Aurora Citizen

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Archive for the ‘Legal’ Category

CCLA Publishes Court Findings

Posted by auroracitizen on July 28, 2011

LINK: http://ccla.org/2011/07/25/ontario-court-protects-political-speech-and-internet-anonymity/

Ontario Court Protects Political Speech and Internet Anonymity

July 25th, 2011

The Ontario Superior Court of Justice recently issued a decision on a motion brought by the former mayor of the municipality of Aurora.  The former mayor has sued some of her former constituents for defamation based on comments posted on a local Aurora blog which are critical of her work in office.

As part of her lawsuit, she brought a motion asking the Court to order the known parties to reveal identifying information about an anonymous blogger(s).  The CCLA intervened in this case to argue that a high threshold should be met before the Court should order the release of this kind of information.  The Court should pay particular attention to whether there is a prima facie case of defamation established (i.e. whether, on the surface, a case of defamation can be made out), and should weigh and balance the concerns about freedom of expression and privacy with the interests in obtaining disclosure.  CCLA argued that the rights of citizens to comment on and criticize the performance of their public officials is crucial in a democracy, and civil defamation suits should not be used as a means of silencing this kind of expression.

The Superior Court has found that the former mayor is not entitled to the identifying information she was seeking because she had not established a prima facie case of defamation.  The former mayor had not laid out the particular statements she alleged were defamatory and, as a result, the Court held that they could not determine whether her case was, on its surface, sufficient to establish defamation.  The Court also noted that the bloggers in this case had a reasonable expectation of anonymity since they did not have to identify themselves in order to participate in the blog.  The CCLA is pleased that the Court has taken the concerns of privacy and political speech seriously.

Read the CCLA’s factum here.

Read the Superior Court’s decision here.

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Posted in Code of Ethics, Integrity, Leadership, Legal | Leave a Comment »

The Justice Brown Judgement

Posted by auroracitizen on July 28, 2011

For those interested in reading the Justice Brown judgment in full — it can be read here.

http://www.canlii.org/en/on/onsc/doc/2011/2011onsc3996/2011onsc3996.html

Posted in Code of Ethics, Election 2010, Integrity, Leadership, Legal | 1 Comment »

Court of Public Opinion Offers Verdict on Morris Lawsuit

Posted by auroracitizen on July 27, 2011

There has been a flurry of news articles about our wee town as a result of the decision by Judge Brown on the Phyllis Morris defamation lawsuit. In case you might have missed some, they are listed below.

If you see additional articles please add them as comments and we will add the new articles to this post. Don’t forget to check out the comments on the articles. They are also an interesting read.

Why faceless sniping deserves protection
Ivor Tossell, Aug 3, 2011, Globe & Mail
http://www.theglobeandmail.com/news/technology/digital-culture/ivor-tossell/why-faceless-sniping-deserves-protection/article2118151/

Court grapples with legalities of anonymous online postings
Michael Geist, Internet law Columnist, Sunday July 31, 2011, Toronto Star
http://www.thestar.com/business/article/1032104–geist-court-grapples-with-legalities-of-anonymous-online-postings

EDITORIAL, National Post: Right balance on online free speech
Thursday Jul. 28, 2011, Page A1
http://www.nationalpost.com/news/Right+balance+online+free+speech/5169848/story

Morris ruling could set precedent: lawyer
Jeremy Grimaldi, July 27, Era Banner
http://www.yorkregion.com/news/article/1049287–morris-ruling-could-set-precedent-lawyer

OPINION: Jesse Kline: No pity for spineless politicians who don’t respect free speech
Wednesday July 27, National Post
http://fullcomment.nationalpost.com/2011/07/27/jesse-kline-no-pity-for-spineless-politicians-who-dont-respect-free-speech/

Aurora ex-mayor’s critics can remain anonymous
Gloria Er-Chua, Staff Reporter, Tuesday July 26, Toronto Star
http://www.thestar.com/news/article/1030974–aurora-ex-mayor-s-critics-can-remain-anonymous

Aurora critics can remain anonymous, judge rules
Reporter Megan O’Toole, Tuesday July 26, National Post
http://news.nationalpost.com/2011/07/25/online-critics-of-former-aurora-mayor-can-remain-anonymous-judge/

Who was that masked man? Court protects anonymity of Internet users
David Elder, July 26, 2011, Strikeman Elliott Blog: Canadian Technology & IP Law
http://www.canadiantechnologyiplaw.com/2011/07/articles/privacy/who-was-that-masked-man-court-protects-anonymity-of-internet-users/

