Libel, Slander and the Suppression of Dissent in Springwater

By Gary French Springwater News September 12 2013
The recent developments in Springwater Township council seem to me to be leading this township in the wrong direction.

There is nothing new in the tendency of rural municipal councils to seek secrecy in their meetings and discussions. This has been going on for years in this and many other townships. It is difficult to assign a reason for it, but it is common to see councilors campaign on a platform of “open government” and within months lapse into discussions in committee, in camera, and in private. The only unusual thing about the present council is the persistence of three of the councilors in resisting some aspects of this tendency. I can’t recall that ever happening before.
Moving in the wrong direction
However, the recent moves by the mayor and her supporters seem to go far beyond the usual struggle to keep the public from hearing discussion, and I think we are moving in the wrong direction.
The first indication of a problem was the mayor’s “non-meeting” in which she made an attempt to restrict or edit communications from councilors to their ratepayers. From newspaper reports, this was apparently proposed by the mayor because Mr. McLean objected to them and because CAO Brindley thought they contained spelling or grammatical errors. Who among us would not rather have a forthright report from our ward councilors, even with a comma or two out of place, rather than a letter-perfect report from the mayor or CAO, but telling us only the mayor’s version and opinion? If erroneous information was being given, would that not indicate a need for more and better reports from the mayor to correct them, rather than restrictions? It was not just the mayor’s analysis of a perceived problem and the mayor’s solution that are a concern, but the way in which she proceeded. To suggest that the council can meet to discuss township business but it is not a council meeting unless the mayor says it is a council meeting is nonsense. That theory has been rejected long ago and frequently and a mayor should know that. If a mayor does not know that, the clerk and the CAO should certainly know it. I thought an apology would have been appropriate, but I did not see one.
Legal advice to council should be published
The second issue of concern was the mayor’s treatment of  councilor McConkey, in ejecting her from a meeting for something she was alleged to have said in council. I wonder whether the mayor has the right to do this in these circumstances. There seems to be an impression that a mayor has the same rights as the Speaker of the House. The Speaker has special rights because what is said in the House is privileged and can’t give rise to action outside the house. The speaker’s rights are there to balance this privilege. But actions at municipal council meetings are not privileged and I doubt that a mayor has the same rights as the Speaker. No doubt a mayor or any chairperson has certain rights to keep order at a meeting, but I doubt that this extends to disciplining a councilor for something said in the course of a council meeting, directed as criticism of a process and not of an individual. No doubt the council obtained legal advice on this issue and I think that advice should be published.
Intent was to humiliate McConkey
The councilor is said to have suggested that the process followed on Mr. McLean’s initiative was unethical. I have no idea what the source of that was and, until evidence comes forward, have to presume it is not true. But if this was something of which the mayor should take notice of (and I think it is not) would not the first step be to ensure that the process was not unethical? I do not hear that that enquiry occurred, but perhaps it did, quietly in a back room somewhere. So far as the public is concerned, the mayor seems to have begun with the presumption that the statement was false. The unpleasant way she proceeded is also troubling. Obviously there was discussion in advance  by some, but not all,  of the council, but that must have been in private. But the confrontation with Mrs. McConkey was in public, without any notice to her, and clearly with an intent to humiliate her. Then the discussion immediately became private, but ordering her to leave the council was public and her withdrawal of the comments was public. To my mind, this had too many aspects of an ambush and too few marks of fair notice and fair hearing. The result was to deprive a ward, even for a short time, of representation on council. This is not Mrs. McConkey’s right – it is the right of the voters in that ward.
Taxpayer-funded libel action is an extraordinary proposal
Finally we come to Mr. Webster’s proposal, supported by Mr. McLean and apparently by the mayor and Mr. Clement, that they be permitted to bring actions for libel and slander at the expense of the Springwater taxpayers. This is an extraordinary proposal, apparently based on Mr. Webster’s belief that he has been subject to libel or slander and the proper remedy is for him to take legal action at taxpayer expense.
I have no idea whether any libel or slander has taken place, but if it has, and if Mr. Webster has been the subject, and if a civil action is the proper remedy, why has Mr. Webster not commenced his own action already? The only reason I can think of, and he hints at this, is that he does not think he should have to spend his own money. I have two problems with this: First, the issue is not whether Mr. Webster should pay the cost, but whether the taxpayer should pay the cost. I think the taxpayer should not be paying. Second, the standard by which I judge councilors is that they manage taxpayer money at least as carefully as they manage their own money. If this is the standard, why would Mr. Webster seek to spend taxpayer money on a lawsuit he would not spend his own money on?
