ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-58653

DATE: 20140526

BETWEEN:

JANET GUTOWSKI
Plaintiff

– and –

BUD CLAYTON and JOHN MCDOUGALL and DAVID JONES AND DENIS DOYLE
Defendants

Keith A. MacLaren, for the Plaintiff

Kirk F. Stevens, for the Defendants

HEARD: April 29th, 2014

Beaudoin J.

[1] The Defendants bring this motion for the following relief:

1. They seek to strike the Plaintiff’s allegations of defamation made by the Defendants during a council meeting of May 15, 2013, pursuant to Rule 21.01(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground of absolute privilege;

2. That the Plaintiff’s bald allegation of defamatory statements made outside the council chamber during an alleged media interview be struck pursuant to Rule 21.01(a) on the ground that the allegation fails to identify the persons to whom the statements were made;

3. That the Plaintiff’s allegations that the defamatory statements were published in the media be struck pursuant to Rule 21.01(b) on the grounds that:

i. the allegation discloses no reasonable cause of action; and

ii. under Rule 21.01(a), the Plaintiff failed to give the notice required by s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L12, the result of the claim is statute barred under s. 6 of that Act.

Background

[2] At all material times, the Plaintiff and the Defendants were members of the council of the County of Frontenac, a municipality in the Province of Ontario. The Plaintiff was the warden and the Defendants were councillors.

[3] On May 15, 2013, at a regularly scheduled council meeting, the Defendant, David Jones, made a motion, seconded by the Defendant, Denis Doyle, and approved by the Defendants Bud Clayton and John McDougall. The motion stated as follows:

WHEREAS councillor Gutowski pledged an Oath of Office at the commencement of this term of County Council. Such document contained words to the effect…

2. I have not received and will not receive any payment or reward, or promise thereof, for the exercise of this office in a biased, corrupt or in any other improper manner.

AND WHEREAS Councillor Gutowski has on more than one occasion breached her Oath uttering promises and rewards in an effort to conspire with Staff to move County Councillors to vote “in a biased, corrupt or in any other improper manner.”

BE IT RESOLVED Councillor Gutowski has lost the trust of Council by violating her oath of Office and Council rescinds all privileges of office immediately.

FURTHER MORE, Councillor Gutowski’s peddling of political favours shall be referred to the Minister of Municipal Affairs and Housing.

AND FURTHER MORE, the Township of Central Frontenac appoints a replacement Councillor to Councty [sic] as soon as possible.

[4] At the same council meeting, the Plaintiff alleges that the Defendant Jones asked rhetorically “What other tricks has she been up to” ? The Statement of Claim further alleges that the council meeting motion and the rhetorical question were reported in the media and thus received wide circulation.

[5] For the purposes for this motion only, the Defendants admit that the words of the motion and Jones’ rhetorical question defamed the Plaintiff.

The Applicable Rule

[6] Rule 21.01 of the Rules of Civil Procedure provides as follows:

21.01(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion,

(a) under clause (1)(a), except with leave of a judge or on consent of the parties;

(b) under clause (1)(b).

Are statements made by municipal councillors during council meetings absolutely privileged?

[7] The Legislature of Ontario has the constitutional power to enact laws pertaining to the government of every county, city, town, village and hamlet in the province, but has delegated much of that power to the councils of municipalities. The Defendants argue that when a legislature delegates law-making power to a subordinate body, such powers and privileges “as are necessary to the existence of such a body in a proper exercise of its functions” are impliedly granted.[^1] The Defendants then submit that immunity from suit with respect to anything said by them in the performance of their function is necessary for the proper exercise of the legislative functions.

[8] The Defendants acknowledge that absolute privilege is clearly enjoyed by both Federal Parliament and the Provincial Legislatures. In Ontario, absolute privilege for speech in the legislature and its committees is set out in s. 37 of the Legislative Assembly Act, R.S.O. 1990, c. L. 10:

37. A member of the Assembly is not liable to any civil action or prosecution, arrest, imprisonment or damages, by reason of any matter or thing the member brought by petition, bill, resolution, motion or otherwise, or said before the Assembly or a committee thereof.

[9] The Defendants argue that absolute privilege applies to municipal councillors since legislators should be able to perform their duties “free from any worry of being called to account anywhere, except in Parliament.” The Defendants maintain that the issue of whether legislative speech by municipal councillors during the performance of their duties should be cloaked with absolute privilege, as opposed to qualified privilege, is an open question in Canada.

