Absolute privilege-Gutowski v. Clayton, 2014 ONCA 921

COURT OF APPEAL FOR ONTARIO

Blair, Pepall and Lauwers JJ.A.

BETWEEN

Janet Gutowski

Plaintiff   (Respondent)

and

Bud Clayton, John McDougall, David Jones and Denis Doyle

Defendants (Appellants)

C. Kirk Boggs and Kirk F. Stevens, for the appellants      

Keith A. MacLaren and Owen Bourns, for the respondent

Heard: November 25, 2014

On appeal from the order of Justice Robert N. Beaudoin of the Superior Court of Justice, dated May 26, 2014.

Blair J.A.:

Overview

[1]          The primary issue on this appeal is whether the defence of absolute privilege applies to statements made by municipal councillors during the course of a municipal council meeting. 

[2]          On a motion for the determination, before trial, of a question of law under rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Justice Beaudoin held that it does not.  I agree.

[3]          The parties are all elected members of the council of the County of Frontenac, a municipality in the Province of Ontario.  At a regularly scheduled council meeting on May 15, 2013, the defendant Jones made a motion – seconded by the defendant Doyle and approved by the other two defendants – alleging that the plaintiff Gutowski had engaged in a form of corruption and the “peddling of political favours”, and had lost the trust of council.  Jones is also alleged to have asked, rhetorically, “What other tricks has she been up to?”

[4]          Ms. Gutowski took umbrage at these statements and commenced this action for defamation.  The defendants pleaded, amongst other things, the defences of absolute privilege and qualified privilege.  They then moved for a determination of a question of law and asked to have the allegations of defamation struck on the basis that the words were uttered on an occasion of absolute privilege.

The Defence of Absolute Privilege for Municipal Councillors

Current Canadian Law

[5]          In careful reasons, Justice Beaudoin concluded that municipal councillors do not enjoy absolute privilege for comments made during council meetings.  In doing so, he followed the decision of the Supreme Court of Canada in Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663, where, at para. 49, the Court said:

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-leaf)), vol. 2, at pp. 12-20 and 12-21; J. Hétu, Y. Duplessis and D. Pakenham, Droit municipal: principles 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. 134-35).  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). [Emphasis added.]

[6]          Canadian and English authorities have long applied the concept of qualified privilege, not absolute privilege, to speech uttered during the course of a municipal council meeting.  In addition to Prud’homme, see, for example, Ward v. McBride (1911), 20 O.W.R. 93 (Div. Ct.); Baumann v. Turner (1993), 105 D.L.R. (4th) 37 (B.C.C.A.), at p. 53; Wells v. Sears, 2007 NLCA 21, 264 Nfld. & P.E.I.R. 171, at paras. 13 and 16, leave to appeal to S.C.C. refused, 289 Nfld. & P.E.I.R. 276 (note); Leger v. Edmonton (City) (1989), 63 D.L.R. (4th) 279 (Q.B.), at p. 284; Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 152.

[7]          The rationale underlying this approach was explained in Prud’homme, at paras. 42-45:

In 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[.]

…

That freedom of speech is not absolute. It is limited by, inter alia, the requirements imposed by other people’s right to the protection of their reputation. As Cory J. observed in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 108, reputation is an attribute of personality that any democratic society concerned about respect for the individual must protect[.]

…

[A]lthough it is not specifically mentioned in the Canadian Charter, the good reputation of the individual rep­resents and reflects the innate dignity of the individual, a concept which underlies all the Canadian Charter rights (Hill, supra, at para. 120).

Accordingly, while elected municipal officials may be quite free to discuss matters of public inter­est, they must act as would the reasonable person. The reasonableness of their conduct will often be demonstrated by their good faith and the prior checking they did to satisfy themselves as to the truth of their allegations. These are guidelines for exercising their right to comment, which has been repeatedly reaffirmed by the courts.

[8]          In my opinion, the motion judge did not err in concluding that “Canadian courts have determined that municipal councillors do not enjoy absolute privilege for comments made in the course of their council meetings.”  That is the state of the law as it presently stands in Canada.  Indeed, the appellants acknowledge this jurisprudence. 

