Aurora Citizen

News & Views from the Citizens of Aurora Ontario

Article: Funding for Defamation Cases Close to Crossing Line

Posted by auroracitizen on October 29, 2010

This timely post was spotted on the website Law Times. Highlighting added by AuroraCitizen.

By Glenn Kauth | Publication Date: Monday, 18 January 2010

http://www.lawtimesnews.com/201001186179/Commentary/Editorial-Funding-for-defamation-cases-close-to-crossing-line

Several recent cases in Ontario have raised the issue of how governments officials handle defamation lawsuits. A case that has drawn considerable scrutiny is that of Toronto Coun. Adrian Heaps, the defendant in a defamation lawsuit dating back to the time he was a candidate for city council. The city’s plan to cover his legal bills in the case will come before council again later this month as anger over the payout grows.

Part of the controversy centres on the fact Heaps wasn’t even a sitting councillor at the time of the offence. But elsewhere, municipal councils are funding defamation litigation in similarly contentious circumstances.

In Wellington County, for example, the municipality is covering the legal bills for an action launched by the mayor of Puslinch, Ont., Brad Whitcombe, and county chief administrative officer Scott Wilson.

That move prompted the Canadian Civil Liberties Association to intervene in a bid to dismiss the case. It argues paying the two officials’ legal costs amounts to an effort to circumvent legal prohibitions on governments from suing for libel.

In Toronto, the same questions came up last year when Coun. Sandra Bussin sought city money to help her with a defamation case she had launched. Now, dissent over the Heaps affair has prompted a legal challenge by the fledgling Toronto Party against the politicians who voted to pay him. It’s clear, then, that the issue has become a messy one for municipal councils.

In the case of politicians, it’s fairly obvious that paying their legal bills to sue members of the public represents a threat to free speech. Defending city councillors who face lawsuits over actions they take in the course of their duties is one thing, but funding cases they themselves undertake is another.

After all, they should expect legitimate criticism from the public and, if it’s unfair, they have plenty of venues and resources for rebutting it. If that’s not good enough, they can pay for the litigation themselves.

More difficult, however, are cases such as the Wellington County one. One of the plaintiffs there is a bureaucrat who, it’s arguable, should receive some legal protection from libelous comments. The allegations, a recent judgment in the dismissal motion noted, include innuendos of criminal behaviour on behalf of the plaintiffs on a local web site called smelly-welly.com.

In response to the CCLA intervention, the motions judge ruled there was insufficient legal authority to dismiss the case over the county funding. But it’s time the courts, or Queen’s Park, dealt with the issue.

Beyond the fact that one of the plaintiffs in the case is a politician, the county’s move could have an ulterior motive of trying to silence dissent under the guise of helping two of its officials with a legal issue. For his part, the judge noted those questions might come out at trial. Hopefully, that happens given the ongoing controversies.

Certainly, defending public officials in court over matters related to their duties is legitimate. But funding the lawsuits they themselves initiate comes dangerously close to crossing the line. As a result, it’s time for a thorough discussion on when it’s appropriate to pay for public officials’ legal bills in defamation cases.

— Glenn Kauth

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37 Responses to “Article: Funding for Defamation Cases Close to Crossing Line”

  1. Anonymous said

    Something I don’t understand…why is Morris suing three citizens for whatever baloney she saw here, but not suing Chris Watts who definitely says what he thinks? Vendetta, anybody?

    • Robert the Bruce said

      I have wondered the same thing. I actually asked a member of the GOS the same question. The AC statements seem rather tame to me compared to some of the stuff you read on the Watts’ blog. He can be downright mean.

      Fuimus

    • Anonymous said

      That thought crossed my mind as well!

    • walt said

      Because it looks better if it is framed as a conspiracy again Mrs. Morris – all those people out to get her, you know – rather than picking on one dude with a website and very sharp tongue.

      BTW – add my voice to those who found that one sentence where he inferred a vulgarity on his blog beneath him. Mr. Watts has and will do better than that, in my eyes. However, he is a grown up and can do whatever he damned well pleases on his blog. Doesn’t mean we have to condone what he says or does when he crosses a line – and he certainly did in my eyes. He’s a big kid, I’m pretty sure he’s got a thick skin and won’t take the criticism personally.

