Gutowski lawsuit to proceed

Jeff Green | May 27, 2014

An Ottawa Superior Court Justice has ruled that a defamation lawsuit launched by former Frontenac County warden Janet Gutowski against four members of Frontenac County Council (including current warden, Bud Clayton) can proceed to trial.

The case stemmed from a resolution that was passed at a meeting of County Council in May of 2013, while Gutowski was the county warden. The resolution in question includes an assertion that Gutowski breached her oath of office by “uttering promises and rewards in an effort to conspire with staff to move county councillors to vote 'in a biased, corrupt or any other improper manner.”

At the time, Gutowski said she was going to consult her lawyer. Her lawyer later sent a letter to the four councilors who had supported the resolution in question, which passed in a 4-3 vote. They are Bud Clayton, Mayor Dennis Doyle and Councilor David Jones from Frontenac Islands, and Councilor John McDougall from South Frontenac Township.

The letter asked that the councilors move to rescind the resolution in question, apologise, and pay her legal fees.

“At that time my legal fees were limited to the cost of a lawyer’s letter,” Gutowski said this week.

Instead, the four defendants hired a lawyer of their own, Kirk Stevens, partner in the Toronto law firm, Lerners LLP, whose fees are being paid by a Frontenac County insurance policy.

Stevens filed a motion in the Ottawa Superior Court asking Justice R. Beaudoin quash the case for three reasons, the major one being that communications made within the context of a municipal council meeting are covered by an “absolute privilege” and cannot be the subject of a defamation suit.

A one-day hearing took place in Ottawa on April 29 to deal with Stevens’ motion.

In his 20-page ruling, Justice Beaudoin concluded that communications made during municipal council meetings do not carry an “absolute privilege” as do those in federal parliament or the provincial legislature.

A key element in Justice Beaudoin's ruling is that municipal councils do not have the same kinds of rules of procedure as in the federal or provincial context.

“If Members of Parliament and the Legislature make comments that are inappropriate, the Speaker has a variety of recourse measures that may be employed, from simply recording apology, naming the member and ejecting them from Parliament until they retract their comments,” he wrote, adding that this makes communications at municipal councils different.

“Even if I am wrong on this point,” he added, “the issue should be decided on a full factual record.”

At the end of his ruling, Justice Beaudoin invited each side to submit their costs to him.

When contacted, Janet Gutowski said the ruling clears the way for her defamation suit to proceed.

“Unless the defendants want to settle, that's where we are headed,” she said.

“It is unnecessary, particularly since it was all about them wanting me to resign as warden. When I announced last September that I was going to resign at the end of the year, they could have ended this and saved the county some money. But here we are.”

When contacted, Bud Clayton said that as far as he is concerned the matter will now proceed in court.

“I have not talked to the others since the ruling came out, but as far as I'm concerned I stand by the way I voted on that motion. I did it for my own reasons and nothing has changed.

No further court dates have been set on this matter at this time. Since it is a municipal election year, it is likely this matter will be a defamation case between at least some former councilors by the time it is settled.

There is no word on the impact the case will have on the insurance rate for Frontenac County Council.

Janet Gutowski is seeking payment for damages as well as court costs in the case.