ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-104113-00

DATE: 20130213

BETWEEN:

GEORGE HERVEY

Applicant

– and –

PHYLLIS MORRIS

Respondent

Jill Copeland, for the Applicant

Steven J. O’Melia, for the Respondent

HEARD: August 17 and November 2, 2012

JUDGMENT

GILMORE j.

Overview

[1] The Applicant is an elector as defined by the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 (M.C.O.I.A.) and resides in the Town of Aurora. He seeks a declaration that the Respondent breached Sections 5(1) and 5(2) of the M.C.O.I.A., and by way of remedy seeks an order disqualifying the Respondent from being a “member” within the meaning of Section 1 of the M.C.O.I.A. for a period of seven years, pursuant to Section 10(1)(b) of the Act.

[2] In addition, the Applicant seeks costs and an order that the Respondent make restitution to the Town of Aurora (the Town) in the amount of $55,298.92 for legal fees paid by the Town for the prosecution of the defamation action pursuant to Section 10(1)(c) of the Act.

[3] The Respondent seeks to dismiss the application on the grounds that the Respondent did not contravene Section 5 of the M.C.O.I.A., and further that the application was commenced after the expiration of the limitation period set out in Section 9 of the M.C.O.I.A., and that the application is therefore a nullity.

[4] It should be noted that at the beginning of argument of this application, the parties agreed that the affidavit of Lisbeth Kilgour, located at Tab 5 of the Respondent’s record, would not be relied upon.

[5] Submissions were made in relation to the affidavit of John Gallo, which is located at Tab 1 of the Respondent’s second supplementary record. Mr. Gallo was never cross examined on his affidavit because the affidavit was served outside of the consent timeframe for examinations and the serving and filing of documents in preparation for this hearing.

[6] For oral reasons given on August 17, 2012, I admitted the affidavit of Mr. Gallo. It is important to note that in those reasons I determined that although the Gallo affidavit would be admitted, it would be given little weight since it had not been tested by cross examination.

Background

[7] This application relates to an allegation that the Respondent, Ms. Phyllis Morris (Ms. Morris) breached the provisions of the M.C.O.I.A. when she was the Mayor of Aurora. Ms. Morris was the Mayor of the Corporation of the Town of Aurora from December 2006 to December 2010. Prior to being Mayor she was first elected as a councillor of the Town in November 1994 and re-elected as councillor in 1997 and in 2003 for further three-year terms. During the period in which Ms. Morris was Mayor there was a series of anonymous blog posts commencing in 2008 that were published on the web blog “auroracitizen.ca”. The posts were directed at council, the Mayor and town staff. They were in some cases threatening and in some cases very demeaning. The frequency and disparaging tone of the posts increased in 2010.

[8] The more threatening posts were reported by town staff and the Mayor to York Regional Police. In response the police attended at the town offices to meet with town staff and the Mayor on several occasions, and recommended safety measures for the town hall and the Mayor’s office.

[9] In early September 2010 a blog post by a blogger using the name “for a fistful of dollars” made the following comment:

Her Worthless is the same lying hypocrite today that she was on December 5, 2006. Only now we have dozens of examples of her administration’s malfeasance, her utter disregard for and ignorance of the phrase “good government,” the squandering of hundreds of thousands of dollars of public money on corrupt lawyers, OMB appeals, and a lackey Integrity Commissioner. Transparent and accountable are non-existent in her vocabulary. It is as though we have invited the Serpent into our once innocent Garden of Eden. The only politician who compares favourably is Richard Nixon. Geoff Dawe’s campaign should order and distribute 5,000 pennants that could be proudly displayed on mini-flagpoles on our cars to indicate our distaste for the incumbent.

[10] In response to a post in which there was criticism of the Mayor for wearing her Chain of Office to a public school talk to grade five students, the blogger “for a few more dollars” said on October 2, 2010, “She should be hanged with it! End of Phyllis and end of story.”

[11] A later comment in November 2010 read as follows:

Hey Phyllis, just wanted to remind you that you are a waste of oxygen and skin. I hope you die in a fire while being forcibly penetrated by an elephant. Love from, Dick Hertz from Beeton

This comment is related to an anonymous email that was addressed to Ms. Morris on her You Tube channel.

