Lawyer vs. lawyer

Posted on by jimduff

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.

 

11 thoughts on “Lawyer vs. lawyer”

  1. Running a newspaper was like walking the knife edge all the time. What information did we share with the reader? Most of what we knew never made it to print. Our test on whether to publish something: is the population the poorer for knowing this or do we need to let them know? It was even more difficult when the article would impact the young children of the people we would write about. Big media never concerns itself with this, but when you live in a small community, it matters.
    We became a regional newspaper with a readership close to 80,000, so we covered a lot of ground. I’ll stick to Hudson and the dealings we had with the different councils and administration.
    Only once did we have to deal with libel chill here. It was not because what we wrote was libellous, but because the then mayor, Steve Shaar took offence to an editorial. So he sent a mise en demeure insisting on a retraction. I could not believe he had done this and wasted tax dollars on something so petty. So I called him up and asked him what the hell he was thinking and to get his butt in my office in the next half hour. He was there in 15 minutes and we yelled at one another for another 15 minutes and the fighting was done. I told him that if he disagreed with the editorial all he had to do was write an op-ed piece. He did so the next week and gave his version. We never had a problem after that because we had found a solution.
    Liz Corker became the next mayor of Hudson. Jim would get lots of flack over his frequent editorials and articles complaining about her council. The only one who never complained about it, was the very thick-skinned Liz Corker. Instead, she would walk over to the newspaper from her office and have a sitdown with Jim and clarify or state her position.
    Opinions should be shared. I used to hate to have to publish letters to the editor in the newspaper from those that admonished us publicly. But, hey, that’s what life is all about. The right of rebuttal excludes nobody.
    I have one piece of advice for this council and administration. Politics is not about pleasing everyone. It’s about doing the right thing. You’d be advised to listen to the residents and make the necessary changes, rather than to try to silence anyone who disagrees.
    As a former publisher, I looked at Fischer’s mailing. It met all the necessary rules needed for distribution. You can’t compare libel with opinion and that’s what you guys are going.
    So suck it up, buttercup. Politics is not about having a fan club. Like journalism, it’s walking the knife edge.

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  2. The November ,2013 social media shootout was between the Town and a post on Hudsonites. The author posted photos of some bulldozers and excavators thrashing around in the bay by the big palace down on Quarry Point. The author of the criticism questioned why the Urban planning inspectors had not been more vigilant when they had observed the small army of heavy machinery poised on the water’s edge the day before. Anyway the damage got done and it took calls from residents to alert the inspectors to the illegal and by the time they arrived a rather large shoreline fiasco had occurred. I’m sure the owner thought he was within his rights. The questioner/poster was stating his view that the Town officials had ,in his opinion ,not performed their duties. They must have felt their reputations had been harshly dealt with because the poster found his name on an injunction and retraction query to the Town lawyers at the next council mtg. I guess the lawyers didn’t see much in it because the poster never got his much sought after very first injunction letter. Darn.

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      1. Total transparency is the only course! Public referendums, open community information meetings quickly become prickly thorns in an Administration’s otherwise covered rear end as more information on an issue( such as this obviously contentious one) is disclosed. members of the community will slowly see for themselves what agendas a Council adheres to:
        Transparency – here are the facts; these are the solutions. Or, closed door meetings where anything goes! No, we’ve seen that before!
        My opinion: We all have the right as well as the responsibility to be a part of the solution, rather than being part of the problem. This includes all Municipal/ Town elected officials.🤔😭

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    2. That’s a scandal in itself. The Durocher/Grubert/Passborg injunction file has cost the town slightly less than 2,000$… And Brian didn’t even get a letter? I want the 2,000$ back. If Louise is paying attention, in an effort for detailed reperations, I’d like to put that 2,000$ towards the replacement the following tile numbers in the community center: #213, 276, 347, 355, 678, 738, 876, and 1,324… And roof Shingle #1, 2, 3, 7, 9, 57, 76, 89, 98, and 132. Oh and buy another one of those sliding rock thingies they use in curling.

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  4. “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.”

    I did not know the role of the Council was to neutralize citizens.
    MAMOT mislead me into believing its role was to ensure that the services provided by the Town meet the need of the community!

    http://www.mamrot.gouv.qc.ca/organisation-municipale/organisation-territoriale/instances-municipales/conseil-et-elus/

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  5. With all due respect Jim, the DG threat (in French) to sue me was very clear and is not a “lawyer v. lawyer fight”.: it is a threat, by our elected officials, to use the deep pockets of the Town (otherwise known as taxpayer’s money) to stop citizen’s questions and demand for answers. That threat does not only apply to lawyers, it applies to any urban planner, architect, engineer, CPA, (retired or not) journalist and anyone who dares to ask questions.

    I am only the first in front of the firing squad, because, as a lawyer and litigator, I am not shy to ask questions and demand answer.. But you, and everyone else is next.

    Anyone who feels that it is only a “lawyer against lawyer issue” should be well advised to remember that once the lawyer who stood before the firing squad to fight for his rights to speak is dead…he will be next in line.

    I was present when the D.G. threatened me with legal action, sanctions, and said that it will “not be tolerated”. When you asked me for my reaction, I answered you “tell the Council that I am a lawyer and a litigator” because I wanted to send a message: your bullying does not work. I know Citizens have the right to ask questions and to demand answer from the individuals they have elected and pay to represent them. I know the law. You will not silence me. Not with ridiculous allegations, not with bullying.

    I have a moral duty to stand for the rights of the citizens and be the voice of the citizens who do not know the law and their rights as well as I do.

    Ordinary citizens have, more than once, in confidentiality, asked me to be their voice and ask questions they did not dare to ask, and expressed fear of repercussion from the Town. I have more than once asked these questions, not for money, for democracy, and always pro-bono (no $).

    That citizens are scared to speak up is what should not be tolerated.
    No citizen should fear asking a question to his Town to answer a question.

    I have an simple, cheap and easy solution for the Council to end the flow of citizen’s questions and complaints. Do the right thing:
    Answer the questions.
    Provide the information.
    Be transparent.
    Answer citizen’s letters. F
    Respect the law and the rights it give citizens.
    Explain your actions.
    Communicate, with respect.
    Stop being arrogant and treating citizens like your subjects. You are not our Kings and Queens. We pay you. We are your boss.
    Listen to the citizens. Take care of what they want, like…roads, not eco-trolleys.
    Stop wasting time and money threatening the people you are supposed to serve.

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      1. Among other things, each Councillor has a duty to represent the interests of the residents in his/her district and to make their concerns known to the entire council and come to a decision.

        Being on council puts you directly in the public eye and criticism is part and parcel of the job. This Mayor and council have slung an inordinate amount of mud and innuendo at many of those who came before – whether on staff or on council – and whether justified or not.

        I still haven’t gotten over Ed saying early on that “they raped, pillaged and stole your money”. It doesn’t get more inflammatory and hurtful than that…………

        Instead of threatening to sue anybody and everybody who makes a disparaging remark ……. perhaps they should pay more attention as to why people are so concerned, what they are complaining about and get on with the job.

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  6. Where is your write up on last Mondays council meeting? I already have a list of comments I’m chomping at the bit to post!

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