I previously wrote about a finding of the Ontario Superior Court of Justice that a municipality likely did not have any defence against a claim for defamation arising from its publication of negative public comments about a site plan application. That finding has now been overturned by the Court of Appeal in Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, which held that the municipality could rely on the defence of “qualified privilege”.
“Qualified privilege” can protect against a claim in defamation where the publisher of the defamatory statements has a legal or social duty to publish them. For example, comments made by or to municipal council during a council meeting are protected by qualified privilege. Importantly, this decision of the Court of Appeal extends the defence to “the entire public planning process including the material received in response to the … application and posted on the Township’s publicly available website”. This is because a municipality has a legal and social interest and duty to make the planning process transparent and accessible to its residents.
Although the Planning Act does not require a municipality to solicit or publish public comments about a site plan application, the Township in this case had established a process to do so. The Court of Appeal found that this was reasonable given the Township’s interest in “maintaining an open and transparent planning process receptive to the needs of its citizens.” The defence of qualified privilege therefore applied to any relevant public comments which the Township published on its website, and the Court of Appeal accordingly dismissed the claim against the Township for defamation under section 137.1 of the Courts of Justice Act (the “anti-SLAPP” mechanism discussed in previous posts).
The Court was clear that qualified privilege might not protect against publishing defamatory comments which are not related to the planning process, including comments that are contrary to the Human Rights Code or comments that “clearly amoun[t] to a vitriolic attack” on the applicant. Planning authorities should therefore carefully vet public comments for objectionable content. When in doubt, it is best to consult a lawyer on whether a publication will benefit from the defence.