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WHEN CAN A COUNCILLOR
BREAK THE NINTH COMMANDMENT?

A primer on a councillor’s legal duties and
the law of defamation in Canada.

International Municipal Lawyers Association
Toronto Conference
September 27, 1999

 

Charles M.K. Loopstra, Q.C.

You shall not bear false witness against your neighbour.1

Truth in relationships is divinely commanded and has been a pillar of our society. In an idealistic and moralistic society, where truth is an absolute virtue, uttering a falsehood would be considered reprehensible. In today’s society, we don’t put the same premium on the truth. The courts only apply sanctions against falsehoods if:

  1. they are made under oath (perjury);

  2. they are defamatory; or

  3. they constitute negligent or fraudulent misrepresentation.

Although there are a number of regulatory schemes in place which also require a certain standard of truthfulness (e.g. false or misleading advertising), generally the falsehoods which are actionable are confined to the above.

It is not surprising then that politicians have learned to push the envelope. Society is generally willing to accept broken promises and deceitful comments by politicians as the norm. In other words, politicians do break the Ninth Commandment with impunity. This paper will examine in a Canadian context what legal boundaries have been created with respect to such conduct.

A municipal councillor, unlike any ordinary citizen, is subject to the same general rules of conduct. There is no immunity from criminal or quasi-criminal conduct. Thus a municipal by-law is equally applicable to the politician who has enacted the by-law as it is to the ordinary citizen.

Civil conduct is governed by the "duty to my neighbour" principle. All of the common law provinces in Canada (with the exception of Quebec) have developed a set of standards through case law referred to as A private law duties". The law of negligence and defamation is largely developed through the common law. In some cases, the private law duties have been qualified, modified or regulated. As a result, there are statutes which must be read in conjunction with the common law principles such as the Libel and Slander Act and the Negligence Act. In some cases, statutory duties have been developed which were not recognized by the common law. An example would be the Municipal Conflict of Interest Act.

Municipal councillors are public authorities. They are elected officials and are distinct from other public authorities such as appointed officials and servants and agents of Government. This distinction is important since an elected municipal official is given statutory decision making powers. In some cases, he or she can exercise some discretion in the use of such powers. However, with the exception of the mayor (who, in rare cases, is given some special powers), councillors exercise those powers collectively. Since council speaks as a whole, and not through individuals, decisions of council are, regardless of how one voted, the only decision that is reviewable by the courts. For that reason, historically, some protection has been given to councillors in exercising their rights in order to reach a proper decision. This has led to the defence of A qualified privilege" which will be dealt with later in this paper.

Before dealing specifically with the area of defamation, I will review the prime areas which a councillor needs to be concerned about and are subject to judicial sanction. They are:

  1. breach of statutory duty;

  2. abuse of authority;

  3. negligent misrepresentation;

  4. conflict of interest;

  5. defamation.


  1. Breach of Statutory Authority

    2. With the exception of the mayor, who has some statutory authority which can be exercised by virtue of the power of his office, councillors generally cannot exercise any authority except by majority decisions. Examples of a council breaching its statutory authority would be when it exceeds its jurisdiction, makes a decision in bad faith, or enacts by-laws that are discriminatory or for a collateral purpose. As a result, the action would be against the municipality and not the individual councillors. The exception to this would be a situation where a court decision mandated a certain action by council, and individual councillors acted in contempt of that court decision. In such a case, individual councillors could be sanctioned.

  2. Abuse of Authority

    3. Abuse of authority is where council perverts the intent and purpose of its statutory authority to achieve some other improper purpose. For example, if council orders a chief building official not to issue a building permit for vindictive reasons (where clearly a building permit ought to be granted based on the statutory scheme in place), council’s conduct is actionable. A public officer or authority is responsible for acts done without legal justification.2

  3. Negligent Misrepresentation

    4. The tort of negligent misrepresentation or its more serious sister tort, fraudulent misrepresentation, like defamation, is based on dissemination of false information. However, the distinction between the two is that defamation is based on injury to reputation, whereas negligent misrepresentation is based on economic loss as a result of negligent advice. Another important distinction between the tort of negligent misrepresentation and the tort of defamation is that to succeed in an action for negligent misrepresentation, the wronged party must have reasonably relied on the false information provided. In the case of defamation, there is no test of reasonable reliance.