Aurora Bloggers Fight Being ‘Silenced’
Reporter Megan O’Toole, Wednesday June 15, National Post
http://www.nationalpost.com/related/topics/Aurora+Bloggers+Fight+Being+Silenced/4947382/story.html

Locally, The Auroran has also covered this issue and you can look up via the “current issue” or “past issues” link http://www.theauroran.com/

Morris motion thrown out
The Auroran, Week of July 26. Front Page and page 8,

Posted in Code of Ethics, Election 2010, Integrity, Leadership, Legal, Media | 11 Comments »

It Ain’t Over Til It’s Over

Posted by auroracitizen on July 23, 2011

Many folks have asked whether the AuroraCitizen has stopped publishing because of the lawsuit. In short — the answer is NO. Sort of.

The AuroraCitizen has not stopped because we are prevented from publishing because of the lawsuit — but because the time taken to deal with issues of the lawsuit needed to come from somewhere — and the options were time with family and the need to work and generate income. Family and work came ahead of writing a blog.

However, we did want to provide you with an update on the recent decision by Madame Justice Brown — which obviously we are all very pleased with.

Let us start from the end and work back.

First, the Judge ruled that “The Plaintiff has failed to establish a prima facie test and accordingly, I dismiss the motion.” This means that Phyllis Morris failed to convince the Judge that there was a basis for the complaint. The Judge’s decision is clear and unequivocal.

Secondly, Judge Brown ruled, “the public interest favouring disclosure clearly does not outweigh the legitimate interest in freedom of expression and the rights of privacy of the persons sought to be identified.” Canada still remains a democracy — even if Phyllis Morris has a different opinion.

Third, “The plaintiff in this defamation action has failed to set forth the specific words complained of as being defamatory. The jurisprudence clearly establishes that in actions of libel and slander, the precise words complained of are material and should be put forth in as much particularity as possible in the pleading itself, ideally verbatim or at a minimum, with sufficient particularity to allow the Defendant to respond“. She further adds, “it is not the role of the court to parse the impugned articles and blogs be it to attempt to determine by divination  or divine inspiration, which statements it should asses in determining whether a prima facie case has been established.” For regular watchers of this case, you will recall that this same issue was raised in the motion by the Defendants in the Spence decision. In that motion, Morris argued that she didn’t have to be specific. Justice Spence left her some leeway on the particulars but did require her to crystallize the claim. Judge Brown, in the matter of Freedom of Expression, rightly held Morris to the full standard as established by law.

Judge Brown also noted that, “the Plaintiff did not provide evidence in support of this submission, nor did she provide any affidavit evidence in support of this motion.” Rather she left Town Solicitor Christopher Cooper to hold the dirty diaper on this motion — the same Christopher Cooper who is no longer employed by the Town.

Lastly, Judge Brown wrote, “I am cognizant, in the present case, that the alleged defamatory statements were made in the context of a hard-fought political campaign. They are clearly related to the mayoral position and governance of the Mayor, councillors and the municipal governance generally. With these very precise words the Judge clearly notes that at no time were any comments directed at staff — you may recall that this was the claimed basis that Morris used to ask the town (i.e residents and businesses of Aurora) to fund her lawsuit. The Judge obviously saw through this charade.

So what’s next? Is it over?

Well, as you may already know, the Banner reports that Phyllis Morris plans to appeal to a higher court for “leave to appeal”. Which should come as no surprise. Phyllis has a habit of appealing any decision that does not give her what she wants. One need only look to the Westhill debacle to understand her resistance to other opinions. We understand the date for that appeal will be in October.

Which means that the higher court will decide first if she has grounds for appeal, and then if they believe she does, they will set at a further date hear arguments on the motion again.

But nothing changes until the appeal is heard. Except the Defendants costs continue to rise. And Morris avoids having to pay the defendants their costs for the judgment.

Finally, whether the motion is dismissed again or not, the lawsuit is not over — just the Norwich Motion.

If, as expected, the appeal fails and the Norwich Motion is dismissed again, the leaking boat that is the Morris lawsuit will continued to plow forward. With yet another hole in her bow.

So regardless of the outcome of this motion there will still be more wasted time and wasted money — which aptly represents the legacy of the political career and contribution to politics in Aurora by Phyllis Morris.