[10] The Defendants concede that Canadian courts have afforded qualified privilege to speech by municipal councillors in the course of their duties both inside and outside the council chamber. They submit, however, that there is no previous or other Canadian case in which the question of whether absolute privilege applies to speech inside the council chamber was raised and decided.

[11] The Defendants argue that Canadian Courts have simply assumed that qualified privileged applies on the basis of a limited reading of 19th Century British authority. The critical decision in Canada is that of the Supreme Court of Canada in Prud’homme v. Prud’homme, 2002 SCC 85 where that Court said at para. 49:

[49] Elected municipal officials do not enjoy the parliamentary privilege enjoyed by members of the National Assembly of Quebec or of the federal Parliament (R. E. Brown, the Law of Defamation in Canada (2nd ed. (loose-leafe)), vol. 2, at pp. 12-20 and 12-21; J. Hétu, Y. Duplessis and D. Pakenham, Droit municipal: principes généraux et contentieux (1998), at p. 177). The English and Canadian courts, however, have held that words spoken at a meeting of a municipal council are protected by qualified privilege (J.P.S. McLaren, The Defamation Action and Municipal Politics (1980), 29 U.N.B.L.J. 123, at pp. 134-135). Accordingly, the fact that words spoken at a meeting are defamatory does not, in itself, mean that a municipal councillor will be liable therefor. In order to succeed in his or her action, the plaintiff must prove malicious intent or intent to harm on the part of the councillor (Brown, supra, at p. 13-4). The reason for that qualified privilege was eloquently stated by Diplock L.J. in Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 152:

My lords, what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly, they run no risk of liability for defamation of those who are the subjects of their criticism.

[12] Prud’homme was a Quebec defamation action against a municipal councillor for words uttered in a council meeting. The Supreme Court of Canada’s reasoning focused on the relationship of public and private law under the Civil Code of Quebec and compared it to the common law. In that case, the Court held that the defendant was not liable because enjoyed he qualified privilege. The Defendants say that absolute privilege was not raised in that case.

[13] The Defendants argue that the Supreme Court of Canada cited only text books for the proposition that municipal councillors do not enjoy absolute privilege at common law. Because absolute privilege was not raised as a defence, the Defendants argued that the first sentence of para. 49 is not persuasive. (In their original argument the Defendants maintained that this was simply obiter dicta.)

[14] One of the earliest common law decisions was that of the English Court of Appeal in 1892, namely, Royal Aquarium v. Parkinson, [1892] 1 Q.B. 431 (C.A.). The court in that case held that municipal councillors enjoyed only qualified privilege. The Defendants seek to distinguish Royal Aquarium on the basis that it did not deal with legislative speech by municipal councillors. Moreover, they say that the Defendant in that case did not seek absolute parliamentary privilege but rather, he sought absolute judicial privilege. For that reason, the Defendants said the question of absolute privilege was not decided.

[15] The Defendants further argued that the categories of absolute privilege are not closed. Recently, the Court of Appeal said in Amato v. Welsh, 2013 ONCA 256; (2013), 2013 ONCA 258, 362 D.L.R. (4th) 38, at para. 68:

The boundaries of the absolute privilege doctrine are not firmly set. As with other long-standing common law principles, although the absolute privilege doctrine has deep roots in the history of the common law, its scope and application continue to evolve.

[16] The Defendants note that English courts have also maintained the same position. In S. v. Newham London Borough Council, [1998] E.M.L.R. 583 (C.A.), the Court of Appeal set out 5 factors to consider when a defendant claims absolute privilege in a situation to which it has not been previously extended. These factors are:

a) What is the nature and the importance of the interest which the defendant is seeking to protect?

The Defendants submit that there is no question that the freedom of speech of municipal councillors is capable of attracting absolute immunity.

b) Whether the scale and the risk of damage to that interest is sufficiently serious to create a pressing need to protect that interest?

The Defendants maintain that the potential chilling effect on members on members of the federal and provincial legislatures has provided justification for according them absolute privilege for comments made in their legislatures. They say that there is no reason why it should not apply to municipal councillors.

c) What is the breadth of the immunity that will have to be granted in order to provide protection for the interest?

The Defendants seek absolute immunity only for words spoken inside the council chamber.

d) As a matter of principle, would it be appropriate to extend to this situation the immunity from suit which has been applied in other situations?

