Statutory Immunity And Qualified Privilege Protect City Councillor Against Night Club's Action

• Published date: 15 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

In the past few months, I have written a number of blogs about court decisions involving City Councillors. The courts and other processes available to hold politicians accountable, such as complaints to an integrity commissioner, have arguably become a weapon in the arsenal of those who disagree with the views of a politician. Although seeking a remedy from a court or having an integrity commissioner determine whether a politician has breached a Code of Conduct are proceedings worthy of merit where a wrong has been done, recent rulings show that politicians have strong defences to these proceedings, especially court proceedings, where the politician has acted in good faith and simply expressed a political opinion or advocated on behalf of his or her constituents.

In 1631561 Ontario Inc. v. Toronto (City), 2022 ONSC 4197 (CanLII), the court dismissed a claim brought by an after-hours dance/rave nightclub against former City Councillor Adam Vaughan and the City of Toronto on the grounds that he was protected against the action by the defences of statutory immunity and qualified privilege.

The nightclub operated in Toronto's popular Entertainment District. The nightclub was designated for restaurant use in a mixed commercial-residential area. Mr. Vaughan was the elected municipal politician for the area.

In 2008, Mr. Vaughan, various city officials and departments, and the Toronto Police became involved with the nightclub's operations. On January 31, 2008, Mr. Vaughan's office received a call from a Hamilton woman whose son had died from a drug overdose. Illegal drugs had caused the overdose. Although the drugs were bought at an unknown location, the woman contacted Mr. Vaughan's office seeking assistance into the investigation of her son's death.

Thereafter, Toronto Police allegedly began to investigate activities taking place at the nightclub and on March 16, 2008, executed a search warrant of the club. 90 police officers, the Emergency Task Force, the OPP Biker Enforcement Unit and an officer wearing an RCMP jacket were involved. A Toronto Sun journalist was also allegedly invited by the Toronto Police to witness the search warrant's execution.

From April 6, 2008 to March 6, 2009, City officials undertook various inspections of the nightclub. Among other things, Building Code Act and Smoke-Free Ontario Act violations and infractions were noted. Tickets and summonses were issued against the nightclub.

During this period of time, there were also various...