Q: What constraints are there on what a municipal councillor can say at a council meeting?
A: Elected representatives can’t be sued for things said in Parliament or a provincial legislature. This protection, called absolute privilege, does not extend to municipal councillors.
Defamation is a statement that is injurious to the good name or reputation of another and usually involves false statements or distorted information. In certain instances municipal councillors can claim qualified privilege to protect them from defamation claims. Qualified privilege will protect the speaker when she makes statements in the course of her duties and when discussing issues of public importance.
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In late December 2002, the Supreme Court of Canada looked at this issue in Prud’homme vs. Prud’homme. In 1988, the school board had selected a site for a school on the outskirts of the city of Repentigny. The land was zoned agricultural. After a change in zoning, the land was purchased for the school. The city, which was heavily indebted at the time, developed a plan for servicing the area, including building a boulevard to the site. Servicing costs were in excess of $7 million. The city then passed a bylaw assessing the cost of the infrastructure improvement against the lands and residents in the immediate area of the school. As a result some owners ended up with enormous tax bills and successfully challenged the assessment in court.
At a council meeting on the day when the period for appealing the judgment expired, city councillor Prud’homme argued that the city should have appealed the judgment. He made an impassioned 20 minute speech arguing that the court decision was wrong and the city should have appealed. He pointed out that the value of the land of the appellants (those who took the city to court) had increased substantially and that some had received significant sums for their lands. He therefore queried why they wouldn’t give up some land for a boulevard for $1. He said they were trying to have it both ways, portraying themselves as real estate speculators on the one hand and farmers on the other. He also suggested that the appellants refused to settle when a reasonable offer was made. More than 100 residents attended the meeting. It was also broadcast on the local cable network.
Several of the affected landowners sued the councillor, arguing that his speech cast them in a bad light. A Quebec Superior Court judge agreed and awarded damages in the amount of $58,198. On appeal, the Quebec court of appeal found the comments not to be defamatory. On further appeal, the Supreme Court affirmed that municipal councillors speaking on matters of public interest are protected by qualified privilege.
“They may be swayed by strong political prejudice, they may be obstinate and pig-minded, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly, they run no risk of liability for defamation of those who are the subjects of their criticism,” the court said.
It ruled that open discussion is essential for the public interest and therefore councillors should have some protection from being sued for defamation. Otherwise, people will be discouraged from entering public life. Only when the comments are made in bad faith, with malice and when there is no public interest at stake, will the courts uphold a defamation claim against a municipal councillor.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
