Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to "defamation": expression, whether writen or oral, that tends to lower a person’s reputation in the estimation of ordinary, reasonable members of society generally, or to expose a person to hatred, contempt or ridicule. This post is the second in a series reviewing the claims, defences, and issues raised in the decision.
Individuals can bring a claim for defamation if their reputation is damaged in B.C., as can most corporations. There is an exception, however: muncipal corporations, that is to say cities, districts, townships, and villages, such as Vancouver and Lions Bay, cannot sue for damage to their reputation, because of the risk that such a lawsuit would limit citizens' freedom to crticize government.
In the Wison v. Switlo decision, the plaintiffs included Kitamaat Village Council, which is a band council with powers under the Indian Act. As a result, the Court had to decide, as a preliminary matter, whether a band council can sue in defamation.
Mr. Justice R. Punnett decided that they cannot, holding that it was not "consistent with the role of [a band council], a body that is elected democratically and exercises power through the Indian Act, to have the capacity to maintain an action for defamation". The Reasons for Judgment cited ealier cases involving civic governments:
In Dixon v. Powell River (City)... this Court held that a government body cannot sue for libel. In coming to that conclusion, Garson J. (as she then was) reviewed the recent Canadian jurisprudence in the area. Justice Garson concluded that, in light of the Charter, our Court of Appeal’s decision in City of Prince George v. British Columbia Television System Ltd. ..., permitting a local government to sue, should not be followed:
"... In Prince George, Aikins J.A. considered and rejected the freedom of speech argument advanced by the plaintiffs, and held that a local government could sue for defamation on the same basis as any corporation. That reasoning cannot withstand Charter scrutiny. As Sharpe J.A. said in Cusson at para. 125:
'It is hardly necessary to repeat here the importance of the rights protected by s. 2(b) of the Charter, namely "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". These rights are an inherent aspect of our system of government and have been generously interpreted by the courts. Democracy depends upon the free and open debate of public issues and the freedom to criticize the rich, the powerful and those, such as police officers, who exercise power and authority in our society. Freedom of expression extends beyond political debate to embrace the "core values" of "self-fulfilment", "the communal exchange of ideas", "human dignity and the right to think and reflect freely on one's circumstances and condition": R.W.D.S.U. v. Pepsi-Cola,  1 S.C.R. 156 at para. 32. Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy. This court recognized in R. v. Kopyto (1987), 62 O.R. (2d) 449 at 462 that “[i]f these exchanges are stifled, democratic government itself is threatened.”
The passage just quoted is equally applicable to this case. 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.
To read the full decision, click here.
To read the first post in this series, click here.