Posted by auroracitizen on January 12, 2011
The following court documents have been filed in advance of the court date on Thursday January 13th and are now publicly available;
Aird & Birlis on behalf Morris: Factum-A&B
Sack Goldblatt & Mitchell on behalf of Johnson, Hogg & Bishenden: Factum of the Respondents-SGM
Torys on behalf of Canadian Civil Liberties Association: CCLA Factum
We will leave it to you to evaluate the merits of the lawsuit and decide what should happen this coming Thursday.
Posted in Legal | 2 Comments »
Posted by auroracitizen on January 11, 2011
Here’s a philosophical question open for comment and discussion. It is something that has been “bugging” me since the Town stopped payment on December 22nd.
First a fictitious analogy to help with my thinking:
A business — corporation B — engages architectural firm A to start the design of a new custom-home for their current president. The president of course is very happy with this scenario as she/he will be getting the benefit of living in a new specially built home at the expense of corporation B.
However, midway through the design process corporation B lets the president go and then tells architectural firm A to stop designing for them as they are no longer in need of the house. The design is not complete and corporation B will pay architectural firm A for all services rendered to date and no more.
The now ex-president liked architectural firm A’s design, approaches architectural firm A and asks them to complete the custom design for which the ex-president will now pay them directly.
The ethical query: Should architectural firm A do this work for the ex-president as corporation B was the original client and paid architectural firm A for the initial work and is the rightful owner of the intellectual property of the design for the custom-home?
The ex-president would be benefiting from corporation B’s initial expenditures and reduce their own cost in the design. Should architectural firm A be starting from scratch on a new design for the ex-president as he/she is not entitled to be using corporation B’s intellectual property? Or should architectural firm A tell the ex-president that is it a conflict of interest to work for them and the ex-president should seek help from another architectural firm?
Now let’s turn this to our local situation without getting into the political dealings of who, why, how etc..
The Town of Aurora engages an external law office to sue townspeople for apparent defamation of the current mayor. If successful the mayor will benefit with direct financial compensation. The legal proceedings start, the mayor by way of an election becomes the ex-mayor and the new council decides to stop direct engagement of the town’s external lawyers for this particular lawsuit.
The legal proceedings have not been completed and the Town will only pay the lawyers for all services rendered to date and no more.
Can the ex-mayor then approach the lawyers and tell them that he/she will now pay their bills going forward and thus benefit from the work to date paid by the Town or does the Town as a corporation own that “intellectual property” and/or services provided by the original lawyers and the ex-mayor is not entitled to its use? If so, should the ex-mayor be “starting from scratch” perhaps with a new lawyer and new proceedings as it would be a conflict of interest for the original lawyer to continue?
What do you think? (Any lawyers in the crowd who can shine some light on the legalities of the situation?)
Paul
Posted in Guest Post, Legal | 27 Comments »
Posted by auroracitizen on January 7, 2011
On Oct 28, 2010, the Anti-SLAPP task force released their report to the Attorney General regarding SLAPP lawsuits intended expressly to stifle public participation.
As with most task force reports it is quite comprehensive, and doesn’t always make for light reading.
But we thought you would be interested to hear that on page 22/23 the report specifically references the recent lawsuit by Phyllis Morris as an example.
Politicians’ right to sue in defamation
Paragraph 91: In Ontario, municipal governments do not have the right to sue in defamation.[35] However, there are several recent cases in which municipal councillors have sued someone for criticisms aimed at the municipality or municipal interests generally.[36] Sometimes municipalities pay the expenses of these suits. The question arises whether this is a way of avoiding the general prohibition against municipal libel actions. The cases almost by definition involve matters of public interest, and the resources of an individual or ratepayers’ group against a municipal government funding an individual politician’s lawsuit are likely to be unequal.
Reference 36 takes you to the following notation
[36] For example, “Maybe You Heard About The Lawsuit”, Aurora Citizen, October 15, 2010: https://auroracitizen.ca/2010/10/15/maybe-you-heard-about-the-lawsuit/.
This lawsuit is used to demonstrate the inequity with the balance of power between a municipality and a private citizen and is one of the core issues that the task force was engaged to examine.
When politicians use public funds to stifle free speech, this issue strikes to the very heart of our charter of rights.
The full report can be see on the Attorney Generals website: http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/
Posted in Legal | 3 Comments »
Posted by auroracitizen on December 21, 2010
Tonight Aurora Council reconsidered the motion that started Aurora down the path that allowed a politician to sue 3 private citizens for $6 million.
Sanity prevailed and 6 of 7 Councillors voted to reject the motion that Aurora should be spending our tax dollars to support a politicians desire to silence her critics.