Why not shrug off unfair accusations?
Libel and slander actions, both criminal and civil, are rare and are rare for good reason. Most people go through their entire life without feeling any need to bring such an action, because they are careful to protect themselves from accusations, for example, that they have acted unethically, by following two simple guidelines: First, they don’t act unethically. Second, they maintain a reputation and image in the community such that they can shrug off any unfair accusations of acting unethically. Why does this not work for Mr. Webster and Mr. McLean?
Further, even if a libel or slander has occurred, it does not necessarily follow that a legal action is a good remedy. It is often a case that the remedy is worse than the disease. If ten people saw or heard the libel or slander originally, a thousand will hear about it before the action is over. Oscar Wilde was a very talented literary figure, but he is remembered now as much for the results of a libel and slander action he brought as for his literary works. Regardless of what a Court may say, a portion of the public tend to presume that where there is smoke, there is fire.
What happens if Mr. Webster’s proposal is passed? He seems to intend to bring a civil action, in his own name, but have the taxpayer pay the cost (perhaps he intends to encourage criminal prosecution as well). Let us follow this through. Suppose Mr. Webster becomes aware that someone (call him Smith) has spoken or published words that hurt Mr. Webster’s feelings and damage his reputation, and he feels that it is appropriate to spend money on a lawsuit. Not his money, our money. The matter would have to be discussed by council. Council can discuss their own litigation in closed session, but this is not their litigation but Mr. Webster’s. Discussion will have to be in open session (unless council adopt the old dodge of discussion first “in committee”). Anyone can attend to hear the discussion except, of course, Mr. Webster. The Municipal Conflict of Interest Act requires him not only not to take part, but not to be in the room. Of course private discussions between Mr. Webster and councilors would also be improper. (One may well consider that bringing forward this entire motion is in conflict of interest by Mr. Webster and Mr. McLean, but I suppose that could be avoided by adding a provision that none of the present council voting for the motion could take advantage of it).
Suppose that this awkward situation is addressed and the mayor, Mr. McLean and Mr. Clement are in favour of funding a lawsuit for Mr. Webster. That would not be sufficient. As Mr. Webster won’t be voting, one more vote would be needed, even if council were prepared to proceed on the minimum of support. Let us suppose that this vote were found.
What would the taxpayers have to pay for?
The township lawyers could not act for Mr. Webster because of  conflict of interest concerns, so now we have a civil suit in Mr. Webster’s name, conducted by Mr. Webster’s lawyer, controlled and governed solely by Mr. Webster, in which the only part played by the township would be paying the bills. That sounds to me like the recipe for a long lawsuit. But maybe not. I think the first action after the action is commenced would be a motion to dismiss on the part of the defendant, based on the rules against maintenance and champerty. I have no idea what the result would be, but I would not be betting on the plaintiff. No doubt if that motion were to be successful, the Court would make its views amply clear in an order for costs. Would the taxpayers have to pay that, even if the action could proceed no further?
Suppose the action carried on. Anyone accustomed to the procedures at Springwater township might find the entire process uncomfortable. Mr. Webster would not have a comfortable seat as prosecutor with Smith being the accused. Questions properly put have to be answered in full and can’t be ignored or responded to with half answers. There is no adjourning into the back room for comfortable “in camera” or “closed session” meetings. Many a libel and slander plaintiff has come to wish he had not begun the lawsuit.
A lawsuit can be brought to an end at any time by agreement, but failing that things don’t move quickly. It could easily take a year or two. What happens if an election intervenes and the new council wants out of the lawsuit. Are they in for the duration, subject to Mr. Webster’s consent? What if Mr. Webster retired or was retired by the voters? Does the taxpayer still have to fund the lawsuit to the end? Sometimes a lawsuit that looks good at the beginning has a much poorer appearance after discoveries are complete (and perhaps $30-40,000 has been spent). Someone who want out of a lawsuit they have commenced needs either the consent of the defendant Smith or is subject to paying Smith’s legal costs. Would the taxpayer have to buy their way out of the action? Is it likely that Mr. Webster would then carry on and be content to assume the costs himself, if he were unwilling to do so at the beginning?
Bill for trial could be into six figures
Eventually all lawsuits come to an end. Failing agreement or dismissal by the Court, this would mean a trial. It is impossible to predict what the bill would be by the end of the trial, but it is likely to be well into six figures. The options open to the court are complex, but greatly simplified and in layman’s terms, the judgment will be read to see which of four categories the Justice or the jury found: The words were false, but Smith was nevertheless entitled to speak or publish them; the words were true and Smith was entitled to speak or publish them; the words were false and Smith was not entitled to speak or publish them; or the words were true and Smith was not entitled to speak or publish them. In any event, by then far more people will have heard the whole story (or street or newspaper versions of it) than ever heard or read the words originally spoken or written. That is why the usual advice from a lawyer is to never consider such a lawsuit. But there is more to it than that.
