Winnipeg Free Press - PRINT EDITION

Lawsuit wrong response

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The City of Winnipeg should think twice about its threat to sue its largest union for what the mayor's office calls "false and defamatory" television ads.

Parts of Canadian Union of Public Employees Local 500's 30-second attack ad, titled "For Sale," are erroneous and misleading. But the city's launching expensive, protracted and legally problematic litigation against the union local isn't a journey the mayor and council should embark upon.

The animated ad shows the letters "Winnipeg" being chopped up, sucked into a vacuum and sent down a drain. A voiceover alleges Mayor Sam Katz and city council "want to privatize parks, golf courses and arenas and have sold garbage collection to private companies headquartered in Ontario and the U.S."

The ad falsely characterizes the recently aborted swap of land, owned by developer Shindico, where the new fire hall-paramedic station sits on Taylor Avenue for three pieces of city property as council's attempt to "sell fire halls to their friends." It also erroneously states "the city handed management of our water to a company in France" -- an apparent reference to the city's sewage-treatment consulting contract with Veolia Canada.

Mr. Katz said the city has retained independent legal counsel to handle the defamation claim. "No entity should go out to the public and lie to them and defame people."

The mayor is in error. The city and council are referred to in the animation, but the ad names no "people," no individuals, other than himself. The City of Winnipeg, as a corporation, is a person at law. So theoretically it might have cause to sue. But besides the mayor, no one is identified in the ad.

Protection of reputation is fundamentally an individual right. Defamation law requires someone be identifiable as having suffered harm to his or her reputation. Simply belonging to a group that's the target of broad, false accusations, such as city council or the civic administration, isn't enough to allow the group, or any of its members, to sue for defamation.

Moreover, Canadian law has long militated against recognition of group defamation. Just last year the Supreme Court of Canada confirmed that where a group claim is brought, the group must prove all individual members have personally, as opposed to collectively, suffered damage to their reputations. Tough -- if not near impossible -- to do with a large and disparate group such as city council or the civic administration.

Compounding the difficulties facing a defamation claim of the kind envisioned by Mr. Katz is that, historically, Canadian law has frowned on government or elected body claims for defamation. The courts generally see public criticism of government -- even inaccurate criticism -- as part of accountability in a democracy. There's a general bias against prohibition of criticism of governments or institutions that are, ultimately, themselves beholden to the public.

Mr. Katz and council have every right, and maybe even the duty, to go public and get vocal about rebutting the parts of the CUPE ad that are manifestly wrong.

But getting involved in a dubious defamation lawsuit, at taxpayer expense, and likely to still be going on long after the mayor and most councillors have left office, isn't in anyone's best interests.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Gerald Flood, Catherine Mitchell, David O’Brien and Paul Samyn.

Republished from the Winnipeg Free Press print edition November 17, 2012 A16

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