[12] In response to the posts on “auroracitizen.ca” the Chief Administrative Officer and the Town Solicitor wrote to the web blog and demanded removal of the comments. As well, the town’s in-house solicitor, Christopher Cooper, wrote to the assumed operator of “auroracitizen.ca” again requesting that certain posts relating to the Town’s manager of corporate communications be removed. In fact the posts were not removed, but continued with their threatening and/or disparaging tone with respect to both the Mayor and town staff.

[13] As a result of the blog post from September 6, 2010, from “for a fistful of dollars” Ms. Morris asked that the issue of the blog posts be placed on the council agenda for the council meeting scheduled for September 14, 2010. Ms. Morris chaired the meeting that took place on September 14, 2010, and lasted until the early morning of September 15, 2010. The item which Ms. Morris had asked be added to the agenda was intended as a closed session item and was entitled “New Closed Session Item: Litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board; Re: Potential Defamation”. Ms. Morris did not choose the title of the agenda item. The person who prepared the agenda gave it that title.

[14] Seven of the nine council members were present at the closed session on September 14/15, 2010. The closed session commenced at 11:33 p.m. and ended at 1:11 a.m. While there is a dispute on the evidence as to exactly what discussions were held during the closed session, the minutes of the September 14, 2010 meeting are clear that in relation to the blog posts, Councillor MacEachern moved as follows:

THAT the Council rise and report from Closed Session to confirm the direction from Closed Session regarding the potential defamation; and,

THAT the Town Solicitor be directed to retain external legal counsel and to take any and all actions to bring resolution to this matter.

[15] The Applicant takes the position that Ms. Morris had a pecuniary interest in the potential defamation matter under discussion in the closed session portion of the September 14, 2010 Town Council meeting. The Applicant submits that the court should find that there was a discussion of bringing a lawsuit in the Mayor’s name at the subject meeting and that even if this court does not find that such a lawsuit was discussed, that Ms. Morris still had a pecuniary interest in the matter under discussion during the meeting when applying the objective test from the jurisprudence.

[16] Ms. Morris argues that the evidence of seven of the nine persons present at the subject meeting makes it clear that the discussion that took place related to the series of anonymous blog posts that council believed were harmful to the Town and that the focus of the discussion was on what could be done to determine the identity of the anonymous bloggers. Further, council did not receive expert legal advice on how to proceed because the direction arising from the meeting was for the Town Solicitor to obtain an opinion from outside counsel. Ms. Morris argues that the commencement of a legal action for monetary damages was not discussed or contemplated at the meeting. Rather, the focus of the discussion was on what steps should be taken by consulting an outside expert in defamation since the Town Solicitor did not have such expertise.

[17] The other matter at issue is the appropriate remedy should the court determine that Ms. Morris had a pecuniary interest in the matter under discussion at the September 14, 2010 meeting. The Applicant requests a declaration that Ms. Morris breached Sections 5, 1 and 2 of the M.C.O.I.A., and therefore seeks a significant period of disqualification from office by way of remedy pursuant to Section 10(1)(b). The Applicant argues that the defences of inadvertence and error in judgment are not available to Ms. Morris.

[18] In addition, the Applicant seeks an order that Ms. Morris should be required to make restitution to the Town for legal fees spent in the prosecution of the civil defamation action being $55,298.92.

[19] Ms. Morris argues that there was no breach of the M.C.O.I.A. as Ms. Morris did not have a personal financial interest in the litigation in issue. The action was commenced by the Town using her name only in her capacity as Mayor and not in her personal capacity. Further, Ms. Morris did not know at the time of the meeting what form any legal proceedings might take as she could not have predicted at the time of the meeting what legal advice would be given by a law firm that had yet to be retained by the Town.

[20] There is a preliminary issue which must be determined by the court before any issues relating to a potential breach of the M.C.O.I.A. can be considered. Ms. Morris argues that this application was not commenced within the six-week period prescribed by Section 9 of the M.C.O.I.A. and is therefore statute barred.

[21] Section 9 of the M.C.O.I.A. stipulates that if an elector is aware of facts that he or she believes indicate that a breach of the Act may have occurred, an application must be commenced within six weeks. Ms. Morris argues that the Act is clear and unambiguous in that regard. Further, Ms. Morris argues that all of the underlying facts which led to the issuance of the claim were known to the Applicant by October 19, 2010. However, the application was not commenced until May 10, 2011, more than 161 days after the expiration of the limitation period.