[9]          However, they submit that all of the authorities expressing the law in that fashion were cases in which only the defence of qualified privilege was raised; none dealt squarely with whether absolute privilege applies to the speech of municipal councillors made during the course of council proceedings.  The appellants argue that:

(i) the courts have merely assumed absolute privilege does not apply, and have done so without any analysis of the authorities on which the proposition purports to be based or of whether it makes sense; 

(i) freedom of expression in public discourse is an overarching value in Canadian society, entrenched in the Canadian Charter of Rights and Freedoms; and

(ii) legislators (members of Parliament and the legislatures) enjoy absolute privilege; elected members of municipal councils perform an equally important role in modern society and require the same freedom to speak boldly and bluntly on issues that affect the welfare of their citizens.

Should Absolute Privilege Be Extended to Municipal Councillors?

[10]       The appellants’ real argument, then, is not that the state of the law is different from that articulated above, but that it should be different, and that absolute privilege should be extended to protect speech made in the context of municipal council meetings.  I disagree, at least on the basis of this record.

[11]       The appellants’ emphasis on the value Canadian society places on the right to freedom of expression in public discourse, and on the need for municipal councillors to be able to exercise that right in order to perform their role properly and effectively, alone, does not advance their position.  It is exactly that rationale which underpins the extension of qualified privilege to municipal councillors.  InPrud’homme, at para. 49, the Supreme Court of Canada quoted with approval the following statement from Lord Diplock in Horricks v. Lowe, 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 reasons 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]       If this same rationale – or some other – is to be used to extend the law of absolute privilege to apply to the speech of municipal councillors made during municipal council meetings, the issue should be determined after a full evidentiary hearing, in my opinion.  I agree with the motion judge’s conclusion to that effect.

[13]       To the extent that the appellants seek to develop an area of the law that is not fully settled, a Rule 21 motion is not the appropriate vehicle; such decisions should be based on a fully developed evidentiary record: R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 5 O.R. (3d) 778 (C.A.), at pp. 782-83; Law Society of Upper Canada v. Ernst & Young (2003), 65 O.R. (3d) 577 (C.A.), at para. 50, leave to appeal to S.C.C. refused, [2004] 1 S.C.R. viii. 

[14]       However, the appellants expressly disavowed the full-evidentiary route during argument.  They submitted that importance of freedom of expression and the need for municipal councillors to have the same protection as legislators were sufficient grounds on which to extend the privilege, and that absent such protection, a chilling effect could be presumed. 

[15]       I disagree, for two reasons.  First, the absolute privilege provided to legislators is recognized through legislation, and both Parliament and the legislatures have rules to govern their members’ conduct.  Members of the Council of the County of Frontenac are neither beneficiaries of the former nor subjects of the latter.  Secondly – as stated above – a full record is necessary to make this kind of a determination, and there is nothing in the record as it stands that indicates it is necessary to extend the privilege.

Lack of Legislative Authority and Conduct Controls

[16]       The absolute privilege granted to legislators is rooted deeply in the need for Parliament and the legislatures to have complete control over their own proceedings and their own members: Stopforth v. Goyer (1978), 20 O.R. (2d) 262 (H.C.), at p. 269, rev’d on other grounds, (1979), 23 O.R. (2d) 696 (C.A.); Church of Scientology of California v. Johnson-Smith, [1972] 1 Q.B. 522.  The legislative source for this extension of privilege can be traced as far back as the English Bill of Rights of 1689, and is now provided to parliamentarians in Canada and legislators in Ontario by the Parliament of Canada Act, R.S.C. 1985, c. P-1, ss. 4-6, and the Legislative Assembly Act, R.S.O. 1990, c. L.10, s. 37. 

[17]       This control over proceedings and members is accomplished through a complex framework of regulations and rules governing the members’ conduct and supervised by the Speaker.  This governing framework can lead to a variety of disciplinary measures, from requiring an apology to naming members and ejecting them until they retract their comments: House of Commons, Annotated Standing Orders of The House of Commons (Second Edition), (2005), s. 11; Ontario, Legislative Assembly, Standing Orders of the Legislative Assembly of Ontario, (2009), s. 12-23.  Common sense tells us that the existence of such a framework provides a deterrent to misspeaking in those bodies.