  4. Conflict of Interest

    5. Most provinces have enacted Municipal Conflict of Interest legislation prohibiting participation in any decision pertaining to or matter where the councillor has a direct, indirect, or deemed pecuniary interest.

  5. Defamation

    6. The tort of defamation is based on a private law duty not to injure another person’s reputation. It is for practical purposes a strict liability tort, since it does not matter if the defamatory statement was made intentionally or negligently. It is important to understand that the law protects reputation and not character. Character is what a person is. Reputation is what the community thinks he is. As Shakespeare said in Othello:

    Reputation can be gained without merit, but lost without deserving.

    The courts have developed common law rules to determine what is a person’s reputation, when is it defamed and what damages flow from such defamation.

    1. What is a person’s reputation?

      2. In order to understand what constitutes a defamatory comment, it is important to understand what is a person’s reputation. Reputation is what the person appears to be to the community. It is a question of fact and not opinion. Reputation is not what a person deserves. Thus, when a person defames another, even though he may be a scoundrel in his eyes and deserves that reputation, if an untruthful statement is made about him which has a tendency to lower his reputation in the community, then it is actionable. Defamation is a strict liability tort. It does not matter whether defamation was intentionally made or negligently made. For defamation to be actionable, there must be publication either in writing or orally. This means that the defamation must be communicated to someone other than the person defamed. A person can also be liable for the repetition of a defamatory statement.

    2. What is Defamatory?

      3. It is difficult to formulate a simple test to determine what is considered to be defamatory. The classic definition that was often used was that which is calculated to injure a reputation of another by exposing him to hate or contempt or ridicule.3  A more recent test often used is that defamation tends to lower a person in the estimation of right thinking members of society generally.4

      Notwithstanding these tests, the results are not always obvious. In Ralston v. Fomich,5 in a heated council meeting, one alderman called the other a sick son-of-a-bitch. The comment was repeated to reporters after the meeting and published in the newspapers. The court held that the words son-of-a-bitch are by themselves not defamatory, although insulting. For example, you can have sympathy for a poor son-of-a-bitch, admiration for a brave son-of-a-bitch, affection for a good old son-of-a-bitch, envy for a rich son-of-a-bitch, and incongruously dislike for a proper son-of-a-bitch. However, when adding the adjective A sick" the words are defamatory, since it suggested the plaintiff was mentally ill, unstable or unbalanced, perverted, unwholesome or morally corrupt, or that he was unfit to hold public office.

      Language directed at public officials may take on a special meaning. Where a mayor of one municipality accused a mayor of another municipality that he A stole" some minutes of a meeting, the words were held to be defamatory.6 The Court held that the use of the word "stole" in these circumstances had the effect of calling the plaintiff a thief and a criminal, and relied on the following statement from an Alberta trial decision:

      The publication of defamatory words such as these against [people] in public life, undermines and weakens the fabric of our democratic process. By imputing improper motives, lack of good faith, lack of moral fibre, such libels discourage [people] of high purpose and personal integrity from entering and continuing in public service. Damages serve as a deterrent to this practice and so offer a measure of protection to [people] serving their community.7

       

    3. Defences

i Justification

Truth, also known as the defence of justification, is a complete defence. A true statement, no matter how damaging, cannot be defamatory. However, the defence of justification does not mean you are justified in perverting the truth. The statement must be substantially true. Also, if the truth involves equal or more reprehensible conduct by the person defamed, that is not a defence. Calling a person a liar, when in fact he is a thief but not a liar, does not make the comment less defamatory. A false statement does not become true because you heard it from someone else. It is important for a defendant to plead all of the particulars on which it relies for the defence of justification. The defendant bears the onus to prove that the words are substantially true and once he has particularized his defence, he is limited at discovery and trial to the issues that have been defined by the particulars so furnished. A defendant may not use the discovery process to find a defence of which it was not aware at the time of pleading.8

The publication of a news release by the City of Vancouver Police Department to the effect that a number of males had been charged with prostitution offences in the "kiddie stroll" area of Vancouver was found not to be defamatory of the plaintiff, even though there is no evidence that the plaintiff was soliciting child sex and in fact was acquitted the charge of soliciting an adult police officer. The media report given to the newspapers was found to be accurate and, therefore, the defence of justification applied. On the other hand, the news reports published by the media were found to be defamatory, since they implied that the plaintiff was soliciting child sex.9 

ii Absolute Privilege

Aside from the defence of justification, the most important protection available to municipal councillors is the defence of privilege. Absolute privilege, which is a complete defence, no matter what is said, does not apply to normal deliberations of council, except in rare circumstances when it acts as a statutory tribunal10 or involved in litigation.11

