Gutowski v. Clayton et al., 2014 ONCA 921

• Judge: Blair, Pepall and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 25, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 921;(2014), 329 O.A.C. 55 (CA)

Gutowski v. Clayton (2014), 329 O.A.C. 55 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.045

Janet Gutowski (plaintiff/respondent) v. Bud Clayton, John McDougall, David Jones and Denis Doyle (defendants/appellants)

(C58896; 2014 ONCA 921)

Indexed As: Gutowski v. Clayton et al.

Ontario Court of Appeal

Blair, Pepall and Lauwers, JJ.A.

December 24, 2014.

Summary:

The parties were all members of a municipal council. At a regularly scheduled council meeting, one of the defendants made a motion which was seconded and approved by the remaining defendants, alleging that the plaintiff had engaged in corruption and the peddling of political favours. The plaintiff sued the defendants for defamation. The defendants moved to have the allegations of defamation struck on the basis that the words were uttered on an occasion of absolute privilege.

The Ontario Superior Court dismissed the motion, finding that the defence of absolute privilege did not apply to statements made by municipal councillors during the course of a municipal council meeting. The defendants appealed.

The Ontario Court of Appeal dismissed the appeal.

Libel and Slander - Topic 3

General - Defamation v. Charter - [See Libel and Slander - Topic 2921 ].

Libel and Slander - Topic 2921

Defences - Absolute privilege - General - The parties were all municipal councillors - The plaintiff sued the defendants for allegedly defamatory statements that were made at a council meeting - The defendants moved to have the allegations of defamation struck on the basis that the defence of absolute privilege applied - The motion judge held that absolute privilege did not apply to statements made by municipal councillors during a municipal council meeting - On appeal, the defendants submitted that the 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 - The Ontario Court of Appeal dismissed the appeal - Unlike the parties in this case, the absolute privilege provided to legislators was recognized through legislation, and both Parliament and the legislatures had rules to govern their members' conduct - The value placed on the right to freedom of expression in public discourse, and the need for municipal councillors to be able to exercise that right in order to perform their role properly and effectively, was exactly the rationale which underpinned the extension of qualified privilege to municipal councillors - See paragraphs 11 and 15 to 19.

Libel and Slander - Topic 6065

Practice - Notice - Sufficiency of content of notice - The parties were all municipal councillors - The plaintiff sued the defendants for allegedly defamatory statements that were made at a council meeting - Paragraph 16 of the statement of claim alleged that the defendants reiterated the defamatory words from the council meeting in media interviews conducted outside of the council chambers - The defendants argued that because the statements within the council meeting were protected by absolute privilege, the allegation in para. 16 should be struck because the plaintiff failed to comply with the mandatory notice requirements in s. 5(1) of the Libel and Slander Act - The Ontario Court of Appeal disagreed, stating "[T]he June 11 letter from the [plaintiff's] solicitors alerted the [defendants] to the complaint about their 'dissemination of [their] defamatory statements' to the members of the press they had invited to the meeting. 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 ... The question is whether the notice identifies the plaintiff and fairly brings home to the publisher the matter complained of..." - Sufficient notice was given in this case - See paragraphs 33 to 37.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The parties were all municipal councillors - The plaintiff sued the defendants for allegedly defamatory statements that were made at a council meeting - Paragraph 16 of the statement of claim alleged that the defendants reiterated the defamatory words from the council meeting in media interviews conducted outside of the council chambers - The defendants argued that because the statements within the council meeting were protected by absolute privilege, the allegation in para. 16 should be struck since the plaintiff did not allege that the words uttered in the meeting were published to any named person outside the council chambers - The Ontario Court of Appeal stated that "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 ... Both of these requirements were met in this case." - See paragraphs 31 and 32.

Municipal Law - Topic 821

Council members - Actions against members - General (incl. when available) - [See Libel and Slander - Topic 2921 ].

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles (incl. when available or appropriate) - The parties were all municipal councillors - The plaintiff sued the defendants for allegedly defamatory statements that were made at a council meeting - The defendants moved for the determination of a question of law before trial under rule 21 of the Rules of Civil Procedure, arguing that the defence of absolute privilege should be extended to protect speech made in the context of municipal council meeting - The motion judge dismissed the motion - The Ontario Court of Appeal dismissed the defendants' appeal - A rule 21 motion was not the appropriate vehicle to develop or extend an area of law that was not fully settled - Such an issue had to be determined after a full evidentiary hearing - See paragraphs 12, 13 and 28.