[22] The Applicant argues that the application was properly brought within the limitation period specified within the M.C.O.I.A. The Applicant submits that the limitation period created by Section 9 is not triggered by mere knowledge of the facts alleged to constitute the contravention, but rather what is required is knowledge of the facts alleged to constitute the contravention of the Act and an understanding that those facts are likely to constitute a breach of the Act. Specifically, there must be an understanding that the facts likely constitute a breach of the Act.

[23] The Applicant argues that apart from the motion recorded in the public minutes, there was no information available to the public concerning the nature of the discussions during the closed portion of the Town Council meeting of September 14, 2010, nor the nature of Ms. Morris’ participation in those discussions until March 30, 2011, when the executive summary of the opinion of Mr. Rust-D’Eye was made public by the Town Council. Although the Applicant concedes he may have had suspicions or concerns about a potential breach of the M.C.O.I.A. by Ms. Morris earlier than March 30, 2011, he did not have a factual basis to make those concerns more than speculative until March 30, 2011.

Preliminary Issue: Was the application brought outside the limitation period in Section 9 of the Municipal Conflict of Interest Act?

[24] Section 9 of the Municipal Conflict of Interest Act reads as follows:

Who may apply to judge

9(1) Subject to subsection (3), an elector may, within six weeks after the fact comes to his or her knowledge that a member may have contravened subsection 5(1), (2) or (3), apply to the judge for a determination of the question of whether the member has contravened subsection 5(1), (2) or (3). R.S.O. 1990, c. M.50, s. 9(1).

Contents of notice of application

(2) The elector in his or her notice of application shall state the grounds for finding a contravention by the member of subsection 5(1), (2) or (3) R.S.O. 1990, c. M.50, s. 9(2).

Time for bringing application limited

(3) No application shall be brought under subsection (1) after the expiration of six years from the time at which the contravention is alleged to have occurred. R.S.O. 1990, c.M.50, s. 9(3).

[25] There are two limitation periods under Section 9 of the M.C.O.I.A. The first is the six-week limitation period which arises once an elector has knowledge that a member may have contravened subsection (5)(1),(2) or (3). The other is a “drop dead” limitation period which states that no application can be brought under subsection (1) after the expiration of six years from the time that the contravention is alleged to have occurred. Subsection (3) is not in issue in this case.

(Remaining paragraphs [26]–[74] and footnotes reproduced exactly as in the source text.)

Justice C. Gilmore

Released: February 11, 2013

[^1]: (1991), 1991 7184 (ON SC), 4 O.R. (3d) 474 at 476 (Ont. Ct. Gen. Div.).
[^2]: (July 15, 1991), Hamilton, AG 88 (12/89) 7540-1171 (Ont. Ct. Gen. Div.).
[^3]: Cross examination of the Applicant, June 1, 2012, page 93, lines 4-6.
[^4]: Ibid. at page 93, lines 13-15.
[^5]: Ibid. at page 182, lines 4-19.
[^6]: Cross examination of the Applicant, June 1, 2012, page 69, lines 20-22.
[^7]: Ibid. at page 77, lines 16-22.
[^8]: Cross examination of the Applicant, June 1, 2012, page 69, lines 20-22.
[^9]: Ibid. at page 69, lines 23-25 and page 70, lines 1-2.
[^10]: Ibid. at page 87, lines 12-18.
[^11]: Ibid. at page 73, line 25 and page 74, lines 1-5.
[^12]: Ibid. at page 77, lines 16-25 and page 78, lines 13-14.
[^13]: Ibid. at page 81, lines 8-11 and lines 14-17.
[^14]: Ibid. at page 82, lines 15-19.
[^15]: Cross examination of the Applicant, June 1, 2012, page 102, lines 8-19 and page 105.
[^16]: Cross examination of Neil David Garbe, March 8, 2012, page 31, para. 119 and page 34, lines 19-22.
[^17]: Cross examination of Neil David Garbe, March 8, 2012, at page 66, lines 1-4.
[^18]: Ibid. at page 67, para. 240.
[^19]: Cross examination of John Leach, March 8, 2012, page 21, paras. 84 and 85 and page 22, lines 14-23.
[^20]: (1985), 1985 2137 (ON SC), 50 O.R. (2d) 513 (H.C.J. Div. Ct.).