What began as a municipal dispute over a piece of Almonte parkland is now a legal showdown — one that could test provincial legislation designed to protect freedom of speech against “strategic lawsuits” designed to chill public dissent.
After he was served with a libel lawsuit launched by Mississippi Mills Mayor Shaun McLaughlin and Coun. John Edwards, former Almonte resident Steve Maynard is mounting a legal defence with a counterclaim alleging, among other things, “abuse of power.”
The plaintiff in each lawsuit — in the mayor and councillor’s initial lawsuit and in Maynard’s countersuit — is demanding compensation for libel over statements circulated on social media and in the comments section of the town’s local online newspaper.
The small slice of green space at the root of the dispute is Don Maynard Park, dedicated to Steve Maynard’s father 14 years ago. It is a treed rectangular plot running adjacent to a quiet residential street with a section bordering on an elementary school playground.
Armed with a staff and consultant’s report showing the park was underused — “It doesn’t even have a bench,” McLaughlin once complained — council decided to sell off the section facing Gale Street, about 40 per cent of the total land, to build housing.
The profits were to help fund the renovation of Gemmill Park, with designs on making the much larger park fully accessible for those with disabilities.
But the decision did not sit well with the community at large. There were petitions, crowds jammed council chambers when the issue was sent for public consultation, with emotions boiling over at one such session in May, when police took a dissenting citizen to the floor before escorting him out in handcuffs.
But it was the fight that spilled over to online forums, social media and comment sections that led to the current legal battle, in a case legal experts say could test Ontario’s relatively recent so-called SLAPP legislation.
(The 2015 Protection of Public Participation Act seeks to eliminate “strategic lawsuits” designed to put a chill effect into the dissenting public while protecting freedom of expression in matters of public interest.)
A Facebook posting on Maynard’s personal page in May, shared among several online community groups, drew the ire of McLaughlin and council, with Maynard’s stinging comments appearing with the mayor’s official portrait under the heading, “Enough is enough!”
McLaughlin and Edwards shared that same sentiment.
For McLaughlin, it was both the content of Maynard’s posts, as well as the persistence of his various legal “encumbrances” that led to the libel lawsuit.
Among the many colourful episodes contained in the opposing claims, Maynard challenged another councillor’s eligibility, based on a perceived conflict of interest with her day job at the town library, and pursued a human rights complaint over the renovation of Gemmill Park, which the elected officials have suggested is a tactic to delay the whole plan to make the parkland development proposal a 2018 election issue.
McLaughlin posted a statement on his own Facebook page and the local online press, saying Maynard and his “minions… have inundated the municipality with claims, complaints and appeals to various government agencies.”
McLaughlin claimed the town has spent “tens of thousands of taxpayer dollars on additional staff salaries to manage the workload and legal fees.”
And, as many pointed out in online comments of their own, while Maynard was born and raised in Almonte, he hasn’t lived in town in years and has taken little interest in other civic matters.
Maynard’s own libel counterclaim is centered on those very comments McLaughlin made in response to Maynard’s initial critique.
But for Edwards, the attacks were much more personal, with Maynard calling the long-serving councillor “an opportunistic liar” and accusing “lemming” councillors of “discriminating against kids with disabilities” over the Gemmill Park redesign.
The problem there is that Edwards serves as elected chair of the International Canoe Federation’s Paralympic committee. A two-time Olympian himself (he competed for Canada at the Munich and Montreal Games), Edwards just hosted the first conference for paddlers with disabilities, and just celebrated sending athletes from 32 nations to compete in the Rio Paralympic Games.
“I have another life,” said Edwards. “We’re basically paid volunteers as municipal councillors, and since 2008 I’ve been championing the cause of persons with impairments in sport of canoeing.
“A big part of what I do is about networking, it’s about integrity and trust. That’s how you get things done. (Maynard) has put all this out, casting aspersions on my integrity and credibility in supporting impairment issues.
“That has gone way beyond my council role, and that’s the issue. I’ve been on council a long time and people don’t always agree with me and I know that. But it’s about how to disagree without being disagreeable.”