The Defendants argue that the absence of a statutory grant of privilege (as exists for provincial legislators) does not preclude extending absolute privilege to them.

e) The balance between competing public interests

The Defendants acknowledge that Canadian law recognizes a substantial public interest in providing redress to victims of defamation but this right to reputation is trumped by the necessity for freedom of speech in the federal Parliament and provincial legislatures. They argue that there is no good reason why this should not be extended to municipal councillors. While qualified privilege provides a measure of protection, situations may arise where absolute privilege is necessary.

American Authorities

[17] The Defendants refer to American jurisprudence where some state courts have held that speech in municipal councils was, similar to speech in Congress and state legislatures, absolutely privileged. The Defendants note that those courts in the United States which adhere to the majority rule of absolute privilege have adopted a functional analysis to explain its necessity

[18] While qualified privilege provides a measure of protection to a legislator, the Defendants argue that situations may arise where it is necessary in the public interest for a legislator to level an accusation for which he or she may have no proof and which a judge and jury may find to be malicious. Uttering such a statement in the confines of a council chamber may cause members of the public or other officials to come forward with the means of proof that the legislator lacks at the relevant time. A legislator who only enjoys qualified privilege may thus be deterred from bringing important facts to the knowledge of the public.

[19] Although the question of whether or not absolute qualified privilege applies in these cases and these circumstances unsettled, the Defendant argues that the issue does not require a trial for resolution. For the purposes of this motion, the Defendants are assumed to have defamed the Plaintiff. The Plaintiff’s case is taken at its highest. Accordingly, they argue that any facts that might have emerged at trial, cannot improve her case or inform the resolution of the peer question of law that is raised here.

[20] The Defendants refer to Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170. There, the Supreme Court had to consider whether the Crown, Attorney General and Crown attorneys are immune from suit for malicious prosecution. There the court held that the question of prosecutorial immunity could be decided on a pre-trial motion.

The allegation that the Defendants made defamatory statements in unspecified media interviews to unnamed persons is a bald allegation that should be struck. (Rule 21.01(1)(a))

[21] The Defendants cite the decision of Guergis v. Novak, 2013 ONCA 449; (2013), 116 O.R. (3d) 280 at para. 52, where the Court of Appeal recently held that:

The right to plead a defamatory statement that was made to certain unnamed persons is restricted to the case where the plaintiff has made out a prima facie case that the statement was made to a named person and has produced un-contradicted evidence of publication to other persons.

[22] The Defendants allege there is no evidence, let alone un-contradicted evidence, that the defamatory words uttered by the Defendants in the council meeting were published by them to anyone outside it.

The allegation is out of time because the purported notice of June 11, 2013 failed to provide any specifics of the publication of the alleged libel.

[23] Here the Defendants rely on s. 5(1) and s. 6 of the Libel and Slander Act which provide as follows:

5 (1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

6 An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.

[24] The Defendants argue that it is necessary that the notices must “specify” the publication with enough particularity for the Defendants to attempt to respond to the Plaintiff’s allegations in the newspapers or broadcasting stations where the alleged libel was disseminated. The purpose of s. 5(1) is to enable the defendant to avail him/herself of an opportunity to justify or apologize in order to limit damages. Without specification of the name of the newspaper or broadcaster and the date of publication, the purpose of s. 5(1) is frustrated.

[25] The Defendants further argue that s. 6 necessarily implies that the Plaintiff must name the newspaper or the broadcasting station in the notice as a condition of being able to rely on this “tacking on” provision. The Defendants say that a June 11, 2013 letter from Plaintiff’s counsel provided no specifics whatsoever of when the alleged libels were published or by whom. They say they should not be required to scour all possible media sources to determine where and when the alleged the alleged libels were published.

[26] Given the Plaintiff’s failure to specify the media sources in her notice of June 11, 2013, the Defendants submit that the allegations in paras. 17 and 18 are out of time.

The Position of the Plaintiff

[27] The Plaintiff’s first position on this motion is that it is judicially confirmed law that municipal speech is subject to qualified and not absolute privilege. In the alternative, the Plaintiff submits that there is no reason why absolute privilege ought to be extended to municipal speech. The case law requires that the parties seeking to expand the scope of absolute privilege must show the necessity for such expansion. The Plaintiff argues that the Defendants have provided no persuasive argument, nor any explanation, not even a hypothetical one, that municipal councillors require the ability to knowingly and with malice, defame each other and others in council. Finally, the Plaintiff submits that the Defendants are seeking to expand the law with a novel argument and that it is not appropriate to do so on pleadings motion.