Posted in Community Corner, Integrity, Leadership, Legal | 13 Comments »

Sesto Continues to Seek Answers

Posted by auroracitizen on April 26, 2011

April 23, 2011

To: The Auroran & the Aurora Citizen (www.auroracitizen.ca)

Re: Conflict of Interest and Phyllis Morris v. Johnson et al.

Furthermore to my letter earlier this month, entitled “Please help me understand how litigation against three Aurora citizens was approved”, I would like to add the following information in regards to the defamation action of Phyllis Morris v. Johnson et al.

I reference the Ontario Municipal Conflict of Interest Act. (R.S.0. 1990, Chapter M.50) found at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_e.htm .

The Act helps control the actions of our elected officials who hold the public trust. Its main purpose is to prevent them from benefiting financially from a decision in which they were involved in the process. The Act generally states that if there is a matter that comes before Council that would touch on a member of Council’s direct or indirect pecuniary (of or related to money) interest then it is the duty of that member not to participate in the decision-making process for that matter and to declare this conflict of interest.

I would draw your attention to the following sections taken from the above online reference:

Duty of Member

When present at meeting at which matter considered

5.  (1)  Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,

(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;

(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and

(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question. R.S.O. 1990, c. M.50, s. 5 (1).

Where member to leave closed meeting

(2)  Where the meeting referred to in subsection (1) is not open to the public, in addition to complying with the requirements of that subsection, the member shall forthwith leave the meeting or the part of the meeting during which the matter is under consideration. R.S.O. 1990, c. M.50, s. 5 (2).

Record of Disclosure

Disclosure to be recorded in minutes

6.  (1)  Every declaration of interest and the general nature thereof made under section 5 shall, where the meeting is open to the public, be recorded in the minutes of the meeting by the clerk of the municipality or secretary of the committee or local board, as the case may be. R.S.O. 1990, c. M.50, s. 6 (1).

Idem

(2)  Every declaration of interest made under section 5, but not the general nature of that interest, shall, where the meeting is not open to the public, be recorded in the minutes of the next meeting that is open to the public. R.S.O. 1990, c. M.50, s. 6 (2).

As referenced by the minutes of the Aurora Town Council meeting of September 14, 2010, then Mayor Morris participated in the closed session portion of the meeting that subsequently resulted in the motion “THAT the Town Solicitor be directed to retain external legal counsel and to take any and all actions to bring resolution to this matter”. She participated in the closed meeting but did not vote on this motion as she left once coming out of closed portion of the evening. It is this motion that eventually led to the litigation against Johnson et al.

The first agenda item of a Council Meeting is the “Declarations of Pecuniary Interest”. For the September 14 meeting Councillor Collins-Mrakas had a declaration on another matter but there were no other declarations in the minutes.

I will allow the reader to formulate their own perspective, but from one side it could be interpreted that ex-Mayor Morris may have violated the Municipal Conflict of Interest Act. She may have done so by not declaring a conflict of interest and through her subsequent participation in the closed session meeting concerning the Town’s direction that lead to the litigation against Johnson et al. In this litigation she would be the sole beneficiary and not the Town. She could be seen as having a pecuniary interest and that she failed to declare a conflict of interest.

As taken from George Rust-D’Eye’s Executive Summary: “The retainer letter signed by the Mayor and the Town on October 6, 2010 leads to the conclusion that both are jointly and severally liable for paying the legal expenses incurred for the defamation action.”

Even if for argument’s sake Ms. Morris sought $0 damages, the fact that the Town was liable for expenses in her legal matters could possibly still show pecuniary interest as there could be either a reduced or no out of pocket expense for her in proceeding with this private action. It is noted that although this action started with the plaintiff as Mayor Phyllis Morris it was later changed to a plaintiff of Phyllis Morris to express that it was a personal matter and not one for the Town of Aurora. Also please note that the Town as per its March 29, 2011 council meeting minutes passed the motion to “pay the legal accounts of Aird & Berlis LLP for the services up to and including December 15, 2010 and for additional outside counsel, Paterson MacDougall for services rendered up until December 21, 2010.”

I note from Mr. Rust-D’Eye’s Executive Summary: “at the same time, Phyllis Morris appeared to have a pecuniary interest in the matter under consideration by the Council, in view of the fact that the debate involved a proposal that the Town provide or pay for legal services for her defamation action against third parties, at that time without any undertaking on her part to repay the Town, whether she was successful or not – the Town appeared to assume the entire financial risk, with the Mayor standing to obtain a personal benefit from success in the proceedings”.

