A Muskoka court ruling ordering a Muskoka Lakes Councillor to pay $30,000 in libel damages has relevance to councillors everywhere who use “reply all” and other mass email distribution lists. Judge Robert McKinnon ruled that Councillor Ruth Ann Nishikawa defamed fellow councillor Ron Brent. The incident occurred during a contentious municipal election where the community was badly divided over a proposal to develop a hydroelectric project at Bala Falls. The defamation stemmed from an email Nishikawa sent to a constituent which alleged that Councillor Brent had revealed the contents of an in-camera meeting and that he had a personal conflict of interest on the power proposal when in fact he had not. Nishikawa had numerous opportunities to retract the allegation and apologize but refused and the matter went to court. The email in question was copied to the rest of council– in all about 20 persons– some of whom were not at the meeting and as the judge pointed out, would not have known about the matter had it not been for the Nishikawa email.
There is a widespread perception that comments by members of a municipal council enjoy qualified privilege when it comes to libel and slander. The judge ruled that in this case no such privilege was applicable. “It was clearly driven home to Ms. Nishikawa that she was wrong about Mr. Brent. By that time…she clearly knew that she was wrong. The plaintiff wrote to ask for a retraction and apology. She refused. By persisting in her refusal to apologize or retract, it is clear to me that her words were wrong, false, defamatory and malicious. Miss Nishikawa fails in her defence of qualified privilege.”
Nishikawa’s lawyers had also argued that her comments were protected as fair comment, a defence often used by the news media. The judge dismissed this argument saying fair comment must be opinion not facts. When she asserted that Brent had revealed the contents of an in-camera meeting and that he had a conflict of interest on the matter in question, she was asserting facts, not opinion. Since the facts turned out to be untrue, the defence of fair comment did not apply.
As it turned out Mr. Brent was defeated in the 2014 election, and in his lawsuit his lawyers attempted to make the case that his defeat was due to the Nishikawa email, but the judge disagreed, although he commented that had come to the conclusion that the email resulted in Brent’s defeat the damage awarded would have been higher. The judge made it clear that the $30,000 award was “more than those that might be expected in an award against a private person whose words would likely attract lesser weight.” In other words, members of a council will be held to a higher standard when damages are assessed. Brent had requested that the judge ordered the damages be paid to a local nursing station but the judge declined, saying he did not have the authority to make such a ruling.

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