Since absolute privilege allows defamatory statements to be immune from action, it is important to recognize when this defence is available to the municipal councillor and what limitations, if any, are placed on such a defence. As indicated, if council is acting as a statutory tribunal, the defence may be available. To qualify, it must be acting in a quasi-judicial capacity exercising functions which are similar to a Court of Justice. In Perry v. Heatherington,12 Munroe J. said:

The law is clear that the privilege applies wherever there is an authorized inquiry, which, though not before a Court of Justice, is before a tribunal which has similar attributes, which acts in a manner similar to that in which Courts of Justice act.

Some of these attributes that have been identified to determine whether absolute privilege applies to the tribunal are:

        1. the ability to adjudicate upon and determine the rights between competing litigants;13

        2. affect the status of particular individuals;14

        3. to require persons to attend and to surrender oath in open and public hearing;15 

        4. to award costs;16

        5. to administer fines;17

        6. to impose punishment;18

        7. to make decisions;

        8. to enforce orders.19

Even if a councillor is exercising some quasi-judicial function under a municipal statute which appears to have all the attributes of a court, absolute privilege only extends to those limited functions that will be deemed to be judicial functions. Thus, it does not extend to administrative functions carried out by the same tribunal, nor does it protect comments made outside of the scope of the proceedings.

Absolute privilege was provided to a county auditor who was appointed by the city council under the provisions of the Consolidated Municipal Act to investigate and undertake an accounting of road expenditures.20 In that case, Riddell, J. A. said:

The matter was being investigated by a quasi-judicial officer, who had power in his inquiry to administer an oath. He required these men to make a statement under oath, and it was their duty to make full disclosure of the facts within their knowledge.

iii Litigation privilege

Like all other litigants, municipalities are protected by an absolute privilege during the course of judicial proceedings. This privilege extends to all participants in the litigation, including the judge, jury, witnesses, parties and their counsel. This principle is simply stated by Kelly C.B. as follows:

The authorities are clear, uniform and conclusive, that no action of libel or slander lies whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law.21

Thus, if a councillor is required to testify under oath, or swear an affidavit in a judicial proceeding, he cannot be sued for defamation in any thing that is written or said in the course of such a proceeding. This privilege, however, does not extend outside of the proceeding. Privilege attaches to the occasion upon which the communication is made, and not to the communication itself.22 It has also been extended to all steps taken in contemplation of litigation.23 For example, if a councillor made a defamatory statement to the municipality’s solicitor who was seeking information in connection with potential litigation, the information would be absolutely privileged.24

In Canada, in a litigation context, the privilege extends to all words spoken or pleaded, no matter how malicious, insulting or defamatory they may be, and even though irrelevant to the matter in issue. By contrast, the American rule is that alleged defamatory matter must be relevant and material to the issue in order to be privileged.25 It generally makes no difference that the remarks are malicious and totally irrelevant to the issues before the court or that they are made about persons involved in the proceedings, or even made about persons who are complete strangers to the judicial proceedings.26

iv Qualified Privilege

My Lords, as a general rule, English law gives effect to the ninth Commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomsoever he has defamed, except where the publication is oral only, causes no damage and falls outside the categories of slander actionable per se. The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny, has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters with respect to which the law recognizes that they have a duty to perform or an interest to protect in doing so.27

Qualified privilege is available as a defence to a defamatory statement on certain occasions and on certain conditions. As in the case of absolute privilege, it is a matter of public policy to provide immunity for defamatory statements where it is in the public interest not to restrict certain communications. The principle has been summarized by Lord Atkinson as follows:28

[Qualified privilege is said to arise] where the person who makes [the] communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or a duty to receive it.

The privilege however is not absolute. As the defence suggests, the privilege is qualified in a number of ways. These qualifications can be summarized as follows:

    1. it must be exercised during the discharge of public or private duty;

    2. the duty can be legal, social or moral;

    3. the statement must be made in honest belief in the truth of the statement (if you know it is false, you cannot invoke the privilege) nor can you be careless or reckless about the truth;

    4. it must be made without malice. (Malice means bad faith or improper motive);
    5. it must be in context and cannot be excessive;

    6. one cannot communicate the defamatory statement to those who have no interest in receiving it.