Municipal speech is protected by qualified privilege

[28] The Plaintiff also relies on the decision of Prud’homme v. Prud’homme where the Supreme Court summarizes the level of privilege applicable to municipal speech in Canada. In considering the possible defences available to a municipal councillor, the Court examined qualified privilege. After first stating that “elected municipal officials do not enjoy the parliamentary privilege enjoyed by members of the National Assembly of Quebec or of the federal Parliament,” the Court considered to what extent municipal councillors can invoke qualified privilege and ultimately included that they can since it forms part of the public law.

[29] That municipal speech is specifically covered by qualified privilege has been affirmed by courts throughout Canada. This has been confirmed law since at least the early 1900’s and has been reaffirmed in Ontario at least as recently in the 2012 decision in Foulidis v. Baker, (2012) CarswellOnt 16514 (Ont. S.C.J.); 2012 ONSC 7295, where the court confirmed that Toronto city council meetings were an occasion of qualified privilege.

[30] The Plaintiff also cites the Hill v. Church of Scientology of Toronto (1994) CarswellOnt 929 (Ont. C.A.); O.R. (3d) 385, and argues that the Courts have considered United States cases in a number of defamation issues. They have found that the approach taken by the United States courts successively favors freedom of expression over protection of reputation. For this reason, the Plaintiff says there is a clear difference in the analysis in Canada than in the United States.

[31] The Plaintiff notes that the United Kingdom has recently published an updated Defamation Act in order to conform to modern concerns regarding defamation. In amending the Act, parliament opted not to expand the definition of absolute privilege over what this privilege applies to. In the U.K., the courts have refused to extend absolute privilege to municipal councillors. In Horrocks v. Lowe, [1975] A.C. 135; [1974] 2 W.L.R. 282, the Court affirmed that the privilege afforded to municipal councillors is not absolute but qualified.

Should the issue be decided on an interlocutory motion?

[32] The Plaintiff has provided a number of decisions where our courts have decided that matters of law which have not been fully settled in the jurisprudence should not be disposed of at the interlocutory stage of proceedings. The Plaintiff also refers to a more recent decision of MacDonald v. Freedman, (2013) CarswellOnt 15290 (Ont. S.C.J.); 2013 ONSC 812. In that decision, a doctor was sued for defamation for sending an email to the Ontario Minister of Health and the College of Physicians which use strong language to describe their practice of a colleague with whom he disagreed regarding a new theoretical treatment for multiple sclerosis. In that case, the defendant brought a motion for Summary Judgment on the grounds of various defences, including that the email was that was sent, was protected by absolute privilege.

[33] The Divisional Court upheld the motion judge’s conclusion that:

[…] the question of whether the Email is subject to absolute privilege is a novel one that requires a full factual record, as well as the full forensic machinery of a trial so that a jury will have an opportunity to hear and assess the two main protagonists. [emphasis added]

[34] The Plaintiff maintains that Rule 21 motions should only succeed based on clear and settled law, novel arguments must proceed to trial in order to be considered in a fulsome manner.

[35] The Plaintiff submits that this is especially true on this motion where the Defendants make ample factual assertions and submissions without any evidence in support of same. These submissions include comparing and analogizing the federal and provincial legislatures to municipal councils, while ignoring the machinery in the former two to deal with defamatory remarks without resort to civil litigation. The Defendants’ submissions with respect to the ominous chilling effect if municipal speech is not protected by absolute privilege, are made without any evidence to support this proposition.

The Newham Factors

[36] The Plaintiff submits that the decision and test set out in the United Kingdom decision in S. v. Newham LBC, [1998] E.M.L.R. 583 is not authoritative or binding on this Court. The Plaintiff relies on the recent decision of the Court of Appeal in Amato v. Welsh, (2013), ONCA 256. Amato is another case where the defendants sought to quash a defamation action at a preliminary stage by asserting that absolute privilege ought to apply to an expanded scope of speech and were denied by the motions judge, Divisional Court, and then by the Court of Appeal. Importantly, the Court of Appeal confirmed the extremely high burden to be met by those who seek to expand the doctrine of absolute privilege at paragraph 70:

[70] I find support for this conclusion in the stated reluctance of appellate courts to expand the reach of the absolute privilege doctrine. Recall again the admonition expressed by the High Court of Australia in Mann, at p. 907, that any extension of the doctrine is viewed with “the most jealous suspicion, and resisted”, absent a clear showing of its necessity. [emphasis added]

