Frontenac County fails in bid to quash Gutowski lawsuit

Jeff Green | Jul 30, 2015

Lawyers for Frontenac County have gone all the way to the Supreme Court of Canada to assert that statements made by council members at its meetings are subject to the same protections as statements made by MPs in Parliament.

That challenge has yielded a resounding no, leaving the County on the hook for court costs, and finally clearing the way for former warden, Janet Gutowski, to continue her defamation suit against four members of the council that served from 2010 to 2014.

The case revolves around a motion that was made by former county council member, David Jones, in May of 2013.

The motion charged Gutowski with “uttering promises and rewards in an effort to conspire with staff to move County councilors to vote in a biased, corrupt, or any other improper manner”, and moved to “rescind all the privileges of her office immediately”. It requested that Central Frontenac, the township she represented on the council, appoint a replacement for her “as soon as possible”.

Although the motion passed by a vote of 4-3, it had no effect because removing a member or a warden is beyond the authority of a municipal council in Ontario. Gutowski remained in her role as warden for another seven months and remained on Council until the end of its term on December 1, 2014.

She did, however, send a lawyer's letter to Jones and the three other members of Council who supported the motion, John McDougall, Dennis Doyle and Bud Clayton, requesting they rescind the motion and apologize for the allegations it contained. When this did not happen, she launched a defamation suit in September of 2013 against the four men, seeking $1 million in damages.

When the matter came to court, county lawyers made a motion to quash on the grounds that “absolute privilege” applies to utterances made as part of county council meetings. An Ontario Superior Court judge dismissed the motion, and an Ontario Court of Appeal judge, and now the Supreme Court of Canada, have dismissed appeals of that ruling. In rendering its ruling the Supreme Court reiterated the determination that was made by the trial judge: “The Court determined the question of law by holding that municipal councilors do not enjoy absolute privilege for comments made in the course of council meetings,” the ruling said. The court also awarded legal costs to Gutowski, as had the Ontario Court of Appeal earlier.

The lawsuit can now proceed in Ontario Superior Court.

It has now been almost two years since the suit was originally launched.

In that time Bud Clayton has died, and Jones was re-elected to Frontenac Islands Council, but not to Frontenac County Council because he did not receive the highest vote count in the Howe Island ward. He resigned from Frontenac Islands Council immediately thereafter. Janet Gutowski was also defeated in her bid for a third term as mayor of Central Frontenac. Dennis Doyle and John McDougall were re-elected and are back on County Council. Doyle is currently the warden of Frontenac County.

“I'm pleased with the ruling,” said Gutowski, “although this whole matter has taken much longer than I ever thought it would. I'm not sure where it will all go from here. I believe my lawyer and the county's lawyer are in contact and the next steps will be determined by them. There has been no apology and the motion has not been rescinded. I guess we are headed back to court.”