    • Luckywife said

      You are right RTB, what is written here is tame when you compare it to what Chris writes. To me the big difference between his blog, Evelyn’s, and this one is community participation.

      The AC starts a topic and invites all of us to participate in a discussion. Chris and Evelyn have set their blogs up to share their opinions and although they each allow comments, it’s not really a conversation. If I ask Evelyn a question, she is generally very good about answering me but we aren’t having an ongoing discussion with each other or with the other commenters.

      IMO this is why this forum is viewed as such a threat to Morris and her cohorts. They don’t want us communicating with each other, sharing ideas and opinions unless they can CONTROL the subject matter and steer topics in the only direction they want them to go.

      While they all claim to want community input for the good of all, we know what BS that really is. The only input they are interested in is the ones that support their initiatives. This is why they marginalized Evelyn, Grace, Allison & Bob. They did not want to hear and were never willing to consider or accept disagreement or alternate opinion or compromise.

      Now, I do appreciate that Evelyn can be a very polarizing figure, alot of people don’t like her and are quick to blame her outspoken nature and her blog for all that is wrong in Aurora politics. But, honestly what can anyone have against Grace Marsh, Allison Collins-Mrakas or Bob McRoberts? They were marginalized also. They just didn’t choose to fight back with the same vigor or to the same degree as Evelyn.

      What Morris, MacEachern, Granger, Gallo, Gaertner and Wilson do is not democratic. It’s not even socialism. It’s facism. The only way to fight that is to keep talking and participating, whether it be in a community blog, a coffee shop with our friends or at our own dinner tables. Agreement is not nescessary to be productive. Communication is.

      Regards,
      Luckywife

    • Anonymous said

      Walt,

      He may be a grown up but there is a line that should not be crossed and he has crossed it. If he was grown up, he would realize it. It was funny for a while, mis-spelling Evelina’s last name and the Era-Banner and others, but if he is trying to be an Illingworth-like commentator, I think he is offending more of his audience that not. The post about the recount is a funny play on words, but is as offensive as a Mayor dressing up as a KKK member on Halloween.

      The nice thing about blogs is that you can choose to ignore them. I now do that with his. Not only is he offensive now but he writes like a failed GED student.

    • Anonymous said

      To Anonymous Nov 4 at 4:24
      It was not the mayor of Campbellford who dressed up as a KKK member on Halloween. The lastest news today is that it was an ex-police officer.I wonder if he was not an ex-officer at the time of the G-20. Anyway he was wondering whether he should get out of town since the outcry. He sounded rather like Wendy Gaertner when he said ” ‘I had no idea’ …. that I would offend anyone.” We all know that Wendy has no idea about anything, especially what she is voting for.

  2. evelyn.buck said

    For ten years I heard the argument that Advisory Committees have no power. They advise. Council makes decisions.

    Immediately prior to the election, staff were directed to document the “accomplishments” of advisory committees of the last four years.

    And they did. Every department was set to the task. Then they were asked to condense the writing because it was so much reading.

    They did that too.

    The accomplishments of advisory committees are now part of the town’s records.

    During the same period, I heard arguments eight Councillors were too many.

    Well what about nigh on a hundred non-elected people making the decisions about how to spend your tax dollars and never having to account for any of it?

    How does that strike you?

    • Robert the Bruce said

      So, what is the solution? Should all advisory committee members get elected? Should their accomplishments not become part of the Town’s records? Do we need more councillors – when Rob Ford is looking to cut their number in half?

      I think that saying 100 some-odd non-elected people making decisions about how to spend tax dollars is a bit of a stretch. Who gives them to money to spend? Is it not council? Does council not get an opportunity to debate the budget?

      If you cannot trust that the volunteers that make up these committees are going to make the proper decisions with money, maybe we need to eliminate the committees and make each councillor responsible for them. This will mean that Town Councillors will need to become FULL TIME councillors to give them the time to do this work.

      I think that slagging on the volunteers because they are fiscally irresponsible will not do much to bring in volunteers in the new term.

