Municipality posting public comments about land-use issue covered by defamation defence

The Court of Appeal for Ontario has reversed the dismissal of an anti-SLAPP motion and dismissed a defamation claim, finding a municipality that posted allegedly defamatory material on its website was covered by qualified privilege.

The ruling has “important implications” for municipalities in how they post information online, says Gavin Leitch, counsel for the respondents at the Court of Appeal: Laurie Thatcher-Craig, John Craig, and Clearview Valley Farms

“I think municipalities in Ontario can breathe easier, perhaps, in knowing that, if it posts information from the public, regardless of its contents, it may continue to be protected by this defence of qualified privilege.”

The Court of Appeal case, Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, dealt with allegedly defamatory letters from residents about a local farming operation that a municipality had posted on its website. The letters concerned the farm’s application to build a brewery and retail store on its land.  

The Township of Clearview argued that posting the letters on its website constituted qualified privilege and that doing so was also covered by indemnity. But the motion judge concluded that in posting the material on the internet, where anyone in the world could access it, the township had exceeded the scope for qualified privilege. As for the indemnification defence, the motion judge found that while the party claiming defamation had agreed to the release of certain information, it had not agreed to have the municipality posting these types of letters from the public.

The Court of Appeal found that the motion judge erred in his treatment of the qualified privilege defence and the defence based on the indemnity agreement. The finding on qualified privilege gave the township’s defences against the defamation claim “a real prospect of success,” which satisfied the conditions to dismiss the claim under the anti-SLAPP provision in s. 137.1 of the Courts of Justice Act.

Qualified privilege

“Qualified privilege is a defence that applies when one party has a genuine interest in the statement being made, and it's made to another party or parties that have a genuine interest in receiving the statement,” says Sheldon Inkol, counsel for the township, the appellant in the case.

“In a case such as this, the direct neighbours of the farm property would have a direct interest in making statements about whether the uses for that property could be expanded, and the township receiving those statements would have an interest in receiving them because they have to make a decision on whether to grant the site plan application.”

Finding that qualified privilege applied even though the statements could be accessed by those who did not have a direct interest in them is an “important clarification” of how defamation will operate in an increasingly online society, says Inkol.

Implications for municipalities

Justice Kathryn Feldman, who wrote the reasons for the panel, notes that while municipalities can rely on the defence of qualified privilege, in this context, “the Township is required to exercise prudence in the operation of its website.” This leaves some ambiguity about where a municipality’s online postings exceed the scope of qualified privilege and move into defamation territory, says Leitch.

“It’s a bit of a warning… Where might a municipality face liability for the things that it posts online that are unfiltered and unchecked and unedited and unvetted? Where is that line? It's an open question.”

Dispute originated with municipal land-use permit

The dispute began when a couple of hops farmers in the Township of Clearview sought a permit to build a micro-brewery and retail space. Laurie Thatcher-Craig and John Craig, operators of Clearview Valley Farms, submitted a site plan application along with their planner Michael Wynia.

The township took the position that a brewery was not a permitted use, and Clearview Valley Farms needed a zoning by-law amendment to build their brewery. The township did not process the site plan application within the 30-day limit, and Craig and Thatcher-Craig appealed to the Local Planning and Appeal Tribunal.

When it processed their application, the township published a report on its website concluding that a brewery was not a permitted use under the bylaw. The town council considered the site plan application at their next meeting and adopted the report’s recommendations.

Local newspapers reported on the proposed brewery, and the public responded by sending letters to the township. The township then posted the letters, along with the site plan application, to its website.

Clearview Valley Farms’ defamation claim against the township arose from the contents of the letters, which included accusations that the farm used “bully techniques,” “fraud and deception,” and that the farm was contaminated with arsenic and its over-use of pesticide was making local animals sick.