     

    Dubin, J.A. in Littleton v. Hamilton29 sets out the legal test which a defendant must satisfy in order to meet the defence of qualified privilege as follows:

     

         All that was shown on the record in this case at best was that the publication related to matters of public interest. No facts had been proved, nor any evidence tendered that created a special duty on the part of the author of this publication to publish generally to Canadians at large the book of which he was the author. The fact that he had knowledge of the circumstances did not, in my opinion, give him the type of right to say something defamatory and untrue of other persons under the guise that he had a duty to do so.

    In order to hold that words are published on an occasion of qualified privilege, something more is necessary than the mere fact that the words are being addressed to a matter of public interest. Before an individual can be said to have published words on an occasion of qualified privilege, some circumstances must be shown from which it can be concluded for valid social reasons that an individual can with impunity publish defamatory statements of others provided he does so without malice. Although it has been stated that there is no confined catalogue of such occasions, it is clear that the mere fact that the publication relates to matters of public interest is not sufficient.

     

    In Ward v. McBride,30 Mr. Justice Riddell held a statement by a city alderman, who suggested the plaintiff had robbed the city, thereby imputing a crime, to be subject to the defence of qualified privilege. In making this finding, he observed the following:

     

         Aldermen are legislators in as true and in many instances as important a sense as members of Parliament or of the Legislature - it is their right and their duty to speak their mind fully and clearly without evasion or equivocation - they should show no fear, favour or affection, and it is their duty, as well as their right, to use all legitimate means, oratorical or otherwise, to impress their fellow legislators with the righteousness of their views - they have no need to be mealy-mouthed and should call a spade a spade. Nor need they...necessarily confine their arguments to the immediate facts.


    The following are some examples of when the defence of qualified privilege prevailed in a municipal context.

    In McKinnon v. Dauphin,31 the Plaintiff sued for defamation to its business reputation as a result of comments by a member of council at a council meeting, which were reported in a local newspaper, to the effect that he had heard rumours that the company was "not reliable". The comments were made when council rejected the plaintiff’s tender which was the lowest bid. Although the councillor’s comments were held to be defamatory, the statement was made on an occasion of qualified privilege and was made without malice.

    Councillor Spencer, and all councillors, had an obligation and duty to debate and discuss the relative merits and abilities of all bidders being considered for the contract in question. I am satisfied that the Defendant has fulfilled the onus on it of establishing that these words were spoken during or on an occasion of qualified privilege (during the conduct of a public municipal council meeting).32

    In Cardwell v. Hutchison,33 the plaintiff built a fence on a road allowance. Council commenced legal proceedings to remove the fence, which resulted in a settlement, allowing a portion of the fence to remain. A councillor at a meeting used words to the effect that the fence represented a "blatant disregard" of the municipality’s by-laws. The paper published an article to this effect, but did not name the plaintiff. The plaintiff brought an action against the councillor on the basis that the had left the impression that the plaintiff was a contemptuous lawbreaker. The court held that there was no malice and that the councillor was entitled to the defence of qualified privilege.

    In Bay Tower Homes Co. v. Illingworth,34 Mayor Illingworth at a council meeting said: We have had more trouble with Bay Tower Homes than any other builder in town. Very frankly they are fingering their noses at us. The mayor knew the press was present but did not invite them to the meeting or solicit their attention, or authorize publication of his comments. The mayor was found not to be liable for defamation. He was protected by qualified privilege because he spoke honestly in good faith and without malice on the affairs of the municipality. Had he given the same speech outside of council chambers, he may well have been liable.

    In Bauman v. Turner,35 council was considering a project which involved taking water from a local creek. A local engineer was opposed to the project and the mayor was strongly in favour. After municipal approval was given the mayor wrote a letter to the Minister of the Environment complaining that the engineer, in his opposition to the project, had misused his status as a professional engineer. The mayor sent a copy to the local newspaper. The mayor was not held liable for defamation on the grounds of qualified privilege. In this case, he was acting out of a moral duty to make complaints concerning the conduct of a professional to his professional governing body. The majority of the court also held that releasing the letter to the paper was protected by the same privilege. The minority felt that the privilege did not extend to releasing the letter to the paper, since the mayor had no moral, legal or social duty to do so.

