When speaking about the possible involvement of the CCLA in the lawsuit , Phyllis Morris is quoted in this weeks Auroran, 

“It is hard to imagine that such an Association would choose to align themselves with extreme anonymous language and personal threats.”

Really?

In a recent National Post article, Cara Zwibel, director of the fundamental freedoms program with the Canadian Civil Liberties Association, says it is always a concern when public officials take litigious steps against critical constituents.

“There may be things that cross the line, but we want to see that line get pushed to create a nice, big area for people to express themselves,” Ms. Zwibel said.

Is it surprising that Phyllis doesn’t grasp the basis for their concern — to safeguard the rights of citizens as outlined under the Canadian Charter of Rights which guarantees the citizens of this country the right to freely express their opinions?

Possibly Phyllis should read the insightful letter written by Mr Paul Sesto in the same edition of the Auroran. It clearly and eloquently states the basis for why the CCLA and citizens should be concerned about this lawsuit.

Given the recent activities to remember and honour those that fought for these rights, it is even more telling that she can’t put aside her own agenda and acknowledge that the opinions expressed by people through their votes was a reflection of her behaviour over a period of 4 years.

Maybe it was her behaviour that made Ms. Morris the subject of “ridicule, hatred and contempt” — not because a community blog shone a light on those activities. We simply believed that a more educated public would make a more educated decision.

Her ability to draw only 21% of the vote suggests a deeper dissatisfaction and speaks for itself. It would appear she underestimated the intelligence of the public.

Should we be complimented that she blames this blog for her loss?

The same article in the National Post suggests we have significantly more power than we ever thought we had. The truth is our circulation increased significantly as a result of the publicity provided by her lawsuit — far surpassing anything we saw prior to the  lawsuit being filed.

The public outrage at her lawsuit probably did more damage than anything ever written in all the blogs or newspapers combined.

If she wants someone to blame — she simply needs to look in the mirror.

By Sean Pearce | Nov 10, 2010

Lawsuit cites new attacks

The lawyer representing three Aurora residents being sued by outgoing Mayor Phyllis Morris is questioning the relevance of some of the allegations in her statement of claim filed this week.

Among other items, the nine-page statement makes reference to an anonymous comment posted to Mrs. Morris’ YouTube channel Nov. 5 and alleges previously reported defamatory posts on the Aurora Citizen blog incited such remarks, suggesting they will continue unless the behaviour in question is halted immediately.

On the YouTube post, Jordan Goldblatt, the lawyer representing the three named defendants in the case — Richard Johnson, Elizabeth Bishenden and former councillor Bill Hogg — said he fails to see what, if anything, that has to do with his clients.

“There’s no reason why my clients should be held accountable for comments made to a YouTube account over which they have absolutely no control,” he said.

In addition to Mr. Johnson, Ms Bishenden and Mr. Hogg, the statement of claim in the $6-million suit also names three anonymous posters to the Aurora Citizen blog and WordPress, the site’s host.

Beyond the YouTube comment, the statement of claim alleges Mr. Johnson, Ms Bishenden and Mr. Hogg were either moderators of the Aurora Citizen blog or authorized, participated in or encouraged the publication and republishing of defamatory comments.

The document further alleges the three anonymous parties were permitted to make false and defamatory blog postings and comments between the dates of Aug. 24 and Oct. 4, but makes note only of the dates and times of the alleged remarks and does not go into specifics.

The statement of claim also alleges the defendants are already familiar with the offending posts, but can be provided with more details upon request.

“These defamatory posting (sic) are false and defamatory of and concerning the plaintiff and are made with malice by the respective defendants knowing that they were false, or with careless disregard as to whether the defamatory postings were true or not,” the document reads. “As a result of the defamatory postings published by the defendants, the plaintiff has been subjected to ridicule, hatred and contempt and has suffered damage to her reputation in relation to her office, profession, trade and calling as mayor of the Town of Aurora.”

None of the allegations contained within the statement of claim have been proven in court.

The task for the defendants, at this point, will be to determine their next move, Mr. Goldblatt said. A couple of options exist, he said, including a motion to strike, on the grounds a government can not sue its citizens under the Charter of Rights and Freedoms or to go ahead and prepare a statement of defence against the plaintiff’s claims.

For his part, Mr. Johnson flat out denies ever having moderated the blog and is of the belief the motivations behind the legal action have more to do with his vocal criticism of Mrs. Morris’ actions and leadership.

As such, it’s not surprising the Canadian Civil Liberties Association has taken an interest in the case and is viewing it as a potential strategic lawsuit against public participation, he said, adding he believes most people would likely reach the same conclusion.

“This whole experience is so incredibly disturbing given that my tax dollars and those of the community are being used along with the town’s resources and expensive outside legal counsel to falsely accuse me of something I did not do,” he said.

“From my perspective, there are numerous questionable aspects of this whole legal action that are not exclusively related to how unjustly both me and my family are being treated. I think it is fair to say that a great many people are being unnecessarily and unjustifiably harmed through the actions of both the town and the mayor.”

Mrs. Morris said she had no comment beyond the statement of claim and referred questions to lawyer Howard Winkler. Mr. Winkler did not return calls for comment by deadline.

At present, there is no court date to deal with the matter, however, a motion seeking to compel the named defendants to reveal the identities of the anonymous contributors will be heard by the courts in January. Mr. Hogg has made clear neither he, nor the other two individual defendants, would have that information as anonymous participants to a blog are, by their very nature, anonymous.