For some it may be thought that her participation in the closed session meeting and the failure to declare a conflict of interest was perhaps committed through any oversight or by reason of an error in judgement. But for others they may ask whether this would be the mistake of a politician with numerous years of experience. As taken from her own website (www.phyllismorris.net) Phyllis Morris had 6 years as a Councillor, 3 years as Deputy Mayor and 4 years as the Mayor with this incident occurring at the end of her mayoral term. Sampling a review of council meeting minutes in recent years, councillors and the mayor for a variety of reasons express a conflict of interest at the start of the meeting. Ms. Morris had in the past (Town of Aurora, Council Meeting Minutes No. 08-22, Tuesday August 12, 2008) declared a conflict on a particular matter. But with this incident at the September 14th meeting she did not declare a conflict of interest nor did she do so at any subsequent meeting in regards to her attendance to the closed session meeting that started the action against Johnson et al.

I allow the reader to interpret the information to their own accord and I stand open to correction on any of the information that I have presented.

Paul Sesto

(289) 221-1450

Posted in Code of Ethics, Community Corner, Community Input, Guest Post, Legal, Politics | 1 Comment »

Please help me understand how litigation against three Aurora citizens was approved.

Posted by auroracitizen on April 13, 2011

Re: EXECUTIVE SUMMARY: Payment of Legal Expenses of Phyllis Morris and the defamation action of Phyllis Morris v.Johnson et al.

An Open Letter to the Aurora Town Council and the Citizens of Aurora.

I am writing this as an open letter to the current Aurora Town Council and to the citizens of Aurora as I believe others may have similar questions and concerns in relation to the defamation action of Phyllis Morris v. Johnson et al. I stand open to being corrected if anyone has any new information to be shared and I look to others for answers and clarification as I don’t believe that the current information in the public domain is sufficient to explain how this action was authorized by the Town of Aurora. It is only by sharing the following questions and subsequent answers (and any questions that other Aurora citizens may contribute) that we may all learn and come to understand how this action proceeded to its present state. A considerable amount of Aurora tax money is now authorized for payment of external legal fees for this case but more importantly to me three private citizens of Aurora are still involved as defendants in this action which may take years to resolve and which may jeopardize the financial futures of their families.

I realize that there are those that support Ms. Morris’ argument and reasoning for her defamation suit as equally there are those that support Richard Johnson, Elizabeth Bishenden and Bill Hogg (Johnson et al) and I respect their difference in opinions. I was from the start and still remain in support of Johnson et al but it is not my intention here to argue the legal aspects of their case as this is now in the hands of our judicial system and the lawyers. It is my intention to learn and better understand how this action was authorized by the Town and to understand how it was deemed to follow the proper legislative and administrative procedures.

I recognize that Mayor Dawe and some of the current councillors that ran on a platform that included stopping the Town’s involvement in the lawsuit. I commend them for following through on this promise once they were sworn into office. I also commend those councillors and mayoral candidates that also supported stopping the Town’s involvement but who were not successful in the recent election. I can appreciate that Mayor Dawe and the current Town Council has had to responsibly deal with the matters opened by the previous council and administration and were faced with the difficult decision to authorize the payment of external legal fees to December 14, 2010. I further recognize that there may still be some legal privacy issues in answering some of my questions but that does not prohibit me from asking these important questions and seeking these answers even if they may still be forthcoming in the future when this case is resolved.

In the following, I will reference the letter by George Rust-D’Eye of WeirFoulds LLP entitled EXECUTIVE SUMMARY: Payment of Legal Expenses of Phyllis Morris (to be known as the “Executive Summary”). This letter was made public on March 30, 2011 as a Media Advisory by the Town of Aurora. It was authorized for release by order of the Aurora Town Council at its March 29, 2011 meeting and it can be found on the Town website at the webpage http://www.town.aurora.on.ca/aurora/index.aspx?CategoryID=27&lang=en-CA under 2011 Media Releases (March 30, 2011).

It was after reading George Rust-D’Eye’s Executive Summary that I was compelled to ask the contained questions and to seek the assistance from others to help me and the citizens of Aurora better understand how Phyllis Morris v. Johnson et al was initiated by the Town of Aurora. It is the Executive Summary that makes me question past information and/or lack of information to the public in this matter.

I am numbering my questions so that anyone responding to this letter can do so accordingly by the question number.

1. Who has the legal authority at the Town to proceed on the Town’s behalf with a lawsuit?

2. What are or in fact are there any legislative steps that must be complied with by the Town Council in order to initiate a lawsuit? What is the involvement and authority of the Mayor and the Town’s administrative staff, be it the Chief Administrative Officer (CAO), the Town Solicitor or any other Town staff in initiating a lawsuit?