[37] The Plaintiff submits that the Defendants have failed to make any compelling arguments then an expansion of absolute privilege is necessary. The Plaintiff further submits the lack of evidence permitted on a pleadings motion makes it impossible to show the necessity of the doctrine’s expansion. For example, the Defendants’ reference to a concept of a chilling effect should absolute privilege not be expanded. There is no evidence, factual or expert, that any chilling effect has occurred in the bulk of Canadian and other jurisdictions where municipal politicians are not afforded municipal speech. In response to the Newham factors, the Plaintiff says as follows:

1. What is the nature and importance of the interest which the Defendant is seeking to protect?

[38] The Plaintiff points out that the Defendants, and all municipal politicians, by virtue of qualified privilege, are already afforded protection over anything they say at council meetings other than speech that is knowingly wrong and fueled by malice. There is no evidence or argument made on this motion or elsewhere that it is in the public interest to protect such municipal speech.

2. Is the scale and risk of damage to that interest sufficiently serious to create a pressing need to protect that interest?

[39] The Plaintiff again says there is no pressing need to protect municipal speech with absolute privilege. There is no evidence of any public outcry or slew of litigation relating to municipal speech that has hindered the ability of municipal councils to perform their function in due course. The Plaintiff submits that the reason the Defendants have not been able to find any supporting Canadian case law is because the doctrine of qualified privilege more than satisfies the protection required for municipal speech.

3. What is the breadth of the immunity that will have to be granted in order to provide protection for the interest?

[40] The Plaintiff states the Defendants are seeking protection for speech made by councillors in the course of their “legislative functions” that is knowingly wrong and fueled by malice. The Plaintiff submits that there is no requirement or necessity that municipal speech be protected by absolute privilege.

4. As a matter of principle, would it be appropriate to extend to this situation the immunity from suit which has been applied in other situations?

[41] The Plaintiff submits that the historical backbone for absolute privilege in parliament and the provincial legislature is the ability and necessity that the legislatures govern themselves accordingly.

[42] There are two significant differences between legislatures and municipal council: the source of their authority and the procedures they use. The legislatures (federal and provincial) are given authority by the Constitution, and their powers are divided accordingly, with all residual authority invested in them. Municipal council’s authority originates from legislation, granting authority from the provincial legislature.

[43] In addition to these conceptual differences, the greatest difference that affects absolute privilege is the rules and regulations governing the behaviour of those in legislature versus those in municipalities. The House of Commons, in particular, has a significant body of rules and regulations and authority to insure that the quality of decorum is upheld in the House of Commons. The rules for parliamentary procedure are complicated and require a regular publication in order to navigate them. The parliamentary procedures in the House of Commons are founded on the Constitution and statutes, the Standing Orders of the House, Speakers’ rulings and House practice.

[44] The general rules encourage members not to name individuals specifically within their parliamentary speech. If they are found to make comments that are inappropriate, the speaker has a variety of recourse measure that may be employed, from simply requiring an apology, to naming the Member and ejecting them from Parliament until they will retract their comments. Provincial legislature has a similar scheme for managing assembly.

[45] The Plaintiff notes that some American decisions set out an important distinction between situations where absolute privilege typically applies and where it does not. Namely, absolute immunity should be confined to cases where there is supervision and control by other authorities.

[46] The Plaintiff notes that at all relevant times, no such code of conduct existed and no integrity commissioner was appointed in the County of Frontenac. These potential safeguards are optional for municipalities, which is a key distinction between municipalities and legislatures and this mitigates in favor of maintaining the status quo of qualified privilege as applicable to municipal speech.

5. Is the risk to the public interest so great that it should override the public interest that a person should be entitled to have access to the courts to seek a remedy for the wrong which he alleges he has suffered?

[47] The Plaintiff submits that the Defendants have attempted to flip the burden approving that expanding absolute privilege include municipal speech is clearly necessary. The Plaintiff submits that without providing any evidence of any deleterious effects of only providing municipal speech with the protection of qualified privilege, the Court is inappropriately forced to evaluate the Defendants’ request in a factual vacuum and potentially delivering all ill-considered opinion without due consideration for the ramifications associated with accepting the primacy of freedom of municipal officials to maliciously and knowingly defame each other or others over the individual’s right to the protection of his or her reputation.

The Bald Allegation

[48] The Plaintiff refers to paragraph 16 of the Statement of Claim which confirms that the statements made in the media interviews were defamatory words that formed the content of the motion. The Plaintiff says it is un-contradicted that the motion was circulated and spoken to those at the council meeting. Further, the articles in the Frontenac News and The Kingston Whig-Standard at Tabs 4(b) and (c) of the Amended Motion Record serve as sufficient evidence to overcome this challenge as they provide un-contradicted evidence of publication to other persons. The Plaintiff, therefore, says the broader allegation at paragraph 16 is permissible and ought not to be struck since particulars were provided in counsel’s letter of June 11, 2013.