Reprinted from the October 2010 ebulletin from The Canadian Civil Liberties Association (highlight added by AuroraCitizen)

SLAPP Lawsuits On The Rise

In August of this year, the CCLA made submissions to the Attorney General’s Advisory Panel on Anti-SLAPPs.  This panel is considering the issue of how to prevent strategic litigation against public participation (also known as SLAPPs).  SLAPPs are lawsuits started against individuals or groups who speak out or take a position on an issue of public interest.  As the Advisory Panel’s website states: “The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism.”

In our submissions, the CCLA argued in favour of robust anti-SLAPP legislation and made proposals to ensure that, if such legislation is passed, it is effective.  In particular, the CCLA proposed the creation of an independent public agency to assist SLAPP defendants and insure that fundamental freedoms are not stifled by strategic litigation.

Over the years, the CCLA has intervened in a number of SLAPP cases to try to ensure that civil lawsuits are not used as tools to curb debate and discussion on matters of public importance.  Recently, the CCLA has learned of a number of lawsuits that appear to do just that.  One is a lawsuit started by the Mayor of the Town of Aurora against a number of individuals who posted to a local blog and criticized her leadership.

The Mayor is seeking over $6 million in damages and will also be asking the Court for orders disclosing the identities of individuals who posted to the blog anonymously. The lawsuit is being funded by the town’s Council.

Perhaps the most well-known recent SLAPP case is the claim for defamation started by Toronto police officer Adam Josephs, also known as “Officer Bubbles”.  Josephs was captured on video telling a young woman during the G20 that he would arrest her if she didn’t stop blowing bubbles.

The video went viral and spawned a series of animated cartoons depicting “Officer Bubbles” engaged in a variety of abusive police behaviour.  Several people also commented on the videos on YouTube, calling the officer names and harshly criticizing the way in which he performs his duties.  Officer Josephs has now launched a lawsuit, seeking over $1 million from YouTube and several of the anonymous posters who posted the cartoons and commented on them.  The CCLA is particularly concerned about this lawsuit because it compounds the limits on free expression that were experienced by peaceful protestors during the G20 and may result in silencing individuals who have legitimate concerns about G20 policing.  The CCLA is urging Officer Josephs to drop his lawsuit.

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

On Friday October 22, in the face of a motion to strike her claim as government action infringing the Charter, Phyllis Morris is amending her claim for defamation to be brought in her personal capacity, rather than as Mayor of Aurora.

It is unknown whether taxpayers of Aurora will continue to fund the claim, or whether the personal lawsuit will now be funded personally. Aird & Berlis continues to act on behalf of Phyllis Morris.

Canadian Civil Liberties Association had filed a letter with the Court indicating that the matter of the Mayor’s lawsuit raised significant civil liberty concerns.

Media Statement on behalf of  Richard Johnson, Bill Hogg & Elizabeth Bishenden 

October 15, 2010

Richard Johnson, Bill Hogg, and Elizabeth Bishenden have served a motion today that seeks a dismissal of a $6,000,000 lawsuit filed against them by Phyllis Morris, in her capacity as Mayor of the Town of Aurora. The lawsuit names Mr. Johnson, Mr. Hogg and Ms. Bishenden as defendants. The motion will be filed before the Ontario Superior Court of Justice when a date for the motion has been fixed by the Court.

Mr. Hogg is a former Councillor of the Town of Aurora.  Neither Mr. Johnson nor Ms Bishenden has ever held elected office.  None of the three are running in the 2010 Municipal Election.

The lawsuit alleges that the Mayor was defamed by un-named bloggers in comments posted on the Aurora Citizen blog (www.AuroraCitizen.ca ) between August 24, 2010 and October 2, 2010. Mr. Johnson, Mr. Hogg and Ms. Bishenden are not alleged to be the authors of the defamatory posts, but instead are allegedly moderators with the ability to “publish, republish, encourage or delete [the] postings.”  The specific comments that allegedly defame the Mayor have not been particularized.  Mr. Johnson, Mr. Hogg and Ms. Bishenden have retained Jordan Goldblatt of Sack Goldblatt Mitchell LLP to respond to the lawsuit, which was served over Thanksgiving weekend.

Mr. Johnson, Mr. Hogg and Ms. Bishenden believe that comments about government are entitled to constitutional protection under the Charter of Rights and Freedoms.  A government (such as the Aurora Town Council or its Mayor) is not permitted to sue citizens for defamation. As the Ontario Superior Court of Justice has previously held, “everyone has a right to her opinion, whether sound or ill-advised, moderate or extreme, well-documented, or utterly baseless. And everyone has a right to voice her opinion, whether orally or in writing.”

Town Council approved the lawsuit at 1:11am the morning of September 15, 2010. Council confirmed a direction from a Closed Session regarding “a potential defamation action”, and the Town Solicitor was directed to retain external legal counsel “to bring resolution to this matter”. The $6,000,000 lawsuit was the only action taken against Mr. Johnson, Mr. Hogg, and Ms. Bishenden.

At the September 28, 2010 Council meeting, one Councillor, Bob McRoberts, disavowed his approval of the motion. On RogersTV First Local News on October 14, 2010, Councillor McRoberts was quoted as saying, “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.”

Mr. Johnson, Mr. Hogg and Ms. Bishenden view the lawsuit as a tactic to silence critics of the Government in what is generally referred to as a Strategic Litigation Against Public Participation (SLAPP).  A SLAPP is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. A SLAPP also acts as a warning to other potential critics. The effect of SLAPP suits is to discourage public debate.

The Ontario Courts have held that litigation by the government which stifles its critics cannot be permitted: “The government may not imprison, or fine, or sue, those who criticize it. The government may respond. This is fundamental. Litigation is a form of force, and the government must not silence its critics by force.”

SLAPPs are currently under review by Ontario Ministry of the Attorney General in the form of an Anti-SLAPP Advisory Panel (http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/ )

PRESS RELEASE 10 15 10 FINAL

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