3. I recognize that this matter started with the Council directive from the Closed Session of the Town Council Meeting of September 14, 2010. From that point onwards what were the steps and who further authorized that this matter was to be handled directly as a lawsuit?

As stated in Question 3, this matter started with the Council directive from the Closed Session of the Town Council Meeting of September 14, 2010 (Please see 2nd attachment). The entry for this motion is as follows:

Council recessed into Closed Session at 11:33pm

Mayor Morris left the meeting at 1:10 am.

Council reconvened into Open Session at 1:11 am with Deputy Mayor McRoberts in the Chair.

Moved by Councillor MacEachern Seconded by Councillor Gaertner

THAT the Council rise and report from the Closed Session to confirm the direction from Closed Session regarding the potential defamation; and THAT the Town Solicitor be directed to retain external legal counsel and to take any and all actions to bring resolution to this matter.

CARRIED UNANIMOUSLY

The September 14th Council meeting initially had Mayor Morris and all eight Councillors in attendance. In the minutes it is noted that Councillor Collins-Mrakas left the meeting at 10:16 pm and Councillor Buck left the meeting at 11:01 pm. The Closed session would then have included Mayor Morris (who subsequently left at 1:10am just before reporting out and before the vote) and Councillors Gaertner, Gallo, Granger, MacEachern, McRoberts and Wilson. There is no indication in the minutes as to if any Town staff may have been involved in the closed session but since it involved litigation I would assume that the Town’s CAO and the Town Solicitor would be present, though I stand corrected if they were not present and/or if others were present.

From the Executive Summary (after the September 14th Council Meeting and after the Town retained Aird & Berlis LLP (“AB”) as its external legal counsel): “Then-Mayor Morris requested the Town to pay for the litigation, following the receipt of a legal opinion from AB in which it was advised that the comments were made against the Mayor, as well as the Town Solicitor and the Integrity Commissioner, in their capacity as elected officials or employees of the Town.”

4. Given the answers to the above questions 1, 2 & 3 and the statement “Then-Mayor requested the Town to pay for the litigation”, were the steps taken by the Town in accordance to the accepted procedures and in such a way that Mayor Morris could not be seen as having a conflict of interest as she had direct involvement in the case being that she would be the plaintiff, that the Town would be financing this action and that she would be the sole beneficiary of any awarded damages?

5. As I see no further reference to this action in any other subsequent Council Meeting in the above statement “who” is the Town? Was this a Town staff member with authority to authorize payment for the litigation?

6. Again, who at the Town had the authority to proceed with litigation? If it was the Mayor was it not a conflict of interest for the Mayor to request the Town to proceed? If it was the Mayor, should not another person (be it elected or Town staff) have taken the lead to this action?

7. Was there a reason why this matter was not taken back to Council be it in a closed session to authorize such litigation and the accompanying expenditures?

From the Executive Summary: “The retainer letter signed by the Mayor and the Town on October 6, 2010 leads to the conclusion that both are jointly and severally liable for paying the legal expenses incurred for the defamation action.”

8. Thus the Town and Ms. Morris were equally and separately responsible for the full amount. The Town has now authorized payment of legal fees to December 14, 2010. Should the Town not be demanding that Ms. Morris reimburse the Town now for at least ½ of the Town external legal fees instead of as recommended in the Executive Summary “that the Town give notice to Phyllis Morris of the intent by the Town to look to her for indemnity in respect of legal services paid for by the Town out of any damages or cost recovered by her in the proceedings”? The only way that the Town will be reimbursed will be if Ms. Morris is successful and the 3 Aurora citizens are not and this does not guarantee any funds to the Town as there is no signed agreement for this option.

9. Would the Mayor have proceeded or initiated such action given that she would have to pay ½ the current legal expense?

(This is now a hypothetical question and does not require an answer).

From the Executive Summary: “it appears that, at the time of the meeting of the Town Council on September 14 and 15, 2010, it was accepted by all concerned that the abuse being heaped on the Mayor and other municipal officials by third parties, was seen as an attack on the reputation of the Town itself, affecting the reputation and perceived integrity of Council and staff, and that there was an agreed-upon strategy to vindicate the Town’s name and reputation, which was seen at least as much the target as was the Mayor herself;”

10. Are we to understand that the “agreed-upon strategy” that Mr. Rust-D’Eye writes of was simply the wording in the Council Meeting Minutes of September 14, 2010 “THAT the Town Solicitor be directed to retain external legal counsel and to take any and all actions to bring resolution to this matter”? And that it was this directive that gave authorization to an open-ended mandate and a blank cheque to external counsel without further advice, consultation or authority from Council. (A separate rhetorical question but if there was not an election and a change of Council to stop payment to AB how high would the lawyer’s bill have gone?)

