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Blue Mountains politicians fail in SLAPP suit against newsletter

In Governance
Aug 11th, 2019
1 Comment
Gail Ardiel

Gail Ardiel

Ontario court dismisses defamation suit against newsletter from The Blue Mountains under anti-SLAPP law

By SIMON HOUPT Globe and Mail JULY 16, 2019

An Ontario court has dismissed a defamation suit launched by a pair of politicians in the town of The Blue Mountains against the publisher of a local newsletter under the province’s anti-SLAPP law, which seeks to prevent public figures from using lawsuits to silence or intimidate critics.

Still, while celebrating victory this week, the lawyer for the publisher of the newsletter suggested the episode illustrates a need for basic training in the province’s evolving defamation laws for news outlets that are seeking to fill gaps left by the closing of large professional newsrooms.

“We’re happy with [the decision], of course,” said Mark Bourrie, an Ottawa-based lawyer for Linda Wykes, a printing shop owner in the village of Clarksburg, about 20 kilometres northwest of the ski town of Collingwood. “I think the judge worked really hard to untangle a small-town issue.”

After several local papers closed about five years ago, Ms. Wykes began publishing The Blue Mountains Review, a monthly newsletter with a circulation of about 4,000, to help keep members of the community up to date.

Last August, the Review published an op-ed in which former councillor Michael Seguin sharply criticized the then-mayor and deputy mayor of the Town of The Blue Mountains, John McKean and Gail Ardiel, over their handling of an investigation into allegations of workplace harassment against him.

Mr. McKean and Ms. Ardiel filed a statement of claim in December against Ms. Wykes, seeking $250,000 in general damages and $200,000 for aggravated, exemplary and/or punitive damages. The statement said Mr. Seguin’s op-ed caused them “reputational harm,” and that it had “maliciously prejudice[d]” the campaign for mayor, which Ms. Ardiel lost in October. (Mr. McKean had not sought re-election.)

In March, Ms. Wykes told The Globe and Mail she expected to lose her printing business, Riverside Graphics, if the defamation case went against her.

Mr. Seguin was named a co-defendant, along with his wife, Catherine Sholtz, for comments he had made about the two politicians on his Facebook page and in an e-mail supporting a candidate who triumphed against Ms. Ardiel in the mayoral election.

In March, lawyers for Ms. Wykes, Mr. Seguin and Ms. Sholtz argued in an Owen Sound courthouse that the action should be dismissed under a 2015 law designed to curb what are known as strategic lawsuits against public participation (SLAPP): defamation suits used to shut down criticism.

In passing the law, the Ontario government noted that defamation actions are often withdrawn before trial, but could still silence defendants, typically for years, as they crawled through the court system.

The aim of the new law, according to a previous case heard in the Ontario Court of Appeal, is to act as a sort of “triage device designed to eliminate certain claims at an early stage of the litigation process.” Mr. Bourrie noted that the speed of the process – a little more than six months from the statement of claim to dismissal – was beneficial for all involved.

In the judgment released on July 8, Justice Judy Fowler Byrne of the Ontario Superior Court of Justice dismissed the defamation action from Mr. McKean and Ms. Ardiel, noting that Mr. Seguin’s statements had related to a matter of public interest, especially given that they occurred in the run-up to the election. She noted that the Blue Mountains Review had regularly covered developments in the Seguin workplace saga, and so his op-ed was a legitimate part of the story.

She also added that Mr. McKean and Ms. Ardiel had failed to demonstrate that the publication of the allegedly defamatory material was the cause of any specific damage they said they had incurred.

The two plaintiffs must pay the full court costs, which likely amount to tens of thousands of dollars, and damages of $10,000 to Ms. Sholtz for involving her in the action as a way to “punish and intimidate [Mr. Seguin, her husband] on a more personal level,” according to the judgment.

Attempts to reach the plaintiffs and their lawyer were unsuccessful.

Mr. Bourrie suggested the episode demonstrated the necessity of basic legal training for people who aspire to operate newsrooms to ensure they are aware of their responsibilities and possible defences against lawsuits.

“There needs to be some outreach from law schools or journalism schools,” he said. “I really think there needs to be that kind of education for people who are doing these startups, who want to do journalism in these communities, who see the need, who maybe see the market – for whatever reason they want to do it – so they know how to protect themselves,” he said.

“Just to get it into people’s heads that we have really good defences now, and to teach them how to be able to use them.”

Community newsletter’s legal spat highlights pitfalls in lack of local media

By SIMON HOUPT Globe and Mail MARCH 27 2019

When the local paper in the town of The Blue Mountains, Ont., shut down five years ago, Linda Wykes decided to step in and fill the void.

After all, as the owner of Riverside Press, Ms. Wykes had spent decades promoting local events through calendars, flyers and other ephemera from her printing shop, on the quiet main street of the village of Clarksburg. Starting up the Blue Mountains Review, a monthly newsletter mailed to 4,000 homes, seemed important.

“Somebody commented about the fact that a lot of our history would be lost because nobody’s recording it any more,” she explained over the phone this week.

But now, Ms. Wykes has become part of a big story herself. The town’s former mayor and deputy mayor named the Blue Mountains Review in a defamation suit over an op-ed written by a controversial former councillor that Ms. Wykes published last summer. The case is set to be heard in an Owen Sound courtroom on Thursday morning.

Ms. Wykes’s troubles illustrate the potential pitfalls as local newspapers close down and inexperienced citizens try to fill the gaps. In Ms. Wykes’s community alone, the Blue Mountain Courier Herald and the Meaford Express closed within the past five years. Further east, Metroland Media shuttered the Barrie Examiner and the Orillia Packet & Times after acquiring them in a swap with Postmedia in November, 2017.