Practice - Topic 5264

Trials - General - Trial of preliminary issues - Application - Question of law - [See Practice - Topic 5260 ].

Cases Noticed:

Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663; 297 N.R. 331; 2002 SCC 85, refd to. [para. 5].

Ward v. McBride (1911), 20 O.W.R. 93 (Div. Ct.), refd to. [para. 6].

Baumann v. Turner et al. (1993), 32 B.C.A.C. 9; 53 W.A.C. 9; 105 D.L.R.(4th) 37 (C.A.), refd to. [para. 6].

Wells v. Sears (2007), 264 Nfld. & P.E.I.R. 171; 801 A.P.R. 171; 2007 NLCA 21, leave to appeal refused (2007), 379 N.R. 391 (S.C.C.), refd to. [para. 6].

Leger v. Edmonton City Council (1989), 100 A.R. 196; 63 D.L.R.(4th) 279 (Q.B.), refd to. [para. 6].

Horrocks v. Lowe, [1975] A.C. 135 (H.L.), refd to. [para. 6].

Belanger (R.D.) & Associates Ltd. et al. v. Stadium Corp. of Ontario Ltd. and Bitove Corp. (1991), 57 O.A.C. 81; 5 O.R.(3d) 778 (C.A.), refd to. [para. 13].

Law Society of Upper Canada et al. v. Ernst & Young et al. (2003), 174 O.A.C. 49; 65 O.R.(3d) 577 (C.A.), leave to appeal refused [2004] 1 S.C.R. viii; 329 N.R. 200; 195 O.A.C. 400, refd to. [para. 13].

Stopforth v. Goyer (1978), 20 O.R.(2d) 262 (H.C.), revd. (1979), 23 O.R.(2d) 696 (C.A.), refd to. [para. 16].

Church of Scientology of California v. Johnson-Smith, [1972] 1 Q.B. 522, refd to. [para. 16].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 21].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 21].

Amato et al. v. Welsh et al. (2013), 305 O.A.C. 155; 362 D.L.R.(4th) 38; 2013 ONCA 258, refd to. [para. 24].

Mann v. O'Neill, [1997] H.C.A. 28; 191 C.L.R. 204, refd to. [para. 24].

Sanchez v. Coxon (1993), 854 P.2d 126 (Ariz.), refd to. [para. 26].

Board of Education of City of Buffalo v. Buffalo Council of Supervisors and Administrators (1976), 383 N.Y.S.2d 732; 52 A.D.2d 220, refd to. [para. 26].

Chonich v. Ford (1982), 321 N.W.2d 693 (Mich. C.A.), refd to. [para. 26].

Krueger v. Lewis (2005), 834 N.E.2d 457 (Ill. C.A.), refd to. [para. 26].

Johnson v. Northside Residents Redevelopment Council (1991), 467 N.W.2d 826 (Minn. C.A.), refd to. [para. 26].

McClendon v. Coverdale (1964), A.2d 815 (Del.), refd to. [para. 26].

Mills v. Denny (1954), 63 N.W.2d 222 (Iowa), refd to. [para. 26].

Zutz v. Nelson (2010), 788 N.W.2d 58 (Minn.), refd to. [para. 26].

Hill v. Church of Scientology of Toronto and Manning (1994), 71 O.A.C. 161; 18 O.R.(3d) 385 (C.A.), affd. [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 27].

Guergis v. Novak et al. (2013), 308 O.A.C. 96; 116 O.R.(3d) 280; 2013 ONCA 449, refd to. [para. 31].

Janssen-Ortho Inc. v. Amgen Canada Inc. et al. (2005), 199 O.A.C. 89; 256 D.L.R.(4th) 407 (C.A.), refd to. [para. 36].

Grossman v. C.F.T.O.-T.V. Ltd. (1982), 39 O.R.(2d) 498 (C.A.), leave to appeal refused (1983), 46 N.R. 266; 39 O.R.(2d) 498n (S.C.C.), refd to. [para. 36].

Counsel:

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

Keith A. MacLaren and Owen Bourns, for the respondent.

This appeal was heard on November 25, 2014, before Blair, Pepall and Lauwers, JJ.A., of the Ontario Court of Appeal. Blair, J.A., delivered the following judgment for the court on December 24, 2014.