11. If it was an “agreed-upon strategy” then why if I recall correctly were some councillors apparently surprised when the news of the litigation came forth?

12. Were these instructions sufficient to proceed with the defamation suit? (Thus my earlier questions on legislative procedure).

13. Did the Town Solicitor or whoever instructed the external legal counsel of Aird & Berlis have the authority to proceed with litigation without further approval from Town Council?

14. Was the motion from the September 14th meeting so broadly worded that it could be ambiguous enough so that legal proceedings could commence without further authorization or approval from Council?

15. Did council discuss litigation as part of their closed session meeting? Was it understood that litigation was the only option that external legal counsel should pursue? (I realize that this may never be known as it was a closed session). If so, then they knew it could proceed to the current situation along with the financial burden to the Town. If not, then did someone at the Town over-step their authority (thus my earlier questions as to procedure in authorizing litigation)?

Please help me understand how we arrived at the current state of affairs.

It is my opinion that the council directive was far too vague and could be viewed as irresponsible as it did not provide specific direction and limitations and any need for the external legal counsel once engaged to seek further direction and authorization from council. Given the particular care that councillors take in wording their motions and given the fact that this was done at the end of term with councillors having a minimum of 4 years of experience (excluding Councillor Gallo) in their seats as opposed to being inexperienced councillors at the beginning of term it is surprising that this motion as worded was ever approved. It makes me wonder whether there is any part of this incident and/or subsequent actions that could be deemed in any way to violate the Municipal Act and/or the Town’s business and legislative procedures and if so who are we to hold accountable for their actions.

I note that Councillor Bob McRoberts disavowed his approval of the September 14th motion at the September 29, 2010 Council meeting and stated on October 14, 2010 on Rogers TV First Local News, “The arguments presented by town staff and council members didn’t match my understanding of the Municipal Act. I do not agree with the rationale provided. I do not agree that the matter is a matter for Council”.

I have to ask – what would have happened to the Town of Aurora if this past Council were to have directed other external contractors “to take any and all actions” for litigation against land developers in Aurora or for the repair to all roads or to improving Aurora’s water and sewage systems or to providing recreation facilities?

I believe that there is still much to be disclosed to the citizens of Aurora so that we can all understand how Phyllis Morris v. Johnson et al was authorized by the Town of Aurora. I should think that the answers would be simple and straight forward.

Sincerely,

Paul Sesto

Posted in Community Input, Conflict of Interest, Election 2010, Freedom of Information, Guest Post, Integrity, Leadership, Legal, Town Council | 30 Comments »

To Strike or Not To Strike — That is the Question.

Posted by auroracitizen on March 12, 2011

The first of 2 scheduled court dates has passed and for the first time the $6 million lawsuit launched by former Mayor Phyllis Morris against 3 alleged local bloggers was heard by a judge.

Acting on behalf of the 3 local residents, lawyer Jordan Goldblatt, argued a motion to have Mrs. Morris’ lawsuit against them, other blog participants and the blog’s host dismissed.

“The mayor’s claim is fundamentally flawed,” the document reads. Goldblatt argued that Morris has not pled the actual words which form the basis of her claim and this is a requirement in a defamation action. Otherwise, how can the defendants mount a reasonable defence.This argument was further supported by the fact that the comments have changed since the initial action was started — making it a moving target.

Documents filed by the defence plead that the legal case is a strategic lawsuit against public participation, or SLAPP action, and argues the matter should be dismissed on the grounds it has not properly identified the comments being complained about.

As reported in the Era Banner. “At this point, we’ll have to see what Justice Spence rules,” Mr. Goldblatt said, adding there’s no time limit on his decision.

Mr. Goldblatt had no other comment on the case other than the facts enclosed in the factum presented. However, the matter could drag on for years if the case does go to trial, he noted. As such, costs could climb as high as $200,000.

The judge has a number of options; strike the motion completely, strike the motion — but give Morris the opportunity to correct the fatal flaws in the claim and require that she plead the actual words so the defence can respond, or allow the case to proceed unchanged.