    In Faminow v. Reid,36 a solicitor was acting for a group opposing a group home. The municipality required 60% consent of residents within 200 feet of the project. At a public meeting where the approval by-law was given the first two readings, the solicitor had two letters withdrawing support which he did not produce. The effect of the letters would have put the rate of approval below the required 60%. At the next meeting of council, when the by-law came up for final reading, the solicitor produced the letters. The mayor, in some anger, said: this is a very high-handed way of doing business. The solicitor sued the mayor for defamation. The court held that the words were in themselves not defamatory. They merely reflected annoyance, frustration and surprise. Even if the words were defamatory, they were protected by qualified privilege, since the mayor spoke without malice and in an honest belief that the process adopted by the solicitor was improper.


    The following are examples where the defence of qualified privilege was held not to apply.

    In Peckham v. City of Mount Pearl,37 a councillor believing that a senior government civil servant had lied to a minister and the premier of the province, with respect to some funding issue, expressed these views publicly at a council meeting. The civil servant sued for defamation. The court held that the statement was untrue, although it also found that the councillor honestly believed the civil servant had lied. The councillor was not entitled to the defence of qualified privilege, since there was no apparent legal, social or moral duty to communicate this information. The remarks were not germane to the debate, and therefore excessive.

    In Sykes v. Fraser,38 the mayor was upset about some tactics allegedly used by developers with respect to a shopping centre development and a street closing. Although the closing would not preclude the development, the developer’s lawyer made a statement to the effect that if the street was closed, he could not guarantee that the development would proceed, but if left open would be built. Council, in the mayor’s absence, approved the shopping centre with the street left open. The mayor must have known that previously the developer was opposed to closing the street for traffic reasons, although there was also some evidence that the developer had indicated that it had no interest in the closing. The mayor called a press conference and said he had been previously assured by the developers that the street closing was a matter of indifference to them and that had he been at the council meeting he would have been able to deal effectively with the tactics adopted by the developers. He also said that council had been misled and that they [the developers] were practising deception of council and myself. The developer’s lawyer sued for libel. The court held the mayor liable for defamation. Even though the lawyer was not mentioned by name, it was clear that it was his conduct that was being referred to. The press conference was not an occasion of qualified privilege. Even if the mayor’s understanding of a previous commitment by the developers with respect to the road closing was true, the statement was still defamatory, since the lawyer could not have known that, and therefore he should not be stigmatized as one who has misled council. A minority of the court would have dismissed the action on the grounds that the lawyer should have known of his client’s breach of faith and that his action would be more appropriately brought against his client rather than the mayor.

    In Loan v. MacLean,39 the mayor, following a dispute with a councillor at a council meeting, in an interview on a local radio station referred to the councillor, who was also a high school teacher, that he is one of the biggest jokes in the municipality, that he is stupid and that he doesn’t understand what is going on. The councillor sued the mayor and radio station. The court found both the mayor and radio station liable. A radio interview in this context is not protected by qualified privilege and the remarks do not constitute fair comment.

    In Lemaire v. Lambert,40 the mayor was concerned about the political situation in his municipality. He gave an interview with a reporter who published the mayor’s statements. The councillors took issue with the mayor’s version of the political situation and in the same newspaper published a statement entitled The Lies of the Mayor of Grantham West. The mayor sued his councillors for defamation. The court held the councillors liable. In effect, the debate was about how the municipality should be administered. By referring to them as lies, the councillors had maliciously attacked the mayor’s reputation.

    v Fair Comment

     

    The defence of "fair comment" or better referred to as "comment on a matter of public interest" is protected by qualified privilege. However, there are certain criteria that must exist

    1. the words must be an expression of opinion on the facts, and not a statement of fact;

    2. the comment must pertain to a matter of public interest;

    3. the facts on which the opinion is based must be true;

    4. the audience must be familiar with the facts;

    5. the opinion must be an honest expression and made without malice;

    6. the comment suggests evil or corrupt motives, such suggestion must be warranted by the facts;

    7. public interest may be shown by the importance of the person or the event giving rise to the comment.

     

    vi Consent

Consent is also a complete and absolute defence to a defamatory statement. Examples of consent would be:

    1. if the defamed person is the origin of the statement (i.e. made the statement in the first place);

    2. if the defamed person elicited the statement (i.e. asked if you had an opinion about his or her reputation);

    3. if the defamed person publishes the defamation himself (i.e. if you defame a person and there is no one else present, and that person then repeats your statement to others).