      Fuimus

    • Joe said

      RtB raises a good point. If Evelyn is going to continue the volunteer bashing, then we’re not going to get the calibre of people we need to get involved in advisory committees.
      It seems Evelyn just expects that once a councillor has been elected, our job as a citizen is done. Sorry, I still want to be involved in the political process.
      God forbid I’d like to contribute my professional skills and abilities to a committee.
      I hope the other new councillors are not of a similar mind.

    • veritas said

      When I was a citizen member of one of the advisory committees (not one of the major ones like LSAC, granted), we made recommendations that were forwarded to the next GC meeting and then any decision was made by council at the following council meeting. We did have an annual “budget” and our recommendations included, among other things, on which items we thought they should be spent. The last word and decision, however, was council’s.
      It worked in the same way as any other committee on which I have sat throughout my professional career: a committee makes recommendations to the authority (in this case, council and the town) that struck the committee in the first place, and to which it reports. The authority looks at the recommendations and makes the final decision. It is not rocket science.
      However, having said that, I have never known a situation where the “authority” actually sits on the committee as well, as Morris and others have done. The purpose of the committee is to do a specified body of work and ease the workload of the authority.
      Seems to me that it is not possible to have it both ways.

    • The more things change... said

      See? She won’t change. Anyone who thinks she’s going to “play nice” because of a change in the mayor’s seat is delusional.

      News flash councillor — every single day staff members decide how to spend the budget council approved.

      They are accountable up the chain to the CAO. And he’s accountable to council.

      Committees report to council which is free to accept or reject their recommendations.

      Therefore, everyone is accountable.

      And guess what? It’s like that in every municipality across this country.

      This is just another example of how she twists things in order to criticize one of her favourite targets — committees and their volunteers.

      She can’t stand it that people other than councillors can actually contribute to the running of the town.

      Guess what councillor — it’s not 1960 anymore.

    • Can the Committees said

      Talk about building a mountain out of a mole hill, We’re only 55,000 people tops , With a full time staff made up of numerous senior Managers, Directors, a CAO , full time Mayor , 8 councilors at large , Committee and Council meetings, surely the Town can run without all the extra baggage and bureaucracy that comes with Sub Committees. With a more business like mentality running the show and the end of the rambling and mindless blither there will be plenty of time to get to the real issues and solve the problems while allowing “meaningful” input from the public at every level. Don’t forget we already have representation in the community with Sport Aurora etc. the only real role for the Town is to listen carefully and follow the plans.

    • walt said

      Joe: are you brain-impaired, or do you just have trouble comprehending the difference between a call for accountability from Mrs. Buck versus what you describe as “volunteer bashing”?

      God, some people are thicker than bricks around here. And obviously rather thin-skinned, much like a certain blonde-haired non-resident.

    • KA-NON said

      Who’s twisting things?

      Evelyn’s position on committees as I understand it from reading many posts over the past couple of years is roughly as follows.

      1. She is NOT offended that they are staffed by private citizens per se, but rather that the reins have been loosened too much with regard to how much independent spending they can do without ongoing approval from council. For example, she has documented the amount of money that is allotted annually to the “Arboretum” group (sorry don’t remember the actual name) which is then spent entirely as the committee sees fit. Too much latitude is the issue, not that it is made up of citizens.

      2. It is EB’s impression that the actual makeup of the committees have been controlled and manipulated by the previous leadership, based on relationships/friendships etc. and NOT necessarily on qualifications.

      The combination of the two above, in EB’s opinion, has let to a lack of rightful oversight (by the elected body) and quite likely an overspending if not absolute misuse of public funds.

      As she says above, committees should advise. The issue is that they have been given considerable executive powers with the size of the budgets they are allowed to spend however they see fit.