A second date is still scheduled for Mar 15 to hear the Morris motion to identify anonymous bloggers — which is being defended by the 3 local defendants — but is also being contested by the CCLA on the  grounds that it violates basic rights to freedom of expression under the charter. However, this date may be deferred until the strike motion settled. A decision will be made on Tuesday by the hearing judge on whether to proceed.

Furthermore, the Town has retained  lawyer George Rust-D’Eye to determine if the process leading to the town funding the initial lawsuit was legal and the contract entered into valid. In dispute are approx $55,000 in legal fees incurred by Morris which currently the town is responsible for paying. Mr. Dawe indicated Mr. Rust-D’Eye’s findings could be revealed by the end of the month.

Posted in Legal | 52 Comments »

CCLA to Intervene to Protect Political Speech and Internet Anonymity

Posted by auroracitizen on February 16, 2011

From the CCLA website

On January 13, 2010, CCLA will intervene in a motion in the Ontario Superior Court of Justice to ensure that freedom of speech on the Internet is given broad protection.  The motion, brought by the former mayor of the municipality of Aurora, seeks information that would reveal identifying information about an anonymous blogger(s).  The former mayor has started a civil defamation action in which she takes issue with comments posted on a local Aurora blog which are critical of her work in office.  The action was started by the mayor when she was still in elected office and the Aurora council had passed a resolution to fund the lawsuit.  Since the mayor was unseated in the most recent municipal election, the council reconsidered and voted down that decision.

While the Internet should not be used as a shield to allow people to break the law, neither should a simple request to the courts result in disclosure of identifying information.  The CCLA will argue that a freedom of speech and privacy interests should be given significant weight in making decisions of this nature, particularly when political speech is at issue.  The right of individuals to comment on and criticize the way in which public officials perform their duties is vital in a democracy, and civil lawsuits should not be used to chill this kind of speech.

Read the CCLA’s factum here.

As previously covered, the date for the motion hearing was delayed until March 11 as a result of lawyers for Phyllis Morris neglecting to file the necessary paperwork with the court in time.

Posted in Legal | 9 Comments »

Unbiased Media Perspective On Morris Lawsuit

Posted by auroracitizen on January 20, 2011

On January 12, when we published links to the factums regarding the lawsuit initiated by Phyllis Morris, we withheld comment — lest we be accused of a conflict of interest in our interpretation of the facts.

The following is reprinted from the Auroran, week of Jan 20th, 2010.

Court documents released to public

In advance of the eventually cancelled hearing into former mayor Phyllis Morris’ multi-million dollar lawsuit against three local bloggers, court documents pertaining to the case were released to the public.

These factums, filed before the courts, outline the case of Ms: Morris and the defence of Richard Johnson, Elizabeth Bishenden, and former Councillor Bill Hogg, the three named in suit among others. They also flesh out some of the gaps that have appeared in previously released documents.

Ms. Morris’ factum argues that the anonymous “malicious, false, and defamatory” statements on the Aurora Citizen blog have caused her and her reputation “serious irreparable harm:’

It further alleges that Mr. Hogg is a moderator on the site with the “power to publish, republish, encourage or delete postings or comments”, and that Elizabeth Bishenden was a one-time moderator of the website. The updated factum removes claims in earlier court papers asserting that Richard Johnson was also a moderator. He is now cited as “a frequent poster and commentator on the website:’

Earlier claims by Ms. Morris that the anonymous parties in the suit attempted to settle are also clarified in her document.

“[Jordan Goldblatt, lawyer ·for the named individuals, not representing the anonymous defendants] transmitted a settlement offer to the Plaintiff on behalf of the anonymous defendants, and therefore either knows the anonymous defendants, or has means of determining their·identity:” it states.

Citing the affidavit submitted by Town Solicitor Christopher Cooper, continues the narrative, quoting a voicemail from Mr. Goldblatt.

“…The people who made the anonymous post are prepared to have settlement discussions with you:’ it reads. “I can tell you I don’t represent these people. What I have been asked to convey to you is that if you are amenable to those kind [sic] of settlement discussions, then I will find a way to get this information back into these peoples’ hands. I’m saying plural but for all I know it could be one person and they will find a way to contact you:’

In arguing the legal principles within the document, Ms. Morris asks whether an order should be given that Mr. Hogg, Ms. Bishenden, Mr. Johnson, and Mr. Goldblatt provide “certain information regarding the identity of the owner of the blog account and the blog commenters so that the true identity of the persons posting defamatory messages may be determined.

