No Defamation Remedy for Local Government

The law of defamation has recently changed for local government in British Columbia.

In 1975, the British Columbia Court of Appeal in the City of Prince George v. British Columbia Television Systems Ltd. held that local government could bring an action for defamation. The Court held that since every incorporated municipality has all the rights and liabilities of a corporation and because a corporation had a right of action in defamation that a municipal corporation had the same right. In response to concerns about protecting freedom of speech, the Court of Appeal stated:

“…The short answer to counsel’s submission, founded on freedom of speech, is simply that that right, under our law, must be exercised subject to the law of defamation which affords everyone protection against injury to reputation by untrue imputation. Moreover, as counsel for the respondent pointed out, in my view correctly, the law of defamation makes adequate provision by the principle adopted in respect of fair comment to protect those who make legitimate critical comments on matters of public interest. In my view the appellant’s argument founded on free speech is without merit.”

In 1982, the Canadian Charter of Rights and Freedoms was enacted including, in Section 2(b), that everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media communication.

On March 26, 2009, the British Columbia Supreme Court, in Dixon v. the City of Powell River, heard an application for an order that the City of Powell River did not have the legal authority to institute civil proceedings or threaten to do so for defamation of its reputation as a municipal government. As summarized by the Court, the plaintiff, supported by the Attorney General of British Columbia, argued that the 1975 Prince George decision was:

“… not binding authority on this Court because, although defamation is a common law cause of action, the Supreme Court of Canada has held that the law of defamation is informed by the principles of free speech enshrined in the Charter. In other words, common law defamation cases should be decided in ways that are consistent with the Charter principles of free speech. Because Prince George was decided before the Charter became Canadian law, counsel says it is not binding on this Court so as to compel me to find that a municipal government may maintain an action for defamation.”

The Court agreed. After referring to a number of Ontario decisions, which had recently refused to follow the Prince George case, the Court held that a municipal government could not maintain an action in defamation. The Court stated:

“In this case I conclude that I am not bound to follow the judgment in Prince George because a relevant statute, the Canadian Charter of Rights and Freedoms, came into force after the judgment in that case and the arguments concerning freedom of speech obviously did not consider that law. Given the authorities I have cited, I conclude that the rejection of the right to free speech argument by the Court in Prince George is inconsistent with the current law enshrined in the Charter and therefore, as per Spruce Mills, it follows that I do not consider Prince George to be binding on me. … The Charter enshrined value of freedom of expression is paramount and local governments have resort to other means to protect their reputations from citizens who publish critical commentary about the government itself… It is antithetical to the notion of freedom of speech and a citizen’s rights to criticize his or her government concerning its governing functions, that such criticism should be chilled by the threat of a suit in defamation.”

This case is of significance as it has changed the law in British Columbia. Local government can no longer bring an action for defamation to its corporate reputation. Individual members of Council or staff will still have the ability to do so but such an action will have to be brought by them personally against any defendants.