Taxpayer or guilty councillor?
How would you feel about taxpayer dollars being spent to cover Court awarded damages and costs when one of the Township councillors was convicted of defamation by an Ontario Superior Court Justice?
Briefly – here is the story……..
June 2014 : Ward C Township Councillor Ron Brent alleged that Ward A District and Township Councillor Ruth Nishikawa published an email, copied to many, that contained statements defamatory to him personally, professionally and in his capacity as a Township Councillor.
Councillor Nishikawa repeatedly refused to apologize even though she was given the opportunity to do so immediately and again on the following occasions:
Mr. Brent’s original offer to settle with Ms Nishikawa (which she refused) asked that she give a public apology and a $1.00 token donation.
On June 17, 2016, Court convened to hear this matter presided over by Ontario Superior Court Justice R. MacKinnon.
In his judgment Justice MacKinnon said “Despite Ms Nishikawa’s unlimited opportunity for retraction and apology over the past two years, she has fully refused to do so.”
And further “By her persisting to the present in refusing to apologize or retract, it is clear to me and I find, on a balance of probabilities, that the words she used were, at the very time she published them, wrong, false, defamatory and malicious.”
On June 28, 2016, Justice MacKinnon awarded damages of $30,000.00 against Councillor Ruth-Ellen Nishikawa.
Again in Justice MacKinnon’s words “The defendant knew both at the time of publication and again two days later and again now, that her written words were untrue.”
And so the question is – who should pay the damages and court costs? The Township with your tax dollars? Township insurance? Councillor Nishikawa?
The MRA does NOT believe tax dollars should pay this. Our first letter on this subject was sent to council July 14, 2016 and was published in the local press ( Letter - July 2016).Our second letter to council, which has also been submitted to the press, follows.
As always, we would be most interested in feedback from you, our members.
Liz Denyar - President
September 2, 2016
Dear Members of Council of the Township of Muskoka Lakes:
The Ontario Superior Court has made their decision finding that Councillor Nishikawa knowingly defamed former Councillor Brent. The Court noted that Nishikawa was not truthful and refused to apologize for her actions. The period for Nishikawa to appeal the Court’s decision has now passed and the decision of the Court is final.
The remaining question in this unfortunate situation is whether the Township of Muskoka Lakes (or its insurance company) has any responsibility to pay the personal liabilities of Councillor Nishikawa. There is a Township By-law (2011-44) that seems to apply in this situation. This By-law requires that the covered party act honestly and in the interest of the Township in order to be protected. According to the judgment against her, Nishikawa’s behavior was exactly the opposite. This means that she does not qualify for indemnification from the Township under section 11 of this By-law.
Section 4.1.a of this By-law makes it clear that there is liability for payment if “they acted honestly and in good faith with a view to the best interests of the Township”.
However, that was not the case here. The presiding Judge in the matter was very clear. In his judgment he stated that:
“Although it was not necessary for the plaintiff to prove malice, I am fully persuaded that this defendant had no honest belief at any time in the truth of her impugned comments. They were not sincerely made. I reject her assertions in her affidavit to the contrary.”
Simply put, Nishikawa did not act honestly or in good faith. The judge was most critical of Nishikawa’s refusal to apologize for the email when given the chance. He stated:
“I have considered the plaintiff’s position and standing, the nature and seriousness of the statements, the mode and the extent of the publication, the defendant's refusal to retract her libel or even to apologize for it, and her mode of publishing. Ms. Nishikawa's communication was reprehensible and calls for condemnation.”
Summing up the judge noted:
“The defendant knew both at the time of publication and again two days later, and again now, that her written words were untrue. There is demonstrated evidence of her malice. The defense of qualified privilege fails.”
Based on the Judge’s statements, it is clear that Nishikawa lied, did not act honestly or in good faith, and should be personally responsible for the judgment against her. It seems likely that the Township’s insurer will also deny any claim against it.
It should also be pointed out that under 9.1.a of By-law 2011-44 Nishikawa was required to co-operate fully with the Township and any lawyer retained by the Township. However, the Judge and the lawyer acting for Nishikawa asked her to apologize and she refused. The Judge pointed out that this refusal to be accountable for her action did influence the amount of the award. Under 9.1.c she was required to attend all proceedings. Nishikawa failed to appear at the hearing on June 17.
Frankly, the taxpayers of the Township should not have to pay for Nishikawa’s lies, bad judgment, and refusal to own up to her crime. If the Township were to reimburse Nishikawa for any of the judgment amount, or her legal fees, despite its own By-law 2011-44, it would, in effect, be endorsing the irresponsible actions of Councillor Nishikawa, thereby making themselves culpable and meriting the public’s condemnation. It might also leave itself open to an action from any and all taxpayers required to pay for it.
We believe that the intent and word of the Code of Conduct of the Township expects that each and every elected Councillor is required to carry out his/her responsibilities ethically and in a way that reflects basic common universal values of honesty, integrity, accountability, and respect for the rule of law and person. To do otherwise, sullies their reputation and tarnishes the reputation of the Township and its governance.
Liz Denyar - President
MRA Member Comments
This article evoked the following comments from our (MRA) members in the first 2 days. They are listed here, unedited and without attribution, though all were signed.
THEREFORE, BASED ON THE EVIDENCE BELOW, I STRONGLY FEEL THAT THE MUNICIPALITY SHOULD NOT HAVE TO PAY THE DAMAGES. Councillor Nishikawa brought this on herself believing that she only had $1 at stake. She didn’t. She had $30,000 at stake.
In fact, there may be grounds here for a class action law suit by the taxpayers against her.
If Council pays the damages, this will condone any member of Council irresponsible, unethical and illegal actions. Council must stand by its own By-law 2011-44.
It often seems when reading the minutes of Council, that elected members do not understand their responsibilities, Code of Conduct or even common politeness.
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