    • evelyn.buck said

      The response is interesting. I would switch to my own blog but the Citizen has a better format for the exchange to happen.
      Whatever I say seems to get turned around to say something else.
      Thousands of people volunteer in Aurora. Every sports organisation depends on volunteers.They do it so kids can enjoy the benefit of playing the games that are part of our culture.
      They do it for a ton of other reasons too. Sometimes it’s not even organised. It might just be keeping an eye on an elderly neighbour.
      They don’t need anyone to know about it or get credit for it. They do it out of human decency.
      Take the service clubs in town. They get together to do good stuff.It’s their reason for being.
      What kind of a politician would slag or bash volunteers in the community.
      Let’s get real people.
      We have professional staff to guide us in everything we do.We pay big dollars for the service they provide.They do all the grunt work and present us with the fait accompli.
      If it came straight to Council, how much faster would things move?

      We have consultants when needed…or not.

      Two years ago we paid a consultant $53ks to update our Master Recreation Plan. It needs to be done every five years.
      The plan got to final draft but never presented to council.
      I asked and learned it had been presented to the Leisure Services Advisory Committee. It stayed there for two years. When it emerged, a second plan had been written by Councillor Evalina MacEachern and Ken Whitehurst a volunteer and friend of the Mayor.
      Council chose MacEachern’s plan.
      Volunteers in sports programs and staff had provided input into the original plan. Not into MacEachern’s.

      I’m not sure how anyone might read respect for volunteer input into that situation.
      Even volunteers and councillors on the LSAC committee were shut out of the process.
      We spent $53Ks for the work. It was hidden away for two years. Two people were responsible for the plan that finally emerged. The sports representative on the committee resigned over that debacle.

      The new Council might be wise to re-visit the Master Rec Plan adopted by the last Council. There’s stuff in there that doesn’t make any sense and will undoubtedly slow us down for years.

    • Robert the Bruce said

      Ka-non,

      Let’s look at the Arboretum group then.

      Let’s say they have been given $20,000 for the year. As a committee that now have $20,000 to spend. Are you (and Evelyn by extension) suggesting that even though they have been given the money, as a committee they have to come back to council to get approval to spend $5,000 on a purchase of trees? What is the point of giving them the budget in the first place? If council sees fit to allocate funds to a committee, the committee should be trusted that they will spend it properly. Now having said that, I do not advocate spending without reporting. I think the committee needs to report back to council what they spent the money on.

      If we have a committee struck and a budget allocated, they should be given the authority and responsibility to manage that budget. They also need to be accountable to council on how they spent it.

      I guess I am too open and transparent?

      Fuimus

    • KA-NON said

      Robert/Fuimus,

      I agree with you. If council gives them the money, and tells them to spend it as they see fit, well then, that is what they should do.

      The problem comes when too much money is given to the committees, regardless of how they have been populated. The point that I think Evelyn makes, notwithstanding any feeling she has that the committees themselves are populated by cronies and sycophants, is that many of our committees have had too much freedom with too many dollars.

      K-N

    • Luckywife said

      To RTB and KA-NON:

      Having a budget does not mean having a blank cheque and does not automatically translate into having the authority to make a purchase. There is no volunteer slagging here. Non-elected committee’s should not have any authority to spend public funds without approval. Period. If a committee has a budget of $20,000 and they want to purchase 25 saplings, 15 shovels and 300 pounds of manure for a cost of $12,680. then they make that recommendation to council, who then approve and direct staff to make the transaction. That is how it is supposed to work.

      That’s transparent and accountable.

      Regards,
      Luckywife

    • Robert the Bruce said

      Ka-Non,

      Evelyn’s concern is that the committees are populated with cronies and sycophants and too much freedom with too many dollars.

      In all of these issues, the solution is right there – has been since the beginning of time. It is council that appoints the members of the committees. It is council that creates the frame of reference and mandate of the committee. It is council that approves and assigns budgets.

      It seems to me that council has the controls in place. Perhaps these issues are discussed after the scheduled time of adjournment and she has not been part of the discussions?

      Fuimus

    • Buck Shot rocks said

      Evelyn said “I would switch to my own blog but the Citizen has a better format for the exchange to happen.”
      Get used to it. As much as I enjoy “blog”, there isn’t sufficient participation. Minimal comments on posts offer little room for discussion, or no comments at all seems to denote no interest in the post.
      I think you’ll find that this is where you’ll need to play.

