Ontario Court of Appeal Rules that Municipal Counsellors Do Not Enjoy Absolute Privilege

September 22nd, 2015 by

In Canada, the United States, and many other jurisdictions in the world, legislators enjoy an absolute privilege over statements made in the legislature. Simply put, this privilege shields legislators from tort claims alleging defamation where the allegedly defamatory remarks were made on the floor of the legislature. The reason for the privilege is simple: there is a public interest in promoting full and frank communications and discussions on the floor of the legislature without fear of civil proceedings. While many politicians may, arguably, stretch the bounds of this privilege, its protections are nonetheless essential to a functioning democracy. While the existence of privilege at the federal and provincial levels is a matter of well-settled law, until recently it has been unclear if municipal counsellors enjoy the same protections during municipal meetings.

In Gutowski v Clayton, the Ontario Court of Appeal ruled that municipal counsellors do not enjoy absolute privilege over statements they make during city council meetings. The case arose from statements made during a council meeting of the County of Frontenac. At the meeting, the defendants brought a motion alleging that the plaintiff had engaged in corruption and ‘peddling of political favours.’ Amongst other statements, one of the defendants rhetorically asked “What other tricks has she been up to?”  The plaintiff sued in defamation and the defendants brought a Rule 21 motion for the determination of whether the statements were covered by the privilege.

The motions judge held that the statements were not privileged, and cited a line of jurisprudence that clearly stated that municipal politicians do not enjoy the same privilege as their federal and provincial counterparts. The Court of Appeal agreed and further held that, while the privilege for federal and provincial politicians is codified in legislation, no such law exists for municipal politicians. The Court also reasoned that, as constitutionally protected bodies, Parliament and the provincial legislatures have a right to control their own processes, including the ability to sanction Members for improper statements. In effect, absolute privilege maintains this control by allowing them, and not a Court, to deal with a inappropriately verbose Member. In contrast, municipal governments are ‘creatures of statute’ – they are created by legislation, and only have the rights that are contained therein. Finding that the Municipal Act does not contain a grant of absolute privilege, the Court held that no such privilege could exist.

If you have any questions about municipal law or proceedings before or involving a municipal council, contact the experienced municipal law team at Devry Smith Frank LLP.

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