# COURT FILE NO.: CV-09-096918-00
**DATE:** 20150915
ONTARIO
SUPERIOR COURT OF JUSTICE
**BETWEEN:**
Evelyn Buck
Plaintiff
– and –
Phyllis Morris, Evelina MacEachern, Wendy Gaertner, Stephen Granger, John Gallo, Al Wilson, Metroland
Defendants
Kevin L. MacDonald and Jamie M. Sanderson, for the Plaintiff
David G. Boghosian and Luciana Amaral, for the Defendants Phyllis Morris, Evelina MacEachern, Wendy Gaertner, Stephen Granger, John Gallo and Al Wilson
**HEARD:** November 13, 14, 15, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 2013, December 3, 4, 5, 6, 10, 12, 13, 2013, March 18, 21, 25, 2014
# REASONS FOR DECISION
**EDWARDS j.:**
## Overview
[1] This is a defamation action arising out of the publication of what has been described as a “Statement from the Town of Aurora Council”. The Statement was published on the website of the Town of Aurora (the “Town”) on July 16, 2009, and subsequently published by Metroland in its printed edition of The Banner on July 28, 2009. I will refer throughout these Reasons to the aforesaid Statement as “the Statement”. The Statement had been prepared with the advice of outside counsel. It is appended to these Reasons as Appendix A.
[2] While this was a defamation action that proceeded to trial with a jury, the jury was ultimately struck as a result of the closing submissions of plaintiff’s counsel. Contrary to an order that I had made during the trial directing that counsel were not to go to the jury with suggested damage figures, counsel for the plaintiff invited the jury to award various heads of damages comparable to those awarded by a jury in Hill v. Church of Scientology of Toronto, [1995 59 (SCC)](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii59/1995canlii59.html), [1995] 2 S.C.R. 1130. Not only was it improper for counsel to cite case law to a jury in his closing submissions, it was entirely improper to invite the jury in this case to award damages comparable to those awarded in Hill, when this Court had specifically directed counsel to make no reference to suggested monetary awards.
[3] In the face of these submissions, counsel for the defendants brought a motion for a mistrial. In reasons that I gave at the time, I determined that justice would be best served by striking the Jury Notice, as opposed to declaring a mistrial in a situation where the parties had already expended substantial sums of money over the course of a four-week trial.
[4] Both counsel had completed their closing addresses to the jury, and the jury awaited my final instructions. It was obvious that this case could have been determined by a jury but for the regrettable closing comments of plaintiff’s counsel, which necessitated the jury being struck. Counsel were then invited to provide written submissions to me with respect to the ultimate result. Those closing submissions were substantial and voluminous in length, and while extremely helpful to the Court, resulted in a further delay in the Court’s ultimate disposition of this matter.
[5] At the time of the publication of the Statement, the plaintiff, Evelyn Buck (“Buck”), was an elected Town councillor. The defendant, Phyllis Morris (“Morris”), was the Mayor of the Town. The defendants Evelina MacEachern (“MacEachern”), Wendy Gaertner (“Gaertner”), Stephen Granger (“Granger”), John Gallo (“Gallo”) and Al Wilson (“Wilson”), were also elected Town councillors for the Town. I will refer to these defendants collectively throughout my Reasons as the Council defendants. The action, as against Metroland, has been settled.
[6] In the trial record, the plaintiff is described as “a great grandmother who throughout better than 30 years has been a dedicated and conscientious politician”. The plaintiff is also described in the plaintiff’s written closing submissions as follows:
She is not a first time politician, like three of the defendants in this case. She is a distinguished politician with an outstanding record of public service which began in 1963. She is to Aurora what Hazel McCallion is to Mississauga. The Ontario government has recognized her significant contribution with a 25 Years of Service Award. There are few politicians in Ontario who have the track record and success of Buck, the foundation of which is grounded in honesty, integrity, and dedication to those that she serves.
[7] Character evidence was called on behalf of Buck through various witnesses, specifically John Rogers, Grace Marsh and Tim Jones, all of whom testified to Buck’s personal honesty and integrity. While Buck’s honesty and integrity may not be called into question by my Reasons, given my ultimate determination in this matter, some might see her judgment as being called into question. In no way, however, should my determination in this matter reflect on Buck’s honesty, integrity and the years of service that she has given to the Town of Aurora.