    • October Came, Thanks were Given said

      Having worked on numerous committees, both volunteer and in business, where money was to be an issue, a process was followed.

      The approval was always a two step process where budgets were established in advance of expenditures and purchases were approved before the funds were spent.

  3. Horrified said

    The best Anonymous can hope for is for Buck to eventually say something like:

    “Yes, 40 years ago, I closed the meetings- it seemed like the right thing to do at the time. 40 years later, it seems like the meetings are closed for no good reason. Times change, and I changed with them.”

    Actually, Buck has said as much in her commentary already, with sensible observers emitting a giant yawn. One wonders what the point of actually trying to elicit such a trivial admission would be.

    I know, maybe it would prevent Buck from being elected in 2010.

    Oops, too late for that. Kinda like it’s too late to apply for a GO Transit campaigning permit, or too late to drop an ill considered law suit.

    The circular firing squad that enabled the soon to be ex-Mayor all the way through her reign of error and on to this recent train wreck of a reelection campaign, however doomed it was from the beginning, seem determined to go out in a blaze of mud slinging.

    And if there’s no actual mud, no worries, they can just invent it by making dubious connections between different eras and inserting rhetorical comments made about totally unrelated things.

    The vote has already been held, Einstein(s). Your story was just not credible in the eyes of the voters. Buck’s was.

    Maybe when Buck was 6, back in Scotland, she once signed a Code of Behaviour at her School for Wee Girls. Perhaps you can put on your thinking caps (no doubt pointy with ear flaps) and make some grave accusations about her inconsistency.

    Good grief.

  4. Transplanted Auroran said

    Lots of things have changed in 44 years. Personally, who cares? People change. Situations change. I can only assume EB knows more now than she did then, so who cares? Move along already.

  5. evelyn.buck said

    Forty-four years ago, when I was Mayor, Aurora’s administration was a different affair.

    Council’s organization included Standing Committees, Committee of the Whole, Ad Hoc Committees ,Recreation Commission, Arena Management Board, Planning Board. The Library Board was an offshoot of the Board of Education and there are probably others I do not recall.

    In camera meetings of Council always were and are a different matter.

    Only those items which would invade individual privacy or jeopardize the interest of the municipality were discussed behind closed doors.

    I do not re-call there ever being an argument about whether or not an item qualified. It fit into the category or it didn’t.

    Things have changed substantially in fifty years.

    I am asked to justify what I said about town business forty-four years ago as opposed to how things are today.

    How ridiculous is that? It was ridiculous when my friend Richard made the reference several years ago and it’s still ridiculous.

    Times change, my friend …times change. Who better to judge than someone who has lived though the changes.

    But one thing doesn’t. When politicians start tucking all manner of unusual matters behind closed doors that’s not about transparency in public affairs.

    That’s about covering private posteriors.

    Never mind what you think I may have said forty-four years ago or this morning.

    Just watch your new council in action in the next four years. You will soon discover the difference between this one and the last.

    • Anonymous said

      Ok, another double standard. You have advocated how things “used to be done” back when you were the Mayor as the proper way to do things – your blog is full of examples. Now you claim that things change enough that this particular situation does not count.

      It’s like watchin a tennis match with your back and forth. Either we accept that change happens and adopt it or we live in the past. What is it going to be?

    • Anonymous said

      So what you are saying is that 44 years ago it was acceptable to make all committee meeting closed, and now it is not.

      I agree that “When politicians start tucking all manner of unusual matters behind closed doors that’s not about transparency in public affairs.”, but that would have been the case 44 years ago too, would it not? And you did actively make those meetings closed did you not? And by the post you made last week on your own blog it sounded like you could justify doing it again.

      I just want clarification from you about what exactly has changed between then and now? And how has that affected your attitude about closed meetings?

    • Matt Maddocks said

      Hi Evelyn – first, I’m glad to hear you’re feeling better. Second, let me congratulate you on the resounding endorsement from the voters, me included, to return you to Aurora Council. We are fortunate to have you.

      I imagine there’s got to be some bitterness out there though, say from those incumbents that didn’t get re-elected don’t you think? They must be so upset that while the voters sent a clear message to bring you back, at the same time we told them to start packing.