Voting against the original motion were Mayor Dawe, Councillors Abel, Thompson, Buck, Humfryes and Pirri. Voting in favour was Councillor Gallo. As a result, the motion was defeated and Council no longer has provided direction to pursue “any and all action” — the language that led to the lawsuit.
Noticeably absent were Councillors Gaertner and Ballard. Possibly they had more pressing engagements this evening.
In practical terms this means that Phyllis Morris, private citizen, must now decide whether she is prepared to put up her own money to fund this lawsuit. She will now be financially accountable for her decisions — rather than Aurora taxpayers.
Councillor Thompson was the original mover of the motion for reconsideration and he spoke of hearing a consistent and strong message from citizens that the community viewed this as wholly inappropriate. As he campaigned he promised to listen and bring the concerns of the community forward — and felt that this was an important issue to deal with as expeditiously as possible.
We continue to be puzzled by Councillor Gallo’s re-confirmed support of this motion — particularly given his comments in the meeting that he never imagined that his original vote would have resulted in a lawsuit — which he clearly stated he did not support. So we are perplexed by his rationale for continuing to support a broad motion that enables a politician to use public funds to pursue a personal matter. Now with the benefit of hindsight, it was surprising to see him again vote in the affirmative to direct staff to continue to fund the lawsuit.
He also stated that he did believe in the principle that there was a line that should not be crossed when making comments about politicians. We agree.
If the comments are of a personal nature then they are out of bounds. But if the comments are about the performance of their duties, we believe that criticism is fair.
The next court date is set for Jan 13, 2011. The Canadian Civil Liberties Association will be appearing together with the lawyers for the 3 defendants against the motion being brought forward by Phyllis Morris.
Posted in Legal | 24 Comments »
Posted by auroracitizen on December 20, 2010
A few days ago, someone whispered in our email inbox that another Aurora politician — Councillor Gaertner — had engaged legal counsel in her desire to quiet critics. We were told that registered letters had been sent to Aurora residents regarding letters published in The Auroran. However, without corroborating information, we did not publish this information.
However, The Auroran confirms that Ron Wallace was on the receiving end of one of these letters as was the original letter writer S Smallwood. He refers to it in his column on page 4.
It would seem that Councillor Gaertner has chosen not to learn from the experience of her mentor Phyllis Morris and has instead chosen to try a silence those who don’t agree with her through legal action.
At least she has decided to undertake this step without asking the taxpayers of Aurora to fund this battle — but given the current climate of residents towards the last lawsuit, if nothing else, this action seems to be ill-advised and lacks any long term thought.
Posted in Code of Ethics, Community Input, Legal, Town Council | 25 Comments »
Posted by auroracitizen on December 19, 2010
Aurora Council has called a special meeting for Tuesday December 21 to deal with the Town of Aurora funding Phyllis Morris for her lawsuit against 3 private citizens and this blog as well as unnamed bloggers.
The purpose will be to re-consider the original motion that allowed the then Mayor to take “any and all” action — which resulted in Phyllis launching a $6 million lawsuit funded with your tax dollars.
The meeting is at 7:00 pm if you are interested in attending.
Posted in Integrity, Leadership, Legal, Town Council | 3 Comments »
Posted by auroracitizen on December 19, 2010
The Canadian Civil Liberties Association has confirmed they will seek leave to intervene to argue against Ms. Morris and has appointed Torys LLP and Wendy Matheson its counsel on the Norwich motion.
The information below from the Torys site reports that divisional court recently rendered a decision in a similar case.
Canadian Civil Liberties Association welcomes Divisional Court decision protecting Internet anonymity
Torys represented the Canadian Civil Liberties Association with a team that included Wendy Matheson and Natalie Biderman. Torys successfully intervened on behalf of the Canadian Civil Liberties Association in a Divisional Court appeal in Warman v. Wilkins-Fournier. The case sets a significant precedent in the area of Internet law by establishing that the identity of an anonymous Internet user will not automatically be disclosed to a plaintiff in a civil proceeding absent proof of a prima facie case and a consideration of the Internet user’s Charter rights, even though the information is in the possession of a named defendant.
The Divisional Court overturned an order requiring the named defendants, who run an Internet message board, to produce all documents in their possession relating to the identities of several John Doe defendants who posted allegedly defamatory comments on the message board. The Divisional Court found that the case engaged both freedom of expression and privacy interests under the Charter, and that these interests should be balanced against the public interest in disclosure for the administration of justice. It held that courts should adopt a process that provides for a balancing of the interests at stake before identity information is disclosed by a party. Otherwise, a plaintiff with no legitimate claim could misuse the court rules by, for example, commencing a frivolous action against an Internet service provider for the sole purpose of unmasking an anonymous Internet commentator.
