Government Can’t Sue for Defamation
Published in the May 2006 issue of Litigation Notes - View Article
The Town of Halton Hills and its Director of Parks and Recreation sued a local internet-based news provider in defamation. The plaintiffs alleged that the defendant had called the Director “corrupt” in connection with his work for the Town. The defendant brought a motion to strike the Town’s claim. He argued that the statements complained of did not defame the Town, and also argued that the Town could not sue for defamation.
The Superior Court of Justice of Ontario struck the claim asserted by the Town, finding that no government may bring an action in defamation. Canadian cases that did allow for this cause of action were found to be no longer the law of Canada, as they pre-dated the Charter of Rights and Freedoms and relied on English authority that had been expressly overruled.
Justice Corbett noted that the Town was a corporation, and may have a “business reputation” to protect, as do other corporations. He also noted that a local government, as created by the Municipal Act, has the powers and rights of a natural person – and a natural person may sue in defamation. Prior to the Charter, Canadian courts held that government bodies could sue in defamation. The defendant argued that, with the advent of the guaranteed right to freedom of expression in the Charter, “everyone should be free to criticize democratically elected governments . . . without risking a defamation action.”
The plaintiffs argued that this issue could not be considered on a motion to strike, but would require a full trial record. Justice Corbett found that the matter could be argued on a motion to strike and without a full record, as it was a pure question of law.
Justice Corbett considered the importance of freedom of speech and its existing limits, concluding that the right to freedom of speech is “a pillar of democracy”, to be limited only to recognize other important rights.
Local governments, while possessing a “business reputation” do not possess a “private” reputation, as “their sole existence is public.” In this way they are unlike other corporations and natural persons. Justice Corbett differentiated between public officials, who maintain private reputations which may be damaged, and governments. Where a defamatory statement about a public body is properly understood to refer to a specific individual, that person may have a right to sue in defamation. However, where the public official is defamed, the government body he represents does not gain a right of action.
Justice Corbett framed the issue as involving the restriction of freedom of speech, specifically any speech of and about government, as being inimical to the basic tenets of democracy. He concluded that the unavailability of defamation actions for governments did not rest on the power imbalance involved in a government suing a citizen, nor did it rest with the identity of the alleged defamer as a “citizen” or taxpayer:
“It is in the very nature of a democratic government itself that precludes government from responding to criticism by means of defamation actions. . . Governments are accountable to the people through the ballot box, and to judges or juries in courts of law. When a government is criticized, its recourse is in the public domain, not the court. . . . Litigation is a form of force, and the government must not silence its critics by force.”
He listed the public methods by which government may protect its reputation, including convening meetings, publishing press releases and setting up public investigations or boards of inquiry.
Justice Corbett concluded by finding that statements made about government were protected by absolute privilege under the common law.
The Superior Court of Justice of Ontario struck the claim asserted by the Town, finding that no government may bring an action in defamation. Canadian cases that did allow for this cause of action were found to be no longer the law of Canada, as they pre-dated the Charter of Rights and Freedoms and relied on English authority that had been expressly overruled.
Justice Corbett noted that the Town was a corporation, and may have a “business reputation” to protect, as do other corporations. He also noted that a local government, as created by the Municipal Act, has the powers and rights of a natural person – and a natural person may sue in defamation. Prior to the Charter, Canadian courts held that government bodies could sue in defamation. The defendant argued that, with the advent of the guaranteed right to freedom of expression in the Charter, “everyone should be free to criticize democratically elected governments . . . without risking a defamation action.”
The plaintiffs argued that this issue could not be considered on a motion to strike, but would require a full trial record. Justice Corbett found that the matter could be argued on a motion to strike and without a full record, as it was a pure question of law.
Justice Corbett considered the importance of freedom of speech and its existing limits, concluding that the right to freedom of speech is “a pillar of democracy”, to be limited only to recognize other important rights.
Local governments, while possessing a “business reputation” do not possess a “private” reputation, as “their sole existence is public.” In this way they are unlike other corporations and natural persons. Justice Corbett differentiated between public officials, who maintain private reputations which may be damaged, and governments. Where a defamatory statement about a public body is properly understood to refer to a specific individual, that person may have a right to sue in defamation. However, where the public official is defamed, the government body he represents does not gain a right of action.
Justice Corbett framed the issue as involving the restriction of freedom of speech, specifically any speech of and about government, as being inimical to the basic tenets of democracy. He concluded that the unavailability of defamation actions for governments did not rest on the power imbalance involved in a government suing a citizen, nor did it rest with the identity of the alleged defamer as a “citizen” or taxpayer:
“It is in the very nature of a democratic government itself that precludes government from responding to criticism by means of defamation actions. . . Governments are accountable to the people through the ballot box, and to judges or juries in courts of law. When a government is criticized, its recourse is in the public domain, not the court. . . . Litigation is a form of force, and the government must not silence its critics by force.”
He listed the public methods by which government may protect its reputation, including convening meetings, publishing press releases and setting up public investigations or boards of inquiry.
Justice Corbett concluded by finding that statements made about government were protected by absolute privilege under the common law.
Halton Hills v. Kerouac, [2006] O.J. No. 1473 (S.C.J.)
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