Notice under the Libel and Slander Act

[49] The Plaintiff maintains that the overall framework of s. 5(1) of the Libel and Slander Act is intended to provide defendants with an opportunity to limit the damage of their defamatory remarks. In Boyer v. Toronto Life Publishing Co., (2000) CarswellOnt 875 (Ont. S.C.J.); (2000), 2000 22369 (ON SC), 48 O.R. (3d) 383, the Court held at paragraph 18:

Section 5(1) requires only that the defendant be given “notice in writing.” As observed by the Court of Appeal in Grossman and by the Supreme Court of Canada in Knott, there is no form of notice required or provided by the Act. There is also nothing in the wording of section 5(1) which says that the notice must be “directed” to the defendant. It simply requires that notice be given.

[50] Furthermore, the Plaintiff submits that it is inappropriate to strike a portion of the Plaintiff’s claim on a pleadings motion based on a novel interpretation of s. 6 of the Libel and Slander Act. Once again, the Plaintiff says a full and factual record is required to determine who knew what and when. As stated above, the Plaintiff states the purpose of notice is to provide defendants with an opportunity to limit the damages of their defamatory remarks. In this case, the Plaintiff states that the Defendants were aware of their defamatory remarks and the location of their publication as the invited the media to the council meeting.

[51] The Defendants’ previous counsel responded to the notice letter provided by the Plaintiff on June 18, 2013 and his letter disclosed no confusion regarding what defamatory remarks were made nor to whom.

Analysis and conclusion

Statements made in the course of the council meeting

[52] I am persuaded by the arguments of the Plaintiff. I am satisfied that Canadian courts have determined that municipal councillors do not enjoy absolute privilege for comments made in the course of their council meetings.

[53] In his text Brown on Defamation, looseleaf (Toronto, ON: Carswell, 1994), the author explains that absolute privilege has been extended to high officials, communications made during parliamentary proceedings, and communications made in the course of, or incidental to judicial or quasi-judicial proceedings. This principle is set out in Stopforth v. Goyer, (1978) CarswellOnt 563 (Ont. S.C.J.) at para 44:

44 the proceedings of the legislative body are absolutely privileged and words spoken in the course of a proceeding in Parliament can neither form the basis of nor support either a civil action for a criminal prosecution. In Church of Scientology of California versus Johnson-Smith, [1972] 1 All E.R., Browne, J. pointed out that in Blackstones Commentaries, (17th ed. 1830), Vol. 1 p.163, it is stated:

… There anything arising concerning the house to be examined, discussed, and adjudged in the house and not elsewhere. The house must have complete control over its own proceedings and its own members.

[54] The above excerpt shows an important part of the historical justification for absolute privilege; namely the ability of the legislature to examine, discuss, and judge’s its own members. Absolute privilege in Parliament is established in sections 4 – 6 of the Parliament of Canada Act R.S.C. 1985, c. P-1 and with regard to the provincial legislature, absolute privilege was affirmed in the Legislative Assembly Act, R.S.O. 1990, c. L. 10 at s. 37.

[55] The principles of supporting qualified privilege are similar to those supporting absolute privilege. Under certain circumstances, the public welfare allows an individual to make prejudicial statements without fear of redress. Qualified privilege is a level of protection that falls just short of absolute privilege. Qualified privilege seeks to strike a balance in situations where the public interest leans towards the prequel discourse of information, with honest belief and lack of malice being the only limitations to the defence:

[56] In Prud’homme, the Supreme Court of Canada provided an extended and detailed discussion of privilege. The court’s entire discussion of qualified privilege was predicated on the fact that municipal counselors do not enjoy absolute privilege. Although, the defendants first attempted to describe the Supreme Court’s comments as obiter dicta or as not being binding, in R. v. Henry, (2006) SCC 76 (S.C.C.) that Court said at para 30:

All obiter to do not have, and are not intended to have the same weight. The weight decreases as one moves from the dispositive ratio decidendi to all wider circle of analysis which is obviously intended for guidance in which should be accepted as authoritative.