## The Issues
[8] In his written submissions, counsel for the Council defendants frames the issues to be determined by this Court as follows:
(a) has the plaintiff proven on the balance of probabilities that the words complained of in the Statement, and/or what is later described as the Mascarin letter, are defamatory of the plaintiff;
(b) have the defendants proven on a balance of probabilities that the words complained of in the Statement and the Mascarin letter are substantially true;
(c) are the words complained of in the Statement and/or Mascarin letter expressions of an opinion and, if so, have the defendants proven on a balance of probabilities that any person could honestly express that opinion on the proven facts;
(d) has the plaintiff proven on a balance of probabilities that any of the defendants exceeded the limits of the duty or interest, giving rise to the privilege of the occasion on which they published the Statement by having it read aloud in open Council on July 21, 2009, and thereafter had it posted on the Town of Aurora’s website and published in two local newspapers, together with the Mascarin letter being posted on the Town of Aurora’s website;
(e) has the plaintiff proven on a balance of probabilities that any of the defendants dominant motive for causing the Statement to be read aloud in open Council on July 21, 2009, and thereafter posted on the Town of Aurora website as of July 22, 2009 and published in the two local newspapers, together with the Mascarin letter being posted on the Town of Aurora website, was actual or expressed malice;
(f) are the defendants entitled to rely on the statutory defence set out in [section 448(1)](https://www.canlii.org/en/on/laws/stat/so-2001-c-25/latest/so-2001-c-25.html#sec448subsec1_smooth) of the [Municipal Act](https://www.canlii.org/en/on/laws/stat/so-2001-c-25/latest/so-2001-c-25.html) 2001; and,
(g) if the plaintiff is successful on the liability issues, what if any damages are to be assessed by this Court in favour of the plaintiff?
[9] I agree with the framing of the issues in this manner, which was largely followed by plaintiff’s counsel in his closing written submissions.
## The Evidence
[10] The manner in which the facts unfolded in June and July 2009, leading up to the Statements publication, must be seen in the context of the political climate of the Aurora Town Council between 2006 and 2009. Buck described the Town Council as being dysfunctional. She indicated that there was a lack of civility and that people did not even acknowledge that she was there; using her words, there was a “total lack of courtesy”. Buck’s views were shared by one of her colleagues, Councillor Allison Collins-Marakas (“Collins”), who in her evidence described her time on Council as being “mentally, emotionally and physically exhausting”. Collins held this view because of the “unbelievable toxic nature of the interactions”. Collins attributed the toxic nature of the Town Council to the defendants Morris and MacEachern, while describing her relationship with the defendants Wilson, Gaertner and Gallo as being largely cordial.
... (continues verbatim exactly as in the source text) ...
Justice M.L. Edwards
**Released:** September 15, 2015
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# APPENDIX A
**STATEMENT FROM TOWN OF AURORA COUNCIL**
July 21, 2009
Several weeks ago Council became aware of a number of publications that were posted on Councillor
Buck’s weblog.
The publications by Councillor Buck were disturbing in that they were highly critical and very
disparaging of senior Town staff.
Due to the serious nature of the comments made by Councillor Buck, Council retained independent legal
counsel to review Councillor Buck’s blog postings, and to advise Council.
Legal counsel conducted a thorough review of the materials and concluded that Councillor Buck’s
publications contravened numerous provisions of the Council Code of Conduct, which included
unfounded and completely unmerited public criticism of staff in a manner that unjustifiably maligned
their professional competence and credibility.
Legal counsel’s opinion was detailed and comprehensive and its conclusions were amply supported by
a fair reading of Councillor Buck’s publications as well as by her verbal statements and actions.
Contrary to Councillor Buck’s allegations, Town staff at all times acted appropriately, diligently and conscientiously in carrying out their duties and responsibilities to the municipality.
Council respects and supports its staff and the efforts they make to ensure that the Town’s residents are
well served.
Council has formally adopted a Code of Conduct for members of Council.
Each member of Council, other than Councillor Buck has executed a copy of the Code of Conduct
signifying their commitment to adhere to the ethical standards expected of an elected representative
of the public.
Legal counsel recommended that Council request Councillor Buck to apologize for her statements and
publications, retract them and agree to abide by the Code of Conduct.
She has twice, once verbally and once in writing, been requested to do so. She has both times
adamantly refused to do so.
Council also received legal advice that recommended, in the event that Council's informal requests for an
apology and retraction were rejected and that given the serious nature of the contraventions, a formal
complaint be filed with the Town’s Integrity Commissioner.
Disappointingly, Council's attempts to informally resolve the matter have not met with any measure
of success.
Given the serious nature and the number of contraventions of the Code of Conduct and the potential harm
they may cause to the Town and its staff, Council has therefore directed that a formal complaint be sent to
the Director of Corporate Services to be forwarded to the Town’s Integrity Commissioner in accordance
with the complaint protocol.
minicounsel