Further information is found on the CCLA’s website.
The defendants are pleased by this development and feel that it reflects the significant legal issues in this case and look forward to the involvement of the CCLA in this matter.
Posted in Legal | 6 Comments »
Posted by auroracitizen on December 2, 2010
Recently the CBC reported expanded rights for journalists (and bloggers) have been supported by the courts.
The Supreme Court said it examined laws in other countries with similar legal systems, such as the United Kingdom and Australia. It found that Canadian law was strict by comparison and did not give enough weight to the value of free expression.
“This, in turn, may have a chilling effect on what is published,” said the text of one of the rulings. “Information that is reliable and in the public’s interest to know may never see the light of day.”
The Supreme Court specifically broadened the definition of “responsible communication” in order to include non-journalists, especially online bloogers, who are increasingly communicating matters of public interest.
Richard Dearden, lawyer for the Ottawa Citizen, said the ruling is a win for all types of journalists.
This is a defence that you as journalists never had before and also bloggers or anybody using Twitter — whatever.
Mary Agnes Welch, president of the Canadian Association of Journalists, said “Today’s ruling helps journalists do their jobs — bringing to light information that’s in the public interest with a better shield against a libel suit levied to block a controversial story.”
Cal Johnstone, president of RTNDA Canada, which represents radio and television news directors, called the rulings an “important victory for freedom of the press.”
Posted in Freedom of Information, Legal, Media | 2 Comments »
Posted by auroracitizen on November 29, 2010
Council Watch #18 – by Richard Johnson
I had to share a posting from tvo’s website. It sure does make you think… where do we draw the line and who should decide ?
Posted on: 25 November 2010 by Allison Buchan-Terrell
In the fourth chapter of Salman Rushdie’s new book Luka and the Fire of Life, Luka – the main character, a young man on a quest to save his father from eternal sleep by bringing the fire of life back from the World of Magic – comes across “a strange, sad land.”
And our hero is greeted by a rather ominous sign on the O-Fence (a large barbed wire barrier) that surrounds this land, “YOU ARE AT THE FRONTIER OF THE RESPECTORATE OF I. MIND YOUR MANNERS.” It is home to very thin-skinned rats who “take Offense very sharply indeed.”
It is here in this children’s novel that adult themes emerge. Perhaps because Rushdie hopes his works, like the Harry Potter series, will appeal to adults as well. In his first children’s novel, Haroun and the Sea of Stories — written for his eldest son Zalaf immediately after Rusdhie went into hiding after the fatwa – Haroun struggles against forces within the world of magic determined to silence storytelling, which is very clearly connected to Rushdie’s real-life battle to speak freely.
In Luka and the Fire of Life, and particularly in the passage on the Respectorate of I, takes on what he sees as a grave threat to free speech: political correctness and censorship under the moniker of respect. A bit of pet topic for Rushdie.
In a BBC interview about this chapter, Rushdie said:
I think we live in a very timid age and a part of our timidity arises from our unwillingness to offend people. And, as a result, there are whole tribes of people now who define themselves by their offendedness. You know, I mean, who are you if you are not offended by anything? Nobody, or even worse, you are a liberal. And I just think this whole business of defining yourself by anger is very problematic and the idea that we all sort of bend over backwards not to induce that anger also becomes a problem and a kind of cowardice, if you like. And I think we just need to live in a more robust society in which people say things that other people don’t like and the answer to that is not to throw a bomb at them, you know, but to say “You know, I don’t like that much,” and get on with the next business.
Rushdie is particularly concerned about a new climate of censorship emerging where people are afraid to name things and call them what they are. Something he feels is happening not just in Muslim countries, but in the secular West as well.
He sees it in a bill put forward by former British Prime Minister Tony Blair and in the furor over the Danish cartoons and Random House’s (his own publisher’s) decision to cancel The Jewel of Medina, a novel about Muhammad and his child bride, Aisha, over fear of Islamic reprisals.
In 2005, Blair put forward a controversial bill that sought to combat racial and religious hatred. He argued the new law was necessary in the post-9/11 world where Muslims, as a group, have been the target of racial attacks.
But Rushdie, and a rather unlikely counterpart – Rowan Atkinson, a.k.a. Mr. Bean, helped defeat it by one vote (as Rushdie points out, Blair went home early that day and missed the vote).