[57] The Supreme Court’s comments in Prud’homme were indeed part of a “wider circle of analysis” which should be accepted as authoritative. That municipal speech is specifically covered by qualified privilege has been affirmed by courts throughout Canada. As noted by the plaintiff, this has been recently reaffirmed in Ontario in the 2012 decision in Foulidis. Appellate Courts in British Columbia and in Newfoundland have adopted the same conclusion.[^2]

[58] As for the American authorities, the Plaintiff notes that an equal number of states deny the protection of absolute privilege to municipal councils as accord it. As noted earlier, Canadian courts have refused to extend principles used in United States defamation cases to Canadian jurisprudence. Our courts, (see Hill), have considered United States case law in a number of defamation proceedings. They have found that the approach taken by the United States courts excessively favours freedom of expression over protection of reputation. Moreover, the extension of absolute privilege to municipal speech, as advocated by the defendant and has occurred in some American states, has not been followed in or mirrored in Canada or in the United Kingdom.

[59] I accept the Plaintiff’s argument that the party seeking to expand absolute privilege has the burden of showing necessity of such an expansion. As the Court of Appeal said in Amato in para 70:

I find support for this conclusion in the stated reluctance of the public courts to expand the reach of the absolute privilege doctrine. We call in the admonition expressed by the High Court of Australia in Mann, at p.907, that any extension of the doctrine is viewed with “the most jealous suspicion and resisted” absent a clear showing of its necessity.

[60] In this case, the Defendants repeat that there is no good reason not to extend absolute privilege to municipal speech. In doing so, the defendants ignore that the burden is on them to clearly demonstrate the necessity for such an expansion. Their argument can be reduced to this; Parliament and the legislatures have absolute privilege, therefore we should have it too.

[61] The lack of evidence permitted on the pleadings motion makes it impossible to show the necessity of the doctrine’s extension. The Defendants continually refer to the concept of the “chilling effect” should the absolute privilege not be extended. In this, case there is no evidence, factual or expert, that any chilling effect has occurred in Canada and in other jurisdictions where municipal politicians are not afforded absolute privilege.

[62] The fact that the Defendants have not been able to find any supporting Canadian case law demonstrates that the doctrine of qualified privilege more than satisfies the protection required for municipal speech. There are two significant differences between legislatures and municipal Council: the source of their authority and the procedures they use. The legislatures (federal and provincial) are given authority by the Constitution, and their powers are divided accordingly, all residual authority is invested in them. Municipal councils’ authority originates from legislation, a grant of authority from the provincial legislature.

[63] The greatest difference that affects absolute privilege is the rules and regulations governing the behavior of those in legislature versus those municipalities. The House of Commons has a significant body of rules and regulations authority to reserve any reports or literature concerning the same that may not satisfy the quality of decorum upheld in the House of Commons. The rules for parliamentary procedure are complicated. The parliamentary procedures and practices of the House of Commons are founded on the Constitution and statutes, the standing orders of the house, speakers rolling house practice. The main source of authority and for maintaining decorum is Standing Orders, a type of announcement issued by the House.[^3]

[64] If members of Parliament and the legislature make comments that are inappropriate, the Speaker has a variety of recourse measures that may be employed, from simply recording apology, naming the member and ejecting them from Parliament until they will retract their comments.

[65] While sections 223.2 and 223.4 of the Municipal Act, 2001, S.O. c. 25 now provide municipalities with the opportunity to Institute codes of conduct and to appoint integrity commissioner’s, no such Code of Conduct existed and no integrity commissioner was appointed in the County of Frontenac. These potential safeguards are optional for municipalities which is a key distinction between municipalities and legislatures. Since these safeguards are optional and are not a standard feature across the province, let alone the country, it is impossible to make a pronouncement on the issue of privilege for municipal speech in the absence of any evidence of the effect of such measures.

[66] Even if I am wrong on that point, the issue should be decided on a full factual record. The Defendants are seeking to decide new law. I am of the view it is improper to resolve this issue on a pleadings motion. The Nelles decision is not determinative. We do not have the full factual evidentiary record that was before the trial court and the Court of Appeal. Further, the immunity of crown prosecutors in that case was set out in a statute. In any event, the Supreme Court ruled that in the interests of public policy, an absolute immunity for the Attorney General and his agents, the Crown Attorneys, was not justified. Absolute immunity would have the effect of negating a private right of action and would constitute a threat to individual rights of citizens who have been wrongly and maliciously prosecuted. Absolute immunity is exactly what the Defendants are seeking here.