With the debate spilling out of council chambers and taking on a life of its own in social media circles, Edwards said, “The whole culture, the whole political dialogue in Mississippi Mills is at stake.”
Legal watchdogs see the issue from a different perspective, as a case that could provide a legitimate legal test — if it ever reaches a courtroom — of Ontario’s SLAPP legislation.
“Lawsuits are tremendously expensive, and they can be very effective in eliminating criticism,” said David Fewer, director of the Canadian Internet Policy and Public Interest Clinic, a University of Ottawa think tank that intervenes in legal debates arising at the intersection of law and technology.
“We’re always concerned about whether it’s a bona fide lawsuit or whether it’s a SLAPP — something directed towards shutting down civil dissent.
“But on the other side, we don’t have special laws for politicians and public figures in Canada, whereas in the United States there’s generally a malice requirement to be found liable for defaming a politician.
“That reflects the very broad deference given to Constitutional freedom of expression in the U.S., but in Canada, it’s simply, ‘Is this defamatory? Is this harming the individual’s reputation?’ And if it is, it’s a fairly low threshold, and many people are surprised at how low that threshold is for defamatory comment.”
Maynard laughed off the initial lawsuit, which seeks $250,000 in damages. McLaughlin, Edwards and their lawyer said they would have dropped the lawsuit had Maynard removed the offending posts and apologized, and sent him a letter urging him to do so.
But in an interview, and later in his countersuit, Maynard defended his criticisms, saying they were based upon matters of public interest drawn from council meetings and minutes, and that his comments are “substantially true in substance and fact.”
“True fact is a defence,” said Fewer. “But there’s not a lot of leeway for hyperbole, so Canadians need to be careful about the kinds of things they’re saying about their public politicians.
“Courts don’t even need to find malice. They only need to determine whether the statement lowers the esteem with which this individual is held in the public eye and is it harmful to their reputation? And if it is, then it’s defamatory on its face.
Then the burden shifts to the defendant to say it’s justified.
“But you have to be incredibly careful. Just because it’s your opinion doesn’t mean it’s not defamatory.”
Karen Eltis, a University of Ottawa law professor specializing in internet law and democratic governance, said courts are charged with striking a balance between Charter-protected freedom of expression and the right to reputation.
That becomes increasingly difficult, she said, “in the world of alternative facts and opinions.”
“We’ve always been somewhat less concerned about the reputation of public persons, with good reason,” said Eltis. “Freedom of expression is the lifeblood of democracy, even more so when dealing with public figures.”
Eltis said the courts have typically tilted toward the value of freedom of expression in cases involving public figures, but said the law remains in a “fine balance.”
“The internet has changed the circumstances of expression. The context of defamation, where facts are of the essence, has changed with social media, which is characterized by a lack of error-correction and gate-keeping. It has a certain permanence.
“Cyber libel is different from any other type of defamation in the context of communication — it’s instantaneous, it’s blunt, it’s far-reaching. So there’s a greater risk that potentially defamatory remarks are going to be believed.”
Both Eltis and Fewer spoke about the broader issue of defamation in the social media age, without commenting on specifics of the Maynard case.
Duff Conacher, co-founder of ethics watchdog Democracy Watch, examined the allegations, and said it was difficult to tell if the inflammatory comments amount to libel.
Conacher expressed his own concerns about how extreme opinions can be distorted into fact through “social media and the fake news phenomenon,” but also warned against the “chill effect” the lawsuit could have on others expressing their discontent with elected officials.
“If people are criticizing what they see a public official doing, and it’s factual, they should be allowed to have that opinion,” said Conacher. “As long as the basis is factual, it’s not libel. And (politicians responding with a defamation lawsuit) is dangerous to democracy because of the chill effect that lingers on others.
“It tends to have that chill effect, which is aimed at just trying to stop criticism. Public officials should be careful about turning to libel for trying to shut down public debate,” said Conacher, adding similar cases are “often settled with a simple apology.”
Maynard, as evidenced by his own libel countersuit, has no intention of doing so.