Not All Democratic Debates Are Created Equal – Defamation and Municipal Proceedings

Last week, we discussed the law of defamation, and specifically how claims may be defeated where a recognized privilege exists to protect certain forms or venues for expression. This case illustrates how this privilege is applied in the context of municipal council proceedings.

Gutowski v. Clayton

A municipal warden brought a claim for defamation against four councillors for comments made during a regular council meeting. At the meeting, one councillor made a motion alleging that the warden had engaged in a form of corruption and the “peddling of political favours”, and had lost the trust of council. This motion was seconded by a further councillor and approved by two other councillors. The first councillor was also alleged to have asked, rhetorically, “[w]hat other tricks has [the warden] been up to”.

The warden sued for defamation. A number of defences were raised by the councillors, including that the comments in question were protected by privilege.

Municipal proceedings are not protected by absolute privilege

Although Canadian law has traditionally only applied qualified privilege to municipal council proceedings, the councillors argued that no Canadian Court has actually addressed the issue of whether absolute privilege applies to such proceedings directly and that, on a proper analysis, absolute privilege ought to apply because of the same public policy considerations that apply to parliamentary proceedings.

The councillors’ arguments were rejected by the Motions Judge and on appeal to the Court of Appeal. Both Courts distinguished municipal councils from federal and provincial legislatures and affirmed that it is established law in Canada that municipal council proceedings are not protected by absolute privilege. Leave to appeal to the Supreme Court of Canada was refused.

Municipal councillors must maintain good faith and honest intent

Accordingly, municipal councillors should be aware that they are only afforded the conditional protection of qualified privilege; they can be held liable for defamatory comments they make during council proceedings where such comments are not made honestly, in good faith and without malice.

The Court of Appeal did acknowledge that the boundaries of absolute privilege are not fixed in stone and can be expanded where it is shown to be necessary. However, if the boundaries of absolute privilege are to be expanded, this should only be done after a full trial at which all of the relevant evidence is heard. This decision was not made following a full trial, but rather on a motion to strike the claim under Rule 21.01(a) of the Rules of Civil Procedure, and the action settled before trial so it does not appear that expanded protections for statements made in municipal council proceedings are forthcoming.

Waterloo municipal and planning lawyers

At Duncan Linton LLP, our municipal and planning lawyers have decades of experience assisting both public and private actors with all manner of municipal matters, including situations of potential defamation. We offer practical, confidential advice that helps our clients make sound decisions about their legal rights.

Contact us online or call 519-886-3340 to make an appointment with one of our experienced lawyers.