Cases focus on libel suits against citizens accused of defaming municipalities
By JAMES RUSK
Tuesday, December 20, 2005 Page 19 Today’s Globe & Mail
The limits of how far a citizen can go in criticizing a local government will be tested this week in two Ontario Superior Court cases.
Today in Milton, the court will hear a motion to dismiss as unconstitutional a libel suit by the town of Halton Hills against Acton resident Al Kirouac for statements he made in an article and related postings by the public about a town official on a local website, The Halton Herald, run by Mr. Kirouac.
On Thursday in Perth, a motion will seek to dismiss a similar libel suit against Donald Page, a resident of Montague Township, east of Smiths Fall, whom the municipality is suing over statements about the operations of the township's volunteer fire department.
Each case tests two related points, neither of which appears to have been ruled on by an Ontario court, said a municipal lawyer who asked not to be named because of an association with one of the parties.
One point is whether a 2001 change in the Ontario Municipal Act that gave municipalities the rights and privileges "of a natural person" means a local government has the right to sue for libel, just as a corporation can do under its legal status as a natural person.
If a municipality can sue for defamation, the court would then have to decide what is the line of fair criticism beyond which a person cannot go without causing damage to the municipality's reputation and goodwill, which are essential for its ability to do business.
The Canadian Civil Liberties Association is concerned that citizens will be deterred from fighting city hall if governments follow the lead of the two municipalities.
"The effect of what they are doing is to muzzle citizen criticism," Alan Borovoy, general counsel of the CCLA, said in an interview in which he also stated he could not comment on the merits of either suit.
"The issue is the propriety of a government in a democracy suing a citizen for defamation arising out of criticisms that citizen may make of government conduct. . . . Legal actions of this kind are incompatible with a viable right to free speech," Mr. Borovoy said.
Mr. Kirouac's lawyer, Ryder Gilliland, argues in his brief to the court that "a public body suing a civilian for defamation is antithetical to freedom of expression and, therefore, unconstitutional."
He also says Mr. Kirouac is alleged to have criticized a town employee, Terry Alyman, director of parks and recreation, not the town. If the motion to remove the town from the suit prevails, a suit by Mr. Alyman against Mr. Kirouac will continue.
Halton Hills lawyer John Schaljo replies that the municipality must have the right to protect its reputation, that accusations against an employee can damage the entire town, and that it would be premature to dismiss the town's suit without hearing the facts in the case.
"There is no basis in principle for holding that a municipal corporation, empowered by statute to sue in its own name, cannot maintain an action for libel. To hold otherwise would leave municipalities the helpless victims of all those who chose to publish untrue imputations which injure their reputations," Mr. Schaljo argues.
After Mr. Gilliland finishes arguing in Milton for Mr. Kirouac, he will go to Perth on behalf of the CCLA, which is seeking to join the Montague Township case to support Mr. Page.
The township council is suing Mr. Page for $50,000 for what its statement of claim, filed in August in Ontario Superior Court in Perth, describes as "a campaign of willful vilification" against the council.
Mr. Page, who has lived in the township for 30 years, said in an interview that he wrote the Ontario Fire Marshal about what he saw in January after he and his wife were the first people at the scene of a fire in which a woman died.
After he wrote to the fire marshal, he said he received a letter from the reeve of the township warning him that statements he made were defamatory and that he could be sued.
But he continued writing to provincial officials and spoke at a June council meeting, making statements that the suit, which has not been tested in court, also asserts defamed the council.
Mr. Page said he was surprised by the lawsuit. "You don't expect libel suits from your municipality because you expressed concerns about their service."
Lois Bennett, president of the Montague Ratepayers Association, said she called the CCLA when the council sued Mr. Page, who was a member of the association's executive.
"Our interest is not in the body of the case. Our interest is in the fact that this is freedom of speech, and a man should be allowed his constitutional rights to speak his mind," Ms. Bennett said.
The council's lawyer, Timothy Ray, said that his client had no choice but to sue Mr. Page.
"My view of it is, you know, that, when you get a campaign going, as happened here against the council . . . they've got no other option to bring things to a halt than to do what we did," Mr. Ray said.
Mr. Page's lawyer, Paull Leamen, said he will move to have the suit dismissed on the grounds that Mr. Page's statements to government officials were legally protected, that his motive was the safety of township residents and that his words were not defamatory.
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