“The Plaintiff seeks to obtain the identity of the message poster(s) in order that she might properly bring action against the proper defendant(s) against whom she makes the allegations in these proceedings.

“… The moving party has been unable to obtain the information from other persons or from Automattic, Inc., and it would be unfair to force the Plaintiff to proceed with this action without having the opportunity of identifying the true defendant:’

Ms. Morris insists in the fact the “defamatory” statements in question are untrue and they are also causing her “emotional distress and fear for her safety”

Her documents also touch upon earlier assertions that a government hasn’t the right to sue its citizens, arguing there is “no blanket protection granted to those who wish to defame public servants with respect to’ the execution of their public duties”, but defendants have the defence of fair comment

“Rather than insulating anonymous persons from suit for clearly·” defamatory statements, this Court should order their identities compelled,” it states. “The anonymous defendants can thereafter plead their defences. Without knowledge of the identities of the anonymous defendants, the Plaintiff has no ability to defend her reputation in a court of law:’

On behalf of the respondents, their factum claims the court has nothing before it to evaluate Ms. Morris’ claim as her counsel has not “particularlized” the defamatory words in question.

“Morris has no evidence of urgency or irreparable harm that she will suffer if the mandatory order is not granted;’ they argue. “It is not in the public interest for this Court to order disclosure of the information sought by Morris where anonymous commentators have a right to remain anonymous in their criticism of an elected-government official.”

The defendants’ factum states that while Mr. Cooper has submitted an affidavit in the case· in his capacity as Town Solicitor, Ms. Morris herself has “proffered no evidence on the motion.” Their factum, however, relies heavily on Mr. Cooper’s affidavit and subsequent cross-examination by their own counsel.

“The allegation made against the individual defendants on this motion is that they are moderators of the website who have access to IP addresses that can be used to track down the identities of the anonymous bloggers” their factum states. “However, Cooper accepted on·cross-examination that he has no information with regard to whether moderators are provided with IP addresses.”

Further nuggets highlighted from Mr. Cooper’s affidavit. include that it claims Mr. Hogg is a moderator of the: website and that this information was given to Mr. Cooper by Mr. Hogg himself. It was revealed that on cross-examination, however, “Cooper more candidly admitted that Mr. Hogg never told him that he was a moderator of [the Aurora Citizen)]:”

Similarly, it goes on to state that Ms. Bishenden and Mr. Johnson are not alleged to have been moderators.”

There is no allegation in the affidavit material that Mr. Johnson ever was or is a moderator:” their factum states. “Cooper admitted on cross-examination that Mr. Johnson is not alleged to be a moderator, and that there is no allegation in the affidavit material that Mr. Johnson was or is a moderator:”

Several legal hurdles have to be overcome by Ms. Morris for her motion to be successful, the defendants go on to argue in their factum. p

“Morris must establish an underlying claim exists: the words complained of have never been particularized; the plaintiff is a government actor that cannot sue for defamation; and the notice provisions under the libel and Slander  act have not been complied with”

To strip the Aurora Citizen of its ability to provide anonymity to its posters “on matters of public interest would be a significant imposition and would chill public political discourse” the defence argues. There would be no harm to Ms. Morris should she not obtain the identities of the anonymous posters, they continue.

“Indeed, ‘many’ police complaints have already been initiated, such that if there were any legitimate threat to her, one would assume Police would take ample precautions:’

But this is a matter of free speech, speech that should be protected, they conclude.

“Where the speech in question is geared towards attaining truth, where it is regarding political decision-making, and where self-fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment, the speech in question must be protected.

“While Morris may not agree with the comments about her governing reputation, they are nonetheless constitutionally protected”

The hearing is now scheduled for March 15.

Posted in Legal | 30 Comments »

Morris Lawsuit Delayed Because Lawyer Forgot to File Documents

Posted by auroracitizen on January 12, 2011

Yes it’s true — the long-awaited court date of Jan 13 has been delayed.

The defendants were notified today that Counsel for Morris neglected to send a “motion confirmation notice” to the court as required — as a result, the court removed the motion from the list.

Aird & Birlis indicated they didn’t believe the notice was necessary.

Two possible reasons for this lapse immediately spring to mind;

  1. Aird & Berlis really didn’t understand the required next steps when dealing with a matter of this nature
  2. This is a ploy to delay the proceedings — that a judge will evaluate the motion by Morris and make a judgment based on its merits

Obviously, we will never know the true reason — but it does make one wonder.

Posted in Legal | 13 Comments »