      I see you’ve got a challenger here on this post. Wonder who it could be??

  6. evelyn.buck said

    Early in 2009,I sought clarification from the town solicitor about legal indemnification for Council members.

    The explanation was Councillors are protected from legal action as a result of carrying out responsibilities as an elected official.

    I had asked before with former clerk B.Panizza and solicitor George Rust D’Eye in the room. Both indicated they were unaware of any such protection.

    It was at the time when a Code of Conduct was being proposed as a means of controlling an uppity Councillor with a mind of her own.

    The last time I inquired, the response was full and complete. While a Councillor could be defended ,there was no indemnification for an elected official to take action against anyone else.

    I hope we will soon discover what, if anything, changed after the report on indemnification was provided to Council.

    It was another one of those items discussed behind closed doors which had no business being there.

    • Anonymous said

      Your stance and closed door meetings is, to say the least confusing. In this post you talk about items which have no business being behind closed doors.

      Yet, in these blog posts

      http://evelynmbuck.blogspot.com/2010/10/aeons-ago.html
      http://evelynmbuck.blogspot.com/2010/10/check-my-personal-blog.html

      you reference when Dick Illingworth criticized you for having closed all committee meetings to the public when you were mayor.

      “Soon after taking over as mayor, Ev closed committee meetings to the public and press claiming the press had no objectivity, and that open committee meetings were not in the public interest because they undermined free and open debate” (From Auroran 26 July 2005)

      and you say “If the clock could be turned back and debate continued, I would not expect his views to change one whit. Nor would mine.”

      So which is it? Should committee meetings be open to the public or not? The reference is 40 years old, but you claim not to have changed your views, so I think the question is still relevant.

    • Brickbat returns said

      Evilina and the gang are going to put up a fight for four years.

      Sure looks that way.

    • KA-NON said

      Apples and oranges perhaps Anonymous? (i.e. Council Meetings are NOT committee meetings).

    • Anonymous said

      Excellent KA-NON. I’ll let Dawe know that he shouldn’t worry then about doing all the GCs in-camera. When the advisory committee meetings start up again, we could do them all in-camera too. Should save a bit of space in the Banner not having to announce them any more.

      I wonder if you would have said “apples and oranges” had the previous council suggested making any of these meetings in-camera. Seems to me they got a lot of flack just for having in-camera meetings of a longer duration. Not even any more of them.

      Be careful in your rush to defend Buck, that you do not find yourself advocating a double standard. That would be unfortunate.

      I still submit that it is a fair question and I wonder if Buck is going to answer it.

    • KA-NON said

      You are assuming that Dawe WANTS to put all the “C” meetings behind close doors. What would give you that indication?

      BTW, I was not defending Ms. Buck per se, though I would do that if I thought it was warranted. I was simply looking for a difference that might explain the seeming contradiction. My thoughts were that the committees were/are populated with private citizens (i.e. non-politicians), whose approach to the work might be compromised under the glare of the publicly reported spotlight. I would have thought that all committees ultimately report back to council in any case, so that any and all measure of public scrutiny could be applied to the results of the committees, which is appropriate.

      But, I am out of my depth a bit now. Just trying to apply a bit of reasoned guessing to the question.

      Cheers!

    • An optimist said

      Is this the same Anonymous or are there several, or even many anonymouses splotting all over the blog?

      There is nothing wrong with asking questions. What would be appreciated is that there be a bit of intelligent thought in the person’s mind before transferring the thought to the electronic medium and thus into print.

      We have just finished a fierce fight relating to freedom of intelligent expression and one side was the obvious winner. I would hate to see a continuation by a handful of morons polluting the airwaves of Aurora with their mindless blather.

      If you have something sensible and constructive to say, say it – yea or nay, either one. If you don’t, then shut up!

    • Anonymous said

      To Kanon and anyone else:
      When I was on an advisory committee it was populated by one councillor, citizens and the then town clerk. I can assure you that nobody was the least bit interested in when we were meeting or what we were meeting about; nobody ever showed up to listen.

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