Rushdie recounts how Atkinson asked, quite politely, whether a sketch that aired on his program would be considered a hate crime under the new law. The sketch includes stock footage of Muslims praying at an Iranian mosque with Atkinson saying in a voiceover, “And the search goes on for the Ayatollah Khomeini’s contact lens.”
They were defending the right to shock, outrage and offend, which they feel is a fundamental part of the right to free speech and a legitimate form of creative expression.
Also in this spirit, Rushdie signed on to a manifesto in support of the infamous Danish cartoons of the Prophet Mohammed. He, and a dozen co-signers, argued that the violent response to the cartoons signaled a new tyranny hiding in the cloak of religion and that it should be called by its true name.
The question Rushdie wants us to consider is: how do we respond to intimidation? We must be careful he says not to confuse not printing or publishing something out of fear of protest and violence with respect. The problem with giving in to intimidation, he says, is that there will be more intimidation in the future.
In a democracy, he says, there is no absolute view of right and wrong. We argue about it all the time. At one time, we believed slavery was acceptable and later, as the argument developed (and included some bloodshed), we decided slavery is wrong. The argument, Rushdie says, is freedom. The argument is the end — not winning.
Are you concerned, like Rushdie, about a growing climate of censorship? If so, what can be done to stop it? Do you agree argument is at the heart of democracy?
Posted in Community Input, Council Watch-Richard Johnson, Freedom of Information, Leadership, Legal | 20 Comments »
Posted by auroracitizen on November 29, 2010
The Canadian Civil Liberties Association has opted to go ahead with seeking to intervene in outgoing Mayor Phyllis Morris’ $6 million lawsuit against three local bloggers, among others, to obtain the identity of anonymous posters on the Aurora Citizen Blog, as well as damages.
Cara Zwibel, a lawyer for the Canadian Civil Liberties Association, confirmed to The Auroran Friday that the Association had retained outside counsel to get involved.
“We have been involved in litigation like this before where [we’ve] intervened for privacy protection and freedom of expression, and that is the type of argument we will be making here,” she said.
“While I have seen the statement of claim, it still doesn’t lay out what the allegedly defamatory statements are, so I don’t know if there will be any more information about that. Once that information is available we would be in a better position to know exactly what our view is on the comments.
“I have some sense on what some of the comments are because some of them are laid out in the motion materials on this motion to obtain the identity of the anonymous bloggers and many of the comments at least appear to be opinion and commentary.”
Ms. Zwibel acknowledges that one of the claims in the statement alleges that the comments are threatening, thus the argument that the posters identities need to be disclosed, but she said using a defamation lawsuit is not the proper forum to “deal with threatening remarks.”
“That’s when you ask law enforcement to step in and [they] have tools available at their disposal to obtain the identities of these people to the extent they feel these are credible threats, and could obtain an authorization to get that information,” she said. “That would be the appropriate way to go about this, not through a defamation lawsuit.”
The Canadian Civil Liberties Association, although comprised of many lawyers, typically employs outside counsel for help, Ms. Zwibel added. The organization plans to ask the court to intervene on the motion and if their request is granted, they would then make oral and written submissions before the court.
The motion is expected to come before the court in mid- January. With Ms. Morris’ term coming to a close on December 1, Mayor-Elect Geoff Dawe has already stated his intention to bring the matter before Council after the inaugural on December 7 to put the brakes on any further taxpayer dollars being spent on the matter.
Earlier this month, Ms. Morris criticized the Canadian Civil Liberties Association’s interest in this matter. “As for the Canadian Civil Liberties Association, we have heard nothing further from them since their first contact with my lawyers,” Ms. Morris told The Auroran. “It is hard to image that such an Association would choose to align themselves with extreme anonymous language and personal threats against an individual.”
Ms. Zwibel told The Auroran last week that the Association “certainly doesn’t condone threats and we certainly don’t endorse that kind of statement.”
“To the extent that these are true threats, there are other legal avenues to address that, and a civil defamation lawsuit is not the appropriate forum in which to do that. That is one of the reasons this lawsuit is concerning to us.
“With respect to the anonymous bloggers, these are people who are expressing their views on questions of politics, questions of public importance. The language in which they choose to express themselves is obviously up to them and, as I’ve said, as we are not sure exactly what the allegedly defamatory statements are, we are not yet in a position to comment on that.
“We do advocate for a person’s right to make comments anonymously on the internet and we have been involved in cases like this before and advocated for a system where a person seeking that identifying information needs to demonstrate that there is a compelling interest in getting that information and needs to demonstrate they have a strong case in their civil suit to obtain that information.
Posted in Legal | 4 Comments »
Aurora Citizen 