The news business is in Ms. Wykes’s blood. In high school, she helped her father put out the Valley Courier, a weekly that had about 600 subscribers. He started the Courier in his printing shop in the early 1970s after the local paper had been bought by an out-of-town corporation. “People said, Oh my goodness, there’s no local news. Print us the local news,” Ms. Wykes said.

The Blue Mountains Review is filled with “local information, things that are going on. People who died,” Ms. Wykes said with a morbid laugh. She publishes only information received from official media releases, government reports and articles submitted by local residents.

She considers herself a publisher but not a journalist and has never had any article reviewed by a lawyer. She presumed any potential liability resided with the authors of the bylined articles or the official sources of the information.

In late 2016, Ms. Wykes also began including a four-page supplement in the Review, titled the Citizens’ Pages, produced by an outside group, which covered some of the more contentious local issues.

One such long-running story concerned an investigation into allegations of workplace harassment against local councillor Michael Seguin. Last August, the Review published a blistering first-person cri de coeur written by Mr. Seguin – which was labelled as a media release – criticizing the town’s then-mayor and deputy mayor, John McKean and Gail Ardiel, for their handling of the investigation.

Mr. McKean and Ms. Ardiel retained a Toronto lawyer, who sent Ms. Wykes a cease and desist, and notice of libel charging that his clients had suffered “reputational harm … as a result of the defamatory and libelous statements” published in the Review. It demanded Ms. Wykes publish an apology and retraction in the next issue of the Review.

The letter added that the statements “maliciously prejudice Ms. Ardiel’s campaign for Mayor of the Town of Blue Mountains.” Later that fall, Ms. Ardiel failed in her bid to be elected mayor (Mr. McKean did not seek re-election).

After consulting with local lawyers, Ms. Wykes chose to ignore the letter, as well as a follow-up she was sent in October. She was served with a statement of claim in December seeking $250,000 in general damages and an additional $200,000 for aggravated, exemplary and/or punitive damages. Mr. Seguin and his wife, Catherine Sholtz, were named as co-defendants in the suit, for allegedly libellous statements the two had made on social media and in other forums. None of the allegations has been proved in court.

Ms. Wykes said she had published Mr. Seguin’s op-ed because the Review had already spent two years covering the story in the Citizens’ Pages.

“His name was on it, he owned it, so I thought, ‘Well, I guess if he really, really wants to tell people where things are now, I guess he can,’ ” she explained.

In their statement of claim, the complainants note the defendants “have failed and/or refused to remove the defamatory statements from the internet, and failed and/or refused to provide an apology.”

Ms. Wykes said she considered retracting the article after she received the lawyer’s letter in August, but didn’t like feeling pushed around.

“They said, ‘We demand you print a retraction. We demand!’” she said. “They could have sent a nicer letter.” She added the lawyer’s letter had been submitted “with prejudice – I had to Google that.” Under those conditions, she said, even if she had issued a retraction and apology, she might still have been sued.

On Thursday morning before Justice Judy Fowler Byrne, Ms. Wykes’s lawyer and the lawyer for Mr. Seguin and Ms. Sholtz will argue in a pretrial motion that the case falls under Ontario’s anti-SLAPP legislation, which seeks to limit the ability of people or corporations to suppress the speech of critics through what are known as strategic lawsuits against public participation.

Ms. Wykes estimates she has already spent $10,000 on legal bills, a significant hit for her two-person printing operation. The newsletter wasn’t incorporated as a separate business; if the judgment goes against her, she believes she could lose the whole company.

One Response to “Blue Mountains politicians fail in SLAPP suit against newsletter”

  1. Peter Lomath says:

    Clearview got around the need for SLAPP related actions by simply putting in place their staff developed and implemented “Annoying customer policy” that allows Clearview to BAN anyone pointing out the deficiencies in governance within that municipality.

    That has now been followed up by another policy that allows non-elected staff to self determine if any resident or user of a township facility needs to be banned without the policy stating any of the reasons for a ban.

    Clearviews problem is becoming Ontario’s problem – NON-ELECTED STAFF is now firmly in control of our government at the municipal level and with the implementation of the Code of Conduct rules we might as well not have elected representatives. During the recent “municipal review” it was the senior bureaucrat from Wasaga Beach who made the presentation on behalf of their council, so that council did not even have the commitment to stand up and be counted, resulting in the refusal of the NCVA chair to resign for his blatant conflict of interest.

    When you are banned by Clearview, its done in one of their ever increasing “in-camera” (SECRET) meetings. You don’t know with what you are charged, who charged you, you have no opportunity to appear to defend yourself and the appeal process is “secret” and cannot be obtained even through the Freedom of Information process.

    In my case I’ve now been banned for 3 years and all I can do is use the FOI process to get information from Clearview with the delegated head (the clerk) who to the best of my knowledge was one of the people filing the complaints against me having TOTAL control of what information she will release.

    The Privacy Commissioner always sides with a municipality and generally 1-2 years AFTER an appeal is filed. The Ombudsman stated that since I was banned there was no obligation for Clearview to respond to a request for information directed by the Minister for municipal affairs, so these two institutions are a total waste of taxpayer funding.

    Governance in Ontario is a “cesspool” and with townships like Clearview now having FOUR legal firms on retainer using taxpayers funds to fight taxpayers (what a conflict of interest) I fear that democracy as we expect it is on its last legs!

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