     

    d. Can a municipality be held liable for statements made by its individual councillors?

In certain circumstances, a municipal corporation is liable for defamatory statements made by its elected representatives if those statements were made while acting in the course of their duties.41 If council publishes a defamatory comment (as part of its agenda), or if a councillor repeats a statement at a council meeting which is defamatory in nature, the municipality may well be held to be liable. There is no question that municipalities are liable for defamatory statements made by its officers or servants in the course of their duties when acting within the scope of their employment.

When the publication of a defamatory statement is made by council as a whole or a committee of council, and the defence of qualified privilege is not available, the municipality may well be liable, since it is the actions of council as a whole on behalf of the municipality that is committing the tort of defamation. In addition, where the mayor or councillors make defamatory statements as individuals, the municipality may be liable. Traditionally, the municipality’s vicarious liability was dependent on the following factors:

i an employer/employee or agency relationship must be found to exist;

ii the employee/agent must be carrying out the duties of the municipal corporation;

iii the tort must have been committed during the course of and within the scope of the employee/agent’s authority.

The mayor and councillors are generally not considered to be employees of the municipal corporation. However, they may well be acting as agents of the corporation within the scope of their authority. If council, in some way, acts to ratify the defamatory conduct of a mayor or councillor, the municipality will be found to be liable. In Dawson v. The Council of the Shire of Bulli,42 the Court held that a shire council ratified and approved the action of their building inspector when, after being asked by counsel for a builder what they intended to do about a defamatory letter written by the inspector, they responded that they endorsed their inspector’s action in the matter.

The Supreme Court of Canada, in two recent decisions involving vicarious liability, has somewhat expanded the scope of liability which requires some reassessment of the traditional principles in determining vicarious liability. In Bazley v. Curry,43 the court was dealing with the vicarious liability of a non-profit employer as a result of the employee’s sexual abuse. Since defamation can be an intentional wrong, the court’s pronouncements on vicarious liability with respect to intentional wrongs may lead to some new developments in assessing vicarious liability on the part of municipalities in defamation cases. In Bazley v. Curry, Madam Justice McLachlin applied a two-part test to determine vicarious liability in the case of intentional torts:
         
        1. are there precedents which unambiguously determine whether vicarious liability should be imposed on the employer? and
        2. if precedent is inconclusive, courts should turn to policy for guidance.


Madam Justice McLachlin suggested that courts should be guided by the following principles:

    1. They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of A scope of employment" and "mode of conduct".

    2. The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.

    3. In determining the sufficiency of the connection between the employer's creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:

      (a) the opportunity that the enterprise afforded the employee to abuse his or her power;

      (b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee);

      (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise;

      (d) the extent of power conferred on the employee in relation to the victim;

      (e) the vulnerability of potential victims to wrongful exercise of the employee's power.



In Watson v. Southam Inc.,44 Wilson, a Regional councillor and a chair of the environmental services committee of the Regional government, along with others, was held liable for defamation. Wilson had been advised of an altercation at the municipality’s filtration plant involving a political rival. Wilson reported the matter to a reporter for the local newspaper and also spoke about the matter at an environmental services committee meeting at which he was the chairman. The various comments made by Wilson to the reporter and to the committee were held to be defamatory and malicious. The Region conceded that it was vicariously liable for the liability of its employees and for the liability of Wilson, the Regional councillor. (Presumably, the Region’s insurance coverage extended to its employees and as such they were indemnified by the Region.)

Although the Regional Municipality was a party to the action at trial, it was found not to be liable for defamation in its own right. However, the municipality was held liable for aggravated damages as the defamation was aggravated by its wrongful conduct. The conduct identified by the court as being wrongful was the Regional Municipality’s suppression of a report originally prepared by a Regional employee indicating that there was no basis for criminal charges. Notwithstanding that report, counsel for the Region had argued at trial that an assault had occurred. The trial judge found that the Regional Municipality had failed to correct the public record when it could have done so, and that its failure to do so during a period when one of the plaintiffs was running for office, aggravated that plaintiff’s damages.

