Justice William Hourigan has dismissed a motion from the Canadian Civil Liberties Association (CCLA), meaning two county officials may be able to proceed with a $2.4-million defamation lawsuit against Guelph resident Bill Manderson.
The CCLA argued last week the lawsuit – filed by Puslinch Mayor Brad Whitcombe and Wellington County Chief Administrative Officer Scott Wilson, and funded by the county – is unconstitutional as it could be perceived as restricting the right of citizens to criticize government.
But on Dec. 18 Hourigan ruled the CCLA failed to provide adequate proof of its claims.
“I do not find … that this action represents an effort to circumvent the prohibition against government defamation actions and is therefore an abuse of process,” Hourigan said in his 13-page ruling.
“The intervenor has submitted no credible evidence that the County of Wellington is bringing this claim for an improper or ulterior motive.”
Whitcombe told the Advertiser on Monday he is reassured by the decision.
“I feel more secure that politicians and senior public officials can be protected from this sort of defamation,” he said. The case has been portrayed as akin to “David versus Goliath” Whitcombe said, but government officials deserve the same protection from alleged defamatory statements as everyone else.
“Reasonable criticism everyone expects,” he said, but what Manderson wrote on smelly-welly.com and in personal letters was “beyond anyone’s tolerance and acceptance.”
Manderson said on Tuesday his reaction to the decision was actually very positive.
“That hearing was not about me,” said Manderson. “It’s got nothing to do with me … I didn’t ask [the CCLA] to intervene.” In fact, Manderson explained he views the intervention of the CCLA as a small victory regardless of the outcome.
“I picked up six months of time,” he said, explaining that time allowed him to build his case.
Manderson hinted “plan B” may be for the CCLA to appeal the decision, but even if the appeal is denied or never proceeds, he is confident he will ultimately emerge the victor.
“There’s no doubt. I have irrefutable evidence,” he said. “My defence is the truth.”
In his analysis, Hourigan specified the CCLA was “unable to cite any Canadian authority where a court has ruled that a government is prohibited from funding defamation litigation commenced by a public servant.”
In fact, the judge in one of the cases cited as precedent by CCLA lawyer Ryder Gilliland (Halton Hills versus Kerouac, 2006) worried that individuals may not devote themselves to public service “if they would not be supported in the defence of their reputations by their employer.”
Hourigan also ruled the CCLA has not established “that the County of Wellington has an unconstitutional interest in this litigation by reason of its funding of the litigation, receiving reports from the plaintiffs’ counsel in camera and in appointing a spokesperson.”
Whitcombe and Wilson have filed affidavits in which they say they brought the action on their own behalf and not as representatives of county council.
They also said the lawsuit stems from perceived harm to their own reputations and not that of the county’s, that they alone instruct their lawyers, and that they have not been asked and have not agreed to pay the county any amount that may be awarded in the case.
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There is a parallel court case ongoing, in which Wilson and Whitcombe are seeking a peace bond against Manderson.
That case is expected to go to court again next month, though Whitcombe said it is “quite disturbing” that an attempt to stop alleged threats would take so long to resolve.
Whitcombe and Wilson filed the defamation lawsuit and peace bond documents almost a year ago.