[18]       Sections 223.2 and 223.3 of the Municipal Act, 2001, S.O. 2001, c. 25, enable municipalities to institute codes of conduct and appoint integrity commissioners.  None existed for the County of Frontenac at the time.

[19]       Municipal councils are creatures of the Legislature.  If the Legislature had felt it important to extend absolute privilege to the speech of municipal councillors, it could have done so.  But it has not.

The Need for a Full Record if Absolute Privilege is to be Extended

[20]       Nothing in this record supports an extension of absolute privilege to municipal councillors, in my opinion. 

[21]       In this regard, I do not accept the appellants’ argument that the absence of the protection of absolute privilege is “presumed” to have a “chilling effect” on the ability of councillors to perform their function.  They rely on Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, for their submission that no evidence is required to establish the chilling effect flowing from the lack of a defamation defence.  However, I do not think that the affirmation of the defence of “responsible communication on a matter of public interest” by the Supreme Court of Canada in Grant (and in its companion decision in Cusson v. Quan, 2009 SCC 62, [2009] 3 S.C.R. 712), is of assistance to the appellants in these circumstances. 

[22]       Both Grant and Cusson involved statements made by a journalist in the press.  Unlike municipal councillors, who have ready resort to the defence of qualified privilege, journalists have only been able to avail themselves of that defence with difficulty because of the high threshold required to meet it and because the criteria for the reciprocal duty and interest required to establish it were unclear:Grant, at para. 34-37. Generally, journalists and publishers were confined to the defences of fair comment and justification, both of which place a premium on verifying the truth of the facts underpinning the statement – a task at times difficult for journalists to perform.

[23]       It was in the context of the limited defences available to journalists that the Supreme Court accepted the possibility of a chilling effect and concluded the extension of further protection was justified on the basis of the importance of freedom of expression in public debate.  No such limitation constrains a municipal councillor’s defence, however, because councillors have long had resort to the defence of qualified privilege.

[24]       While this Court has recently confirmed that “the boundaries of the absolute privilege doctrine are not firmly set” and that the “scope and application” of the doctrine “continue to evolve”, it at the same time underlined “the stated reluctance of appellate courts to expand the reach of the absolute privilege doctrine”: Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38, at paras. 68-70. In support of the latter observation, Cronk J.A. adopted the view of the High Court of Australia in Mann v. O’Neill, [1997] HCA 28, 191 C.L.R. 204, at p. 213, that “any extension of the doctrine is viewed with ‘the most jealous suspicion, and resisted’, absent a clear showing of its necessity” (at para. 70). 

[25]       As indicated, there is no such showing of necessity in the circumstances here.  Nothing in the record demonstrates that there is any need for municipal councillors to enjoy absolute privilege, or that the protection of qualified privilege is inadequate, and it would therefore be inappropriate to presume a chilling effect as requested by the appellants.

[26]       The appellants rely heavily on certain American jurisprudence affording the defence of absolute privilege for municipal councillors and similar officials for comments made during the course of municipal council and other meetings: see, for example, Sanchez v. Coxon, 854 P.2d 126 (Ariz. 1993); Board of Educ. of City of Buffalo (Buffalo Council of Supervisors and Administrators), 383 N.Y.S.2d 732, 52 A.D.2d 220 (1976); Chonich v. Ford, 321 N.W.2d 693 (Mich. Ct. App. 1982); Krueger v. Lewis, 834 N.E.2d 457 (Ill. App. Ct. 2005).  However, other American courts have come to the opposite conclusion: see, for example, Johnson v. Northside Residents Redevelopment Council, 467 N.W.2d 826 (Minn. Ct. App. 1991); McClendon v. Coverdale, A.2d 815 (Del. 1964); Mills v. Denny, 63 N.W.2d 222 (Iowa 1954); Zutz v. Nelson, 788 N.W.2d 58 (Minn. 2010).