The trial judge further found that the Regional Municipality was liable for the aggravated damages awarded against the defendant Regional councillor, Wilson. Wilson had made a statement to the local newspaper to the effect that the Regional solicitors had given an opinion that assault charges would not be laid because a certain employee did not actually see the assault occur. These words were found to be inconsistent with the evidence and malicious. The court further found that the Regional councillor was speaking as an agent on behalf of the Regional Municipality in giving this interview to the newspaper. As a result, the Regional Municipality was liable for the aggravated damages assessed against the Regional councillor.

There is further reference to aggravated damages in the trial judge’s decision which is rather unusual:

I find the aggravation of damages by the defendant Regional Municipality was through the conduct of the Department of Legal Services and of all three defence counsel through to the present. Persons making the decisions for the Region as to this incident and the consequent litigation have consistently shut Mrs. Copps out of their consideration of the facts, wrongly so, in my view. The evidence is that each defence counsel is under the retainer and is paid by the defendant Regional Municipality. I find this defendant to be the accountable party for the conduct of this litigation. I have included the findings of aggravated damages into the general damages awards against those defendants.

On appeal,45 the orders against the Regional Municipality were set aside on the grounds that proper notice had not been given pursuant to s. 5(1) of the Libel and Slander Act which was held to apply to non-media defendants as well as media defendants. This is an important clarification of the law with respect to the requirement to give such notices to non-media defendants, a requirement often overlooked by plaintiffs. The Court of Appeal did not comment on the reasons for finding liability against the Regional Municipality, and in that respect the judgment stands.

     

    e. Council agenda, reports and minutes

     

The question has arisen whether or not council or a committee of council can reproduce or publish reports and submissions received from third parties which may contain defamatory statements and rely on the defence of qualified privilege. In Nowlan v. Moncton Publishing Co. Ltd.,46 it was held that a sanitary engineer’s report considered at a local board of health meeting was covered by qualified privilege. In a recent case, the court refused to grant summary judgment in favour of a municipality dismissing a claim for defamation against the municipality by reason of its publication of a letter, as part of the council agenda, claiming extortion. In that case, the judge considered the matter a triable issue.47


f. Damages

Ordinarily, general damages are awarded to a successful plaintiff in a defamation case which will compensate the plaintiff for his or her entire loss, including an estimate of actual and anticipated pecuniary losses. Historically, damage awards have been low. As noted by Cory J. in Hill v. Church of Scientology,48 the average award on reported libel cases was $30,000 between 1987 and 1991, and $20,000 between 1992 and 1995. In **, Hill had been awarded $** in damages even though he had not suffered and was not likely to suffer any pecuniary damages. Notwithstanding, the Supreme Court of Canada refused to impose a cap on general damage awards in defamation cases. As a result, there has been a steady escalation in the level of libel damage awards following Hill v. Church of Scientology.

In Hodgson v. Canadian Newspapers Co.,49 Hodgson was awarded $880,000 in damages which was reduced on appeal to $780,000. The Court of Appeal did not interfere with the award of general damages and only declined to uphold the award of pecuniary damages. The Court noted that:

One should not lose sight of the basic principle that libel damage awards, like damage awards for other wrongs, should be based upon a rational attempt to measure in money terms the loss and injury the plaintiff has suffered.

In Hodgson, the plaintiff had lost his job which allowed the Court to calculate his pecuniary damages. The Court then effectively doubled this calculation by way of an award of general damages. Although the Court of Appeal did not interfere with this award, it clearly criticized this approach. The Court concluded:

While the circumstances of the present appeal do not permit this court to interfere with the award, neither should this judgment be read as condoning or encouraging similar awards, especially where the circumstances allow for full compensation for pecuniary damages.

Presumably, the Ontario Court of Appeal wished to convey a message to the Trial Division that excessive damage awards in defamation cases were not appropriate. It should be noted, however, that many defamation cases are tried by a jury and clearly the Supreme Court of Canada has indicated that the courts should not impose a cap on such awards.

