeal)
REASONS FOR JUDGMENT
Mr. Justice G. P. Smith
Released: February 18, 2004
/mls