If the action is dismissed by the court, does the taxpayer swallow the legal costs? What if the action is dismissed and Mr. Webster is ordered to pay the defendant Smith’s legal costs. Does the taxpayer pay for that as well? Surely in such a case Mr. Webster would feel obliged to reimburse the taxpayers in full and if so, that would be an appropriate amendment to his motion: that before commencing action, the councilor who is plaintiff sign a bond and post security to reimburse the township if the action is unsuccessful.
The basis of the civil action is the claim for damages. If Mr. Webster is successful and damages are awarded to him, does he keep the money or does it go to the township? What if damages are awarded but there is no order that Mr. Webster’s costs be paid? Does the taxpayer still take the loss? Even if there is an award of costs to Mr. Webster, that order is for payment to Mr. Webster. Does he in fact have any costs if the taxpayer has footed the bill? Does he have to turn that money (if ever paid) over to the township? Even an award for costs, if it is the usual award, would cover only about two-thirds of the actual costs. Would Mr. Webster be entitled to keep the damages and allow the taxpayer to accept loss of the other third?
There is yet another danger. In some cases (the Arthur Currie case is best known) the plaintiff has succeeded but the amount of the damages awarded has seemed so slight that the result might be read as a worse insult to the plaintiff than the words spoken or published ever were, on a “faint praise” argument. Does that count as success or as failure?
And if the taxpayer spends, say $100,000, to fund such a lawsuit, would that not be a taxable benefit for which a T5 should be issued and Mr. Webster be required to pay income tax? I wonder.
What is the need of basis for this motion?
I don’t see the need or basis for this motion. So far as I am aware, neither the Premier of Ontario nor the Prime Minister have this privilege of taking someone to trial for slander or libel, at taxpayer expense. I suspect the Queen of England does, based on some ancient treason statute. Probably Vladimir Putin does. No doubt there are a few totalitarian countries where the president has such a right (but probably just dispenses with the trial). In makes me wonder just what Mr. Webster and Mr. McLean see when they look in the mirror.
I suspect this is not about lawsuits at all. I think it is about suppression of dissent and silencing an opposition. When a governing body can’t or won’t fully answer questions and moves instead to silence the questioner, the public needs to beware. It reminds me too much of Site 41, when it appeared towards the end that the supporters turned to using power rather than persuasion. If the supporters of site 41 had the power that Mr. Webster and Mr. McLean want to give themselves, would we have a farmer’s field there or would we have a mega-dump? Is this really about commencing a lawsuit, or is it about creating the ability to threaten or intimidate by the prospect of being a defendant in an expensive lawsuit where the plaintiff has a free ride?
What was cost to taxpayer of legal advice?
I can’t imagine that this motion has come forward without previous legal advice and I can only presume that that advice was at the taxpayers’ cost. Let the council make this advice available to all of the council and all of the taxpayers. I am interested to know, not being an expert on municipal law, whether the motion is even legal, considering how limited the powers of a municipal council are under the Municipal Act.
Beyond that, the matter rests in the hand of the voters. There is a precedent for Mrs. McConkey’s situation. William Lyon MacKenzie was ejected from the legislature three times (the last time physically) because the family compact did not like what he published in the paper. Make no mistake – MacKenzie published comment much worse than what has troubled those delicate flowers Mr. Webster and Mr. McLean. The answer by the voters of York was to return him each time on election.
If the voters in Springwater support the views of the mayor and her four supporters, they should re-elect them and give them three more councilors who think the same way. On the other hand, if the voters think that the business of the public should be discussed in public, that a ward representative is entitled to report to those he or she represent, that the voters of a ward should not be subject to having their representative ordered off council and that councilors should fund their own litigation, they may decide to consider those views when they come to vote.
In the end, the test is clear: Is the action in the best interest of the township? I don’t think curtailing reports from council is in the best interest of the township. I don’t think arbitrary disciplining of councilors is in our best interest and, if encouraging civility was the purpose, it certainly has not succeeded. I certainly don’t think that funding the private law suits of councilors has any benefit for the township.
I hope the reader will excuse any spelling or grammatical mistakes – I hadn’t the opportunity of having this checked over first by CAO Brindley.