 

TIPS TO AVOID DEFAMATION

We would offer the following practical advice to elected officials in an attempt to avoid defamation:

  1. Do not attack a person’s reputation.
  2. Check your facts. Truth is always the best defence.
  3. Raise issues by asking questions as opposed to making statements.
  4. Keep your comments relevant to the issue being considered.
  5. Do not appear to pursue a personal agenda. It is best to always restrict your comments to what is relevant to the public interest, rather than your personal interest.
  6. Do not make reckless or spiteful comments.
  7. Do not use derogatory language and do not be malicious. Malice can defeat many good defences that would otherwise be available.
  8. Do not play to the press. For example, never say in a council meeting "and you can publish that for the record".
  9. Do not repeat slanderous allegations to the press or anyone else.
  10. If in doubt, do not say it.
  1. Exodus 20, v. 16
  2. Roncarelli v. Duplessis, [1959] S.C.R. 121
    Nelles v. Ontario, [1989] 2 S.C.R. 170
  3. Youssoupoff v. Metro-Goldwyn Meyer Pictures Ltd. (1934), 50 M.P.L.R. 581 (C.A.)
  4. Murphy v. LaMarsh (1970) 73 W.W.R. 114; aff'd [1971] 2 W.W.R. 196
  5. (1992), 66 B.C.L.R. (2d) 166
  6. Peters v. Hamilton-Brown, [2000] N.B.J. No. 29
  7. Mack v. North Hill News Ltd. (1964), 44 D.L.R. (2d) 147 (Alta. S.C.)
  8. Care Canada v. Canadian Broadcasting Corp., [1998] O.J. 1532; Kent v. Kehoe, [2000] N.S.C.A. 3
  9. Grassi v. WIC Radio Ltd., [2000] B.C.J. No. 170
  10. Perry v. Heatherington, [1971] 5 W.R. 670 (B.C.S.C.)
  11. Lowther v. Baxter (1892), 22 N.S.R. 372 (C.A.)
  12. supra, p. 671
  13. Stark v. Auerbach (1979), 11 B.C.L.R. 355 (S.C.);
    Perry v. Heatherington, supra
  14. Addis v. Crocker, [1961] 1 Q.B. 11 (C.A.)
  15. ibid
  16. ibid
  17. ibid
  18. ibid
  19. ibid
  20. Nixon v. O'Callaghan (1926), 60 O.R. 76 (C.A.)
  21. Dawkins v. Lord Rokeby (1873), L.R. 8 Q.B. 255 at 263; aff'd (1875), L.R. 7 H.L. 744
  22. Hill v. Church of Scientology (1995), 2 S.C.R. 1130
  23. Larche v. Middleton (1989), 69 O.R. (2d) 400 (H.C.J.)
  24. Web Offset Publications v. Vickery (1999), 43 O.R. (3d) 802
  25. Erie County Farmers Insurance Co. v. Crecelius 122 Ohio ST, 10, 171 N.E. at 97-98 (1930)
  26. Electra Sign Ltd. v. Gallagher (1995), 38 C.P.C. (3d) 141 (Man. Q.B.); aff'd (1996), 109 Man. R. (2d) 248 (Q.B.)
    Henderson v. Broomhead (1859), 157 E.R. 964 (Ex. Ch.)
  27. Horrocks v. Lowe (Lord Diplock), [1974] 3 All ER 662 at 668 (H.L.)
  28. Adam v. Ward, [1917] A.C. 309 at 334; adopted in McLouglin v. Kutasy, [1979] 2 S.C.R. 311
  29. (1974), 4 O.R. (2d) 283 at 285
  30. (1911), 24 O.L.R. 555
  31. (1996), 31 M.P.L.R. (2d) 13
  32. ibid, p. 33
  33. [1995] B.C.J. No. 1656
  34. (April 3, 1987), Doc. 829/86 (Ont. Div. Ct.)
  35. (1993), 105 D.L.R. (4th) 37
  36. (1971), 24 D.L.R. (3d) 554
  37. [1994] N.J. No. 302 (Nfld. S.C.)
  38. (1973), 39 D.L.R. (3d) 321 (S.C.C.)
  39. (1975), 58 D.L.R. (3d) 228 (B.C.S.C.)
  40. (1980), 12 M.P.L.R. 273 (Q.S.C.)
  41. McKinnon v. Dauphin, supra, at p. 30
  42. (1927), 27 N.S.W.S.R. 509
  43. (1999), 174 D.L.R. (4th) 45
    Jacobi v. Griffiths (1999), 174 D.L.R. (4th) 71
  44. [1998] O.J. No. 369 (Ont. Gen. Div.)
  45. [2000] O.J. No. 2555
  46. (1952), 4 D.L.R. 808
  47. Lake v. Demb, [1998] O.J. No. 2609 (Ont. Gen. Div.)
  48. [1995] 2 S.C.R. 1130
  49. (1998), 39 O.R. (3d) 235 and (2000), 49 O.R. (3d) 161 C.A.

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