How far can we go in criticizing the people who run the town we live in?
When does citizen activism overstep the boundaries of what’s legal?
What tools can a municipality use in protecting the reputations of its public and elected officials?
What protection does a citizen activist have against a vengeful administration bent on libel chill?
Is there a way to evaluate the damage done to a town’s reputation?
Hudson mayor Ed Prévost and director-general Jean-Pierre Roy have been wrestling with these issues following the events leading up to this week’s adoption of Bylaw 687.
It isn’t the first time this administration has tried to come up with a policy on the public’s right to comment and question. Shortly after taking office in November 2013, the current council found itself in a social media shootout with critics. I can’t find the Facebook threads, so all I have to go on is hearsay on what was posted and who was threatened with libel chill.
The fair-comment issue resurfaced this past Tuesday evening on Hudson’s town hall steps, the same steps that supply the backdrop for innumerable photos and TV standups about Hudson’s dirty laundry. The DG had just announced the results of a registry on Bylaw 687 allowing the town to borrow $550,000 to refurbish the Community Centre. The registry fell 65 signatures short of forcing a referendum or the bylaw’s withdrawal.
I asked Roy whether the town proposed to take action against Véronique Fischer, the Hudson lawyer who has been a persistent pain in the butt of Hudson’s current body politic. The week before, Fischer spent $500 to mail pamphlets to every Hudson household questioning the bylaw and urging residents to sign the register.
There have been several interpretations of Roy’s comments regarding the action the town proposes to take to silence Fischer. Roy didn’t use the word “actionner,” the closest translation for “sue.” He used the more euphemistic “prendre action,” which suggests anything from a lawyer’s letter to a lawsuit.
There’s a place for public debate, he continued, but citizens have the right to correct information. He and the mayor are in agreement that there must be “zero tolerance” for actions such as Fischer’s mailing.
On Thursday morning I sat down with the DG for a 45-minute chat about how the town proposes to silence persistent critics without being accused of stifling free speech.
Roy began by making it clear the town would seek the means to neutralize residents who make it their business to monitor the decisions and practices of municipal administrations and have the know-how to research documents and the means to take their findings to provincial authorities.
Are Hudson’s citizen activists and dissenting voices at risk of being sued? Quebec is the only jurisdiction in Canada with a law that protects citizen activists. Adopted in 2009, Bill 99 prevents businesses from filing strategic lawsuits against public participation, or SLAPPS. These are civil lawsuits filed with the specific purpose of silencing organizations without the finances to wage a lengthy court battle.
The law allows a court to declare a lawsuit abusive, order the plaintiff to provide for costs and to cover the legal bills of the defendant.
The original purpose of the bill was to protect ecologists targeted by major corporations. I can’t find jurisprudence on whether Quebec’s anti-SLAPP law has ever been used against a municipality, but I can’t see a reason why not – an excellent reason for the creation of a Hudson citizens’ association. There’s strength in numbers.
The DG walked me through the jurisprudence, the body of legal decisions on the subject. He began by showing me a legal opinion that a citizen cannot use a town’s name, crest, logo, etc. without authorization. The opinion cited a 1960 decision in favour of Montreal against the Fraternité des policiers which established fines of $1,000 per individual and $2,000 for the union.
Next was last month’s Superior Court ruling in favour of the City of Saint-Lambert in its defamation lawsuit against the St-Lambert Journal and its publisher, David Leonardo.
The judge found that the weekly newspaper had repeatedly published “false, inaccurate information that was factually incorrect and did not correlate with events“ and ordered the defendant to pay a total of $100,000 in moral damages and $30,000 in punitive damages “as compensation for moral damages caused by [the] wrongful, abusive and illegal conduct [of the defendants].”
The municipality’s position was that the newspaper had “significantly damaged the integrity and reputation of employees, managers, elected officials, and the municipal administration in general.”
Roy’s expert cited judgments involving half a dozen municipalities, all variations on the theme that accusations and insinuations are actionable. A couple of citations stood out: the right to speak doesn’t carry the right to defame” and “citizens who go into politics are no different than other citizens…they have the right to safeguard their reputation.”
Roy pointed out the cost to the municipality’s reputation as well as to those who represent it. Canadian courts have established that one can libel a corporation as well as an individual or individuals. Hudson’s bad press (“Just Google Hudson and see what comes up.”) makes it more difficult to find qualified managers and technicians.
Roy, too, is a lawyer, so we danced around the role Fischer has played and continues to play in town politics. Fischer represents Catherine Haulard, the former DG. Provincial labour relations tribunal judge Mylène Alder was to have submitted her ruling by today (Friday, April 21) on whether Haulard’s 2014 dismissal was unlawful. If it isn’t out by the time you read this, expect it any day.
The Prévost administration has a growing list of grievances against party or parties unknown. Did Robert Spencer have legal help drafting his complaint against the mayor to the Commission municipale du Québec? Who filed a complaint with MAMOT regarding the legitimacy of the loan bylaw authorizing the expenditure of $1.5M for the repaving of the town’s main arteries?
Roy’s only comment directed at Fischer? “She’s given me a lot of work.”
I questioned Roy on the town’s latest legal adventure. I scanned Fischer’s pamphlet. I couldn’t find a single legally actionable phrase. She questions actions but does not impute motives. She attacks no one. She makes no questionable assertions. The town’s only case against her – if there is a case – centres on her use of Hudson’s logo by copying the top of the loan bylaw.
I asked Fischer for comment for this post. Her response was to send me the results of her latest access to information requests, showing that as of January 2017, Hudson wasn’t on the list of approved Canada 150 projects. She also produced a May 2016 grant application for the Hudson Community Center presented by the Hudson Music Festival. The application is for $53,122 toward the $105,300 cost of installation and renovation of the Hudson Contemporary Arts Centre.
There’s an expression in French: Elle persiste et signe. Whatever she may or may not have accomplished in the past, Fischer shows no intention of stopping her campaign to have the Community Centre loan bylaw invalidated. Prévost and Roy will do their utmost to shut her down, but I suspect the damage has been done.
Now that the curling rink roof is off the table, what’s left? Loan Bylaw 687 makes no mention of matching grants or that to-do list citizens were promised. All it says is taxpayers are on the hook for $555,000 for the next 20 years.
But not if Fischer can help it.
Update posted Aug. 5/18 on FB Hudson and vicinity:
Here’s the context:
Municipalities throughout Quebec are having to find new ways to deal with social media and other platforms beyond the reach of traditional arm-twisting, like pulling town ads or the threat of libel actions. So municipalities are trying out new ways to control/stifle dissent.
Example: a Violence Zero Tolerance policy which allows town employees to file complaints alleging acts of physical or psychological violence making their workplace less safe.
Here’s how this would apply to social media:
Let’s say a FB forum is used to convey criticism about a certain practice or action by the town or its employees.
According to some of the more restrictive VZT policies I’ve come across, an offensive FB post need not specify an individual if it is obvious the practice being criticized is the result of one employee’s decision.
These VZT guidelines don’t spell it out, but my read is that the taxpayers end up paying for legal action a municipality may be forced to take as the result of anything someone working for the town alleges is a micro-aggression directed at them. In Hudson’s case, the current director-general indicated to me two years ago the town would be looking hard at this.
(Lawyer vs. Lawyer, thousandlashes.ca, April 21/17). From what I’ve been reading from across the province, I’d have to say FB forums such as this should anticipate adoption of a VZT policy and require posts on controversial topics to be moderated. When one of these VZT cases gets to court (and I’m sure one will) an ounce of prevention could make all the difference.