[27]       I do not think it is helpful to engage in a debate about whether the majority of American states do, or do not, adhere to one side of the issue or another.  It is well-recognized that the Canadian approach to defamation does not mirror that of the United States.  Canadian courts have concluded that the approach taken by their American counterparts excessively favours freedom of speech over protection of reputation in the balancing exercise between those two important values: Hill v. Church of Scientology (1994), 18 O.R. (3d) 385 (C.A.), at pp. 418-24, aff’d [1995] 2 S.C.R. 1130.

[28]       On a motion for the determination of a question of law prior to trial, the onus is on the moving party – the appellants in this case.  In my opinion, they have not shown that it is “plain and obvious” the defence of absolute privilege extends to the speech of municipal councillors made in the course of municipal council meetings.  Indeed, the law as it presently stands in Canada is to the contrary.  To the extent the appellants seek to extend the scope and application of the law to provide municipal councillors with the immunity of absolute privilege, a Rule 21 motion is not the appropriate vehicle, as noted above.  Such decisions should be based on a fully developed evidentiary record – an approach the appellants have expressly declined to follow.

[29]       I accordingly reject this ground of appeal.

Other Grounds

[30]       The appellants raise two other issues. 

[31]       First, they submit that the respondent’s allegation in paragraph 16 of the statement of claim should be struck.  In that paragraph, the respondent alleges that the appellants reiterated the defamatory words from the council motion in media interviews conducted outside of the council chambers.  Relying on Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at para. 52, the appellants argue that because the statements within the council meeting were protected by absolute privilege, the allegation that the appellants reiterated their statements in interviews should be struck since the respondent does not allege that the words uttered in the meeting were published to any named person outside the council chambers.

[32]       This submission fails for two reasons.  First, the statements made in the shelter of the council meeting have not been found to be protected by absolute privilege.  Secondly, a pleading of a defamatory statement to unnamed persons is permissible if the plaintiff has made out a prima facie case that the statement was made to a named person and has produced uncontradicted evidence of publication to others: Guergis, at para. 52.  Both of these requirements were met in this case.

[33]       Finally, the appellants argue with respect to the out-of-council publications that the respondent failed to comply with the mandatory notice requirements contained in s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12.  They submit those allegations must therefore be struck.

[34]       The motion judge disagreed, as do I.

[35]       The respondent argues that she gave adequate notice by way of a letter from her solicitors dated June 11, 2013.  In a response dated June 18, 2013, the appellants’ solicitor acknowledged that his firm acted “for Bud Clayton, John McDougall, David Jones and Denis Doyle” and that “[t]heir letters from you to them dated June 11, 2013 have been referred to us for reply.”  While the June 18 letter responded only to the statements made during the council meeting, the June 11 letter from the respondent’s solicitors alerted the appellants to the complaint about their “dissemination of [their] defamatory statements” to the members of the press they had invited to the meeting.

[36]       No particular form of notice is required by s. 5(1) of the Libel and Slander Act.  Its purpose is to enable defendants to identify the defamatory remarks with sufficient clarity to enable them to limit their damage by way of retraction or apology: Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 D.L.R. (4th) 407 (C.A.), at para. 38.  The question is whether the notice identifies the plaintiff and fairly brings home to the publisher the matter complained of: Grossman v. CFTO-TV Ltd. et al (1982), 39 O.R. (2d) 498 (C.A.), at pp. 504-505, leave to appeal to S.C.C. refused, (1983), 39 O.R. (2d) 498n.

[37]        The motion judge found that sufficient notice had been given to the appellants. I agree.

Disposition

[38]       For the foregoing reasons, the appeal is dismissed.

[39]       In keeping with counsel’s agreement, the respondent is entitled to her costs of the appeal, fixed in the amount of $17,500 inclusive of disbursements and all applicable taxes.

Released: “R.A.B.” December 24, 2014

“R.A. Blair J.A.”

“I agree S.E. Pepall J.A.”

“I agree P. Lauwers J.A.”