[67] Ontario courts have repeatedly held that matters of law which have not been fully settled in our jurisprudence should not be disposed of at the pleadings motion. See: R. D. Belanger & Associates Ltd. Stadium Corp of Ontario Ltd. (1991) CarswellOnt 735 (Ont. C.A.)[^4] More recently, MacDonald v. Freedman, (2013) CarswellOnt. 15290 (Ont. S.C.J.), a defendant brought a motion for summary judgment on the grounds of various defences including that an e-mail sent was protected by absolute privilege The Divisional Court upheld the motions judge’s conclusion that that question of whether the e-mail was subject to absolute privilege was a novel one that requires a full factual record.[^5]

[68] Although specifically referencing Rule 21.01(1)(b), the Court of Appeal in Amato concluded at para 89:

89 I therefore return to where I began -- to the test on a motion to strike under rule 21.01(1)(b). It is not the function of the courts on a pleadings motion of this kind to resolve unsettled, complex or novel questions of law. In the present context, it is not the role of the courts on such a motion to determine a contest between, on the one hand, a defence based on the application of the absolute privilege doctrine and, on the other hand, a client's right to advance a claim tethered to a lawyer's alleged breaches of his or her fiduciary duty and duty of loyalty. As this court stated in Reynolds, at para. 13, there is abundant authority in Ontario for the proposition that: "[a]t the interlocutory stage of proceedings, the court should not dispose of matters of law that are not fully settled in the jurisprudence. Such issues should be decided at trial on the basis of a full evidentiary record."

[69] This is especially true on this motion for the Defendants make factual assertions and submissions without any evidence in support of them. These submissions include comparing and analogizing the federal and provincial legislatures to municipal councils, while ignoring the machinery in the former to deal with defamatory remarks without resort to civil litigation. The defendant submissions also reference the ominous chilling effect to municipal speech is not protected by absolute privilege, again without any evidence in support of this proposition.

Statements made outside the council chamber

The Bald Allegation

[70] Paragraph 16 of the statement of claim states: “Following the motion, the defendants conducted media interviews wherein they reiterated the defamatory words set out in the aforesaid motion.”

[71] In the Guergis decision cited by the defendants, the Court of Appeal stated at paragraph 52:

The right to plead that a defamatory statement was made to a certain unnamed persons is restricted to the case where plaintiff is made out a prima facie case that the statement was made to a named person and has produced uncontradicted evidence of publication to other persons.

[72] This is precisely what has occurred in this case. It is uncontradicted that the motion was circulated and spoken to those at the Council meeting. Further the articles produced by the defendants in their Amended Motion Record are uncontradicted evidence of publications to other persons. Since particulars have been provided, the broader allegation of paragraph 16 is permissible; and even if it were struck, the plaintiff would be given leave to amend.

Notice under the Libel and Slander Act

[73] In this case, I am satisfied that notice has reached the Defendants and there is no doubt that the notice was intended for them; and therefore was sufficient pursuant to s. 5(1) of the Libel and Slander Act. The purpose of the notice is to provide Defendants with an opportunity to limit the damages of their defamatory remarks. In this case, the defendants were aware of the defamatory remarks complained of. They were given notice that their statements had been reported in the press. In their response to the Notice Letter of June 11, 2013, the Defendants expressed no confusion regarding what defamatory remarks were made nor to whom. In fact, they sought to have their allegations further reported to the Minister of Municipal Affairs and Housing. Notice was given and it is premature to declare the action statute-barred. Once again, a full factual record is required.

[74] For these reasons, the Defendants’ motion is dismissed in its entirety. Parties may make brief submissions (not exceeding three pages) with respect to costs within 20 days the release of this decision

­­­­­­­­ ______________________________
The Honourable Justice R. Beaudoin

Released: May 26, 2014

REASONS FOR JUDGMENT

Beaudoin J.

Released: May 26, 2014

[^1]: See: Chenard and Company v. Arrisol, [1949] A.C. 127 at 133-134 (P.C.) per Lord Reid.
[^2]: See Baumann v. Turner, (1993) CarswellBC 230 (B.C.C.A.) and Wells v. Sears, (2007) CarswellNFLD. (C.A.)
[^3]: House of Commons Procedure and Practice Second Edition (2009); Annotated Standing Orders of the House of Commons Second edition (2005); standing Orders of the Legislative Assembly of Ontario, s. 12-20
[^4]: See also Portuguese Canadian Credit Union Limited v. Cumis, (2010) ONSC 6107(Ont. S.C.J.) at para 46; Ontario New Home Warranty Program et al. v. The stratum Realty Development Corporation et al. (2005) 10555 (ONSC) at para 8;.
[^5]: at para 45